The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
COLLEEN F. CLAY, DOCKET NUMBER
Appellant, DC-0351-14-0254-I-2
v.
CORPORATION FOR NATIONAL DATE: December 21, 2016
AND COMMUNITY SERVICE,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Johnathan P. Lloyd, Esquire, Washington, D.C., for the appellant.
Angela R. Williams, Esquire, Washington, D.C., 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
reversed its action separating the appellant by reduction in force (RIF). For the
reasons discussed below, we GRANT the agency’s petition for review and
REVERSE the initial decision. The appellant’s separation is SUSTAINED.
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
¶2 Effective June 28, 2010, the agency demoted the appellant under 5 U.S.C.
chapter 75, from her position as Director, Office of Emergency Management
(OEM), NY-04, to the position of Assistant Director of Projects and Partnerships,
AmeriCorps National Civilian Community Corps (NCCC), N Y-03, citing
organizational changes which occurred when OEM’s functions were integrated
into NCCC and the appellant’s position was abolished. On her appeal of that
action, the administrative judge found that the agency had failed to show that the
action would promote the efficiency of the service or that it was a permissible
exercise of management discretion within tolerable limits of reasonableness, and
that only by conducting a RIF could the deciding official legally avoid such
considerations. Clay v. Corporation for National and Community Service, MSPB
Docket No. DC-0752-13-0414-I-1, Initial Decision at 3-6 (July 10, 2013).
Accordingly, the administrative judge reversed the agency’s action. 2 Id. at 1, 7.
That decision became a final decision of the Board on August 14, 2013, when
neither party field a petition for review. On September 3, 2013, the agency
notified the appellant that it had complied with the initial decision by canceling
her demotion and retroactively restoring her to her former positio n, even though
neither it nor OEM existed at that time. On September 6, 2013, the agency issued
the appellant a specific notice of RIF explaining that the position to which she
had been reinstated was being eliminated and that, because she had less service
than the only other individual in her competitive level, t he appellant would be
separated, effective November 16, 2013. Clay v. Corporation for National and
Community Service, MSPB Docket No. DC-0351-14-0254-I-1, Initial Appeal File
(IAF), Tab 3 at 59.
2
The administrative judge found that the appellant failed to establish her affirmative
defense of retaliation for protected equal employment opportunity activity. Clay,
MSPB Docket No. DC-0752-13-0414-I-1, Initial Decision at 5-7.
3
¶3 On September 27, 2013, the appellant filed a petition for enforcement
arguing, inter alia, that the agency was not in compliance with the Board’s
decision because it had not in fact canceled the demotion action but rather had
simply realigned her position and notified her that she would be separated by RIF.
While the enforcement matter was pending, the appellant filed an appeal of the
RIF action, IAF, Tab 1, which the administrative judge dismissed without
prejudice pending final Board resolution of the appellant’s compliance appeal.
Clay v. Corporation for National and Community Service, MSPB Docket No.
D-0351-14-0254-I-1, Initial Decision at 2 (Apr. 15, 2014). The administrative
judge subsequently denied the appellant’s petition for enforcement, finding that
the agency provided documentary proof that it had canceled the action and
retroactively restored her to her former position as ordered by the Board, Clay v.
Corporation for National and Community Service, MSPB Docket No. DC-0752-
13-0414-C-1, Compliance Initial Decision at 1, 4, 6 (Jan. 23, 2014), and the
Board denied the appellant’s petition for review of that decision, Clay v.
Corporation for National and Community Service, MSPB Docket No. DC-0752-
13-0414-C-1, Final Order at 2-6 (Aug. 8, 2014).
¶4 In her refiled RIF appeal, the appellant alleged that the agency failed to
comply with the RIF regulations regarding the proper composition of her
competitive level. Refiled Appeal File (RAF), Tab 11 at 4. She also claimed that
the RIF was retaliatory based on her having filed the earlier Board appeal in
which she raised an allegation of discrimination, id. at 5, and arguing that, for
that reason, the RIF was personal to her, id. at 5-6.
