                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     JAIME FIGUEROA,                                 DOCKET NUMBER
                  Appellant,                         DC-1221-15-0982-W-1

                  v.

     DEPARTMENT OF                                   DATE: May 17, 2016
       TRANSPORTATION,
                 Agency.



                  THIS ORDER IS NONPRECEDENTIAL *

           Mark R. Heilbrun, Esquire, Fairfax Station, Virginia, for the appellant.

           Brett Daee, Esquire, and Jared Hatch, Esquire, Washington, D.C., for the
             agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                     REMAND ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     dismissed for lack of jurisdiction his appeal of an alleged constructive demotion.
     For the reasons discussed below, we GRANT the petition for review, VACATE
     the initial decision, and REMAND this appeal to the Washington Regional Office

     *
        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     with instructions for the administrative judge to join this appeal with the
     appellant’s appeal designated as MSPB Docket No. DC-1221-16-0136-W-1 and to
     adjudicate the joined appeals consistent with this decision.

                                        BACKGROUND
¶2        Effective January 25, 2015, the agency reassigned the appellant from his
     Supervisory Aviation Technology Systems Specialist position to a Supervisory
     General Engineer position, apparently without a reduction in pay or grade. Initial
     Appeal File (IAF), Tab 10 at 10. The agency then sought to fill the appellant’s
     former position. The appellant applied for his former position, and, when the
     agency selected someone else, he filed a complaint with the Office of Special
     Counsel (OSC) on June 28, 2015, in which he alleged, among other things, that
     the agency constructively demoted him in reprisal for alleged protected
     disclosures. IAF, Tab 1 at 6, Tab 3 at 8-9. On July 15, 2015, the appellant filed
     the instant appeal and alleged that the reassignment constituted a constructive
     demotion under chapter 75. IAF, Tab 1, Tab 12 at 4-6. The administrative judge,
     however, construed the appeal as an individual right of action (IRA) appeal
     under 5 U.S.C. § 1221. IAF, Tab 2 at 2. He found that, because there was no
     evidence that the appellant had exhausted his administrative remedies before
     OSC, the Board lacked jurisdiction over the appeal. IAF, Tab 21, Initial Decision
     (ID) at 4-5.   Therefore, he dismissed the appeal for lack of jurisdiction in an
     October 19, 2015 initial decision. ID at 5.
¶3        The appellant petitions for review of that initial decision and argues that the
     administrative judge misconstrued his appeal and that he in fact wished to appeal
     his alleged constructive demotion under 5 U.S.C. chapter 75. Petition for Review
     File, Tab 1 at 5.    He argues that this matter should be remanded to the
     administrative judge to, among other things, provide proper jurisdictional notice
     and allow discovery. Id. at 8‑9.
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¶4         After issuance of the initial decision in this appeal, OSC closed its
     investigation, and the appellant filed a November 14, 2015 IRA appeal in which
     he alleged that the purported constructive demotion constituted reprisal for
     whistleblowing.    Figueroa v. Department of Transportation, MSPB Docket
     No. DC-1221-16-0136-W-1, Initial Appeal File, Tab 1. The administrative judge
     dismissed that appeal for 120 days (until May 5, 2016) without prejudice to
     refiling pending the Board’s decision in the present case.            Figueroa v.
     Department of Transportation, MSPB Docket No. DC-1221-06-0136-W-1, Initial
     Decision (Jan. 6, 2016).

                                        ANALYSIS
¶5         Based on the arguments raised below and now clarified on review, we agree
     with the appellant that the administrative judge misconstrued his appeal.        It
     appears that the appellant intended to challenge an alleged constructive demotion
     under chapter 75, and to raise the affirmative defense of whistleblower reprisal
     and possibly discrimination as well.         IAF, Tab 1, Tab 12 at 4-6.        The
     administrative judge appears to have determined that, because a constructive
     demotion is not generally within the Board’s jurisdiction, the only way the
     appellant could challenge his alleged constructive demotion was in an IRA
     appeal.   IAF, Tab 2 at 3.   The administrative judge generally is correct that
     constructive adverse actions are not appealable to the Board, but a constructive
     demotion is within the Board’s jurisdiction provided that the appellant proves that
     he:   (1) was reassigned from a position that, due to issuance of a new
     classification standard or correction of a classification error, was worth a higher
     grade; (2) met the legal and qualification requirements for promotion to the
     higher grade; and (3) was permanently reassigned to a position classified at a
     grade level lower than the grade level to which he would otherwise have been
     promoted. Savage v. Department of the Army, 122 M.S.P.R. 612, ¶ 24 n.4 (2015);
     Russell v. Department of the Navy, 6 M.S.P.R. 698, 711 (1981).
                                                                                       4

¶6        The appellant’s November 14, 2015 Board appeal mentioned above
     concerns the same underlying personnel action as the instant appeal.             An
     employee who claims to have suffered whistleblower reprisal regarding an action
     may elect, under 5 U.S.C. § 7121(g), no more than one of the following remedies:
     a direct appeal to the Board; a negotiated grievance procedure pursuant
     to 5 U.S.C. § 7121; or a request for corrective action with OSC, potentially to be
     followed by an IRA appeal to the Board.         Savage, 122 M.S.P.R. 612, ¶ 17.
     Ordinarily, an appellant who first requests corrective action from OSC will be
     deemed to have made a binding election to proceed in that forum.           5 U.S.C.
     § 7121(g)(4)(C); see Savage, 122 M.S.P.R. 612, ¶ 17.         In such a case, the
     jurisdictional requirements for an IRA appeal apply, even if the personnel action
     at issue would have been directly appealable to the Board. Savage, 122 M.S.P.R.
     612, ¶ 17. This principle applies equally to alleged constructive actions. Id.
¶7        Consideration of these principles leads to the conclusion that the appellant
     elected to proceed along the OSC complaint/IRA appeal route because he filed his
     complaint with OSC before filing his Board appeal in this case. His election,
     however, is only binding if it was knowing and informed.               Agoranos v.
     Department of Justice, 119 M.S.P.R. 498, ¶ 16 (2013). Further, if jurisdiction
     never attached to the appellant’s original choice, then it was not a true choice
     among viable alternatives and is not binding.      Scalera v. Department of the
     Navy, 102 M.S.P.R. 43, ¶ 9 (2006).

                                          ORDER
¶8        For the reasons discussed above, we remand this case to the regional office
     for further adjudication in accordance with this Remand Order. On remand, the
     administrative judge shall join this appeal with the appellant’s appeal in MSPB
     Docket No. DC-1221-16-0136-W-1 and shall, after informing the parties of their
     respective burdens and elements of proof and considering the parties’ evidence
     and argument, determine whether the appellant made a knowing and informed
                                                                              5

election to pursue an IRA appeal. The administrative judge shall then adjudicate
the appeal according to the course dictated by his or her determination.




FOR THE BOARD:                           ______________________________
                                         William D. Spencer
                                         Clerk of the Board
Washington, D.C.
