UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

COLLEEN F. CLAY,

Appellant,

v.

CORPORATION FOR NATIONAL 

AND COMMUNITY SERVICE,

Agency.

DOCKET NUMBER

DC-0351-14-0254-I-2

DATE: December 21, 2016

THIS FINAL ORDER IS NONPRECEDENTIAL1

Johnathan P. Lloyd, Esquire, Washington, D.C., for the appellant.

Angela R. Williams, Esquire, Washington, D.C., 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

reversed its action separating the appellant by reduction in force (RIF). For the 

reasons discussed below, we GRANT the agency’s petition for review and 

REVERSE the initial decision. The appellant’s separation is SUSTAINED.

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

BACKGROUND

¶2 Effective June 28, 2010, the agency demoted the appellant under 5 U.S.C. 

chapter 75, from her position as Director, Office of Emergency Management 

(OEM), NY-04, to the position of Assistant Director of Projects and Partnerships, 

AmeriCorps National Civilian Community Corps (NCCC), NY-03, citing 

organizational changes which occurred when OEM’s functions were integrated 

into NCCC and the appellant’s position was abolished. On her appeal of that 

action, the administrative judge found that the agency had failed to show that the 

action would promote the efficiency of the service or that it was a permissible 

exercise of management discretion within tolerable limits of reasonableness, and 

that only by conducting a RIF could the deciding official legally avoid such 

considerations. Clay v. Corporation for National and Community Service, MSPB 

Docket No. DC-0752-13-0414-I-1, Initial Decision at 3-6 (July 10, 2013). 

Accordingly, the administrative judge reversed the agency’s action.2 Id. at 1, 7. 

That decision became a final decision of the Board on August 14, 2013, when 

neither party field a petition for review. On September 3, 2013, the agency 

notified the appellant that it had complied with the initial decision by canceling 

her demotion and retroactively restoring her to her former position, even though 

neither it nor OEM existed at that time. On September 6, 2013, the agency issued 

the appellant a specific notice of RIF explaining that the position to which she 

had been reinstated was being eliminated and that, because she had less service 

than the only other individual in her competitive level, the appellant would be 

separated, effective November 16, 2013. Clay v. Corporation for National and 

Community Service, MSPB Docket No. DC-0351-14-0254-I-1, Initial Appeal File 

(IAF), Tab 3 at 59. 

 

2

The administrative judge found that the appellant failed to establish her affirmative 

defense of retaliation for protected equal employment opportunity activity. Clay, 

MSPB Docket No. DC-0752-13-0414-I-1, Initial Decision at 5-7.
3

¶3 On September 27, 2013, the appellant filed a petition for enforcement

arguing, inter alia, that the agency was not in compliance with the Board’s 

decision because it had not in fact canceled the demotion action but rather had 

simply realigned her position and notified her that she would be separated by RIF. 

While the enforcement matter was pending, the appellant filed an appeal of the 

RIF action, IAF, Tab 1, which the administrative judge dismissed without 

prejudice pending final Board resolution of the appellant’s compliance appeal. 

Clay v. Corporation for National and Community Service, MSPB Docket No. 

D-0351-14-0254-I-1, Initial Decision at 2 (Apr. 15, 2014). The administrative 

judge subsequently denied the appellant’s petition for enforcement, finding that 

the agency provided documentary proof that it had canceled the action and 

retroactively restored her to her former position as ordered by the Board, Clay v. 

Corporation for National and Community Service, MSPB Docket No. DC-0752-

13-0414-C-1, Compliance Initial Decision at 1, 4, 6 (Jan. 23, 2014), and the 

Board denied the appellant’s petition for review of that decision, Clay v. 

Corporation for National and Community Service, MSPB Docket No. DC-0752-

13-0414-C-1, Final Order at 2-6 (Aug. 8, 2014).

¶4 In her refiled RIF appeal, the appellant alleged that the agency failed to 

comply with the RIF regulations regarding the proper composition of her 

competitive level. Refiled Appeal File (RAF), Tab 11 at 4. She also claimed that 

the RIF was retaliatory based on her having filed the earlier Board appeal in 

which she raised an allegation of discrimination, id. at 5, and arguing that, for 

that reason, the RIF was personal to her, id. at 5-6.

