Known Flaw in Agency’s QuickHire System Deprived Applicant of His Veterans’ Preference Rights, U.S. Merit Systems Protection Board Rules

A known flaw in the agency’s QuickHire system deprived a job applicant of his veterans’ preference rights, the U.S. Merit Systems Protection Board (“the Board”) ruled earlier this month in a precedential decision. Consequently, the agency had to reconstruct the hiring process, giving the applicant his full 10-point veterans’ preference.

In this case, the appellant is an Army veteran who receives compensation for service-connected disabilities rated at 30 percent. Because of his military service and disabilities, he is entitled to a 10-point veterans’ preference when applying for most federal positions.

In October 2010, the appellant applied for a job vacancy posted by the U.S. Department of Health and Human Services (HHS). The application had to be submitted online through the agency’s QuickHire system, and applicants then had to fax any supporting documents to the agency. QuickHire would create a separate fax coversheet for each supporting document that was supposed to be submitted. Each coversheet had a unique barcode that identified the applicant, vacancy announcement and document type. The QuickHire system would receive faxes electronically and file them by barcode. If it received a second fax with the same barcode as an earlier fax, it would automatically erase the first fax and replace it with the second one. Although applicants were told to use only QuickHire-generated coversheets, they were not warned that reusing a coversheet would cause the first fax to be erased.

In his online application, the appellant correctly claimed to be a veteran with a 30-percent compensable disability. He also faxed the supporting documentation that the agency asked for, including an application for a 10-point veterans’ preference and a letter from the Department of Veterans Affairs (VA) confirming that he had a 30-percent compensable disability. He received an automatically generated response that the agency had received the VA letter.

Although the vacancy announcement did not ask for it, the appellant also wanted to submit a copy of a federal Standard Form (SF) 50-B showing that he had previously worked for the federal government and was a 30-percent disabled veteran. Because QuickHire did not give him the option to create a fax coversheet for this form, the appellant reused the coversheet for his VA letter, crossing out the computer-generated subject line and handwriting in a new one. The appellant did not, however, cross out the barcode. As a result, when he faxed this document to the agency, QuickHire automatically erased his earlier fax of the VA letter and replaced it with the SF 50-B. The appellant was not informed that the VA letter had been erased and had no way of checking on QuickHire to determine whether the agency had the document in his file.

Because the appellant’s QuickHire file did not contain a VA letter, the agency Human Resource specialist awarded him only the basic 5-point veterans’ preference rather than the 10-point preference. She ignored his application for a 10-point preference and the SF 50-B stating that he was a disabled veteran because the agency accepts only VA letters to establish eligibility for the 10-point preference. She did not contact the appellant to inform him that his application was missing the VA letter.

The top three ranked applicants, whose names were forwarded to the selecting official, were not preference eligible and received scores of 99.49, 99.49, and 99.18. The appellant received a score of 94.69, which included a 5-point preference. Had he received a 10-point preference, therefore, he would have been the top-ranked applicant. HHS selected one of the other applicants to fill the position.

The appellant filed a veterans’ preference complaint with the Department of Labor (DOL). After being informed by DOL that the investigation was closed, the appellant appealed to the Board. The administrative judge (AJ) held a hearing, but denied the claim, finding that it was the appellant’s fault his application was incomplete. The appellant then petitioned the full Board.

In a decision issued earlier this month, the Board explained that the Veterans Employment Opportunity Act of 1998 (VEOA) gives the Board jurisdiction to decide whether an agency violated the appellant’s rights under any statute or regulation relating to veterans’ preference. In this case, the Board stated, there is no dispute that HHS failed to give the appellant the full veterans’ preference to which he was entitled by statute. The only question, then, was who should be held responsible for this violation – HHS or the appellant.

The Board went on to say that an applicant who seeks a veterans’ preference must provide the agency with sufficient proof of his entitlement to the preference. However, an agency may not deprive the applicant of his rights merely because he makes a minor technical mistake in submitting his application, at least when the agency has enough information to afford him his rights anyway. For instance, in a 2008 case, the Board held that an agency violated a preference eligible applicant’s right to compete by refusing to consider him for a GS-7 position when his resume indicated his interest in that position, even though the application form itself stated that he was interested only in a GS-8 position. Similarly, in a Federal Circuit case, the court held that an agency violated a preference eligible applicant’s right to credit for all relevant experience when it ignored experience listed in military documents that was not repeated on a two-page application form.

Here, the Board found that HHS deprived the appellant of his full 10-point preference because of, at worst, a minor technical mistake, even though the information HHS had should have alerted it that he might be eligible for the preference. The Board explained that the appellant took all the steps he reasonably believed were needed to establish his entitlement to a 10-point preference. He followed the agency’s instructions by faxing it the VA letter with the special QuickHire-generated coversheet and he received electronic confirmation that the agency had received this fax. Even assuming the appellant erred by reusing the coversheet, the Board stated the appellant was never warned - and had no reason to suspect - that his earlier fax would be erased, and the system did not allow him to check whether the agency had the VA letter.

Moreover, HHS knew, or should have known, that the appellant might be entitled to a 10-point preference. Even though the VA letter was missing, the agency’s file contained the appellant’s application for a 10-point preference as well has his SF 50-B stating that he was entitled to that preference. Because the appellant used a QuickHire-generated fax coversheet with a barcode for a VA letter, the system should have recognized that he had tried to submit this document. Yet the agency made no effort to notify the appellant that it was missing the key document or to determine from the rest of the file whether he was entitled to a 10-point preference.

In its decision, the Board emphasized that it is not saying an agency must follow up with every applicant who claims a preference but has not submitted the necessary documentation. Here, the Board stated, the appellant was deprived of his preference because of a flaw in the agency’s QuickHire system that HHS apparently knew existed but did not warn applicants about. Since HHS has replaced the QuickHire system, this problem should not recur, the Board said. The issue of whether an agency must follow up with applicants in other circumstances is a question for another case, the Board stated.

Accordingly, the Board concluded that HHS, not the appellant, should be held responsible for the veterans’ preference error, and ordered HHS to reconstruct the selection process after adding 5 more points to the appellant’s score. The Board added that if HHS decides to select a lower-ranked non-preference-eligible applicant through the reconstructed process, it will have to go through the pass-over procedures first, including giving the appellant notice and an opportunity to respond to the Office of Personnel Management.

The case is Russell v. Dep’t of Health and Human Services, 2012 MSPB 13, February 2, 2012.