Veterans Chalk Up Wins at MSPB and Court – Part One

By on October 20, 2009 in Current Events with 0 Comments

 

I seldom venture into the realm of Merit Systems Protection Board (MSPB/Board) and Court of Appeals for the Federal Circuit (Court) case law in my FedSmith.com articles, mainly because Susan Smith does a great job of covering such issues, employing both her legal expertise and her terrific sense of humor. 
 
I am making an exception in this case because I have been researching case law recently in preparing to conduct training on veterans’ preference and special appointing authorities for veterans. In doing so, I ran across several very interesting cases, none more so than John E. Kirkendall v. Department of the Army, C.A.F.C. No. 2008-3342, July 27, 2009. Much of the information presented below was excerpted from the Court’s report on the case. 
 
First, I’ll summarize my take on the case: This guy was screwed over by the agency to which he applied, and then by the Board – twice – only to be rescued by the Court. 
 
Background: In December 1999, Mr. Kirkendall, a disabled veteran, applied for a GS-12 Supervisory Equipment Specialist (Aircraft) vacancy at Fort Bragg, North Carolina. 
 
The announcement gave applicants several choices: they could fill out a Standard Form (SF) 171, an Optional Form (OF) 612, a resume, or any other written format provided it contained all the required information to apply for this position. Candidates were also required to fill out a Supplemental Qualification Statement (SQS)
 
Mr. Kirkendall submitted a two-page resume; an Army Officer Evaluation Report (OER), covering the relevant one-year period; his Officer Record Brief (ORB) showing the precise times of service in each of his military positions; and proof of his discharge (DD-214) and his disability status. He also submitted a completed SQS, in which he stated that he had the requisite one year of experience and answered positively in response to 13 specific questions designed to test his statement that he had the necessary experience. 
 
The job description summarized in the announcement was substantially the same as the one for the military position of Aviation Maintenance Branch Chief which Mr. Kirkendall had held as an officer at Fort Bragg prior to his discharge. However, a personnel staffing specialist determined that Mr. Kirkendall was not qualified for the position since his application lacked sufficient detail to verify the requisite experience. 
 
She testified that she was aware of his "military documents," but that she declined to consider their contents. In her words, the OER was not a "qualification tool that we use to determine qualifications." In essence, she stated that the only role for Mr. Kirkendall’s military documents was to corroborate what was already stated in the application.
 
The director of the agency’s regional personnel operations center reviewed Mr. Kirkendall’s application and concurred with the specialist’s decision to rate him ineligible. He testified that while Mr. Kirkendall’s qualifications were "embedded in his experience base," his actual federal job "application" did not state with specificity the information contained in the appended documents. 
 
According to him, information substantiating the necessary work experience "has to be on the application form, because we demand that the application form be the primary document for applications." With respect to Mr. Kirkendall’s military documents, the regional personnel director agreed with the staffing specialist that the agency’s practice was to ignore such documents unless the information contained in them had been previously stated verbatim in the application itself.
 
Mr. Kirkendall filed several complaints with the agency alleging violations of the Veterans Employment Opportunities Act  of 1998 (VEOA) and the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). After having no success at the agency level, Mr. Kirkendall appealed to MSPB. The Board concluded that his VEOA claims were time-barred, and that although he stated a claim under USERRA, he was not entitled to a hearing on that claim.
 
Mr. Kirkendall petitioned the Court for review of the adverse decisions, arguing that his VEOA claims should have been considered timely under the legal doctrine of "equitable tolling," which holds that a claim is not barred if, despite exercising due diligence, the plaintiff did not or could not discover the injury until after the expiration of the limitations period, and that he should have been afforded a hearing on the USERRA claim. 
 
The Court agreed with him on both issues and remanded the case to the Board to determine whether Mr. Kirkendall should be allowed to pursue his VEOA claim, as well as to afford him a hearing on his USERRA claim. The Board, following a hearing, rejected his VEOA and USERRA claims on their merits. Mr. Kirkendall again sought timely review by the Court. 
 