¶5 Following the requested hearing, the administrative judge issued an initial
decision in which she first found that the agency undertook the RIF for a
legitimate reason; specifically, reorganizing the Immediate Office of the Chief
Executive Officer (CEO) and eliminating the duplication of function that resulted
from the appellant’s having been reinstated into that office where another
4
employee was performing similar duties. 3 RAF, Tab 22, Initial Decision (ID) at
3‑4. The administrative judge then considered the procedural RIF requirements
set forth at 5 C.F.R. part 351, specifically addressing the agency’s establishment
of the competitive area in this case, the Immediate Office of the CEO. The
administrative judge found that the agency admitted that it did not define the
competitive area solely in terms of the agency’s organizational units and
geographical location, as required by 5 C.F.R. § 351.402(b), but rather on the
basis of where a particular occupation was performed, which is prohibited. ID at
6-8. The administrative judge further found that the agency failed to comply with
5 C.F.R. § 351.402(c) because it established the competitive area within 90 days
of the effective date of the RIF without obtaining prior permission from the
Office of Personnel Management (OPM). The administrative judge found that the
agency’s improper constitution of the competitive area would require reversal of
the RIF action unless the agency showed by preponderant evidence that the
appellant still would have been separated, had the RIF been properly conducted,
ID at 8, but that, although the agency was on notice that the propriety of the
competitive area was being challenged, it presented no argument or alternative
scenario based upon the premise that the competitive area was found to be
improperly defined, and she therefore reversed the action , 4 ID at 8-9.
3
The appellant has not filed a petition for review challenging the administrative judge’s
finding that the agency established that it undertook the RIF for a legitimate reason, and
we discern no basis upon which to disturb that finding.
4
Citing to Savage v. Department of the Army, 122 M.S.P.R. 612, ¶ 42 (2015), the
administrative judge found that the appellant failed to prove her claim that the RIF was
personal to her based on her assertion that, in taking the action, the agency retaliated
against her for raising discrimination allegations in her prior Board appeal. ID at 9-13.
The appellant has not filed a petition for review challenging this finding .
Acknowledging that the Board has recently clarified how it analyzes such claims,
Gardner v. Department of Veterans Affairs, 123 M.S.P.R. 647 (2016), we nevertheless
discern no basis upon which to disturb the administrative judge’s ultimate finding that
the appellant failed to establish her claim.
5
¶6 The agency has filed a petition for review, Petition for Review (PFR) File,
Tab 1, 5 to which the appellant has responded, PFR File, Tab 8, and t he agency has
submitted a reply, PFR File, Tab 9.
DISCUSSION OF ARGUMENTS ON REVIEW
¶7 On review, the agency argues that the administrative judge erred in finding
that it failed to show that it properly constituted the competitive area in the RIF
and that, even if the competitive area was not properly constituted, the appellant’s
rights were not affected. PFR File, Tab 1 at 8-15, 18-20.
¶8 OPM’s regulations provide that, in conducting a RIF, an agency must
delineate one or more competitive area(s) in which employees compete for
retention, 5 C.F.R. § 351.402(a), that a competitive area must be defined solely in
terms of the agency’s organizational unit(s) and geographical location, and that
the minimum competitive area is a subdivision of the agency under s eparate
administration within the local commuting area. 5 C.F.R. § 351.402(b). The
agency bears the burden of proving by preponderan t evidence that it properly
determined the appellant’s competitive area. 5 C.F.R. § 1201.56(b)(ii).
¶9 In finding that the agency failed to meet its burden of proof regarding the
designation of the appellant’s competitive area as the Immediate Office of the
CEO, the administrative judge relied on the testimony of the Director, Personnel
Operations, the individual assigned to conduct the RIF. She testified that she
chose the competitive area because “that was the area where there was duplication
of function” and it was “the only area where there was any disaster work being
performed.” Hearing Transcript (HT) at 123; ID at 7-8. Based on that testimony,
and the testimony of the Director’s supervisor, the administrative judge found
that the agency improperly considered “occupation” in designating the
5
With its petition for review, the agency submitted evidence that it had complied with
the administrative judge’s interim relief order. PFR File, Tab 1 at 22.
6
competitive area, and that such consideration is contrary to OPM’s guidance. ID
at 7.
¶10 The agency alleges on review that, in finding that it improperly designated
the competitive area, the administrative judge misinterpreted OPM’s regulation
by misconstruing the testimony of the two agency witnesses and OPM’s guidance.
PFR File, Tab 1 at 8-11.
