UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

TONY A. KNIGHT,

Appellant,

v.

TENNESSEE VALLEY AUTHORITY,

Agency.

DOCKET NUMBER

AT-0351-15-0817-I-1

DATE: September 30, 2016

THIS FINAL ORDER IS NONPRECEDENTIAL1

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 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

Washington, D.C.

______________________________

Jennifer Everling

Acting Clerk of the Board