Vitaly Shik v. General Services Administration ( 2016 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
VITALY SHIK, DOCKET NUMBER
Appellant, NY-3443-16-0034-I-1
v.
GENERAL SERVICES DATE: April 18, 2016
ADMINISTRATION,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Lawrence Tomscha, New York, New York, for the appellant.
Chris Murphy, Esquire, New York, New York, 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
dismissed the appeal for lack of jurisdiction. 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 erroneous interpretation of statute or
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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, was 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).
BACKGROUND
¶2 The appellant alleges that he was temporarily promoted to a GS-14 position
for 120 days and that at the end of his temporary promotion he was returned to his
GS-13 position, but required to continue performing the functions of the
GS-14 position. Initial Appeal File (IAF), Tab 6 at 6. After issuing a show cause
order and considering the parties’ evidence and arguments on jurisdiction, the
chief administrative judge found that the appellant failed to nonfrivolously allege
that he had been constructively demoted, and he dismissed the appeal for lack of
jurisdiction. 2 IAF, Tab 9, Initial Decision (ID).
¶3 The appellant has filed a petition for review of the initial decision asserting
that the chief administrative judge misconstrued the issue raised in the appeal as a
classification issue. Petition for Review (PFR) File, Tab 1 at 4. The agency has
responded to the petition for review. PFR File, Tab 3.
2
The agency’s narrative response provided greater detail to the appellant about the
applicable jurisdictional issues involved in this appeal and what he needed to do to
establish jurisdiction under different possible theories. IAF, Tab 8.
3
DISCUSSION OF ARGUMENTS ON REVIEW
¶4 The appellant claims that the agency permanently reassigned him to a
GS-14 position but has not compensated him accordingly. PFR File, Tab 1 at 4.
We have reviewed the record and find that there is no evidence supporting the
appellant’s contention that he was permanently promoted. The promotion of a
Federal employee cannot occur unless an official with the appropriate authority
took, authorized, or ratified an action that could reasonably be said to have
resulted in a promotion. Hoever v. Department of the Navy, 115 M.S.P.R. 487,
¶ 8 (2011). The record reflects that both the appellant and the agency understood
that the appellant’s promotion was temporary. IAF, Tab 4 at 53, Tab 6 at 6,
Tab 8 at 35.
¶5 The appellant asserts that he continues to perform the duties of the
GS-14 position he occupied during his temporary promotion. IAF, Tab 6 at 7.
Even if the appellant were performing the duties previously performed by a
GS-14 employee, performance of those duties is insufficient to establish that he
was permanently promoted. See Phillips v. Department of the Air Force,
104 M.S.P.R. 229, ¶ 5 (2006) (finding that, even if an appellant proved that he
performed the duties of a higher-graded position and the agency failed to
document or compensate him for the performance of those duties, he had not
made a nonfrivolous allegation of the Board’s jurisdiction). The return of an
employee to his permanent position after a temporary promotion is not an action
appealable to the Board, and the appellant did not show that he was duly
appointed to the GS-14 position. 5 C.F.R. § 335.102(f)(1).
¶6 The appellant argues that the issue in his appeal should not be confused
with a classification issue. PFR File, Tab 1 at 4. However, his claim is, in effect,
that the agency improperly has failed to reclassify his GS-13 position to a
GS-14 level after he returned to his former GS-13 job and the agency required
him to continue performing the duties of the GS-14 position. Id. at 4-5. As
properly found by the chief administrative judge, the Board does not have
4
jurisdiction over claims that a position has been classified incorrectly. ID at 5;
see Beaudette v. Department of the Treasury, 100 M.S.P.R. 353, ¶ 12 (2005).
¶7 An employee is deemed to have suffered a constructive demotion only when
he was reassigned from a position that, due to the issuance of new classification
standards or a correction of a classification error, was a higher grade, and he was
reassigned to a position classified at a lower-grade level. Beaudette,
100 M.S.P.R. 353, ¶ 13. A constructive demotion claim cannot be based on an
allegation that a position could have been or should have been reclassified
upward; rather, a constructive demotion claim can succeed only if the appellant’s
former position “has actually been reclassified upward.” Marcheggiani v.
Department of Defense, 90 M.S.P.R. 212, ¶ 8 (2001). We agree with the chief
administrative judge’s finding that the appellant has failed to nonfrivolously
allege that he suffered a constructive demotion because he has not argued that his
former position was “actually . . . reclassified upward.” Id.; ID at 4-5.
¶8 The appellant also alleges that the agency erred by transferring him into a
GS-14 position without competition and violated the Office of Personnel
Management’s regulations by not returning him to his position of record after the
temporary promotion concluded. PFR File, Tab 1 at 5. As discussed above, the
appellant was not permanently reassigned to a GS-14 position, and agencies are
authorized to temporarily promote an employee for 120 days or less without
competition. 5 C.F.R. § 335.103(c)(i). Again, the appellant’s claim that he is
performing GS-14 duties while encumbering a position classified as a GS-13 is a
classification issue and is not within the Board’s jurisdiction. See Saunders v.
Merit Systems Protection Board, 757 F.2d 1288, 1290 (Fed. Cir. 1985) (stating
that the Board has not been granted appellate jurisdiction over cases concerning
the proper classification of a position). Therefore, we find that the chief
administrative judge appropriately dismissed this appeal for lack of jurisdiction.
5
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the U.S.
Court of Appeals for the Federal Circuit. You must submit your request to the
court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar days
after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27,
2012). If you choose to file, be very careful to file on time. The court has held
that normally it does not have the authority to waive this statutory deadline and
that filings that do not comply with the deadline must be dismissed. See Pinat v.
Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the
United States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information is available at the court’s website,
www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se
Petitioners and Appellants,” which is contained within the court’s Rules of
Practice, and Forms 5, 6, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
6
Merit Systems Protection Board neither endorses the services provided by any
attorney nor warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.