¶11 In reviewing the Director’s testimony regarding the designation of the
competitive area in this case, we find that she correctly stated that a competitive
area is the organizational component in which employees compete in a RIF. 6 HT
at 123; 5 C.F.R. § 351.402(b). Moreover, we find that her explanation that she
selected the Immediate Office of the CEO as an appropriate competitive area
because it was a distinct organizational unit with its own personnel authority, its
own function, specifically, disaster service work, and its own work processes,
comports with the RIF regulations. We have considered the OPM Workforce
Reshaping Operations Handbook (OPM Handbook) 7 which, as the administrative
judge acknowledged, lacks the authority of a regulation, and its statement that
“[a]n agency may not define a competitive area on the basis of other
considerations [besides organizational unit(s) and geographi cal location(s)] such
as bargaining unit membership, grade, occupation, etc. ,” OPM Handbook at 3; ID
at 5 & n.2, but we find, based on the testimonial evidence, that the agency did not
define the competitive area in this case on the basis of the appellant’s occupation,
but rather on appropriate considerations of organizational unit and geographical
6
To the extent the Director failed to specifically include “geographical location” in her
definition of and explanation for designating the Immediate Office of the CEO as the
competitive area, we find that her supervisor clearly testified to the inclusion of that
factor in defining the competitive area, and that he further testified that, when the
Director presented him with her competitive area determination, he agreed with it. HT
at 81, 83.
7
Available at http://www.opm.gov/policy-data-oversight/workforce-
restructuring/reductions-in-force/workforce_reshaping.pdf (last visited December 19,
2016).
7
location, consistent with the RIF regulations. We further find, therefore, that the
administrative judge erred in finding that the agency incorrectly determined the
competitive area in this case. 8
¶12 Based on her finding regarding the competitive area, the administrative
judge did not address the appellant’s additional argument that her competitive
level was improperly constituted. ID at 9. Because the record is complete, we
examine that issue now.
¶13 OPM’s regulations provide that agencies shall establish competitive levels
consisting of all positions in a competitive area which are in the same grade (or
occupational level) and classification series, and which are si milar enough in
duties, qualification requirements, pay schedules, and working conditions so that
the agency may reassign the incumbent of one position to any of the other
positions in the level without undue interruption. 5 C.F.R. § 351.403(a)(1).
¶14 The agency determined that competitive level 0049 consisted of two
positions, the appellant’s position of Director, OEM, NY-04, and the position of
Senior Advisor for Disaster Services, NX-01. IAF, Tab 3 at 42. The Director,
Personnel Operations, testified that she examined the position descriptions of the
two positions and found that they were interchangeable in that they both involved
disaster service and emergency management work, were both in the same pay
band, and were both supervisory. IAF, Tab 5 at 24, 28; HT at 124-25. The
Director’s supervisor testified that he agreed with that assessment. HT at 83-84.
¶15 Before the administrative judge, the appellant argued that the agency
violated 5 C.F.R. § 351.403(a)(5) and the OPM Handbook by including the
8
The administrative judge found that it appeared that the agency failed to comply with
the procedural requirements of the RIF regulations because, contrary to 5 C.F.R.
§ 351.402(c) and OPM guidance, OPM Handbook at 32, it established the competitive
area within 90 days of the effective date of the RIF without ob taining OPM approval.
ID at 8. Even if true, the timing provides no basis for reversing the agency’s action
because there is no showing that the appellant would not have been separated if the
competitive area had been established several days earlier. Foster v. Tennessee Valley
Authority, 87 M.S.P.R. 48, 52 (2000).
8
NX-01 position in her competitive level because the positions were in fact in
different pay bands. RAF, Tab 11 at 4, Tab 14 at 16 (OPM Handbook at 34). The
Director, Personnel Operations, testified that an NX-01 typically is a supervisor
or a manager responsible for a broad program with national impact, whereas a
NY-04 is typically an expert, but also a supervisor, responsible for programs that
may or may not be at the national level. HT at 137-38. She verified, however,
that both positions are in the same pay band. Id. at 136. Additionally, the
operative document explaining the agency’s Alternative Personnel System 9
provides that there are five bands and that NY-04 and NX-01 comprise a single
pay band, IAF, Tab 6 at 16, and the testimony of the supervisor of the Director,
Personnel Operations, was in accord, HT at 66. Based on our review of the
evidence, the agency has shown that it properly included the Senior Advisor for
Disaster Services position in the appellant’s competitive level.
