Smith v. Department of Homeland Security, CH-531D-16-0196-I-1

Decision Date14 September 2016
Docket NumberCH-531D-16-0196-I-1
CourtMerit Systems Protection Board
PartiesKERWIN M. SMITH, Appellant, v. DEPARTMENT OF HOMELAND SECURITY, Agency.

UNPUBLISHED

THIS FINAL ORDER IS NONPRECEDENTIAL [1]

Leonard Mungo, Esquire, Detroit, Michigan, for the appellant.

David M. Burns, Esquire, Washington, D.C., 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 for lack of jurisdiction his appeal alleging that the agency denied him a within grade increase (WIGI). 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 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. See 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. Except as expressly MODIFIED by this Final Order to find that the Board lacks jurisdiction over the appellant's claims regarding his demotion from his Supervisory Physical Security Specialist position during his probationary period, we AFFIRM the initial decision.

BACKGROUND

¶2 While serving as a GS 12 Physical Security Specialist with the agency, the appellant received a WIGI from GS 12 step 2 to GS 12 step 3, effective April 22, 2012. Initial Appeal File (IAF), Tab 6 at 10. Approximately 3 months later, effective July 15, 2012, the agency promoted the appellant to a GS 13 step 1 Supervisory Physical Security Specialist, subject to completion of a 1 year probationary period. Id. at 11. Less than a year later, effective June 30, 2013, the agency demoted the appellant during his probationary period to a nonsupervisory GS 12 step 4 Physical Security Specialist position. IAF, Tab 1 at 6 7, Tab 6 at 12 13.

¶3 On January 17, 2016, approximately 2½ years after his demotion, the appellant filed a Board appeal alleging that the agency denied him a WIGI on June 27, 2013, the date that the agency notified him of the demotion. IAF, Tab 1 at 5 6. The agency filed a motion to dismiss the appeal for lack of jurisdiction, arguing that the appellant failed to raise a nonfrivolous allegation that he was denied a WIGI.[2] IAF, Tab 6 at 4 9. Among other things, the agency argued that it demoted the appellant to the Physical Security Specialist position at the same grade level and step that he would have held if he had not been promoted to the Supervisory Physical Security Specialist position. Id. at 7 8.

¶4 The administrative judge issued an order, which provided the appellant with notice of his jurisdictional burden regarding his claim that he was denied a WIGI, and ordered the appellant to submit evidence and argument regarding the Board's jurisdiction over his appeal. IAF, Tab 8. In response the appellant alleged, among other things, that the agency denied him a WIGI when it demoted him from the Supervisory Physical Security Specialist position, and “illegally denied [him] his right to complete his 52 weeks of service as a GS 13 Step 1 . . . .” IAF, Tab 11 at 1; see IAF, Tab 9 at 2. He further alleged that he had filed an equal employment opportunity (EEO) complaint alleging that the agency discriminated against him based on race when it demoted him.[3] IAF, Tab 9 at 2 3.

¶5 Without holding the appellant's requested hearing, the administrative judge issued an initial decision dismissing the appeal for lack of jurisdiction.[4] IAF, Tab 14, Initial Decision (ID); IAF, Tab 1 at 2. She found that the appellant failed to raise a nonfrivolous allegation that the agency denied him a WIGI. ID at 3 4. She further found that, absent an otherwise appealable action, the Board lacked jurisdiction to review the appellant's claims that the agency discriminated against him based on race. ID at 4.

¶6 The appellant has filed a petition for review of the initial decision, and the agency has responded in opposition to the petition for review. Petition for Review (PFR) File, Tabs 1 2.

DISCUSSION OF ARGUMENTS ON REVIEW

¶7 The Board's jurisdiction is limited to those matters over which it has been given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). Thus, it follows that the Board does not have jurisdiction over all matters involving Federal employees that are alleged to be unfair or incorrect. Johnson v. U.S. Postal Service, 67 M.S.P.R. 573, 577 (1995). An appellant who makes a nonfrivolous allegation of jurisdiction is entitled to a hearing at which he then must prove jurisdiction by a preponderance of the evidence.[5] Garcia v. Department of Homeland Security, 437 F.3d 1322, 1344 (Fed. Cir. 2006) (en banc); see5 C.F.R. § 1201.56(b)(2)(i)(A).

