shaw bransford & roth case law update

Federal Circuit: Employees Entitled to Receive Only Salary of Position, Not Duties

The Federal Circuit Court of Appeals affirmed an MSPB decision finding that a GS-13 General Services Administration (“GSA”) employee who claimed that after a temporary promotion he continued to perform the duties of a GS-14 employee was not constructively demoted.

A GSA Supervisory Mechanical Engineer was temporarily promoted on January 13, 2013, to a GS-14 position for a term no longer than 120 days. That temporary promotion ended on May 13, 2013, and the employee returned to the Supervisory Mechanical Engineer position. However, the employee filed an appeal with the Merit Systems Protection Board in 2015, arguing that following his return to the GS-13 position, he continued to perform the duties of the GS-14 position. The employee attempted to show that the Merit Systems Protection Board had jurisdiction over his appeal by framing the issue as a “constructive demotion,” arguing that he continued performing the duties of a GS-14 but had been unfairly returned to a GS-13 rate of pay.

The Merit Systems Protection Board dismissed the employee’s appeal for lack of jurisdiction, finding “no evidence that [the employee] was permanently promoted to the GS-14 position” and that “the return of an employee to his permanent position after a temporary promotion is not an action appealable to the Board.” The Board also found that the employee failed to argue that his former position had been “reclassified upwards,” and that an employee’s performance of duties of a higher grade or level is a classification issue outside the Board’s jurisdiction. The employee appealed the Board’s decision to the appeals court. On October 5, 2016, the United States Court of Appeals for the Federal Circuit affirmed the Board’s decision.

In its decision, the appeals court observed that the employee’s argument “runs afoul of the well-recognized principle that a ‘federal employee is entitled to receive only the salary of the position to which he was appointed, even though he may have performed the duties of another position or claims that he should have been placed in a higher grade.’” The appeals court noted that the Board also lacks jurisdiction over claims that merely allege an employee should be receiving a higher salary for the work performed.

Still, the appeals court addressed the employee’s argument, citing Saunders v. Merit Systems Protection Board, 757 F.2d 1288, 1290 (Fed. Cir. 1985) in stating that the Board also does not have appellate jurisdiction “over cases concerning the proper classification of a position, either by statute or regulation.” The remedy for this issue, according to the appeals court, is to request that the Office of Personnel Management audit the position and direct the agency to change the grade of the position.

The appeals court recited the two-part step to establish a constructive demotion outlined in Walker v. Dep’t of the Navy, 106 F.3d 1582, 1584 (Fed. Cir. 1997), wherein an employee must demonstrate that he was reassigned from a position which, due to the issuance of a new classification standard or correction of classification error, is entitled to a higher grade, and that the employee meets the legal and qualification equirements for promotion to the higher grade. The appeals court found that the employee had not satisfied his burden of proving jurisdiction under the theory of constructive demotion.

For the above stated reasons, the United States Court of Appeals for the Federal Circuit affirmed the decision of the Merit Systems Protection Board dismissing the employee’s appeal for lack of jurisdiction.

Read the full case: Shik v. Merit Systems Protection Board


This case law update was written by Conor D. Dirks, associate attorney, Shaw Bransford & Roth, PC.

For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.

Posted in Case Law Update

Tags: MSPB, Merit Systems Protection Board, GSA, Court of Appeals for the Federal Circuit, constructive suspension, case law update, conor d dirks, conor dirks



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