¶5 Following the requested hearing, the administrative judge issued an initial 

decision in which she first found that the agency undertook the RIF for a 

legitimate reason; specifically, reorganizing the Immediate Office of the Chief 

Executive Officer (CEO) and eliminating the duplication of function that resulted 

from the appellant’s having been reinstated into that office where another 
4

employee was performing similar duties. 3 RAF, Tab 22, Initial Decision (ID) at 

3‐4. The administrative judge then considered the procedural RIF requirements 

set forth at 5 C.F.R. part 351, specifically addressing the agency’s establishment 

of the competitive area in this case, the Immediate Office of the CEO. The 

administrative judge found that the agency admitted that it did not define the 

competitive area solely in terms of the agency’s organizational units and 

geographical location, as required by 5 C.F.R. § 351.402(b), but rather on the 

basis of where a particular occupation was performed, which is prohibited. ID at 

6-8. The administrative judge further found that the agency failed to comply with 

5 C.F.R. § 351.402(c) because it established the competitive area within 90 days 

of the effective date of the RIF without obtaining prior permission from the 

Office of Personnel Management (OPM). The administrative judge found that the 

agency’s improper constitution of the competitive area would require reversal of 

the RIF action unless the agency showed by preponderant evidence that the 

appellant still would have been separated, had the RIF been properly conducted, 

ID at 8, but that, although the agency was on notice that the propriety of the 

competitive area was being challenged, it presented no argument or alternative 

scenario based upon the premise that the competitive area was found to be 

improperly defined, and she therefore reversed the action,

4

ID at 8-9.

 

3

The appellant has not filed a petition for review challenging the administrative judge’s 

finding that the agency established that it undertook the RIF for a legitimate reason, and 

we discern no basis upon which to disturb that finding.

4 Citing to Savage v. Department of the Army, 122 M.S.P.R. 612, ¶ 42 (2015), the 

administrative judge found that the appellant failed to prove her claim that the RIF was 

personal to her based on her assertion that, in taking the action, the agency retaliated 

against her for raising discrimination allegations in her prior Board appeal. ID at 9-13. 

The appellant has not filed a petition for review challenging this finding. 

Acknowledging that the Board has recently clarified how it analyzes such claims, 

Gardner v. Department of Veterans Affairs, 123 M.S.P.R. 647 (2016), we nevertheless 

discern no basis upon which to disturb the administrative judge’s ultimate finding that 

the appellant failed to establish her claim.
5

¶6 The agency has filed a petition for review, Petition for Review (PFR) File, 

Tab 1,5to which the appellant has responded, PFR File, Tab 8, and the agency has 

submitted a reply, PFR File, Tab 9.

DISCUSSION OF ARGUMENTS ON REVIEW

¶7 On review, the agency argues that the administrative judge erred in finding 

that it failed to show that it properly constituted the competitive area in the RIF 

and that, even if the competitive area was not properly constituted, the appellant’s 

rights were not affected. PFR File, Tab 1 at 8-15, 18-20. 

¶8 OPM’s regulations provide that, in conducting a RIF, an agency must 

delineate one or more competitive area(s) in which employees compete for 

retention, 5 C.F.R. § 351.402(a), that a competitive area must be defined solely in 

terms of the agency’s organizational unit(s) and geographical location, and that 

the minimum competitive area is a subdivision of the agency under s eparate 

administration within the local commuting area. 5 C.F.R. § 351.402(b). The 

agency bears the burden of proving by preponderant evidence that it properly 

determined the appellant’s competitive area. 5 C.F.R. § 1201.56(b)(ii).

¶9 In finding that the agency failed to meet its burden of proof regarding the 

designation of the appellant’s competitive area as the Immediate Office of the 

CEO, the administrative judge relied on the testimony of the Director, Personnel 

Operations, the individual assigned to conduct the RIF. She testified that she 

chose the competitive area because “that was the area where there was duplication 

of function” and it was “the only area where there was any disaster work being 

performed.” Hearing Transcript (HT) at 123; ID at 7-8. Based on that testimony, 

and the testimony of the Director’s supervisor, the administrative judge found

that the agency improperly considered “occupation” in designating the 

 

5 With its petition for review, the agency submitted evidence that it had complied with 

the administrative judge’s interim relief order. PFR File, Tab 1 at 22.
6

competitive area, and that such consideration is contrary to OPM’s guidance. ID 

at 7.