¶8 Here, the administrative judge correctly found that the appellant failed to raise a nonfrivolous allegation that the agency denied him a WIGI. ID at 3 4. A General Schedule employee who is paid at less than the maximum rate of the grade of his position, such as the appellant, is entitled to a WIGI if his performance is at an acceptable level of competence (ALOC), he has completed the required waiting period, and he has not received an equivalent increase in pay from any cause during that period. 5 U.S.C. § 5335(a); 5 C.F.R. § 531.404. As a GS 13 Step 1 employee, the appellant was required to complete a 52 week waiting period to be eligible for a WIGI in the Supervisory Physical Security Specialist position. 5 U.S.C. § 5335(a)(1); 5 C.F.R. §§ 531.404(b), 531.405(a)(1)(i). The agency provided evidence that it demoted the appellant from the Supervisory Physical Security Specialist position effective June 30, 2013, less than 52 weeks after it promoted him to that position on July 12, 2015, and the appellant did not dispute the accuracy of those dates. IAF, Tab 6 at 11-13. Thus, the undisputed evidence reflects that the appellant was not eligible for a WIGI in the Supervisory Physical Security Specialist position. See5 U.S.C. § 5335(a)(1); 5 C.F.R. §§ 531.404(b), 531.405(a)(1)(i).

¶9 Moreover, the administrative judge correctly found that the appellant failed to raise a nonfrivolous allegation that the agency denied him a WIGI when it placed him in the GS 12 step 4 Physical Security Specialist position pursuant to his demotion. ID at 3 4. Pursuant to 5 C.F.R. § 531.215(d) when an employee promoted to a supervisory or managerial position in the competitive service does not satisfactorily complete a probationary period and is returned to a position at the lower grade held before the promotion, the agency “must set the employee's payable rate of basic pay upon return to the lower grade as if the employee had not been promoted to the supervisory or managerial position . . . .” Section 531.215(d) further provides that “time served following the promotion may be creditable service towards GS within-grade increases in the lower grade.”

¶10 The agency provided evidence that, as a GS 12 Physical Security Specialist, the appellant received a WIGI from step 2 to step 3, effective April 22, 2012, and he did not dispute the accuracy of that date. IAF, Tab 6 at 10. Pursuant to applicable law governing waiting periods for WIGIs, the appellant would have been eligible to receive a WIGI to a GS 12 step 4 on or about April 22, 2013, and would not have been eligible for another WIGI to step 5 until 104 weeks thereafter. 5 U.S.C. §§ 5335(a)(1), (2); 5 C.F.R. §§ 531.404(b), 531.405(a)(1)(i), (ii). Therefore, because the undisputed evidence reflects that the agency demoted the appellant to the same grade and step (GS 12 Step 4) that he would have held if he had not been promoted to the Supervisory Physical Security Specialist position, and gave him credit for time served in the Supervisory Physical Security Specialist position, we agree with the administrative judge that the appellant failed to raise a nonfrivolous allegation that the agency denied him a WIGI. ID at 3 4.

¶11 On review, as he did below, the appellant contends that the Board has jurisdiction over his appeal because the agency failed to notify him of his right to seek reconsideration of its denial of his WIGI. PFR File, Tab 1 at 4 7; IAF, Tab 1 at 5. We find this argument unpersuasive. When an agency determines that a WIGI should be withheld because an employee is not performing at an ALOC, the employee is entitled to written notification of that determination and an opportunity for reconsideration of the determination by the agency under regulations prescribed by the Office of Personnel Management. 5 U.S.C. § 5335(c); 5 C.F.R. § 531.409(e). Although the Board's jurisdiction to review the denial of a WIGI generally attaches only after the agency has issued a reconsideration decision, see, e.g., Goines v Merit Systems Protection Board, 258 F.3d 1289, 1292 93 (Fed. Cir. 2001), the Board has found that it also has jurisdiction over an appeal absent a reconsideration decision if an agency fails to comply with the requirement that it inform an employee of his right to reconsideration, see, e.g., Martinesi v. Equal Employment Opportunity...

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