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posted June 25, 2005

Craig D. Robinson, Esq.  filed the amicus brief on the Boots Special Panel case. Mr. Robinson formerly served as a APWU steward and officer for 17 years.

There was a very significant Special Panel decision, http://www.mspb.gov/decisions/2005/boots_at030286e1.html> Boots v. USPS, that was issued on June 23, 2005 (MSPB # AT-0752-03-0286-E-1; EEOC 03A-40060). The case upheld the EEOC's ruling that federal agencies can not adopt rules, regulations, job qualification standards, etc. which exclude employees with certain disabilities without doing an individualized assessment of the person's medical history and work history to determine whether the person presents a direct threat to self or others.

Mr. Boots had a minor seizure disorder which Postal Physicians for several years felt did not present a direct threat and he was allowed to drive a Tractor Trailer. The Postal Service which was exempt from DOT medical requirements for drivers adopted them as their own and based on new DOT guidance memo removed Mr. Boots from driving duties.

I was the first attorney to challenge the Postal Service's voluntary adoption of the DOT medical standards in mid-1990's arguing that federal agencies can not adopt rules, regulations or job standards that conflict with or undercut its duty proscribed by the EEOC to do an "individualized assessment" to determine whether the disabled individual would pose a direct threat. Surprenant v. Potter, EEOC Appeal # 01996186, 2001 WL 885325 (7/26/01), recons. denied, EEOC Request 05A11071, 2004 WL 321030 (2/12/04). Because I challenged a national Postal policy they fought me for 10 years. I was finally a week away from the EEOC damage hearing when the USPS attorney found out about Boots and withdrew a settlement offer from the table. He then filed a motion with the EEOC to dismiss my case pending the outcome of Boots.

The MSPB chairman was arguing that the Special Panel should not defer to the EEOC on discrimination issues when Circuit Courts have rejected the EEOC's position in private sector cases. He was asking the Special Panel to overturn all prior Special Panel decisions back to the 1st one, Ignacio v. USPS, 30 MSPR 471 (Spec. Panel 1986), to expand the power of the Special Panel so that it would reverse the EEOC when it thought its legal position was wrong. All prior Special Panels have held that it would only reverse the EEOC if the case turned on Civil Service law or if the EEOC's interpretation of discrimination law was clearly unreasonable.

The Special Panel is composed of three people: Special Panel Chairman Howard (General Counsel W.W. Grainger), MSPB Chairman McPhee and EEOC Chair Dominguez. All three were appointed by President Bush. If the MSPB's position was accepted EEOC law would be destabilized and subject to political party changes in the Whitehouse. It would be like the legal shifts experience by the NLRB where the General Counsel responsible for prosecution of complaints is appointed by the sitting President.

The MSPB chairman was arguing that the EEOC "individualized assessment" requirement was a wrong interpretation of the ADA (and Rehab Act). He cited federal circuit cases that have allowed private sector employers to rely on job qualification standards to exclude disabled workers based on an easier "business necessity" defense and have not requiring an "individualized assessment". The Postal Service in my case had cited safety concerns and argued they should be able to rely on DOT medical standards to exclude all insulin dependent diabetics even though doctors agreed many such individuals could drive commercial vehicles without risk based on the individual's medical history and control of it.

The offer in my case was withdrawn two days before oral argument on Boots. The same day I filed an Emergency Motion to intervene. I was told my motion was unprecedented and may be denied. I was told I could try filing an amicus brief but the Panel probably would not consider it if received after 10 AM the Friday of oral argument. I was up until 2 AM for two nights drafting a brief. I argued that the Special Panel should not carve out more power for itself and discussed the legislative history carefully reviewed by the first Special Panel in Ignacio when the panel determined the appropriate level of deference to the EEOC. The Brief was Faxed to the Special Panel and distributed at 9 AM the morning of Oral Argument. I knew it was read because the Postal attorney spent his entire oral argument addressing my arguments and then requested and was granted 7 days to file a rebuttal brief.

The decision was to supposed to issue in 45 days. It took much longer. With 3 Bush appointees I thought the EEOC was doomed. I've watched the ADA gutted by the conservative federal judiciary over the last few years. Chairman Howard made a comment at oral argument that he did not want this Special Panel to be known as the Anti-Safety Special Panel. That did not bode well for us.

I was shocked to get a favorable decision in the mail yesterday despite the 24 page blistering dissent of MSPB Chairman McPhie.

http://www.mspb.gov/decisions/2005/boots_at030286e1.html http://www.mspb.gov/decisions/2005/boots_at030286e1.html

The right of all disabled federal employees to an individualized assessment instead of blanket exclusion based on the type of their disability has been preserved...at least until the Supreme Court addresses the issue under the ADA.

Craig D. Robinson, Esq. Law Offices of Craig D. Robinson 1018 Thorndike Street Palmer, MA 01069 413-283-9737

A Special Panel that resolves disputes between EEOC and MSPB on June 23rd overruled the MSPB in Robert Boots vs. USPS.  It said DOT regulations adopted voluntarily by the USPS do not override EEO rules with regard to disability discrimination.  The Special Panel directed the MSPB to order the appellant’s restoration to duty and the back pay and benefits that go with it.