Analysis: The Court in finding that Mr. Kirkendall was presenting it with the same undisputed facts and the same clear statute, both of which the Board overlooked in deciding his VEOA claim, stated that "We can barely imagine a stronger case of violation of a veteran’s preference rights. Section 3311(2) guarantees that any experience of a veteran that is material to the position for which the veteran is examined will be credited. At the very least, ‘credited’ must mean ‘considered.’" (emphasis added)
 
"On the facts of this case, the agency admitted Mr. Kirkendall’s military documents contained information about (his) experience in relation to the specific experience required by the job announcement. That information was simply ignored. The agency deemed it ‘irrelevant’ because it had not been printed in the two-page, self –made application that Mr. Kirkendall submitted…Failure to give credit to Mr. Kirkendall’s military documents is undeniable evidence of error by the agency in processing his application. And that error is a confession of breach of the duty owed to the veteran under section 3311(2) to give him credit for ‘all experience material to the position.’"
 
For these and other reasons noted in its analysis, the Court reversed the final decision of the Board. It found that Mr. Kirkendall’s VEOA rights had been violated, and that he was entitled to corrective relief. However, the Court held only that the agency violated Mr. Kirkendall’s right to have his experience, as related in his military documents, credited as part of his application. It did not render an opinion as to whether his name should have been on the final competing list, and, if so, if he should have been awarded the job.
 
The Court did decide that Mr. Kirkendall was entitled to an appropriate remedy for the violation of his VEOA rights and directed the Board to craft appropriate relief for him. The Court noted that an offer of prospective relief, such as priority consideration for a future job opening, would not be sufficient to remedy the VEOA violation in this case.
 
The other issue Mr. Kirkendall raised on appeal related to the agency’s knowing destruction of pertinent documents while the case was underway. The agency responded to the Board’s order for production of requested documents by confessing that – oops! – it had destroyed the applications and rating sheets for eight of the twelve applicants for the external recruiting bulletin and all but one of the rating sheets for the seven applicants who responded to an MPP announcement.
 
Mr. Kirkendall had asked the Board to sanction the agency for the document destruction and to shift the burden of proof to the agency to disprove his VEOA and USERRA claims. With no explanation, the Board denied Mr. Kirkendall’s request for sanctions, finding that sanctions would be "unwarranted under the circumstances."
The Court disagreed, finding that the Board should have drawn adverse inferences against the agency with respect to the documents destroyed, and noting that the Board’s failure to have done so was an abuse of discretion. 
 
Decision: The Court reversed the Board’s final decision on Mr. Kirkendall’s VEOA claim, which had denied him relief, and remanded the matter to the Board to fashion an appropriate remedy.  The Court also vacated the Board’s final decision denying Mr. Kirkendall relief on his USERRA claim, remanding that issue for further hearing and disposition, with the agency burdened with adverse inferences as specified in the Court’s analysis.
 
My Comments: The only aspect of this case that made sense to me was the decision – both of them, actually – of the Court of Appeals for the Federal Circuit. I found the Court’s decisions to be very well reasoned and articulated. On the other hand, I was amazed at Fort Bragg’s finding that Mr. Kirkendall was not even minimally qualified for the civilian position he had held as a military officer at the same post. During my Federal human resources (HR) career, I strongly advocated holding applicants responsible for spelling out their qualifications, but that was back when they had to submit an SF-171, period. Now, the application process is more flexible, which means the HR offices which are interpreting qualifications have to be more flexible as well. In this case, I think the Court was saying that Fort Bragg ignored clear evidence of Mr. Kirkendall’s qualifications simply because his submission did not fit its procedures. 
 
Likewise, I have to wonder what the Board was thinking in ruling against Mr. Kirkendall on his VEOA and USERRA claims and in refusing to grant his request for sanctions against the agency for its admitted destruction of key documents. 
 
I view the Court’s decisions as shots across the bow of both the Army and the Board, sending an unmistakable signal that veterans’ rights must be observed when Federal agencies fill vacancies. 
 
As I see it, this is one of a string of wins for veterans in recent cases before the Board and/or the Court. I will identify some of the other key cases in part two of this article. 

 

© 2016 Steve Oppermann. All rights reserved. This article may not be reproduced without express written consent from Steve Oppermann.

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About the Author

Steve Oppermann completed his Federal career on March 31, 1997, after more than 26 years of service, virtually all in human resources management. He served as Regional Director of Personnel for GSA and advised and represented management in six agencies during his federal career. Steve passed away after a battle with cancer on December 22, 2013.

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