Yolanda P. Roach v. Department of Justice
Background
- Appellant, a preference-eligible veteran and GS-10 Safety and Occupational Health Specialist, applied for a GS-12/13 Safety and Occupational Health Manager vacancy announced to Federal employees and veterans.
- The agency processed her application, ultimately determining she was ineligible for the vacancy due to failing a 52-week time-in-grade requirement for promotion to GS-12; a staffer mistakenly coded the ineligibility reason as an age restriction for law enforcement positions.
- The Department of Labor closed the appellant’s VEOA complaint after the agency informed DOL of its determinations and the coding error.
- The appellant appealed to the MSPB under VEOA, alleging denial of the right to compete, harmful error from the erroneous notification, and a prohibited personnel practice.
- The administrative judge found the appellant was afforded the opportunity to compete but lacked the required 52 weeks at the GS-11 level; the judge denied corrective action.
- On petition for review, the Board affirmed: the mistitled age notice was a clerical coding error unrelated to veterans’ preference, the time-in-grade shortfall was dispositive, and the Board lacked jurisdiction over the prohibited personnel practice and unrelated harmful-error claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appellant was denied her VEOA right to compete because she received an erroneous notice saying she failed an age requirement | Roach: The coding error and age-based ineligibility notice denied her the right to compete under 5 U.S.C. § 3304(f)(1) | DOJ: Application was accepted and reviewed; initial and controlling determination was failure to meet time-in-grade, not age; coding error was clerical | Board: Denied — appellant was afforded an opportunity to compete; coding error did not affect veterans’ preference rights |
| Whether appellant met the 52-week time-in-grade eligibility for GS-12 advancement | Roach: Her duties as acting manager (occasionally performing GS-13 tasks) plus 3 months at GS-11 satisfy the requirement | DOJ: Time as acting manager is not creditable; applicable regulation credits service by grade of position of record, not detailed grade | Board: Denied — appellant lacked required 52 weeks at the GS-11 level |
| Whether service while acting/serving in higher-grade duties counts toward time-in-grade | Roach: Acting manager duties should be credited toward required experience | DOJ: 5 C.F.R. § 300.605(a) prevents counting detail/acting service at higher grade for time-in-grade | Board: Denied — acting/detail service credited at employee’s grade of record, not higher grade |
| Whether the Board may adjudicate appellant’s claim of a prohibited personnel practice or a harmful-error claim unrelated to veterans’ preference | Roach: Agency engaged in prohibited personnel practice; coding error is harmful error | DOJ: Board lacks jurisdiction under VEOA to review prohibited personnel practice and harmful-error claims unrelated to veterans’ preference | Board: Denied — VEOA jurisdiction does not reach unrelated prohibited personnel-practice or harmful-error claims |
Key Cases Cited
- Ramsey v. Office of Personnel Management, 87 M.S.P.R. 98 (2000) (VEOA does not exempt veterans from qualifying eligibility criteria like time-in-grade)
- Harrellson v. U.S. Postal Service, 113 M.S.P.R. 534 (2010) (agency does not violate veterans’ preference by removing an unqualified candidate)
- Crosby v. U.S. Postal Service, 74 M.S.P.R. 98 (1997) (deference to administrative judge findings where evidence considered and reasoned conclusions drawn)
- Broughton v. Department of Health & Human Services, 33 M.S.P.R. 357 (1987) (same principle endorsing review deference)
- Goldberg v. Department of Homeland Security, 99 M.S.P.R. 660 (2005) (VEOA does not confer Board jurisdiction over prohibited personnel-practice claims)
- Dale v. Department of Veterans Affairs, 102 M.S.P.R. 646 (2006) (Board’s harmful-error review in VEOA appeals limited to errors directly related to veterans’ preference)