                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     COLLEEN F. CLAY,                                DOCKET NUMBER
                   Appellant,                        DC-0351-14-0254-I-2

                  v.

     CORPORATION FOR NATIONAL                        DATE: December 21, 2016
       AND COMMUNITY SERVICE,
                  Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Johnathan P. Lloyd, Esquire, Washington, D.C., for the appellant.

           Angela R. Williams, Esquire, Washington, D.C., for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The agency has filed a petition for review of the initial decision, which
     reversed its action separating the appellant by reduction in force (RIF). For the
     reasons discussed below, we GRANT the agency’s petition for review and
     REVERSE the initial decision. The appellant’s separation is SUSTAINED.


     1
        A nonprecedential order is one that the Board has determined does not add
     significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
     but such orders have no precedential value; the Board and administrative judges are not
     required to follow or distinguish them in any future decisions. In contrast, a
     precedential decision issued as an Opinion and Order has been identified by the Board
     as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
                                                                                          2

                                       BACKGROUND
¶2         Effective June 28, 2010, the agency demoted the appellant under 5 U.S.C.
     chapter 75, from her position as Director, Office of Emergency Management
     (OEM), NY-04, to the position of Assistant Director of Projects and Partnerships,
     AmeriCorps National Civilian Community Corps (NCCC), N Y-03, citing
     organizational changes which occurred when OEM’s functions were integrated
     into NCCC and the appellant’s position was abolished. On her appeal of that
     action, the administrative judge found that the agency had failed to show that the
     action would promote the efficiency of the service or that it was a permissible
     exercise of management discretion within tolerable limits of reasonableness, and
     that only by conducting a RIF could the deciding official legally avoid such
     considerations. Clay v. Corporation for National and Community Service, MSPB
     Docket No. DC-0752-13-0414-I-1, Initial Decision at 3-6 (July 10, 2013).
     Accordingly, the administrative judge reversed the agency’s action. 2 Id. at 1, 7.
     That decision became a final decision of the Board on August 14, 2013, when
     neither party field a petition for review.     On September 3, 2013, the agency
     notified the appellant that it had complied with the initial decision by canceling
     her demotion and retroactively restoring her to her former positio n, even though
     neither it nor OEM existed at that time. On September 6, 2013, the agency issued
     the appellant a specific notice of RIF explaining that the position to which she
     had been reinstated was being eliminated and that, because she had less service
     than the only other individual in her competitive level, t he appellant would be
     separated, effective November 16, 2013. Clay v. Corporation for National and
     Community Service, MSPB Docket No. DC-0351-14-0254-I-1, Initial Appeal File
     (IAF), Tab 3 at 59.



     2
       The administrative judge found that the appellant failed to establish her affirmative
     defense of retaliation for protected equal employment opportunity activity. Clay,
     MSPB Docket No. DC-0752-13-0414-I-1, Initial Decision at 5-7.
                                                                                     3

¶3         On September 27, 2013, the appellant filed a petition for enforcement
     arguing, inter alia, that the agency was not in compliance with the Board’s
     decision because it had not in fact canceled the demotion action but rather had
     simply realigned her position and notified her that she would be separated by RIF.
     While the enforcement matter was pending, the appellant filed an appeal of the
     RIF action, IAF, Tab 1, which the administrative judge dismissed without
     prejudice pending final Board resolution of the appellant’s compliance appeal.
     Clay v. Corporation for National and Community Service, MSPB Docket No.
     D-0351-14-0254-I-1, Initial Decision at 2 (Apr. 15, 2014). The administrative
     judge subsequently denied the appellant’s petition for enforcement, finding that
     the agency provided documentary proof that it had canceled the action and
     retroactively restored her to her former position as ordered by the Board, Clay v.
     Corporation for National and Community Service, MSPB Docket No. DC-0752-
     13-0414-C-1, Compliance Initial Decision at 1, 4, 6 (Jan. 23, 2014), and the
     Board denied the appellant’s petition for review of that decision, Clay v.
     Corporation for National and Community Service, MSPB Docket No. DC-0752-
     13-0414-C-1, Final Order at 2-6 (Aug. 8, 2014).
¶4         In her refiled RIF appeal, the appellant alleged that the agency failed to
     comply with the RIF regulations regarding the proper composition of her
     competitive level. Refiled Appeal File (RAF), Tab 11 at 4. She also claimed that
     the RIF was retaliatory based on her having filed the earlier Board appeal in
     which she raised an allegation of discrimination, id. at 5, and arguing that, for
     that reason, the RIF was personal to her, id. at 5-6.
¶5         Following the requested hearing, the administrative judge issued an initial
     decision in which she first found that the agency undertook the RIF for a
     legitimate reason; specifically, reorganizing the Immediate Office of the Chief
     Executive Officer (CEO) and eliminating the duplication of function that resulted
     from the appellant’s having been reinstated into that office where another
                                                                                        4

