The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANDY L. SMITH, DOCKET NUMBER
Appellant, DA-0351-13-0595-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: April 14, 2015
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL 1
Andy L. Smith, Tyler, Texas, pro se.
Elaine K. Champi, Esquire, Washington, D.C., for the agency.
Steven E. Coney, Dallas, Texas, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The agency has filed a petition for review of the initial decision, which
found that it had improperly demoted the appellant without using required
reduction in force (RIF) procedures. For the reasons discussed below, we
1
A nonprecedential order is one that the Board has determined does not add
sign ificantly 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 Parties may cite nonprecedential orders,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
GRANT the agency’s petition for review, REVERSE the initial decision, and
DISMISS the appeal for lack of jurisdiction.
BACKGROUND
¶2 The events leading up to the filing of this appeal are undisputed. The
appellant was employed as a PS-4 Laborer Custodial at the agency’s East Texas
Processing and Distribution Center (P&DC) in Tyler, Texas. Initial Appeal File
(IAF), Tab 7 at 51-52. On May 15, 2013, the agency announced that it was
closing that facility and that the duty assignments at that facility were being
abolished. Id. at 40. On June 25, 2013, the agency directed the appellant,
starting July 1, 2013, to report to the Tyler Main Office to board a
postal-provided van to ride to the Shreveport, Louisiana P&DC to work
temporary assignments until a permanent position was identified. Id. at 33-34.
The appellant worked a full-time schedule at the Shreveport P&DC, with
approximately 4 hours each day traveling to and from the facility and 4 hours
spent doing custodial work at the facility. IAF, Tab 35, Initial Decision (ID) at 3.
While performing custodial work at the Shreveport P&DC, the appellant’s official
position of record remained PS-4 Laborer Custodial at the East Texas P&DC, and
he was paid as a PS-4 Laborer Custodial, even though that facility had closed. ID
at 8, 11.
¶3 The dispositive issue in the case is whether the agency was obligated to use
the RIF procedures set forth in 5 C.F.R. part 351, which are required when an
agency “releases a competing employee from his or her competitive level by . . .
demotion, . . . when the release is required because of” certain conditions, such
as lack of work, shortage of funds, insufficient personnel ceiling, or
reorganization. 5 C.F.R. § 351.201(a)(2). A “demotion” is defined as a change
of an employee, while serving continuously within the same agency, to a lower
grade or to a position with a lower rate of pay. 5 C.F.R. § 210.102(a)(4). In
concluding that the appellant had been separated from his competitive level by
3
demotion, the administrative judge found that the appellant: (1) was “released
from his position” at the East Texas P&DC when that facility was closed and all
the positions therein abolished; and (2) was assigned only to and only performed
PS-3 Custodian duties at the Shreveport P&DC and thereby suffered a demotion,
despite the fact that he was paid as a PS-4 Laborer Custodial.
¶4 In a timely-filed petition for review, the agency contends that the
administrative judge erred in finding that the appellant was released from his
PS-4 position at the East Texas P&DC through demotion. Petition for Review
(PFR) File, Tab 1. 2 The appellant timely responded; he also filed a petition for
enforcement of the interim relief ordered by the administrative judge. PFR File,
Tabs 2, 9. 3
ANALYSIS
The administrative judge erred in finding that the appellant established
jurisdiction over a RIF appeal.
¶5 The agency argues, among other things, that the administrative judge erred
in distinguishing this case from Dixon v. U.S. Postal Service, 64 M.S.P.R. 445
(1994), aff’d sub nom. Scorcia v. U.S. Postal Service, 77 F.3d 503 (Fed. Cir.
1996) (Table), in which the Board held that the agency was not required to use
RIF procedures. In Dixon, the Postal Service abolished certain positions as part
2
The agency subsequently filed a motion to dismiss the appeal as moot, in which it
presented evidence that, effective June 14, 2014, the appellant was reassigned to a
full-time PS-4 Laborer Custodial position at the Longview, Texas Post Office. PFR
File, Tab 10. Because of our determination that the administrative judge erred in
findin g that the appellant was released from his competitive level by demotion, we need
not determine whether the appeal is moot.
3
On June 10, 2014, the appellant filed a “Motion for Leave to Add Additional Pleading
to His Response.” PFR File, Tab 7. The appellant’s motion appears to relate to his
allegations that the agency representatives violated the law and certain witnesses may
have provided “incredible testimony” at the hearing. I d. Because we dismiss the
appeal for lack of jurisdiction, we DENY the appellant’s motion, as the additional
pleading, and his arguments contained therein, are not material to the outcome of the
case.
4
of a nationwide restructuring, and the affected employees were temporarily
assigned to agency Placement Centers where they were to obtain other positions
within the agency. Dixon, 64 M.S.P.R. at 447. During this time, their grade and
pay remained the same, and the agency did not issue any documentation reflecting
a change in the appellants’ tenure groups. Id. Subsequently, some of the
employees were detailed from the Placement Centers to other positions within the
agency, still retaining the same pay, grade, and tenure. Id. The Board held that
the Dixon appellants were not entitled to the substantive protections of part 351
because a detail by its very nature is temporary and involves no formal
appointment since the employee continues to be the incumbent of the position
from which he was detailed. Id. at 450. In rejecting the Dixon appellants’
argument that they were constructively separated from their permanent positions,
the Board observed that their retention rights had not been denigrated compared
to other employees because the agency has not determined the retention rights of
anyone affected by the restructuring. Id. at 451.
