The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JENIFER G. DEANDRADE, DOCKET NUMBER
Appellant, PH-3443-23-0151-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: December 8, 2025
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Jenifer G. DeAndrade , Attleboro, Massachusetts, pro se.
Roderick Eves , Saint Louis, Missouri, for the agency.
BEFORE
Henry J. Kerner, Vice Chairman
James J. Woodruff II, Member
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her reassignment appeal for lack of jurisdiction. For the reasons
discussed below, we GRANT the appellant’s petition for review, VACATE the
initial decision, and REMAND the case to the Northeastern Regional Office for
further adjudication in accordance with this Remand Order.
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
BACKGROUND
Effective January 28, 2023, the agency directed the appellant’s
reassignment from the position of Manager, Distribution Operations (MDO),
Executive and Administrative Service (EAS) Level 20, to the position of
Operations Support Specialist (OSS), EAS-20. Initial Appeal File (IAF), Tab 1
at 7. This appeal followed. IAF, Tab 1. The administrative judge issued an
order informing the appellant of what is required to establish the Board’s
jurisdiction over her appeal. IAF, Tab 2. In her subsequent submissions, the
appellant alleged, among other things, that her reassignment was a “reduction in
grade” because the agency upgraded her position to the EAS-22 level before her
reassignment. IAF, Tabs 7, 12. The agency also submitted argument and
evidence on this issue. IAF, Tab 11.
On June 18, 2024, without holding the appellant’s requested hearing, the
administrative judge dismissed the appeal for lack of jurisdiction. IAF, Tab 20,
Initial Decision (ID). He reasoned that the appellant did not allege that the
agency ever took actions consistent with appointing her to a lower grade/step and,
therefore, did not raise nonfrivolous allegations of Board jurisdiction. ID at 3-4;
see 5 U.S.C. § 7512(3).
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has responded, PFR File, Tab 3, and the appellant has
replied to the agency’s response, PFR File, Tab 4.
DISCUSSION OF ARGUMENTS ON REVIEW
On review, the appellant argues that the administrative judge erroneously
found that she never alleged that she suffered a reduction in grade. PFR File,
Tab 1 at 4. We agree. In her pleadings before the administrative judge, she set
forth facts that, if true, could establish that she was subjected to a constructive
demotion. IAF, Tabs 7, 12.
3
Although a reassignment without loss of grade of pay is not a matter within
the Board’s jurisdiction, a narrow exception exists when an employee is deemed
to have suffered a constructive demotion because she is assigned from a position
which, due to issuance of a new classification standard or correction of a
classification error, was worth a higher grade, the employee met the legal and
qualification requirements for promotion to the higher grade, and she was
permanently reassigned to a position classified at a grade level lower than the
grade level to which she would otherwise have been promoted. Solamon v.
Department of Commerce, 119 M.S.P.R. 1, ¶ 15 (2012); Russell v Department of
the Navy, 6 M.S.P.R. 698, 711 (1981). A critical element of this concept is that
the employee’s former position was upgraded due to a classification action, rather
than due to a planned management action such as the addition of different and
higher-graded duties. See Welch v. Department of the Army, 323 F.3d 1042,
1044-46 (Fed. Cir. 2003); Spicer v. Department of Defense, 59 M.S.P.R. 359,
362-67 (1993). In this situation, an employee is entitled to a noncompetitive
promotion prior to her reassignment, and her reassignment away from that
position had the effect of a demotion. Burrell v. Environmental Protection
Agency, 81 M.S.P.R. 427, ¶ 5 (1999).
Here, the appellant certified a timeline of events as follows: (1) beginning
in December 2018, she occupied an EAS-20 MDO position with a start time of
11:00 p.m. (i.e., “Tour 1”); (2) in May 2020, the agency suspended her or placed
her in a non-duty status; (3) on or about February 1, 2022, the agency upgraded
the Tour 1 MDO to an EAS-22 position; (4) the agency hired an individual who
was not the appellant to fill the EAS-22 position; (5) the agency created a new
EAS-20 MDO position with a start time of 7:30 p.m.; and (6) effective
January 28, 2023, the agency reassigned the appellant to an EAS-20 OSS position
and ordered her to return to duty in that capacity. IAF, Tab 12 at 5-9. She
certified that the newly created Tour 1 EAS-22 MDO position had the same duties
and responsibilities as the Tour 1 EAS-20 MDO position from which she was
4
reassigned, and she stated that witnesses would testify at a Board hearing in
support of her contention. IAF, Tab 12 at 5. She also certified that she was
qualified for the EAS-22 MDO position and set forth her work experience at the
EAS-20 and EAS-21 levels. IAF, Tab 5 at 5, Tab 12 at 8.
When an appellant makes a nonfrivolous allegation that the Board has
jurisdiction over an appeal, she is entitled to a hearing on the jurisdictional
question. Liu v. Department of Agriculture, 106 M.S.P.R. 178, ¶ 8 (2007). A
nonfrivolous allegation is an assertion that, if proven, could establish the matter
at issue. 5 C.F.R. § 1201.4(s); see also Hessami v. Merit Systems Protection
Board, 979 F.3d 1362, 1364, 1369 (Fed. Cir. 2020). We find that the appellant
has raised a nonfrivolous allegation of a constructive demotion when she asserted
that the EAS-20 position that she held at the time of her reassignment was
upgraded to a higher level without a significant change in duties or
responsibilities and that she qualified for promotion to the higher level. 2 Cf.
Burrell, 81 M.S.P.R. 427, ¶¶ 15-17 (finding nonfrivolous allegations of a
constructive demotion when the appellant alleged that his GS-13 position was
upgraded, without a significant change in duties or responsibilities, at the time he
was reassigned to another position); see also Young v. Department of the Navy,
53 M.S.P.R. 384, 386-87 (1992) (remanding for further analysis of witness
testimony supporting the appellant’s assertion that, under a reorganization of his
department, a new GM-13 supervisory position was the same as the GS-12
supervisory position from which he was reassigned). Thus, she is entitled to a
jurisdictional hearing on her claim of a constructive demotion.
2
The agency emphasizes that the EAS-22 position was posted on February 1, 2022, and
filled on April 23, 2022, approximately 9 months before the appellant’s reassignment,
which the appellant does not dispute. IAF, Tab 11 at 6-7, Tab 12 at 6. The appellant
highlights, however, that she was suspended or otherwise in a non-duty status at this
time. IAF, Tab 12 at 6-7. In any event, we do not find that this timeline forecloses her
claim of a constructive demotion at this stage.
5
ORDER
For the reasons discussed above, we remand this case to the Northeastern
Regional Office for further adjudication in accordance with this Remand Order.
On remand, the administrative judge should permit the parties to complete
discovery 3 and submit additional evidence and argument and shall afford the
appellant a jurisdictional hearing on the appellant’s claim of a constructive
demotion. If the administrative judge finds that the Board has jurisdiction over
that claim, he shall adjudicate the merits of that claim.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
3
On review, the appellant argues that the administrative judge blocked her ability to
obtain evidence supporting her constructive demotion claim by staying all discovery.
PFR File, Tab 1 at 5; IAF, Tab 14. The appellant is entitled to request the discovery of
relevant materials to assist her in meeting the burden of establishing jurisdiction.
Russo v. Department of the Navy, 85 M.S.P.R. 12, ¶ 8 (1999).