Robert Boots was removed from his position in the USPS as a Tractor-Trailer Operator for taking an antiseizure medication that was disclosed when he was hired in 1998.  He had an accident-free driving record.  The DOT changed its rules in October 2000 that were subsequently used to disqualify Boots and remove him in 2002.

The EEOC faulted the USPS for failing to conduct an individualized assessment of the appellant to determine whether he posed a direct threat that could not be eliminated or reduced by reasonable accommodation.  The USPS argued that it didn't have to under the DOT regulations it voluntarily adopted.  The MSPB agreed with USPS.  The Special Panel sided with Boots.

This case illustrates how worker unfriendly the MSPB has become and how long cases can drag out.  This decision is probably not the last word as the USPS will likely appeal.  It always does!

Don Cheney
Auburn, WA

MSPB Unofficial Case Summary

HOLDING:  When a case is certified to the Special Panel, the Panel must accept jurisdiction; the Special Panel decision in Ignacio v. U.S. Postal Service, 30  M.S.P.R. 471 (Spec. Pan. 1986), is “guiding precedent” for the Panel; pursuant to Ignacio, the Board may disagree with EEOC only as to misinterpretations of civil service law, not discrimination law; for it to disturb an EEOC decision, the Panel must find that the decision depends on civil service law for its support, or that it is so unreasonable that it amounts to a violation of civil service law; the Department of Transportation statute and regulations concerning commercial drivers’ licenses are not directly applicable to federal agencies and employees; whether an agency is bound by the regulations it adopts may be a matter of general administrative law, but it is not inherently a matter of civil service law; under 29 C.F.R. § 1630.15(b),(c), an individual “shall not pose a direct threat to the health or safety of the individual or others in the work place”; 29 C.F.R. § 1630.15(e) provides a defense to an Americans with Disabilities Act claim where a challenged action “is required or necessitated by another Federal law or regulation or another Federal law or regulation prohibits an action…required by this part”; in  1992, section 501 of the Rehabilitation Act was amended to incorporate all of the EEOC’s ADA employment discrimination standards, “thus making clear that part 1630 of the ADA regulations appl[ies] under the Rehabilitation Act as well”; EEOC’s decision in this case did not involve an interpretation of civil service law, and was not so unreasonable that it violated civil service law; rather, although there is room for disagreement on the merits, a reasonable basis for the EEOC decision does exist; thus, EEOC’s decision must prevail; the Panel directed the Board to order the appellant’s restoration to duty and the back pay and benefits that go with it, and to enforce compliance, pursuant to 5 U.S.C. § 7702; Chairman McPhie issued a dissenting opinion arguing that EEOC’s decision should be reversed because its interpretation of discrimination law is unreasonable.

The appellant was a Tractor-Trailer Operator for the Postal Service.  Because he had experienced a seizure in 1984, he was taking anti-seizure medication when he was hired in 1998.  He had a commercial driver’s license throughout his tenure at the agency and was removed in 2002 because under Department of Transportation regulations for commercial drivers, which by their terms apply only to the private sector but which the Postal Service had adopted, his use of the anti-seizure medication disqualified him.

On appeal, the Board upheld his removal, but upon review of the Board’s decision by EEOC, that agency found that the removal constituted disability discrimination; that because the agency had voluntarily adopted the DOT regulations it could not simply rely on their disqualification provision; and that to rely on the “direct threat” defense against disability discrimination, 29 C.F.R. § 1630.15(b),(c) (an individual “shall not pose a direct threat to the health or safety of the individual or others in the work place”),  it must instead do an individualized assessment of the appellant’s qualifications.  Because the Postal Service had not done such an assessment, it failed to show that the appellant posed a “significant risk of substantial harm,” as required by EEOC regulations.

On reconsideration, the Board disagreed with EEOC, holding that the Postal Service was bound to follow the regulations it had adopted.  It reaffirmed its earlier conclusion.  As a result, the case was certified to the Special Panel, as required by 5 U.S.C. § 7702(d)(1).  Panel Chairman John Howard and EEOC Chair Cari Dominguez issued a majority decision for the Panel, over the dissent of the Chairman of the MSPB, Neil McPhie.

Noting that when a case is certified to the Special Panel, it must accept jurisdiction, the Panel began its analysis by citing as “guiding precedent” the Special Panel decision in Ignacio v. U.S. Postal Service, 30  M.S.P.R. 471 (Spec. Pan. 1986).  Pursuant to Ignacio, the Board may disagree with EEOC only as to misinterpretations of civil service law, not discrimination law.  Thus, for it to disturb an EEOC decision, the Panel must find that the decision depends on civil service law for its support, or that it is so unreasonable that it amounts to a violation of civil service law.  The Board’s ruling that led to the certification is that EEOC misinterpreted civil service law when it found that the Postal Service is not bound by the DOT regulations that it adopted.