employee was performing similar duties. 3 RAF, Tab 22, Initial Decision (ID) at
3‑4. The administrative judge then considered the procedural RIF requirements
set forth at 5 C.F.R. part 351, specifically addressing the agency’s establishment
of the competitive area in this case, the Immediate Office of the CEO.               The
administrative judge found that the agency admitted that it did not define the
competitive area solely in terms of the agency’s organizational units and
geographical location, as required by 5 C.F.R. § 351.402(b), but rather on the
basis of where a particular occupation was performed, which is prohibited. ID at
6-8. The administrative judge further found that the agency failed to comply with
5 C.F.R. § 351.402(c) because it established the competitive area within 90 days
of the effective date of the RIF without obtaining prior permission from the
Office of Personnel Management (OPM). The administrative judge found that the
agency’s improper constitution of the competitive area would require reversal of
the RIF action unless the agency showed by preponderant evidence that the
appellant still would have been separated, had the RIF been properly conducted,
ID at 8, but that, although the agency was on notice that the propriety of the
competitive area was being challenged, it presented no argument or alternative
scenario based upon the premise that the competitive area was found to be
improperly defined, and she therefore reversed the action , 4 ID at 8-9.



3
  The appellant has not filed a petition for review challenging the administrative judge’s
finding that the agency established that it undertook the RIF for a legitimate reason, and
we discern no basis upon which to disturb that finding.
4
  Citing to Savage v. Department of the Army, 122 M.S.P.R. 612, ¶ 42 (2015), the
administrative judge found that the appellant failed to prove her claim that the RIF was
personal to her based on her assertion that, in taking the action, the agency retaliated
against her for raising discrimination allegations in her prior Board appeal. ID at 9-13.
The appellant has not filed a petition for review challenging this finding .
Acknowledging that the Board has recently clarified how it analyzes such claims,
Gardner v. Department of Veterans Affairs, 123 M.S.P.R. 647 (2016), we nevertheless
discern no basis upon which to disturb the administrative judge’s ultimate finding that
the appellant failed to establish her claim.
                                                                                          5

¶6         The agency has filed a petition for review, Petition for Review (PFR) File,
     Tab 1, 5 to which the appellant has responded, PFR File, Tab 8, and t he agency has
     submitted a reply, PFR File, Tab 9.

                      DISCUSSION OF ARGUMENTS ON REVIEW
¶7         On review, the agency argues that the administrative judge erred in finding
     that it failed to show that it properly constituted the competitive area in the RIF
     and that, even if the competitive area was not properly constituted, the appellant’s
     rights were not affected. PFR File, Tab 1 at 8-15, 18-20.
¶8         OPM’s regulations provide that, in conducting a RIF, an agency must
     delineate one or more competitive area(s) in which employees compete for
     retention, 5 C.F.R. § 351.402(a), that a competitive area must be defined solely in
     terms of the agency’s organizational unit(s) and geographical location, and that
     the minimum competitive area is a subdivision of the agency under s eparate
     administration within the local commuting area.        5 C.F.R. § 351.402(b).      The
     agency bears the burden of proving by preponderan t evidence that it properly
     determined the appellant’s competitive area. 5 C.F.R. § 1201.56(b)(ii).
¶9         In finding that the agency failed to meet its burden of proof regarding the
     designation of the appellant’s competitive area as the Immediate Office of the
     CEO, the administrative judge relied on the testimony of the Director, Personnel
     Operations, the individual assigned to conduct the RIF. She testified that she
     chose the competitive area because “that was the area where there was duplication
     of function” and it was “the only area where there was any disaster work being
     performed.” Hearing Transcript (HT) at 123; ID at 7-8. Based on that testimony,
     and the testimony of the Director’s supervisor, the administrative judge found
     that the agency improperly considered “occupation” in designating the



     5
       With its petition for review, the agency submitted evidence that it had complied with
     the administrative judge’s interim relief order. PFR File, Tab 1 at 22.
                                                                                              6