¶10 The agency alleges on review that, in finding that it improperly designated 

the competitive area, the administrative judge misinterpreted OPM’s regulation 

by misconstruing the testimony of the two agency witnesses and OPM’s guidance. 

PFR File, Tab 1 at 8-11.

¶11 In reviewing the Director’s testimony regarding the designation of the 

competitive area in this case, we find that she correctly stated that a competitive 

area is the organizational component in which employees compete in a RIF.

6

 HT 

at 123; 5 C.F.R. § 351.402(b). Moreover, we find that her explanation that she 

selected the Immediate Office of the CEO as an appropriate competitive area 

because it was a distinct organizational unit with its own personnel authority, its 

own function, specifically, disaster service work, and its own work processes,

comports with the RIF regulations. We have considered the OPM Workforce 

Reshaping Operations Handbook (OPM Handbook)7 which, as the administrative 

judge acknowledged, lacks the authority of a regulation, and its statement that 

“[a]n agency may not define a competitive area on the basis of other 

considerations [besides organizational unit(s) and geographical location(s)] such 

as bargaining unit membership, grade, occupation, etc.,” OPM Handbook at 3; ID 

at 5 & n.2, but we find, based on the testimonial evidence, that the agency did not 

define the competitive area in this case on the basis of the appellant’s occupation,

but rather on appropriate considerations of organizational unit and geographical 

 

6

To the extent the Director failed to specifically include “geographical location” in her 

definition of and explanation for designating the Immediate Office of the CEO as the 

competitive area, we find that her supervisor clearly testified to the inclusion of that 

factor in defining the competitive area, and that he further testified that, when the 

Director presented him with her competitive area determination, he agreed with it. HT 

at 81, 83.

7

Available at http://www.opm.gov/policy-data-oversight/workforcerestructuring/reductions-in-force/workforce_reshaping.pdf (last visited December 19, 

2016).
7

location, consistent with the RIF regulations. We further find, therefore, that the 

administrative judge erred in finding that the agency incorrectly determined the 

competitive area in this case.8

¶12 Based on her finding regarding the competitive area, the administrative 

judge did not address the appellant’s additional argument that her competitive 

level was improperly constituted. ID at 9. Because the record is complete, we 

examine that issue now.

¶13 OPM’s regulations provide that agencies shall establish competitive levels 

consisting of all positions in a competitive area which are in the same grade (or 

occupational level) and classification series, and which are similar enough in 

duties, qualification requirements, pay schedules, and working conditions so that 

the 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)(1).

¶14 The agency determined that competitive level 0049 consisted of two 

positions, the appellant’s position of Director, OEM, NY-04, and the position of 

Senior Advisor for Disaster Services, NX-01. IAF, Tab 3 at 42. The Director, 

Personnel Operations, testified that she examined the position descriptions of the

two positions and found that they were interchangeable in that they both involved 

disaster service and emergency management work, were both in the same pay 

band, and were both supervisory. IAF, Tab 5 at 24, 28; HT at 124-25. The 

Director’s supervisor testified that he agreed with that assessment. HT at 83-84.

¶15 Before the administrative judge, the appellant argued that the agency 

violated 5 C.F.R. § 351.403(a)(5) and the OPM Handbook by including the 

 

8

The administrative judge found that it appeared that the agency failed to comply with 

the procedural requirements of the RIF regulations because, contrary to 5 C.F.R. 

§ 351.402(c) and OPM guidance, OPM Handbook at 32, it established the competitive 

area within 90 days of the effective date of the RIF without obtaining OPM approval. 

