                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     TONY A. KNIGHT,                                 DOCKET NUMBER
                   Appellant,                        AT-0351-15-0817-I-1

                  v.

     TENNESSEE VALLEY AUTHORITY,                     DATE: September 30, 2016
                  Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Floyd Kilpatrick, Chattanooga, Tennessee, for the appellant.

           Philip J. Pfeifer, Esquire, Knoxville, Tennessee, 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 did
     not sustain the appellant’s removal by operation of reduction-in-force (RIF)
     procedures. For the reasons discussed below, we GRANT the agency’s petition
     for review, REVERSE the initial decision insofar as it did not sustain the removal



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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     action, SUSTAIN the removal action, and AFFIRM the initial decision as to the
     analysis of the appellant’s age discrimination claim.
¶2         The appellant was one of three employees who held the position of
     Manager, Environment Services (MES) in the Environmental Monitoring and
     Analysis (EMA) group in the agency’s environmental organization. 2               Initial
     Appeal File (IAF), Tab 7. In late 2013 and early 2014, the agency announced that
     it would conduct an agency‑wide reorganization to reduce expenditures. Id. The
     appellant’s group was eliminated as part of the reorganization and the agency
     conducted a RIF to separate employees whose jobs had been eliminated. Before
     the agency conducted the RIF action, both of the other employees who held the
     same position as the appellant vacated the position; one accepted a voluntary
     incentive and left the agency, and the other was selected for a vacant position in
     the agency. Id. The agency removed the appellant by RIF procedures. Id. The
     appellant appealed the agency’s action, challenging the application of the
     RIF regulations to him. IAF, Tab 1. He also raised the affirmative defense of age
     discrimination. 3 Id.
¶3         Based on the record, including the hearing testimony, the administrative
     judge found that the RIF was conducted for a legitimate reason but that the
     RIF regulations were not properly applied to the appellant. IAF, Tab 19, Initial
     Decision (ID) at 4. She found, based on reviewing the position descriptions of
     Manager    of   Environmental     Field   Services   (MEFS)     and   the   appellant’s
     MES position, that the two positions were sufficiently similar that they should
     have been in the same competitive level.        ID at 11.    She also found that the
     appellant should have been placed on the retention register ahead of the

     2
       The Tennessee Valley Authority is a quasi-Governmental organization, and does not
     use the General Schedule (GS) for classifying positions. Thus, the positions at issue in
     this appeal are not referenced at GS levels.
     3
       After his removal, the appellant filed a formal age discrimination complaint. IAF,
     Tab 7. He timely filed this appeal with the Board after the agency issued the final
     agency decision.
                                                                                            3

     incumbent of the MEFS position, and should not have been released ahead of that
     employee.    ID at 13.     Additionally, the administrative judge found that the
     appellant failed to prove his affirmative defense of age discrimination. ID at 14.
     She ordered the agency to restore the appellant. ID at 14.
¶4         In its petition for review, the agency asserts that the administrative judge
     wrongly identified the competitive area and erred in finding that the MES and
     MEFS positions were in the same competitive level. 4 Petition for Review (PFR)
     File, Tab 1. The agency also asserts that the administrative judge, in defining the
     competitive level, erred by failing to compare the specific duties of the positions,
     disregarding the parties’ agreed‑upon facts, testimony, pertinent position
     descriptions, and organizational history. 5 Id.      The appellant has responded in
     opposition to the petition. 6 PFR File, Tab 5.
¶5         At the outset, we note that, when an agency conducts a RIF, a competitive
     area must be defined in terms of the agency’s organizational units and
     geographical location and it must include all employees within the competitive
     area so defined.    5 C.F.R. § 351.402(b).       The minimum competitive area is a
     subdivision of the agency under separate administration within the local
     commuting area.      Id.   Here, the parties agreed that “Environment” was the