      competitive area, and that such consideration is contrary to OPM’s guidance. ID
      at 7.
¶10           The agency alleges on review that, in finding that it improperly designated
      the competitive area, the administrative judge misinterpreted OPM’s regulation
      by misconstruing the testimony of the two agency witnesses and OPM’s guidance.
      PFR File, Tab 1 at 8-11.
¶11           In reviewing the Director’s testimony regarding the designation of the
      competitive area in this case, we find that she correctly stated that a competitive
      area is the organizational component in which employees compete in a RIF. 6 HT
      at 123; 5 C.F.R. § 351.402(b). Moreover, we find that her explanation that she
      selected the Immediate Office of the CEO as an appropriate competitive area
      because it was a distinct organizational unit with its own personnel authority, its
      own function, specifically, disaster service work, and its own work processes,
      comports with the RIF regulations.        We have considered the OPM Workforce
      Reshaping Operations Handbook (OPM Handbook) 7 which, as the administrative
      judge acknowledged, lacks the authority of a regulation, and its statement that
      “[a]n agency may not define a competitive area on the basis of other
      considerations [besides organizational unit(s) and geographi cal location(s)] such
      as bargaining unit membership, grade, occupation, etc. ,” OPM Handbook at 3; ID
      at 5 & n.2, but we find, based on the testimonial evidence, that the agency did not
      define the competitive area in this case on the basis of the appellant’s occupation,
      but rather on appropriate considerations of organizational unit and geographical

      6
        To the extent the Director failed to specifically include “geographical location” in her
      definition of and explanation for designating the Immediate Office of the CEO as the
      competitive area, we find that her supervisor clearly testified to the inclusion of that
      factor in defining the competitive area, and that he further testified that, when the
      Director presented him with her competitive area determination, he agreed with it. HT
      at 81, 83.
      7
              Available        at       http://www.opm.gov/policy-data-oversight/workforce-
      restructuring/reductions-in-force/workforce_reshaping.pdf (last visited December 19,
      2016).
                                                                                           7

      location, consistent with the RIF regulations. We further find, therefore, that the
      administrative judge erred in finding that the agency incorrectly determined the
      competitive area in this case. 8
¶12         Based on her finding regarding the competitive area, the administrative
      judge did not address the appellant’s additional argument that her competitive
      level was improperly constituted. ID at 9. Because the record is complete, we
      examine that issue now.
¶13         OPM’s regulations provide that agencies shall establish competitive levels
      consisting of all positions in a competitive area which are in the same grade (or
      occupational level) and classification series, and which are si milar enough in
      duties, qualification requirements, pay schedules, and working conditions so that
      the agency may reassign the incumbent of one position to any of the other
      positions in the level without undue interruption. 5 C.F.R. § 351.403(a)(1).
¶14         The agency determined that competitive level 0049 consisted of two
      positions, the appellant’s position of Director, OEM, NY-04, and the position of
      Senior Advisor for Disaster Services, NX-01. IAF, Tab 3 at 42. The Director,
      Personnel Operations, testified that she examined the position descriptions of the
      two positions and found that they were interchangeable in that they both involved
      disaster service and emergency management work, were both in the same pay
      band, and were both supervisory.       IAF, Tab 5 at 24, 28; HT at 124-25.         The
      Director’s supervisor testified that he agreed with that assessment. HT at 83-84.
¶15         Before the administrative judge, the appellant argued that the agency
      violated 5 C.F.R. § 351.403(a)(5) and the OPM Handbook by including the

      8
        The administrative judge found that it appeared that the agency failed to comply with
      the procedural requirements of the RIF regulations because, contrary to 5 C.F.R.
      § 351.402(c) and OPM guidance, OPM Handbook at 32, it established the competitive
      area within 90 days of the effective date of the RIF without ob taining OPM approval.
      ID at 8. Even if true, the timing provides no basis for reversing the agency’s action
      because there is no showing that the appellant would not have been separated if the
      competitive area had been established several days earlier. Foster v. Tennessee Valley
      Authority, 87 M.S.P.R. 48, 52 (2000).
                                                                                          8

      NX-01 position in her competitive level because the positions were in fact in
      different pay bands. RAF, Tab 11 at 4, Tab 14 at 16 (OPM Handbook at 34). The
      Director, Personnel Operations, testified that an NX-01 typically is a supervisor
      or a manager responsible for a broad program with national impact, whereas a
      NY-04 is typically an expert, but also a supervisor, responsible for programs that
      may or may not be at the national level. HT at 137-38. She verified, however,
      that both positions are in the same pay band.        Id. at 136.   Additionally, the
      operative document explaining the agency’s Alternative Personnel System 9
      provides that there are five bands and that NY-04 and NX-01 comprise a single
      pay band, IAF, Tab 6 at 16, and the testimony of the supervisor of the Director,
      Personnel Operations, was in accord, HT at 66.         Based on our review of the
      evidence, the agency has shown that it properly included the Senior Advisor for
      Disaster Services position in the appellant’s competitive level.
¶16        The appellant also argued before the administrative judge that the agency
      improperly excluded from her competitive level the position of Senior Advisor
      for Partnerships and Advancement, NY-04.           The appellant argued that the
      position was interchangeable with her own and was in the same competitive area,
      and that, if it had been in her competitive level, she would not have been
      separated based on her earlier service computation date. 10 RAF, Tab 11. The
      Director, Personnel Operations, testified that she reviewed both position
      descriptions, IAF, Tab 20 at 18, Tab 5 at 24, but found that the Senior Advisor for
      Partnerships and Advancement position focused on broad agency initiatives and
      was nonsupervisory, whereas the appellant’s position focused on disaster services
      or emergency management type of work and was supervisory. HT at 126-27.

