Filed: Aug. 08, 2014
Latest Update: Mar. 02, 2020
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD COLLEEN F. CLAY, DOCKET NUMBER Appellant, DC-0752-13-0414-C-1 v. CORPORATION FOR NATIONAL DATE: August 8, 2014 AND COMMUNITY SERVICE, Agency. THIS FINAL ORDER IS NONPRECEDENTIAL 1 Edward H. Passman, Esquire and Johnathan P. Lloyd, Esquire, Washington, D.C., for the appellant. Angela R. Williams, Esquire, Washington, DC, D.C., for the agency. BEFORE Susan Tsui Grundmann, Chairman Anne M. Wagner, Vice Chairman Mark A. Robbins, Member FINAL OR
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD COLLEEN F. CLAY, DOCKET NUMBER Appellant, DC-0752-13-0414-C-1 v. CORPORATION FOR NATIONAL DATE: August 8, 2014 AND COMMUNITY SERVICE, Agency. THIS FINAL ORDER IS NONPRECEDENTIAL 1 Edward H. Passman, Esquire and Johnathan P. Lloyd, Esquire, Washington, D.C., for the appellant. Angela R. Williams, Esquire, Washington, DC, D.C., for the agency. BEFORE Susan Tsui Grundmann, Chairman Anne M. Wagner, Vice Chairman Mark A. Robbins, Member FINAL ORD..
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UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
COLLEEN F. CLAY, DOCKET NUMBER
Appellant, DC-0752-13-0414-C-1
v.
CORPORATION FOR NATIONAL DATE: August 8, 2014
AND COMMUNITY SERVICE,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Edward H. Passman, Esquire and Johnathan P. Lloyd, Esquire, Washington,
D.C., for the appellant.
Angela R. Williams, Esquire, Washington, DC, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
denied the appellant’s petition for enforcement of the initial decision that
reversed her reduction in grade. Generally, we grant petitions such as this one
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
only when: the initial decision contains erroneous findings of material fact; the
initial decision is based on an erroneous interpretation of statute or regulation or
the erroneous application of the law to the facts of the case; the judge’s rulings
during either the course of the appeal or the initial decision were not consistent
with required procedures or involved an abuse of discretion, and the resulting
error affected the outcome of the case; or new and material evidence or legal
argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. See Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, and based on the following points and authorities, we conclude that the
petitioner has not established any basis under section 1201.115 for granting the
petition for review. Therefore, we DENY the petition for review and AFFIRM
the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
¶2 Effective June 28, 2010, the agency effected an action under 5 U.S.C.
chapter 75, reducing the appellant in grade/pay band from her position as
Director, Office of Emergency Management, NY-04, to the position of Assistant
Director of Projects and Partnership, AmeriCorps National Civilian Community
Corps, NY-03. 2 Initial Appeal File (IAF), Tab 7 at 21. Acknowledging that
neither the appellant’s conduct nor performance was at issue, the agency
indicated that the action was necessary because of organizational changes
eliminating the need for the appellant’s position, id. at 23, although it stated that
it was not taking the action pursuant to the reduction-in-force (RIF) regulations at
5 C.F.R. part 351, IAF, Tab 18. On appeal, the administrative judge reversed the
action, finding in her July 10, 2013 initial decision that the agency failed to prove
that the action promoted the efficiency of the service or that the penalty was
reasonable. IAF, Tab 27, Initial Decision (ID) at 3-4. She ordered the agency to
2
The action did not involve a change in salary. IAF, Tab 7 at 23.
3
cancel the action and to reinstate the appellant to her previous position or an
equivalent position and pay band, effective June 28, 2010, and to award her back
pay and benefits for the time period in question. ID at 7-8. The initial decision
became the Board’s final decision on August 14, 2013, when neither party filed a
petition for review.
¶3 On September 27, 2013, the appellant filed a petition for enforcement in
which she argued that the agency had not in fact canceled the action but rather
had simply “realigned” her position, that it had not restored her duties or
provided her back pay and bonuses to which she was entitled, and that it had
notified her that the position to which she was reinstated was being abolished and
that, within 60 days, she would be separated by RIF. Compliance Appeal File
(CAF), Tab 1 at 6-8, 11-13. The agency responded that it was in all respects in
full compliance with the Board’s order. 3 CAF, Tab 3.
¶4 The administrative judge denied the appellant’s petition for enforcement,
CAF, Tab 9, Compliance Initial Decision (CID) at 1, 6, 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, CID at 4. The
appellant has filed a petition for review, Petition for Review (PFR) File, Tab 1, to
which the agency has responded in opposition, PFR File, Tab 3.
¶5 An agency bears the burden of proving its compliance with a Board order,
and assertions of compliance must be supported by relevant, material, and
credible evidence in the form of documentation or affidavits. See Bruton v.
Department of Veterans Affairs, 112 M.S.P.R. 313, ¶ 4 (2009); New v.
Department of Veterans Affairs, 106 M.S.P.R. 217, ¶ 6 (2007), aff’d, 293 F.
3
While the appeal was pending before the Board, the appellant filed an appeal of her
separation by RIF, but she subsequently moved that the appeal be dismissed without
prejudice to her refiling after issuance of the Board’s final order in this compliance
matter. The administrative judge granted the appellant’s motion. Clay v. Corporation
for National and Community Service, MSPB Docket No. DC-0351-14-0254-I-1, Initial
Decision at 2 (Apr. 15, 2014).
