                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     WILLIAM GEISSLER,                               DOCKET NUMBER
                   Appellant,                        AT-0351-14-0784-I-1

                  v.

     TENNESSEE VALLEY AUTHORITY,                     DATE: September 9, 2016
                  Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL *

           William Geissler, Chattanooga, Tennessee, pro se.

           Jennifer L. Grace, Esquire, and Philip J. Pfeifer, Knoxville, Tennessee, for
             the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     sustained his removal by operation of reduction in force (RIF) procedures.
     Generally, we grant petitions such as this one only when: the initial decision
     contains erroneous findings of material fact; the initial decision is based on an


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     erroneous interpretation of statute or regulation or the erroneous application of
     the law to the facts of the case; the administrative 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, not available when the record closed.
     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, 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        The agency separated the appellant, a pre-permanent System Engineer,
     Mechanical, River Operation, B-level, during a RIF that it conducted in 2014.
     Initial Appeal File (IAF), Tab 4, Subtab 4o. The agency employed engineers on
     four levels:   A, B, C, and D.    A-level engineers were trainees who generally
     progressed to B-level in 4 years.      B-level were senior engineers.       C-level
     engineers were technical experts and D-level were technical supervisors. IAF,
     Tab 30 at 29-49. The appellant was hired directly into a B-level engineer position
     because of his experience prior to being employed by the agency. The appellant
     appealed the agency’s RIF action. IAF, Tab 1.
¶3        Based on the record, including the hearing testimony, the administrative
     judge found that the agency invoked the RIF regulations for a legitimate
     management reason, a reorganization resulting from the agency’s decision to cut
     its operating budget. IAF, Tab 40, Initial Decision (ID) at 4-6. He also found
     that the agency established that it properly applied the RIF regulations both to the
     appellant’s competitive area and to his competitive level and properly released
     the appellant from his competitive level. ID at 6-17. Further, the administrative
     judge found that the appellant did not have assignment rights to any position upon
                                                                                     3

     his release from the competitive level. ID at 17-21. Finally, the administrative
     judge found that the appellant failed to establish that the agency discriminated
     against him on the basis of age. ID at 21-27.
¶4        In his petition for review, the appellant emphasizes that he was hired as a
     B-level engineer, so he was not subject to the normal 4-year training period
     needed to advance to the B level. Petition for Review (PFR) File, Tab 1. He
     argues that he met the requirements for more than one open position, but he
     was not included in the interview process for the jobs. Id. He argues that this
     shows age discrimination.      Id.   Additionally, apparently to undermine the
     administrative judge’s finding that the agency properly applied the RIF
     regulations as to the appellant’s competitive level, he asserts that, prior to the
     RIF, the agency moved him into a system engineer position that required
     experience in fossil and gas plants without him having the requisite years of
     experience and that the agency also moved fossil engineers into hydro plants
     positions when they lacked the requisite experience for those jobs. Id.
¶5        The appellant does not dispute the administrative judge’s findings that the
     agency invoked the RIF regulations for a legitimate management reason and that
     it properly applied the RIF regulations to the appellant’s competitive area. We
     find that the petition for review provides no basis to disturb the administrative
     judge’s well-reasoned determination that the agency established these elements of
     its RIF action by preponderant evidence through both documentary evidence and
     live testimony, ID at 4-11.   The record reflects that the administrative judge
     considered the evidence as a whole, drew appropriate inferences, and made
     reasoned conclusions. See, e.g., Crosby v. U.S. Postal Service, 74 M.S.P.R. 98,
     105-06 (1997) (finding no reason to disturb the administrative judge’s findings
     when she considered the evidence as a whole, drew appropriate inferences, and
     made reasoned conclusions); Broughton v. Department of Health & Human
     Services, 33 M.S.P.R. 357, 359 (1987) (same).
                                                                                       4