ID at 8. Even if true, the timing provides no basis for reversing the agency’s action

because there is no showing that the appellant would not have been separated if the 

competitive area had been established several days earlier. Foster v. Tennessee Valley 

Authority, 87 M.S.P.R. 48, 52 (2000).
8

NX-01 position in her competitive level because the positions were in fact in 

different pay bands. RAF, Tab 11 at 4, Tab 14 at 16 (OPM Handbook at 34). The 

Director, Personnel Operations, testified that an NX-01 typically is a supervisor 

or a manager responsible for a broad program with national impact, whereas a 

NY-04 is typically an expert, but also a supervisor, responsible for programs that 

may or may not be at the national level. HT at 137-38. She verified, however, 

that both positions are in the same pay band. Id. at 136. Additionally, the 

operative document explaining the agency’s Alternative Personnel System9

provides that there are five bands and that NY-04 and NX-01 comprise a single 

pay band, IAF, Tab 6 at 16, and the testimony of the supervisor of the Director, 

Personnel Operations, was in accord, HT at 66. Based on our review of the 

evidence, the agency has shown that it properly included the Senior Advisor for 

Disaster Services position in the appellant’s competitive level.

¶16 The appellant also argued before the administrative judge that the agency 

improperly excluded from her competitive level the position of Senior Advisor 

for Partnerships and Advancement, NY-04. The appellant argued that the 

position was interchangeable with her own and was in the same competitive area, 

and that, if it had been in her competitive level, she would not have been 

separated based on her earlier service computation date.

10

 RAF, Tab 11. The 

Director, Personnel Operations, testified that she reviewed both position 

descriptions, IAF, Tab 20 at 18, Tab 5 at 24, but found that the Senior Advisor for 

Partnerships and Advancement position focused on broad agency initiatives and 

was nonsupervisory, whereas the appellant’s position focused on disaster services 

or emergency management type of work and was supervisory. HT at 126-27.

 

9

The agency has statutory authority for maintaining its own excepted-service personnel 

system with pay bands. 42 U.S.C. § 12651f(b).

10 According to the retention register, both employees are in group I, subgroup B. The 

appellant’s adjusted service computation date is July 14, 1987, whereas the adjusted 

service computation date of the incumbent of the Senior Advisor for Partnerships and 

Advancement position is September 27, 1994. IAF, Tab 3 at 42-43, Tab 21 at 6.
9

¶17 Citing the OPM Handbook, the appellant argued that the RIF regulations no 

longer specifically require that an agency must establish a separate competitive 

level solely because an employee holds a supervisory rather than a 

nonsupervisory position. RAF, Tab 14 at 17. While true, the Handbook, 

although lacking the authority of a regulation, further provides that the duties and 

responsibilities of a supervisory position will generally preclude placement of the 

position in a competitive level that includes a nonsupervisory position. Id. In 

any event, we have reviewed the two position descriptions and find that they 

reveal significant differences. The appellant’s position description focuses on 

disaster preparedness, relief, and other services, and states that the incumbent 

exercises independent discretion and judgment in completing management 

requirements. IAF, Tab 5 at 24. The incumbent of the Senior Advisor for 

Partnerships and Advancement position is responsible for the formation of 

national strategies, policies, and initiatives to grow national service through 

cross-sector partnerships, and while that individual is responsible for 

independently planning, conducting and coordinating work, and for having 

substantial and continuing responsibility for ensuring program accomplishments, 

the position description does not provide for independent discretion. IAF, Tab 20 

at 18. In addition, the “competencies” for the two positions reflect substantial 

differences. Compare IAF, Tab 5 at 24, with IAF, Tab 20 at 18. We find, 

therefore, that the agency showed that the distinguishing features between the two 

positions suffice to find that they are not similar enough in duties so that the 

incumbent of one position could be reassigned to the other without undue 

interruption, and that therefore they are properly placed in separate competitive 

levels. McKenna v. Department of the Navy, 105 M.S.P.R. 373, ¶ 4 (2007).

¶18 In sum, because the other individual in the appellant’s competitive level had 

an earlier service computation date, the appellant was properly released when her 

position was abolished due to a reorganization. Further, because she had no 

assignment rights given that all agency positions are in the excepted service, 
10

5 C.F.R. § 351.701(a), she was properly separated. We therefore find that the 

agency has shown by preponderant evidence that it complied with the procedural 

requirements set forth in the RIF regulations in effecting this action.

ORDER

¶19 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)).

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request further review of this final decision. 

Discrimination Claims: Administrative Review

You may request review of this final decision on your discrimination 

claims by the Equal Employment Opportunity Commission (EEOC). See 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 
11

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 United States 

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, 

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