To prevail on that argument, the Panel majority stated, the application of the DOT regulation must first be found to implicate civil service law.  However, the DOT statute and regulations are not directly applicable to federal agencies and employees.  Moreover, whether an agency is bound by the regulations it adopts may be a matter of general administrative law, but it is not inherently a matter of civil service law.  Even assuming that the agency has the authority to adopt DOT rules and that it did so, the Special Panel found that this alone would not raise an issue of civil service law.  “Neither the standard nor its purported adoption by the USPS was challenged by the EEOC or ‘interpreted’ in any way.”  And, although the Board held that the Postal Service was bound to follow DOT rules once it adopted them, the Panel held that the agency did not have a “conflict with other Federal laws” defense under the Americans with Disabilities Act.  EEOC regulations at 29 C.F.R. § 1630.15(e) provide a defense where a challenged action “is required or necessitated by another Federal law or regulation or another Federal law or regulation prohibits an action…required by this part.”  No such defense is available here because compliance by USPS with the DOT regulations or its Medical Advisory was neither required nor necessitated by the underlying statute or the regulations.  The Panel held that the USPS cannot extend the DOT statutory authority, which would void the direct threat analysis requirement, to itself using its own regulatory authority; “[o]therwise, the USPS would be able to do something that Congress never gave the DOT itself the authority to do – apply its regulations proscriptively to a government entity.”

The Panel also ruled that even if civil service law, rule, or regulation is implicated under the circumstances, nonetheless EEOC’s decision rested on discrimination law.  The dispute was over defenses available under the Rehabilitation Act, and EEOC’s decision was based exclusively on regulations implementing Title I of the ADA, including 29 C.F.R. §§ 1630.2(r), 1630.15(b), (c), and (e), and the interpretive guidance in the Part 1630 Appendix, all of which was adopted through formal rulemaking   In 1992, section 501 of the Rehabilitation Act was amended to incorporate all of the EEOC’s ADA employment discrimination standards, “thus making clear that part 1630 of the ADA regulations appl[ies] under the Rehabilitation Act as well.”  At its base, the Panel held, the USPS’s argument is about how the EEOC has interpreted discrimination law.

The majority then addressed the portions of the dissent to this decision and the concurrence to the Board’s Opinion and Order certifying the case that assert that EEOC’s application of “direct threat” and “individualized assessment” has been rejected by federal courts.  In this respect, the Panel stated that it was not prepared to expand Ignacio based on the arguments offered here, and that Ignacio already provides for further review and reversal where EEOC’s discrimination law interpretation is so unreasonable that it amounts to a violation of civil service law.  In this case, as in Ignacio, “we find that although there is room for disagreement on the merits, a reasonable basis for the decision does exist.”  There is some conflict in the circuits, but nothing so definitive as to allow the conclusion that EEOC incorrectly interpreted discrimination law.  Whether EEOC’s interpretation is the most reasonable, or the only reasonable one is irrelevant, since the Panel must defer to it on a finding that it is, simply, “reasonable.”  Accordingly, the Special Panel must give due deference to EEOC in its sphere of expertise and it adopted EEOC’s decision as the decision of the Special Panel.

Pursuant to 5 U.S.C. § 7702(d)(3), the Panel referred the decision to the Board to order the agency to take appropriate action including cancellation of the removal and the award of all pay and benefits due as a result of the decision.

Chairman McPhie issued a dissenting opinion arguing that EEOC’s decision should be reversed because its interpretation of discrimination law is unreasonable.  Specifically, he would have found that Ignacio does not give direct guidance and that, in any event, the Special Panel must rule on the reasonableness of the EEOC’s interpretation of discrimination law.  He argued at length that the Ignacio decision is flawed, in part because it turns a dispute between employer and employee into one between EEOC and MSPB, and forces the Panel to seek a bright line between civil service law and discrimination law.  Moreover, in the instant case, EEOC’s decision should be reversed because it is based on an unreasonable interpretation of discrimination law; EEOC’s interpretive guidance on safety-based qualification standards is not consistent with the ADA; that guidance has uniformly been rejected in Federal court; it is not consistent with EEOC’s own regulations; it was only recently made applicable to Federal agencies and differs from the longstanding Federal sector rule on qualification standards; and finally, it is not entitled to deference under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), because it is just an interpretation that lacks the force of law.

ROBERT F. BURGER, ET AL.,¹
                                           Appellants,
                                           v.
UNITED STATES POSTAL SERVICE, 
                                           Agency.

DOCKET NUMBER
DE-0351-00-0167-I-1

DATE: June 22, 2001

¶1    This case is before the Board on the appellants’ petitions for review (PFR) of the initial decisions (ID) that dismissed their appeals for lack of jurisdiction. For the reasons set forth below, the Board GRANTS the appellants’ PFRs, REVERSES the IDs, and REMANDS the appeals for further adjudication.