     4
       The administrative judge ordered interim relief. ID at 15. With its petition for
     review, the agency submitted a certificate of interim relief showing that it had complied
     with the order. PFR File, Tab 2.
     5
       On September 14, 2016, after the record closed on review, the agency submitted a
     Motion to Consider New and Material Supplemental Authority. PFR File, Tab 7. We
     deny the motion and have not considered the pleading. Thereafter, on September 26,
     2016, the appellant filed a reply to the agency’s motion. We similarly have not
     considered this pleading.
     6
       On review, the appellant does not challenge the administrative judge’s determination
     that the appellant failed to establish his affirmative defense of age discrimination. We
     find no basis to disturb the well-reasoned findings of the administrative judge
     on review.
                                                                                         4

     competitive area in the reorganization at issue in this appeal. 7 IAF, Tab 5 at 3.
     Thus, we agree with the agency that the administrative judge wrongly identified
     the competitive area as “Environmental Operations.” ID at 5. Both the MES and
     MEFS positions were in the Environment competitive area. IAF, Tab 11 at 3-4.
¶6        In addition, when conducting a RIF, an agency must establish competitive
     levels consisting of all positions in a competitive area that are at the same grade
     or organizational level.   5 C.F.R. § 351.403.     Here, the MES position was in
     organization level III, EMA. IAF, Tab 5 at 21, Tab 11 at 2. The MEFS position
     is in organization level III, Environments Operations. IAF, Tab 5 at 55. Thus,
     although both the MES and MEFS position were in the Environment competitive
     area, they were not in the same organization level III. The administrative judge
     misidentifying the competitive area as Environmental Operations may have
     influenced her to find that the MES and MEFS positions were not only in the
     same competitive area, but also in the same organizational level within the
     agency, and to find that the two positions were in the same competitive level. As
     explained below, the administrative judge erred in finding that the MES and
     MEFS positions were in the same 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

     7
       In challenging the RIF, the appellant did not contest the competitive area. IAF,
     Tab 14 at 3. Because the appellant did not challenge the competitive area, the parties
     agreed that the competitive area was Environment, and nothing in the record suggests
     that the competitive area was not drawn in accordance with the RIF regulations.
     Therefore, the Board is not addressing the correctness of the competitive area in this
     appeal.
                                                                                            5

     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. 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).
¶8            In this case, the administrative judge relied primarily on a comparison of
     the position descriptions of the MES and MEFS positions to find that the
     two positions should have been placed in the same competitive level. She found
     that the education, work experience, certification/license requirements, and the
     knowledge/skills/abilities (KSAs) necessary to meet the minimum qualifications
     for the job are identical. ID at 10. She also found that, because the KSAs are the
     same for both jobs, an individual meeting the KSAs for one position would meet
     the KSAs for the other.            She found, in addition, that the newer position of
     MEFS was initially given the same Job Title Code of FF0083 as the
     MES position, although at some point it was changed, but the agency did not
     explain the coding change. ID at 11. Further, she found that both the MES and
     MEFS        position     descriptions   discuss    responsibilities   for   environmental
     compliance, surface and ground water monitoring, quality assessment, project
     reporting, managing a budget of up to $1.5 million, and supervising up to
     20 employees.          ID at 11.    Additionally, she found that the MEFS position
     comprises many of the same responsibilities that the MES position once held. ID
     at 11.
¶9            In its petition for review, the agency asserts that the two positions in
     question came from two organizations with different responsibilities. PFR File,
                                                                                        6

      Tab 1 at 6. The agency asserts that the MES and MEFS positions differ regarding
      principal accountabilities and that respective incumbents could not perform
      successfully in all critical elements of both positions without undue interruption.
      Id. The agency argues that, contrary to the administrative judge’s finding, most
      of the duties of the MES position migrated to a Program Manager (PM) 8 position,
      not to the MEFS position.      The agency also asserts that the MEFS position
      focuses on the agency’s right of ways—including regulatory and compliance
      responsibilities—responsibilities that were never in the MES position.           Id.
      at 6-15.
¶10         The administrative judge’s analysis did not compare in detail the specific
      duties of the MES and MEFS positions.           Competitive‑level determinations
      involve a factual inquiry as well as comparing the position descriptions.       See
      Evans, 64 M.S.P.R. at 495-96. Here, although the administrative judge allowed
      testimony regarding the differences between the MES and MEFS positions, she
      failed to determine whether it was relevant and material to understand the
      positions’ principal accountabilities. ID at 10-11; see Evans, 64 M.S.P.R. at 496.
      We find that, under the circumstances of this case, it is necessary to weigh
      evidence in addition to the position descriptions to ascertain the duties and
      responsibilities of the MES and MEFS positions.
¶11         The Senior Human Resources Generalist (H.R. Generalist) who assigned
      competitive levels for a number of the positions involved in this RIF testified
      about her comparison of the MES and MEFS positions. Hearing Transcript (HT)
      at 166 (testimony of H.R. Generalist).      She testified that the two positions
      differed because the MEFS position has responsibility for all of the transmission
      systems and their compliance, while the MES position did not have that

