Jocelyn Lee v. Department of Veterans Affairs ( 2022 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOCELYN LEE, DOCKET NUMBER
Appellant, DC-0752-17-0452-I-1
v.
DEPARTMENT OF VETERANS DATE: December 15, 2022
AFFAIRS,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Andrew Kim, Esquire, Atlanta, Georgia, for the appellant.
Joshua Barefoot, Winston-Salem, North Carolina, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her appeal claiming that the agency reduced her grade . The
administrative judge determined that the appellant failed to make a nonfrivolous
allegation that she suffered a reduction in grade, divesting the Board of
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
jurisdiction over her appeal. For the reasons discussed below, we GRANT the
appellant’s petition for review, VACATE the initial decision, and REMAND the
case to the Washington Regional Office for further adjudication in accordance
with this Remand Order.
BACKGROUND
¶2 Effective February 21, 2016, the agency promoted the appellant to a GS-08,
step 4, position as a Supervisory Medical Support Assistant. Initial Appeal File
(IAF), Tab 13 at 8. The agency detailed the appellant to a Medical Support
Assistant positon from May 2016 to March 20, 2017. 2 IAF, Tab 1 at 10-11,
Tab 10 at 5. According to the appellant, in February 2017, when the detail was
coming to an end, the agency presented her a choice between returning to a GS-08
Supervisory Medical Support Assistant position or a GS-05 Medical Support
Assistant position with pay retention. IAF, Tab 9 at 6-7. The appellant advised
that she wished to return to her former position. Id. at 7. After this meeting, the
appellant claims that agency management informed her that she would not be
placed back in her former GS-08 position. Id. at 7, 43-44. The appellant’s
reassignment as a Medical Support Assistant went into effect on March 20, 2017 .
IAF, Tab 1 at 11, Tab 10 at 6.
¶3 The appellant then filed a Board appeal and requested a hearing, alleging
that the agency constructively reduced her from a GS-08 to a GS-05 on March 20,
2017, when it reassigned her to a Medical Support Assistant position. 3 IAF,
Tab 1 at 3, 11-14. The agency contends that the appellant’s reassignment to this
position was not a reduction in grade and is at the GS-08 level. IAF, Tab 10 at 6.
The administrative judge issued jurisdictional orders, to which both parties
responded. IAF, Tabs 8-11, 13-14. In an initial decision issued on the written
2
The appellant does not contend that the agency reduced her pay or grade during this
detail. IAF, Tab 14 at 11.
3
The appellant does not allege any reduction in pay. IAF, Tab 1 at 14.
3
record, the administrative judge determined that the appellant failed to
nonfrivolously allege that she suffered a reduction in grade, depriving the Board
of jurisdiction over her appeal. IAF, Tab 15, Initial Decision (ID). To support
this conclusion, the administrative judge relied on a Standard Form 50 (SF-50)
with an effective date of January 8, 2017, listing the appellant as a GS-08, step 4.
ID at 3; IAF, Tab 13 at 9. The administrative judge also concluded that the
appellant’s allegation did not meet the nonfrivolous standard because there was
no loss of pay, no SF-50 showing a reduction in grade, and the appellant did not
produce evidence demonstrating that her Official Personnel Folder reflects a
reduction. ID at 3. The appellant filed a petition for review contesting the initial
decision, to which the agency responded in opposition. Petition for Review
(PFR) File, Tabs 1, 3.
ANALYSIS
¶4 The Board generally has jurisdiction to review an appeal of a reduction in
grade. See 5 U.S.C. §§ 7512(3), 7513(d). Although the threshold issue of
whether the Board has jurisdiction over an appeal may be disposed of on the basis
of the documentary record in appropriate cases, such disposition is not always
permissible. See Dumas v. Merit Systems Protection Board, 789 F.2d 892, 894
(Fed. Cir. 1986). If an appellant makes a nonfrivolous allegation that an agency
constructively reduced her grade and such allegation is based on more than mere
conclusory accusations, she is entitled to a jurisdictional hearing on the matter.