BACKGROUND

¶2    Eleven of the appellants, all except Thelen, were Level 6 Clerks when, in July 1993, the agency began to eliminate the operation with which their positions were associated. At that time, those eleven appellants were notified that their positions were to be abolished and that they would become unassigned regulars, and further that, if they failed to bid to existing vacancies, they would be placed in residual vacancies. At different times, the eleven appellants bid to, and/or were placed in, Level 5 positions. In 1998, Thelen was a Level 6 Review Clerk. When the agency began to eliminate Review Clerk positions, Thelen bid to a Level 5 position. Initial Appeal File (IAF), Tab 11, Subtab 4A.

¶3    The appellants filed individual, but identical, appeals wherein they alleged that the agency’s actions constituted reduction-in-force (RIF) demotions taken without RIF procedures. Id. at Tab 1. They specifically alleged that their demotions were involuntary. Claiming to be preference eligibles, they argued that they were denied their rights as such because, while their own positions were abolished and they were demoted to Level 5 positions, nonveterans were allowed to retain their Level 6 positions. They contended that their demotions violated the Veterans Preference Act of 1944 and the RIF regulations at 5 C.F.R. §§ 351.502 and 351.601. Id. These regulations generally give preference to preference eligible employees in a RIF.  In addition, they claimed that the agency’s actions were discriminatory based on their race and sex. And, they requested hearings, id., but later agreed to have their cases adjudicated on the written record, id. at Tab 11, Subtab 4A.

¶4    After reviewing the parties’ submissions, id. at Tabs 3, 11, 13-14, 16-17, the administrative judge (AJ) issued twelve separate, but identical, IDs in which he found that the appellants were not furloughed for more than 30 days, separated, demoted, or affected by reassignment involving displacement. ID at 3. He found that: (1) There was nothing in the record to indicate that the appellants’ Level 6 positions were ever in jeopardy; (2) they voluntarily took action to bid to the lower-graded positions; and (3) their eventual demotions to Level 5 positions were not RIF demotions. Id. at 3-4. The AJ therefore dismissed the appeals for lack of jurisdiction, finding no basis upon which to consider the appellants’ allegations of discrimination and no need to address the apparent untimeliness of the appeals. Id. at 4.

¶5    In their PFRs, the appellants challenge generally the AJ’s dismissal of their appeals. Petition for Review File, Tab 1. The agency has responded in opposition to the appellants’ PFRs. Id. at Tab 3.

ANALYSIS

¶6    Key to the AJ’s dismissal of these appeals for lack of jurisdiction was his finding that the appellants could have remained indefinitely in their Level 6 positions, but chose, apparently for personal reasons, to bid to Level 5 positions. That finding, however, is not supported by the record. Nothing in the parties’ stipulations or in the notices the appellants received indicated that they would, or could, remain indefinitely in their Level 6 positions. IAF, Tab 11, Subtabs 4A and 4B. The notices stated that, if the appellants "declined to bid or [were] unsuccessful in obtaining bid position[s], [they would] become … unassigned regulars and subject to assignment to … residual vacanc[ies]" in accordance with the collective bargaining agreement. Id. at Subtab 4B. While it is true that the appellants stipulated to being told that, upon abolishment of their Level 6 positions, they would become unassigned regular employees at the "PS Level 6 paylevel," id. at Subtab 4A (emphasis added), neither the notices nor the stipulations indicated the grade level of the residual vacancies in which the appellants would be placed, if they failed to bid. In other words, the appellants were never notified that they would or could be placed into Level 6 positions.

¶7    Moreover, the records of four of the appellants, Burger, Christian, Markowitz, and Holloway, directly contradict the AJ’s finding that they voluntarily bid to the Level 5 positions and could therefore have remained indefinitely at the grade 6 level. A listing of the positions to which these four appellants bid during their careers does not show any bid for a Level 5 position at or near the time they were placed in the Level 5 positions. Id. at Tab 9, Subtab 4C. Thus, the records for these four appellants support their contention that they were involuntarily demoted to Level 5 positions. Id. at Tab 1.

¶8    The records of the remaining eight appellants, Blackman, Reall, Schrage, Schmidt, Thelen, Haskett, Chism, and Dodd, arguably show that they bid to positions at or near the time they were placed in Level 5 positions. However, even if they did, and even if all of the appellants bid to the lower-graded positions to which they were demoted, the applicable case law nevertheless supports a finding that they made nonfrivolous allegations that their assignments to those positions were involuntary RIF demotions. In Hanson v. U.S. Postal Service, 58 M.S.P.R. 413, 417 (1993), the Board held that the appellant’s change to a lower-graded position was not voluntary, despite his application for it, because he did not seek assignment to that position until after his organization had been restructured, after he had been informed that he had not been selected for assignment at his former grade level, and after he was placed in the agency’s "national pool for unplaced preference eligibles." And, in Harants v. U.S. Postal Service, 130 F.3d 1466, 1469 (Fed. Cir. 1997), the court held that an assignment to a lower-graded position constitutes a RIF demotion even when the employee voluntarily applies for or is offered an assignment to that position, as long as the assignment was made after the agency had informed the employee that his original position had been abolished and that he had not been selected for assignment to a position at his former grade level.