      8
        The administrative judge found that there are sufficient differences between the
      appellant’s MES position and the PM position to warrant placing them in separate
      competitive levels. ID at 9-10. The parties do not disagree with this finding and we
      find no basis to disturb it.
                                                                                        7

      responsibility.   Id.   Also, the Director of Environmental Operations (Director)
      testified that the most distinguishing difference between the MES and
      MEFS positions is that the MEFS position is responsible for right-of-way support
      for the agency’s transmission organization. HT at 92 (testimony of Director). He
      stated that the MEFS position requires technical knowledge of environmental
      regulations and requirements and, uniquely, that the incumbent may have to
      interact with landowners as the agency puts easements on landowners’ property.
      Id.   Further, he stated that the MEFS position handles endangered species
      concerns and potential archeological sites that are crossed by the agency’s right
      of ways. HT at 93 (testimony of Director).
¶12         The appellant alleged that he performed the MEFS position duties at some
      time prior to holding the MES position. Id. However, that the appellant may
      have performed such duties in a different position within the agency prior to the
      RIF is irrelevant to a determination of whether—based on comparing the duties of
      the MES position that he held at the time of the RIF with those of the
      MEFS position—he could successfully perform the principal accountabilities of
      the MEFS position upon entry into it without any loss of productivity beyond that
      normally expected in the orientation of any new but fully qualified employee. 9
      See Disney, 67 M.S.P.R. at 567.
¶13         We credit both the testimony of the H.R. Generalist and the Director that
      the MES and MEFS positions differed in their fundamental responsibilities.
      Neither witness made prior inconsistent statements, had any apparent bias, and
      their testimony is not contradicted by other evidence. See Hillen v. Department
      of the Army, 35 M.S.P.R. 453, 458 (1987).        While we would be reluctant to
      overturn a finding by the administrative judge that these witnesses were not
      credible if that finding were based on witness demeanor, see Jackson v. Veterans

      9
        Assignment rights, i.e., whether the appellant had a right to bump or retreat into
      another position in lieu of his RIF separation, are not at issue in this appeal. See
      5 C.F.R. § 351.701(b).
                                                                                         8

      Administration, 768 F.2d 1325, 1331 (Fed. Cir. 1985) (finding that special
      deference must be given to the administrative judge’s findings regarding
      credibility when they are based on the demeanor of witnesses), here, the
      administrative judge made no finding in her initial decision regarding the
      credibility of these witnesses.
¶14         Moreover, the record establishes that the MES and MEFS positions differ in
      a number of specific principal accountabilities as follows:
         1. The MES position’s stated purpose was to manage staff for complex and/or
            high profile projects, to direct project team members, and to enable
            completion of projects. Areas of responsibility for the MES position were
            described as technical project areas and the position necessarily required
            project reporting for its complex and/or high-profile projects. IAF, Tab 5
            at 21.    In contrast, the MEFS position has accountability only for
            remediation projects, not complex and/or high-profile projects. Id. at 55.
         2. The MES position’s accountabilities included effective use of project
            control disciplines, ability to respond to changes in scope, schedule, and
            budget, and ability to communicate about projects with senior management,
            id. at 21, none of which are required for the MEFS position.        Upward
            contact in the MEFS position is to first‑ and second‑tier supervisors, not
            senior management. Id. at 31‑32, 55.
         3. The purpose of the MES position was to serve as a matrix‑structure
            manager who could assemble and manage a project team from various
            agency business units to complete assigned and emerging projects.        Id.
            at 21. The MEFS position supervises assigned environmental support staff
            and Environmental Operations technicians; it has no matrix duties and no
            mention is made of an emerging project. Id. at 55.
         4. The MES position managed environmental engineering applications and the
            technical project areas included environmental engineering. Id. at 21. The
                                                                                   9