¶6 The administrative judge found the instant case distinguishable from Dixon
in that the record did not indicate that the facility in which the Dixon appellants
worked had been closed or that they had been detailed to facilities 100 miles
away. ID at 9-10. She also noted that the Board emphasized in Dixon that the
agency “intends to permanently reassign the appellants.” ID at 10. The
administrative judge did not explain the legal significance of the East Texas
P&DC closing and we see no meaningful distinction. The legally relevant point
in both cases is that the employees’ positions were abolished. Similarly, the
administrative judge did not explain why the distance between the East Texas
P&DC and the Shreveport P&DC was legally significant, and we see no legal
relevance. As for the agency’s intent to permanently reassign the appellant to
another facility, that does not distinguish the two cases; here, the agency
5
unequivocally stated its intent to permanently reassign the appellant to another
facility. IAF, Tab 7 at 28-30. 4
¶7 The applicability of Dixon was reinforced by a subsequent decision of the
Board’s reviewing court. Hayes v. U.S. Postal Service, 390 F.3d 1373 (Fed. Cir.
2004), involved postal employees whose jobs had been abolished because of
technological advances and were reassigned indefinitely as unassigned regular
clerks. Hayes, 390 F.3d at 1374-75. The court cited Dixon approvingly for the
proposition that assignment to a temporary “detail” does not constitute a RIF
demotion. Id. at 1377. In finding that a RIF demotion had not occurred, the court
noted that the petitioners had not alleged that the agency informed them that they
would not be reassigned to a position at the same level; instead, they were
“merely informed” that their positions were being abolished and given a
temporary assignment. Id. at 1378 (quoting Marcino v. U.S. Postal Service,
344 F.3d 1199, 1204 (Fed. Cir. 2003)).
¶8 Having determined that the appellant was not released from his competitive
level, we find that it is legally irrelevant whether the duties the appellant
performed while working at the Shreveport D&PC were more in the nature of a
PS-3 Custodian or a PS-4 Laborer Custodial. We note, however, that a reduction
in an employee’s duties and responsibilities, by itself, does not constitute a RIF
demotion. Hayes, 390 F.3d at 1379. We further note that the agency submitted
evidence that the duties of the PS-4 Laborer Custodial position include all of the
4
In concluding that the appellant’s assignment to the Shreveport P&DC was a
permanent demotion, the administrative judge ignored the fact that the appellant had
been detailed to two other locations prior to the issuance of the initial decision: to the
North Texas P&DC effective December 2, 2013, and subsequently to the Tyler, Texas
Post Office. IAF, Tab 28 at 5, Tab 22 at 20; PFR File, Tab 4 at 99 (hearing testimony
of District Complement Coordinator). In addition, as noted above, the agency has
submitted evidence that it has permanently reassigned the appellant to a PS-4 position
at the Longview, Texas Post Office. All of these actions belie the administrative
judge’s conclusion that assigning the appellant duties at the Shreveport P&DC was a
permanent reassignment rather than a temporary detail.
6
duties of the PS-3 Custodian position. IAF, Tab 22 at 306-07; PFR File, Tab 4,
Hearing Transcript at 75, 86-87, 126, 131-34, 143-44.
The agency complied with its interim relief obligations.
¶9 Having found that the agency had released the appellant from his
competitive level by demotion, and that it erred in failing to follow the RIF
procedures set forth in 5 C.F.R. part 351, the administrative judge ordered the
agency to comply with the required RIF procedures. ID at 12. She further
ordered that, should the agency petition for review of the initial decision, it must
provide interim relief to the appellant in accordance with 5 U.S.C.
§ 7701(b)(2)(A). ID at 12. With its petition for review, the agency provided a
certification of compliance with the interim relief order, which included a letter
to the appellant explaining that: it was arguing in its petition for review that the
administrative judge lacked the authority to order the agency to conduct a RIF;
the agency had made a determination that it would be unduly disruptive to restore
him during the interim relief period; and that it had continuously maintained him
in its personnel/payroll systems as a permanent full-time PS-4/ Laborer Custodial
in the regular workforce at the East Texas P&DC, and would continue to do so.
PFR File, Tab 1 at 29-32. The appellant filed a motion to enforce the interim
relief order, in which he complained that he had not been deemed eligible for
overtime while detailed to work in Longview and Tyler, Texas. PFR File, Tab 9.
¶10 The Board’s regulations do not provide for petitions for enforcement of
interim relief orders; such petitions apply only to final Board decisions. 5 C.F.R.
§ 1201.182(a). The Board’s regulations, however, do allow an appellant to
challenge an agency’s certification that it has provided interim relief, and the
Board may dismiss a petition for review if it finds the agency to be in
noncompliance with its interim relief obligations. 5 C.F.R. § 1201.116(b), (e).
The Board’s authority in such cases is limited to determining whether the agency
made an undue disruption determination and whether the appellant is receiving
appropriate pay and benefits. McDonald v. Department of Veterans Affairs,
7
86 M.S.P.R. 539, ¶ 7 (2000). Here, it is undisputed that the agency made an
undue disruption determination and that the appellant has been paid and provided
benefits as a PS-4 Laborer Custodial at all times pertinent to this appeal. We
further note that the Board has held that it cannot demand that an agency conduct
a RIF as a final remedy. See Manescalchi v. U.S. Postal Service, 74 M.S.P.R.
479, 484 (1997). Therefore, it would be improper for us to order the agency to
conduct a RIF as interim relief.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information is available at the court's website, www.cafc.uscourts.gov.
Of particular relevance is the court's "Guide for Pro Se Petitioners and
8
Appellants," which is contained within the court's Rules of Practice, and Forms 5,
6, and 11.
If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.