4
App’x 779 (Fed. Cir. 2008). The appellant may rebut the agency’s evidence of
compliance by making specific, nonconclusory, and supported assertions on
continued noncompliance. See New, 106 M.S.P.R. 217, ¶ 6.
¶6 In finding that the agency was in compliance with the Board’s order, the
administrative judge found that it showed that it had eliminated the appellant’s
position in June 2010 based on the recommendations of an outside consultant and
that, to comply with the Board’s order, it had recreated that position and
reinstated the appellant to it in the same pay band, effective the date of her
improper reduction in grade/pay band. CID at 4; CAF, Tab 3 at 19, 27. The
administrative judge noted that, since the appellant’s salary had not changed, she
suffered no loss in pay as a result of the improper action. The administrative
judge further found that, in 2012, the agency had reorganized its program offices,
including the one to which the appellant was assigned following her demotion,
within the Immediate Office of the Chief Executive Officer and that, to comply
with the Board’s order, the agency had retroactively realigned the appellant’s
Director position to that office, effective December 2, 2012. CID at 4; CAF,
Tab 3 at 18, 20-22. The administrative judge considered, but rejected, the
appellant’s claim that she was entitled to the encumbered position of Senior
Advisor for Disaster Services which the agency created in April 2011 and which,
according to the appellant, was the same position as her former position with
identical duties, but at a higher pay band. CID at 5.
¶7 On review, the appellant argues that the administrative judge erred in
failing to make findings of fact as to whether the appellant’s former position still
exists or whether another existing equivalent position was available for her. PFR
File, Tab 1 at 6-7. For an agency to comply with a Board order to reinstate an
employee, the agency must generally return the employee to her former position.
If the agency does not return the employee to her former position, it must first
show that it has a strong overriding interest or compelling reason requiring
reassignment to a different position and then that it has reassigned the employee
5
to a position that is substantially similar to the former position. Gorny v.
Department of the Interior, 115 M.S.P.R. 520, ¶ 6 (2011). Here, as the
administrative judge found, the agency submitted documentary evidence showing
that it returned the appellant to her former position. CID at 4; CAF, Tab 3 at 19,
27. The agency had determined 3 years earlier that, because of an organizational
change, there was no longer a need for that position. Therefore the appellant’s
original duties no longer existed in a single position but rather had been absorbed
by another position at a higher pay band. Compare CAF, Tab 3 at 20-22, with
Tab 3 at 31-34. The agency acknowledged that, given that situation, it could not
and did not restore the appellant’s former duties and instead it allowed her to
close out her duties, CAF, Tab 1 at 21, noting that it had concurrently advised her
that she would be separated by RIF in 60 days, CAF, Tab 3 at 18. Although the
appellant describes “[t]he Agency’s So-Called ‘Compliance’” as a “Mere Sham,”
PFR File, Tab 1 at 8, arguing that the agency did not afford her status quo relief
when it forced her to compete in the RIF, id. at 11-13, we agree with the
administrative judge that, under these unique circumstances, the agency acted
reasonably, that it demonstrated that it restored the appellant to her former
position, and that it was otherwise in compliance with the administrative judge’s
order. 4 CID at 6; See Bruton, 112 M.S.P.R. 313, ¶ 9; Doe v. Department of
Justice, 95 M.S.P.R. 198, ¶¶ 7-18 (2003).
¶8 The appellant also argues on review that the administrative judge failed to
address her claim that she was entitled to some pay increase as part of the
agency’s compliance with the initial decision. PFR File, Tab 1 at 13-14. This
argument relates to the appellant’s claim that the duties and responsibilities of her
former position essentially matched those of the higher-graded Senior Advisor for
4
This finding has no bearing on the propriety of the agency’s action separating the
appellant by RIF. Cf. Conaway v. U.S. Postal Service, 93 M.S.P.R. 6, ¶ 13 (2002) (an
agency is not precluded from taking legitimate personnel actions after the Board
reverses an appealable action). As noted, that matter will be addressed and adjudicated
in the context of the appellant’s RIF appeal.
6
Disaster Services position that the agency had created in April 2011. On the
contrary, the administrative judge considered the appellant’s claim but found that
the appellant was not entitled, as part of her compliance remedy, to a promotion
to a new position at a higher pay band than the one she occupied at the time of
her improper reduction in grade/pay band. CID at 5-6. In so finding, the
administrative judge properly distinguished Hoover v. Department of the Navy,
57 M.S.P.R. 545, 558 (1993) upon which the appellant relied. The administrative
judge found that, in Hoover, after the appellant’s position was abolished, the
agency appointed him to a completely different position that it could not show
was substantially equivalent to his former position, whereas here the agency
restored the appellant to her former position. Although the appellant argues that
the administrative judge should have convened a hearing and allowed discovery
on whether the appellant’s former position was identical to the Senior Advisor for
Disaster Services position, for the reasons set forth above it was not necessary for
the administrative judge to make such a finding. Moreover, there is no indication
in the record below that the appellant requested a hearing. See Knight v.
Department of the Treasury, 113 M.S.P.R. 548, ¶ 16 (2010). In any event, the
Board’s regulations provide that the decision to hold a hearing in a compliance
matter is discretionary, King v. Department of the Navy, 98 M.S.P.R. 547, ¶ 9
(2005), aff’d, 167 F. App’x 191 (Fed. Cir. 2006); 5 C.F.R. § 1201.183(b), and the
appellant has not shown that the administrative judge abused her discretion in this
regard, see Knight, 113 M.S.P.R. 548, ¶ 16.
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:
7
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
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
8
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.