   MEFS position shows no environmental engineering responsibility or
   projects. Id. at 55.
5. The MES position’s technical project areas included environmental and
   energy research and development scientific support.              Id. at 21.   The
   MEFS position indicates no technical research, development, or scientific
   responsibility. Id. at 55.
6. Although both positions have some responsibility for surface and
   groundwater      monitoring,    these   responsibilities   differ   between   the
   two positions.     The MES position required the incumbent to manage
   technicians who performed sampling and to directly oversee the routine and
   nonroutine testing. Id. at 21. These duties migrated to the PM position,
   which is responsible for directing technical personnel involved in testing.
   Id. at 57.    The MEFS position supervises the PM position, without
   possessing the same expertise or performing those duties.               HT at 54
   (testimony of Vice President of Environment), 97 (testimony of Senior
   Manager       of       Environmental      Generation       and      Construction
   (Senior Manager)).
7. A principal accountability of the MES position was to coordinate with
   Generation Level organizations and plant management on issues related to
   projects and agency operations. IAF, Tab 5 at 21. The MEFS position has
   no accountability about coordination or work at power plants or with plant
   management.        The MEFS position’s chief technical program area is
   environmental compliance field work and scheduling and resource planning
   for right of ways. Id. at 55.
8. The MES position had no responsibility for right of ways. Id. at 21. One
   of the MEFS position’s main purposes and responsibilities is for right of
   ways. Id. at 55.
9. The MES position did not develop or implement an environmental
   compliance program for, among other things, right of ways.                    The
                                                                                       10

            MEFS position is accountable to manage environmental programs and
            resources to meet operational compliance and its primary program area is
            the agency’s right of ways. An incumbent of the MEFS program develops,
            implements,     and   maintains   standardized   environmental    compliance
            programs. Id.
         10. The MES position was not responsible for controlling or monitoring
            stormwater or erosion. The MEFS position has to keep right of ways clear
            of obstructions and is responsible for stormwater inspections and
            monitoring to control erosion and sedimentation along the agency’s right of
            ways. Id.
         11. The MES position reflected no ongoing regulatory relationship or any
            obligation to implement the complex regulations along the agency’s right
            of ways. Id. at 21. The MEFS position implements new environmental
            regulations in connection with the transmission system program area, and
            maintains working relationships with the Environmental Protection Agency
            as implemented by state permitting agencies in a number of states and the
            U.S. Army Corps of Engineers, the Fish and Wildlife Service, and State
            Historic Preservation Officers.       HT at 92-94 (testimony of Senior
            Manager); 130‑31 (testimony of Manager).
         12. The MES position had no responsibility for public relationships, or to
            resolve problems or conflicts with private landowners. IAF, Tab 5 at 21.
            The MEFS position has responsibility to promote public working
            relationships and to conduct environmental operations to resolve problems
            and conflicts along the private lands crossed by the agency’s right of ways.
            HT at 92-93 (testimony of Senior Manager).
¶15        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, 562‑65 (1994) (finding that an agency improperly
                                                                                    11

      determined the appellant’s competitive level; the appellant was serving in a
      temporary position as a nonnuclear pipefitter when the agency separated
      pipefitters into two separate competitive levels, depending on whether the
      pipefitters performed nuclear or nonnuclear pipefitting duties).       Here, the
      MES and MEFS positions each had special duties that the administrative judge
      failed to consider in determining that the positions were in the same competitive
      level, as shown by the testimony of the H.R. Generalist and the Director who had
      oversight responsibility for the MEFS position, IAF, Tab 5 at 31‑32, and by
      comparing the principal accountabilities of the MES and MEFS positions.
¶16        We find that the MES and MEFS positions did not share sufficiently similar
      duties and responsibilities to be placed properly in the same competitive level.
      Placing the MES and MEFS positions in separate competitive levels is supported
      particularly by the agency’s showing that the two jobs applied different
      regulations. See Marcinowsky v. General Services Administration, 35 M.S.P.R. 6,
      10 (1987) (determining that, although two positions had certain supervisory and
      management skills in common, they required a different subject matter and
      technical expertise that could not be acquired without undue disruption). As a
      result, we find the agency showed by preponderant evidence that it could not
      reassign the incumbent of the MES position to the MEFS position without undue
      interruption. See Anderson v. Tennessee Valley Authority, 77 M.S.P.R. 271, 276
      (1998).     Accordingly, we reverse the administrative judge’s findings in this
      regard and we sustain the removal action.

                        NOTICE TO THE APPELLANT REGARDING
                           YOUR FURTHER REVIEW RIGHTS
            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)).    You have the right to request further review of this final
      decision.
                                                                                12

Discrimination Claims: Administrative Review
        You may request review of this final decision on your discrimination
claims by the Equal Employment Opportunity Commission (EEOC). 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
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,
                                                                             13

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.