¶6         Based on the appellant’s assertion that the agency moved him into a system
     engineer position that required experience working in fossil and gas plants and
     moved fossil engineers into hydro plants positions, it appears that he is arguing
     that the administrative judge erred in finding that the agency properly applied the
     RIF regulations to the appellant’s competitive level.
¶7         It is well established that, in a RIF, an employee has a substantive right to
     be placed in a properly drawn competitive level. See Jicha v. Department of the
     Navy, 65 M.S.P.R. 73, 76 (1994). Thus, the agency bears the burden to prove by
     preponderant evidence that the appellant’s competitive level was properly drawn.
     Disney v. Department of the Navy, 67 M.S.P.R. 563, 567 (1995). To meet its
     burden, the agency must establish distinguishing features between positions in
     separate competitive levels that are sufficient as a matter of law to find that the
     positions are not “similar enough in duties, qualifications requirements, pay
     schedules, and working conditions, so that an 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).     “Without undue interruption” means
     without any loss to productivity beyond that normally expected in the orientation
     of any new, but fully qualified employee.        See Disney, 67 M.S.P.R. at 567.
     Position descriptions are significant evidence in determining whether positions
     should be in the same competitive level, but other evidence also may be relevant
     under the circumstances if it sheds light on the position descriptions.         See
     Evans v. Department of the Navy, 64 M.S.P.R. 492, 495-96 (1994). Nonetheless,
     an agency is permitted to establish separate competitive levels, even for positions
     with the same grade and title, to take into account special qualifications or duties
     required of some incumbents.          See, e.g., Griffin v. Department of the
     Navy, 64 M.S.P.R. 561 (1994).
¶8         Here, the administrative judge carefully compared the position description
     of the appellant’s position, System Engineer, Mechanical, River Operation, to the
     position descriptions of five other B-level System Engineer positions: (1) System
                                                                                      5

     Engineer, Combustion Turbine Plant; (2) System Engineer, Electrical; (3) System
     Engineer, Fuel Operations; (4) System Engineer, Mechanical; and (5) System
     Engineer, Performance Test & Evaluation. ID at 12. He found that the minimum
     qualifications for each of these positions included a bachelor’s degree in
     engineering from an accredited school of engineering.        However, unlike the
     appellant’s position, the position description of positions 1, 2, 3, and 4 did not
     specify that the engineering degree had to be in a specific engineering discipline,
     such as Mechanical Engineering. ID at 12. The administrative judge noted that
     the position description of the appellant’s position did specify that the college
     degree had to be in Mechanical Engineering. In addition, he noted that each of
     the System Engineer positions required skills and proficiency with a particular
     type of energy-producing plant or other specialized knowledge.       For example,
     position 1 required skill and proficiency in Combustion Turbine Plant Systems
     and Equipment; positions 2, 3, and 4 required skill and proficiency in Fossil
     Plant, i.e., Coal Systems; and position 5 required skill and proficiency with
     American Society of Mechanical Engineers Performance Test Codes and
     Environmental Protection Agency regulations.       None of these five positions
     required skill and proficiency in hydro plant operations and maintenance
     processes, as did the appellant’s position. IAF, Tab 30 at 29-34.
¶9        As to position 5, System Engineer, Performance Test & Evaluation, the
     minimum qualifications listed on the position description were nearly identical to
     the minimum qualifications listed on the appellant’s position description,
     including the requirement that the incumbent possess a bachelor’s degree in
     Mechanical Engineering or comparable related engineering discipline.          IAF,
     Tab 30 at 33.     However, unlike the appellant’s position, the minimum
     qualifications for the System Engineer, Performance Test & Evaluation position
     also required the incumbent to possess experience related to performance analysis
     and testing methods.    Additionally, while the appellant’s position description
     required the incumbent to have skill and proficiency respecting hydro plant
                                                                                         6