¶9    Here, although the agency’s notices informing the appellants that their positions would be abolished did not explicitly state that there were no positions available for them at their current grade levels, it did inform them that their rights to any future positions were governed by the parties’ collective bargaining agreement.² See, e.g., Burger IAF, Tab 11, Subtab 4B. Under Article 37.3.F.10 of the agreement, id. at Subtab 4D, 152-53, the agency was obligated to offer the appellants vacancies at the "same or higher salary level," but if this were not possible, it could offer them lower-level vacancies with "rate protection." Id. at 153-54. Thus, even if the appellants bid to lower-level positions, they did so under circumstances clearly indicating that there were no positions at their current grade levels to which they were entitled under the collective bargaining agreement. In other words, the agency’s demoting the appellants to lower-graded positions was the functional equivalent of confirming that there were no positions at their former grade levels to which they were entitled. Applying the test in Hanson and Harants, we find that the appellants made nonfrivolous allegations that they were subjected to RIF demotions, we reverse the AJ’s contrary finding, and we remand these appeals for further proceedings.

¶10    We find further that the records in seven of these twelve appeals clearly support the conclusion that the appellants made nonfrivolous allegations that they were subjected to adverse actions without being afforded any of the required statutory procedures. Specifically, the files of appellants Reall, Schmidt, Christian, Haskett, Chism, Holloway, and Dodd show that they suffered reductions in their grades and basic pay. IAF, Tab 11, Subtab 4C. These actions qualify as adverse actions under 5 U.S.C. §§ 7511(a)(3)-(4), 7512; Fair v. Department of Transportation, 4 M.S.P.R. 493, 496 (1981). The agency’s notices neither advised the appellants that they would be reduced in grade or pay, nor provided any of the other procedures required by 5 U.S.C. § 7513(b). See, e.g., Reall IAF, Tab 11, Subtab 4B. All of these seven appellants invoked 5 U.S.C. Chapter 75 as a basis for the Board’s jurisdiction. IAF, Tab 1, Item 38. Accordingly, these seven appeals must be remanded for further proceedings to adjudicate these appellants’ rights under 5 U.S.C. Chapter 75.

¶11    We acknowledge that, under the parties’ stipulations, the agency reserved its right to contest the appellants’ claims that they are preference eligibles. Id. at Tab 11, Subtab 4A. See Imdahl v. U.S. Postal Service, 72 M.S.P.R. 453, 455-56 (1996) (Postal Service employee who was not a preference eligible was not entitled to appeal a RIF demotion); Toomey v. U.S. Postal Service, 71 M.S.P.R. 10, 12 (1996) (to appeal an adverse action under Chapter 75, a postal employee must be a preference eligible, a management or supervisory employee, or an employee engaged in personnel work in other than a purely nonconfidential clerical capacity, and must have completed 1 year of current continuous service in the same or similar positions). Therefore, the matter of the appellants’ preference eligibility remains an open and dispositive jurisdictional issue in each appeal.

¶12    The appellants’ contention that the agency violated their rights as preference eligibles may raise a claim under the Veterans Employment Opportunities Act of 1998 (VEOA), codified at 5 U.S.C. § 3330a, although they have not specifically cited that statute. In general, the VEOA provides an appeal to the Board by a preference eligible who alleges a violation of any statute or regulation relating to veterans preference concerning a matter that occurred on or after October 31, 1998, after the individual has exhausted the complaint procedure administered by the Department of Labor. See Smyth v. U.S. Postal Service, 85 M.S.P.R. 549, 550 (2000). Although it appears that many of the demotions that are at issue here occurred before October 31, 1998, appellant Thelen alleges that he was involuntarily demoted in June 1999. Thelen IAF, Tab 1. On remand, the AJ shall determine if any of the appellants is raising a VEOA claim and, if so, shall advise those appellants of the jurisdictional requirements of such a claim and provide them with an opportunity to respond.

ORDER

¶13    Accordingly, all eleven of these appeals are hereby remanded to adjudicate the appellants’ nonfrivolous allegations that they were affected by RIF demotions. The appeals of appellants Reall, Schmidt, Christian, Haskett, Chism, Holloway, and Dodd are also remanded to adjudicate their nonfrivolous allegations that they were subjected to adverse actions under 5 U.S.C. Chapter 75. On remand, the AJ shall also: (1) determine if any of the appellants is raising a VEOA claim and adjudicate any such claim if it is within the Board’s jurisdiction; (2) resolve the issue of the appellants’ preference eligibility as well as the timeliness of their appeals, and (3) consider their allegations of discrimination, if appropriate.³
 

¹This is the lead case of twelve cases that have been consolidated on petition for review because they contain identical issues. 5 C.F.R. § 1201.36. The names of the remaining eleven appellants and the docket numbers assigned to their individual cases are included in the attached appendix.