¶16 The appellant also argued before the administrative judge that the agency
improperly excluded from her competitive level the position of Senior Advisor
for Partnerships and Advancement, NY-04. The appellant argued that the
position was interchangeable with her own and was in the same competitive area,
and that, if it had been in her competitive level, she would not have been
separated based on her earlier service computation date. 10 RAF, Tab 11. The
Director, Personnel Operations, testified that she reviewed both position
descriptions, IAF, Tab 20 at 18, Tab 5 at 24, but found that the Senior Advisor for
Partnerships and Advancement position focused on broad agency initiatives and
was nonsupervisory, whereas the appellant’s position focused on disaster services
or emergency management type of work and was supervisory. HT at 126-27.
9
The agency has statutory authority for maintaining its own excepted-service personnel
system with pay bands. 42 U.S.C. § 12651f(b).
10
According to the retention register, both employees are in group I, subgroup B. The
appellant’s adjusted service computation date is July 14, 1987, whereas the adjusted
service computation date of the incumbent of the Senior A dvisor for Partnerships and
Advancement position is September 27, 1994. IAF, Tab 3 at 42-43, Tab 21 at 6.
9
¶17 Citing the OPM Handbook, the appellant argued that the RIF regulations no
longer specifically require that an agency must establish a separate competitive
level solely because an employee holds a supervisory rather than a
nonsupervisory position. RAF, Tab 14 at 17. While true, the Handbook,
although lacking the authority of a regulation, further provides that the duties and
responsibilities of a supervisory position will generally preclude placement of the
position in a competitive level that includes a nonsupervisory position. Id. In
any event, we have reviewed the two position descriptions and find that they
reveal significant differences. The appellant’s position description focuses on
disaster preparedness, relief, and other services, and states that the incumbent
exercises independent discretion and judgment in completin g management
requirements. IAF, Tab 5 at 24. The incumbent of the Senior Advisor for
Partnerships and Advancement position is responsible for the formation of
national strategies, policies, and initiatives to grow national service through
cross-sector partnerships, and while that individual is responsible for
independently planning, conducting and coordinating work, and for having
substantial and continuing responsibility for ensuring program accomplishments,
the position description does not provide for independent discretion. IAF, Tab 20
at 18. In addition, the “competencies” for the two positions reflect substantial
differences. Compare IAF, Tab 5 at 24, with IAF, Tab 20 at 18. We find,
therefore, that the agency showed that the distinguishing features between the two
positions suffice to find that they are not similar enough in duties so that the
incumbent of one position could be reassigned to the other without undue
interruption, and that therefore they are properly placed in separate competitive
levels. McKenna v. Department of the Navy, 105 M.S.P.R. 373, ¶ 4 (2007).
¶18 In sum, because the other individual in the appellant’s competitive level had
an earlier service computation date, the appellant was properly released when her
position was abolished due to a reorganization. Further, because she had no
assignment rights given that all agency positions are in the excepted service,
10
5 C.F.R. § 351.701(a), she was properly separated. We therefore find that the
agency has shown by preponderant evidence that it complied with the procedural
requirements set forth in the RIF regulations in effecting this action.
ORDER
¶19 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) ( 5 C.F.R.
§ 1201.113(c)).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request further review of this final decision.
Discrimination Claims: Administrative Review
You may request review of this final decision on your discrimination
claims by the Equal Employment Opportunity Commission (EEOC). See title 5
of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you
submit your request by regular U.S. mail, the address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit your request via commercial delivery or by a method requiring a
signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, NE
Suite 5SW12G
Washington, D.C. 20507
You should send your request to EEOC no later than 30 calendar days after your
receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
11
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.
Discrimination and Other Claims: Judicial Action
If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate United States
district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with
the district court no later than 30 calendar days after your receipt of this order. If
you have a representative in this case, and your representative receives this order
before you do, then you must file with the district court no later than 30 calendar
days after receipt by your representative. If you choose to file, be very careful to
file on time. If the action involves a claim of discrimination based on race, color,
religion, sex, national origin, or a disabling condition, you may be entitled to
representation by a court‑appointed lawyer and to waiver of any requirement of
prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and
29 U.S.C. § 794a.
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.