      systems and hydro plant operation and maintenance processes, the System
      Engineer, Performance Test & Evaluation position, which was assigned to the
      Fossil Power Group, did not require skill and proficiency in these areas.        We
      agree with the administrative judge that the experience necessary to qualify as a
      B-level System Engineer, Performance Test & Evaluation, which did not include
      experience with hydro plants or hydro plants systems, would not necessarily
      allow such an engineer to complete the work required of the appellant’s position
      within 90 days after such an engineer would be placed in the appellant’s position.
      As the administrative judge correctly found, the agency established by
      preponderant   evidence    that   the    appellant’s   position   (System   Engineer,
      Mechanical,    River   Operation)       and   the   System   Engineer,   Performance
      Test & Evaluation position were not similar enough in duties, qualification
      requirements, pay schedules, and working conditions that the agency could
      reassign the incumbent of each position to the other position without undue
      interruption. See Disney, 67 M.S.P.R. at 567.
¶10        In sum, we find that the administrative judge correctly found that the
      agency properly applied the RIF regulations to the appellant’s competitive level.
      The record does not account for the appellant’s assertion in his petition for review
      that the agency previously had moved him into a system engineer position that
      required working in fossil and gas plants without him having the requisite years
      of experience and moved fossil engineers into hydro plants positions. However,
      we note that the qualifications as set forth in position descriptions, not the
      personal qualifications of specific incumbents, determine composition of
      competitive levels.    See Holliday v. Department of Army, 12 M.S.P.R. 358,
      362 (1982).
¶11        Because the administrative judge correctly found that the agency properly
      applied the RIF regulations to the appellant’s competitive level, he also correctly
      found that the agency properly released the appellant from his competitive level.
      At the time of the RIF, the appellant was the only employee who remained in his
                                                                                       7

      competitive level. The other employee who had been in the same competitive
      level with the appellant had found another position with the agency before the
      RIF was effected.     Also, the administrative judge correctly found that the
      appellant did not have assignment rights because there were no employees in a
      lower subgroup than the appellant and he previously had not occupied any other
      position with the agency. See 5 C.F.R. § 351.701.
¶12        It appears that, on review, the appellant is asserting that, as a B-level
      engineer, he met the qualifications for a number of open positions within the
      agency that were not being eliminated by the RIF, that he applied for many of
      these positions, and that his nonselection for these positions established his
      allegation of age discrimination.   PFR File, Tab 1.    Thus, it seems that he is
      asserting discrimination in his nonselections rather than in the RIF action itself.
      Because the Board has jurisdiction over this appeal as a separation by operation
      of RIF procedures, it has jurisdiction only to determine whether the agency
      discriminated against the appellant on the basis of age in effecting his RIF
      separation. See Rosario-Fabregas v. Department of the Army, 122 M.S.P.R. 468,
      ¶ 20 (2015) (stating that the Board generally lacks jurisdiction to adjudicate a
      discrimination claim absent an otherwise appealable action).
¶13        In Savage v. Department of the Army, 122 M.S.P.R. 612, ¶¶ 42-43, 51
      (2015), the Board held that when an appellant asserts an affirmative defense of
      discrimination or retaliation, the Board, in reviewing the evidence of
      discrimination or retaliation, will first inquire whether an appellant has shown by
      preponderant evidence that the prohibited consideration was a motivating factor
      in the contested personnel action, in violation of 42 U.S.C. § 2000e-16. Id., ¶ 41.
      If the appellant meets his burden to show that discriminatory or retaliatory
      animus was a motivating factor in the contested personnel action, the Board will
      inquire whether the agency has shown by preponderant evidence that it still would
      have taken the contested action in the absence of the discriminatory or retaliatory
                                                                                       8

      motive. Id., ¶¶ 49-51. If the agency meets that burden, then its violation will not
      require reversal of the action. Id., ¶ 51.
¶14         Here, the administrative judge noted that the appellant testified that he had
      applied for more than 25 positions with the agency without being interviewed for
      any of them, while younger engineers were being interviewed. ID at 25. The
      administrative judge found that, even assuming that such anecdotal evidence
      might support a claim of discrimination concerning the selection process, the
      appellant presented no evidence that the individuals involved in deciding which
      applicants would be interviewed for the positions to which he applied exerted any
      influence over the RIF process that resulted in the appellant’s separation from his
      position. Id. Thus, although the appellant established that he was a member of a
      protected group on the basis of his age and that he suffered an appealable adverse
      employment action, the administrative judge correctly found that the appellant
      failed to submit sufficient evidence to establish that the unfavorable actions, his
      nonselections, gave rise to an inference of discrimination on the basis of his age
      regarding his separation by operation of RIF procedures. Id.

                      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 U.S. 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
                                                                                 9

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
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 U.S. 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
                                                                       10

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.