Alford v. Department of the Army, 47 M.S.P.R. 271, 274-75 (1991). A
nonfrivolous allegation is an allegation of fact which, if proven, could establish a
prima facie case of Board jurisdiction over the appeal. Ferdon v. U.S. Postal
Service, 60 M.S.P.R. 325, 329 (1994).
¶5 The SF-50 produced by the agency that the administrative judge relied on in
the initial decision has an effective date from January 2017, meaning it predates
the appellant’s allegation that she suffered a reduction in grade on March 20,
4
2017. ID at 3; IAF, Tab 1 at 11, Tab 13 at 9. Moreover, the SF-50 states that the
appellant is a Supervisory Medical Support Assistant, while the agency conceded
that on March 20, 2017, it reassigned the appellant to a Medical Support Assistant
position. IAF, Tab 10 at 6, Tab 13 at 9. This evidence leaves the record unclear
and in dispute. As the appellant argues in her petition for review, in determining
whether she has made a nonfrivolous allegation of jurisdiction entitling her to a
hearing, the administrative judge may consider the agency’s documentary
submissions; however, to the extent that the agency’s evidence constitu tes mere
factual contradiction of the appellant’s otherwise adequate prima facie showing of
jurisdiction, the administrative judge may not weigh evidence and resolve
conflicting assertions of the parties and the agency’s evidence may not be
dispositive. Ferdon, 60 M.S.P.R. at 329; PFR File, Tab 1 at 13-14. Relatedly, an
SF-50 does not constitute a personnel action itself and does not on its face control
an employee’s status and rights. Hunt-O’Neal v. Office of Personnel
Management, 116 M.S.P.R. 286, ¶ 10 (2011); see, e.g., Arrington v. Department
of the Navy, 117 M.S.P.R. 301, ¶ 13 (2012) (finding that the appellant suffered an
appealable reduction in grade even though there was not an SF-50 denoting any
reduction). In addition, the Board has jurisdiction to hear an appeal of a
reduction in grade even if there is not an accompanying reduction in pay. See
5 U.S.C. §§ 7512(3), 7513(d); Arrington, 117 M.S.P.R. 301, ¶¶ 8-13.
¶6 Therefore, the appellant’s allegation that the agency reduced her grade, if
proven, could establish a prima facie case of Board jurisdiction over her appeal.
See 5 U.S.C. §§ 7512(3), 7513(d). In support of her claim that she suffered this
reduction, the appellant provided her performance standards and position
description, both signed on March 21, 2017, indicating that her position was at
the GS-05 level. IAF, Tab 9 at 19-29. The appellant also submitted declarations
from coworkers describing her new position as a demotion and at the GS-05 level,
the office director’s apparent approval of her placement in a GS-05 position, and
emails to supervisors about her reduction to a GS-05. Id. at 43-44, 73-74, 76; see
5
Woodworth v. Department of the Navy, 105 M.S.P.R. 456, ¶ 14 (2007) (holding
that nonfrivolous jurisdictional allegations supported by affidavits or other
evidence confer Board jurisdiction), aff’d, 329 F App’x 281 (Fed. Cir. 2009). As
such, we find that the appellant has made a nonfrivolous allegation that the
agency reduced her grade and is entitled to a jurisdictional hearing. Garcia v.
Department of Homeland Security, 437 F.3d 1322, 1344 (Fed. Cir. 2006) (en
banc).
ORDER
¶7 For the reasons discussed above, we remand this case to the Washington
Regional Office for further adjudication. The administrative judge should apprise
the appellant of her burden in establishing Board jurisdiction over her reduction
in grade appeal and then convene a jurisdictional hearing. The parties also should
be afforded an opportunity to conduct discovery on the issue of jurisdiction prior
to such hearing.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.