²Preference-eligible employees of the Postal Service have the same rights as competitive service employees under title 5, U.S. Code, and these rights "shall not be modified by …any collective bargaining agreement…." 39 U.S.C. § 1005(a)(2).

³We note the appellants’ claim on PFR that they believed there would be a hearing in their cases. The record reflects that, during processing, the parties agreed that the appeals would be submitted along with their arguments to the AJ for decision without a hearing. IAF, Tab 11, Subtab 4A. Because they agreed to forego a hearing, they may not now be heard to complain. Cf. Tarpley v. U.S. Postal Service, 37 M.S.P.R. 579, 581 (1988) (the appellant’s failure to timely object to rulings on witnesses precludes his doing so on petition for review). However, if the appellants renew their request for a hearing on remand, the AJ, at his discretion

Robert L. Thelen                                                                            DE-0351-00-0168-I-1

Richard C. Schmidt                                                                       DE-0351-00-0174-I-1

Gary R. Reall                                                                                 DE-0351-00-0175-I-1

Stanley F. Markowitz                                                                      DE-0351-00-0176-I-1

Timothy L. Schrage                                                                        DE-0351-00-0177-I-1

Alberta G. Christian                                                                        DE-0351-00-0178-I-1

Harold W. Blackman                                                                      DE-0351-00-0183-I-1

Susan J. Haskett                                                                            DE-0351-00-0192-I-1

Edward S. Chism                                                                           DE-0351-00-0193-I-1

James R. Holloway                                                                         DE-0351-00-0197-I-1

Timothy Z. Dodd                                                                             DE-0351-00-0218-I-1

1.         The issue in this appeal is whether the appellant was demoted by reduction in force or whether he voluntarily bid on and accepted a lower-graded position. The appellant received proper notice of the jurisdictional issue, the parties had a full and fair opportunity to submit argument and evidence on that issue, the appellant waived any right he had to a hearing, and he simply failed to show that he was subjected to an appealable action.


 

Background
 

2.         In May 2001, the appellant filed a petition for appeal asserting that he was involuntarily reduced in grade in 1997 and was not made aware of his Board appeal rights. Initial Appeal File (IAF), Tab 1. In particular, he asserted that he was informed in early 1997 that his PS-06 position was being abolished, that he was made an Unassigned Regular Clerk subject to an assignment, that management told him that there were no PS-06 positions posted for him to bid on, and that he had no choice but to bid to a lower-level assignment. He alleged that employees heard that if they did not bid, they would be assigned positions in different areas with other hours, and that he would not have bid to a lower-level position if he had been informed of his appeal rights. Id., Tabs 1, 3 and 9.


 

3.         The agency submitted evidence as follows: The appellant was a PS-06 Flat Sorter Machine (FSM) Operator until March 28, 1997; the agency informed him that his position would be abolished on March 29, 1997, and told him at that time that he (1) could bid on any existing vacancies for which he was eligible; (2) could be assigned pursuant to the National Agreement, Article 37, between the agency and his union; (3) if he was not a successful bidder, he would become an Unassigned Regular Clerk effective March 29, 1997; (4) he would receive formal notice of his new assignment no later than March 26, 1997; and (5) he would have retreat rights in accordance with the National Agreement, Article 12, Section 5.C4. Id., Tab 4, Subtabs 4I and 4K, and Tab 11, Att. A. Similarly, Manager of Human Resources Maxine Bennett averred in a declaration that, in March 1997, PS-06 FSM operator positions were abolished, resulting in those employees becoming PS-06 Unassigned Regular Clerks. Id., Att. E, ¶ 3; see also id., Tab 4, Subtab 4I.


 

4.         Because the appellant waived any right to a hearing, the administrative judge adjudicated the case on the written record. Id., Tab 6. The administrative judge found that the appellant’s reduction in grade was involuntary under Burger v. U.S. Postal Service, 88 M.S.P.R. 579 (2001), and the decisions cited therein -- Harants v. U.S. Postal Service, 130 F.3d 1466 (Fed. Cir. 1997), and Hanson v. U.S. Postal Service, 58 M.S.P.R. 413 (1993). Upon finding that the appellant was subjected to a reduction-in-force (RIF) demotion without benefit of RIF procedures, the administrative judge reversed the "demotion."


 

  Analysis
 

5.         Where, as here, the issue is one of jurisdiction, the appellant must receive explicit information on what is required to establish an appealable jurisdictional issue. Burgess v. Merit Systems Protection Board, 758 F.2d 641, 643-44 (Fed. Cir. 1985). The record shows that the appellant received proper notice of the jurisdictional issue.