      9
       The agency has statutory authority for maintaining its own excepted-service personnel
      system with pay bands. 42 U.S.C. § 12651f(b).
      10
        According to the retention register, both employees are in group I, subgroup B. The
      appellant’s adjusted service computation date is July 14, 1987, whereas the adjusted
      service computation date of the incumbent of the Senior A dvisor for Partnerships and
      Advancement position is September 27, 1994. IAF, Tab 3 at 42-43, Tab 21 at 6.
                                                                                                  9

¶17           Citing the OPM Handbook, the appellant argued that the RIF regulations no
      longer specifically require that an agency must establish a separate competitive
      level    solely    because   an    employee     holds   a   supervisory   rather    than    a
      nonsupervisory position.          RAF, Tab 14 at 17.        While true, the Handbook,
      although lacking the authority of a regulation, further provides that the duties and
      responsibilities of a supervisory position will generally preclude placement of the
      position in a competitive level that includes a nonsupervisory position. Id. In
      any event, we have reviewed the two position descriptions and find that they
      reveal significant differences.      The appellant’s position description focuses on
      disaster preparedness, relief, and other services, and states that the incumbent
      exercises independent discretion and judgment in completin g management
      requirements.      IAF, Tab 5 at 24.      The incumbent of the Senior Advisor for
      Partnerships and Advancement position is responsible for the formation of
      national strategies, policies, and initiatives to grow national service through
      cross-sector      partnerships,   and   while    that   individual   is   responsible      for
      independently planning, conducting and coordinating work, and for having
      substantial and continuing responsibility for ensuring program accomplishments,
      the position description does not provide for independent discretion. IAF, Tab 20
      at 18. In addition, the “competencies” for the two positions reflect substantial
      differences.      Compare IAF, Tab 5 at 24, with IAF, Tab 20 at 18.                We find,
      therefore, that the agency showed that the distinguishing features between the two
      positions suffice to find that they are not similar enough in duties so that the
      incumbent of one position could be reassigned to the other without undue
      interruption, and that therefore they are properly placed in separate competitive
      levels. McKenna v. Department of the Navy, 105 M.S.P.R. 373, ¶ 4 (2007).
¶18           In sum, because the other individual in the appellant’s competitive level had
      an earlier service computation date, the appellant was properly released when her
      position was abolished due to a reorganization.             Further, because she had no
      assignment rights given that all agency positions are in the excepted service,
                                                                                     10

      5 C.F.R. § 351.701(a), she was properly separated. We therefore find that the
      agency has shown by preponderant evidence that it complied with the procedural
      requirements set forth in the RIF regulations in effecting this action.

                                            ORDER
¶19         This is the final decision of the Merit Systems Protection Board in this
      appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) ( 5 C.F.R.
      § 1201.113(c)).

                        NOTICE TO THE APPELLANT REGARDING
                           YOUR FURTHER REVIEW RIGHTS
            You have the right to request further review of this final decision.

      Discrimination Claims: Administrative Review
            You may request review of this final decision on your discrimination
      claims by the Equal Employment Opportunity Commission (EEOC). See title 5
      of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you
      submit your request by regular U.S. mail, the address of the EEOC is:
                                Office of Federal Operations
                         Equal Employment Opportunity Commission
                                      P.O. Box 77960
                                 Washington, D.C. 20013

      If you submit your request via commercial delivery or by a method requiring a
      signature, it must be addressed to:
                                Office of Federal Operations
                         Equal Employment Opportunity Commission
                                     131 M Street, NE
                                       Suite 5SW12G
                                 Washington, D.C. 20507

      You should send your request to EEOC no later than 30 calendar days after your
      receipt of this order. If you have a representative in this case, and your
      representative receives this order before you do, then you must file with EEOC no
                                                                                   11

later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.

Discrimination and Other Claims: Judicial Action
      If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate United States
district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with
the district court no later than 30 calendar days after your receipt of this order. If
you have a representative in this case, and your representative receives this order
before you do, then you must file with the district court no later than 30 calendar
days after receipt by your representative. If you choose to file, be very careful to
file on time. If the action involves a claim of discrimination based on race, color,
religion, sex, national origin, or a disabling condition, you may be entitled to
representation by a court‑appointed lawyer and to waiver of any requirement of
prepayment of fees, costs, or other security.      See 42 U.S.C. § 2000e-5(f) and
29 U.S.C. § 794a.




FOR THE BOARD:                             ______________________________
                                           Jennifer Everling
                                           Acting Clerk of the Board
Washington, D.C.