 

6.         The administrative judge’s July 12, 2001 order explained the jurisdictional issue. IAF, Tab 7. That order also included a copy of the Board’s opinion in Burger, which held that a RIF action took place where the appellants bid on lower-level positions "under circumstances clearly indicating that there were no positions at their current grade level to which they were entitled under the collective bargaining agreement." 88 M.S.P.R. 579, ¶ 9. Neither party asserts that Burger is not the applicable precedent. The administrative judge’s July 12 order therefore put the appellant on notice of the jurisdictional issue.


 

7.         With his response to the administrative judge’s jurisdictional order, the appellant included a copy of Burger. Id., Tab 9. In addition, the appellant stated in his response that management told him that there were no level 6 positions posted for him to bid on. The appellant therefore not only received a copy of Burger, his response shows that he understood the jurisdictional issue and addressed it by claiming that the agency informed him that there were no positions at his PS-06 level to which he was entitled under his union agreement.


 

8.         Having received proper notice of the jurisdictional issue, the appellant knowingly waived any right he may have had to a hearing. Thus, the administrative judge properly adjudicated the appeal on the written submissions. The administrative judge, however, did not reach the correct result based on the evidence.


 

9.         The administrative judge relied on Burger. In Burger, the Board did not hold that employees who bid on and accepted lower-graded positions were demoted by RIF as a matter of law and regardless of the facts. If that had been the Board’s decision, remand to adjudicate the employees’ claims would have been unnecessary. Rather, the Board found only that the appellants had made a nonfrivolous allegation of jurisdiction entitling them to further adjudication on the jurisdictional issue. 88 M.S.P.R. 579, ¶ 9. In contrast, the administrative judge here found that the appellant made a nonfrivolous allegation of jurisdiction and afforded the appellant a full and fair opportunity to present evidence on the jurisdictional issue. Unlike Burger, the record in this appeal is closed, and all of the evidence is in.


 

10.         The appeal in Burger therefore was before the Board at a different stage in the proceedings than is the present case. The decision in Burger does not mean that the appellant here was demoted by RIF merely because he alleges that the agency told him that no PS-06 positions were available. Rather, the Board must decide on the evidentiary record whether the appellant met his burden of proving that his acceptance of the lower-graded position was involuntary. Soler-Minardo v. Department of Defense, 92 M.S.P.R. 100, ¶ 13 (2002). The appellant did not meet that burden under the applicable legal test.


 

11.         In Harants and Hanson, the court and the Board noted that the appellants accepted demotions only after being informed that there were no available positions at their current grade levels. Harants, 130 F.3d at 1469; Hanson, 58 M.S.P.R. at 417-18. Here, in contrast, the weight of the evidence shows that the agency did not inform the appellant that there were no other PS-06 positions available before he bid on and was selected for the PS-05 position, effective October 11, 1997. Instead, the evidence submitted by the agency shows that, because of his seniority, the appellant would have been selected for five PS-06 positions before October 11, 1997, if he had bid on them. IAF, Tab 11, Atts. D and E. Although the appellant disputed that evidence, he offered nothing more than his bare allegations to rebut Ms. Bennett’s sworn declaration and the agency’s other supporting documentation showing that five positions at the appellant’s former PS-06 grade level were available to him before he bid on a PS-05 position, and that, under the seniority rules, he would have been selected for any one of the PS-06 positions had he bid on them.


 

12.         In addition, the agency asserted below and on petition for review that the appellant bid on and accepted the lower-graded position for personal reasons, namely, he only wanted a position that would allow him to keep his scheduled tour of duty no matter the grade level. IAF, Tab 6 at 3; Petition for Review File, Tab 1, Petition for Review at 5-7. The appellant has never refuted these assertions.


 

13.         The Board’s decision in Burger states that a RIF action takes place where the appellants bid on lower-level positions "under circumstances clearly indicating that there were no positions at their current grade level to which they were entitled under the collective bargaining agreement." 88 M.S.P.R. 579, ¶ 9 (emphasis added). The second part of the Harants standard states that, for an appealable RIF demotion to take place, the appellant must have been informed by the agency "that he had not been selected for assignment to a position at his former grade level." Harants, 130 F.3d at 1469. The evidence, when taken as a whole, does not clearly indicate that no PS-06 positions were available to the appellant before he chose to bid on a PS-05 position. In fact, the great weight of the evidence shows that the appellant was assured of getting at least one of any five PS-06 positions that were open to bid before he bid on and accepted a PS-05 position. Moreover, the evidence does not establish that the appellant was informed by the agency either that there were no positions available at his PS-06 level for which he was entitled, or that he had not been selected for assignment to a PS-06 graded position. Rather, the evidence shows quite clearly that the appellant voluntarily chose to bid on and accept a PS-05 position.


 

14.         The appellant failed to establish that he was subjected to an appealable RIF demotion. Accordingly, his appeal should be dismissed on jurisdictional grounds. In addition, because the appellant has not shown that the agency took any appealable action against him, the agency was not obligated to provide the appellant with Board appeal rights from his voluntary decision to take a lower-graded position. Thus, the appellant has not shown good cause for the over three year delay in filing this appeal. Cf. Shiflett v. U.S. Postal Service, 839 F.2d 669 (Fed. Cir. 1988)(where the agency was required to provide the appellant with notice of his Board appeal rights but did not do so, the agency's failure to provide an adequate notice of appeal rights constituted good cause for the appellant's untimely filing of the Board appeal.

_____________________                                           _________________________
Date                                                                                 Susanne T. Marshall
                                                                                          Chairman
 

1.         Under Harants v. U.S. Postal Service, 130 F.3d 1466, 1496 (Fed. Cir. 1997), an assignment to a lower-grade position constitutes a reduction in force (RIF) demotion even when the employee voluntarily applies for or is offered an assignment to that position, as long as the assignment was made after the agency had informed the employee that his original position had been abolished and that he had not been selected for assignment to a position at his former grade level. In this case, it is undisputed that the appellant was previously assigned to a PS-6 level position as a Flat Sort Machine Operator, that the agency informed him that his original position had been abolished, that the agency subsequently assigned him to a position as an unassigned regular clerk, and that the appellant eventually bid on and was assigned to a lower-grade PS-5 position. Thus, the only question that need be resolved in this case to determine whether the agency subjected the appellant to a RIF demotion is whether the appellant bid on the lower-grade position to which the agency ultimately reassigned him after it informed him that he had not been selected for assignment to a position at his former grade level.


 

2.         The parties offered conflicting assertions concerning the information the agency provided to the appellant with respect to an assignment to a position at his former grade level. The appellant alleged that he bid on the PS-5 position to which the agency reassigned him after the agency told him that there were no PS-6 level positions available and pressured him to bid on lower-grade positions. IAF, Tab 9. However, as the agency pointed out in one of its submissions to the administrative judge, the appellant’s assertions were generally not supported by reference to specific facts or other record evidence. IAF, Tab 11 at 2-3.


 

3.         On the other hand, the agency argued that there were PS-6 level positions to which the appellant could have been reassigned, that the appellant did not have to bid on a lower-grade position, and that he could have remained indefinitely in the unassigned regular clerk position. IAF, Tab 11 at 3. However, even if the agency’s assertions are true, the agency offered little or no evidence to establish that this information was communicated to the appellant. The focus in Harants, as well as in cases such as Cooley v. U.S. Postal Service, 68 M.S.P.R. 353 (1995), Hanson v. U.S. Postal Service, 58 M.S.P.R. 413 (1993), and Brown v. U.S. Postal Service, 58 M.S.P.R. 345 (1993), is on the information the agency provided to the appellant with regard to the availability of appropriate positions, not on whether they existed. In other words, even if there were PS-6 positions to which the appellant could have been assigned if he had bid on them, this fact would have been immaterial if the agency informed the appellant that he had to bid on a position and further informed him that there were no PS-6 level positions available to which he was entitled to bid. If the agency provided such information to the appellant, it was equivalent to informing him that he had not been selected for assignment to a position at his former grade level.


 

4.         Thus, the resolution of this appeal turns on the appellant’s credibility with respect to the information the agency allegedly provided him regarding his bidding and reassignment options. The administrative judge did not make specific credibility findings, and, although he decided this appeal on the written record, it would be very difficult to make a credibility determination on the record as it currently exists because neither party presented much more than unsupported assertions concerning the information the agency provided the appellant with respect to his bidding and reassignment options as an unassigned regular clerk. However, the Board need not, and should not, make credibility determinations on the current record because the administrative judge did not provide the appellant with explicit notice concerning what he was required to prove to establish Board jurisdiction over his reassignment to a PS-5 level position as a RIF demotion under Harants. See Burgess v. Merit Systems Protection Board, 758 F.2d 641, 643-44 (Fed. Cir. 1985) (an appellant must receive explicit information on what is required to establish an appealable jurisdictional issue).


 

5.         Although Chairman Marshall finds that the appellant received proper notice of the RIF jurisdictional issue and had a full and fair opportunity to present evidence on this issue, I disagree. The extent of the administrative judge’s explanation regarding the RIF demotion issue was a statement that, "[a]s a preference eligible, the appellant is entitled to appeal either from a RIF demotion or an adverse action." Initial Appeal File (IAF), Tab 7. Clearly, this single statement did not provide the appellant with explicit notice of what was required to establish an appealable jurisdictional issue under Harants. In addition, although the administrative judge also attached a copy of the Board’s opinion in Burger v. U.S. Postal Service, 88 M.S.P.R. 579 (2001) to this order, the appellant was proceeding pro se, and I do not find the discussion in Burger provides a clear enunciation of the jurisdictional requirements such that a pro se appellant could be expected to simply read Burger and understand what he was required to prove to establish an appealable jurisdictional issue. Accordingly, the proper disposition of this appeal is a remand to the regional office with instructions to reopen the record to allow the parties to submit additional evidence and argument on the jurisdictional issue after the appellant has been afforded proper Burgess notice.

_____________________                                  _________________________
Date                                                                         Beth S. Slavet
                                                                                  Member