UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

RILEY JACKSON,

Appellant,

V.

VETERANS ADMINISTRATION,

Agency.

Docket No. DE07528210197

DATE: JUN 2 7

BEFORE

Maria L. Johnson, Acting Chairman

Dennis M. Devaney, Member

OPINION AND ORDER

By letter received March 31, 1986, the agency requested

clarification of the Board's Order dated March 10, 1986, insofar

as the Order required the agency in part "to cancel appellant's

removal [and] to substitute in its place a demotion to a nonsupervisory position at the next lowest [sic] grade ... " The

agency asserts that a non-supervisory position for which

appellant is qualified cannot be at the next lower grade level

because such grade would yet be supervisory and, therefore, in

conflict with the Order's requirement that the appellant be

demoted to a non-supervisory position. The agency questions

whether it is required to create a position to comply with the

referenced Order.
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In response to the agency request for clarification,

appellant seeks an amended Order to reinstate him in a nonsupervisory position at the Grade Level of WS-1 or its

equivalent, or, in the alternative, to reinstate him to a Grade

Level of not less than WL-5 or its equivalent in a nonsupervisory position in the field of Animal Care,

Having considered the request for clarification, together

with the appellant's response, the Board GRANTS the request for

clarification and MODIFIES the Opinion and Order of March 10,

1986, as follows.

The Board finds that the agency should not be burdened by

having to create a job for which no need exists for the purpose

of accommodating a disciplinary demotion. The appellant's abuse

of his supervisory position requires first and foremost that he

be reassigned from supervisory duties until such time as he may

be considered fully rehabilitated. An absence of vacancies at

the equivalent of the grade next lower to appellant's WS-2

should not inure to the agency's detriment such that the agency

is required to create a position for which no need exists. To

hold otherwise would be inconsistent with the intent of Congress

that "[t]he Federal work force should be used efficiently and

effectively." 5 U.S.C. § 2301(b)(5)0 Appellant's rights are

adequately protected by affording him an opportunity for

placement in the first non-supervisory vacancy, at the
equivalent of WS-1,-^/ which the agency elects to fill and for

which appellant is qualified or could become qualified through

education or training without undue interruption.

The agency is therefore ORDERED to cancel appellant's

removal, to substitute in its place a demotion to a nonsupervisory position at the equivalent of WS-1, for which

appellant is qualified or could become qualified without undue

interruption of the agency's mission,^/ and to award appellant

back pay and other benefits for the appropriate time period under

5 C.F.R. § 550.805. In the event an equivalent position does not

presently exist for which appellant is qualified or could become

qualified through education and training without undue

interruption of the agency's mission, the agency is ORDERED to

place appellant in the highest^/ available non-supervisory

position for which he is presently qualified until such time as

an equivalent position becomes vacant and which the agency elects

to fill. The agency is further ORDERED to provide appellant

timely notice of any such equivalent-position vacancy

!/ The grade shall not exceed WG-10 or WL-7, which are the

functional equivalents to WS-1, as indicated by a comparison of

the current hourly wage rates for WS-1 ($10.80 to $12.59) with

the hourly wage rates for WG-10 ($10.78 to $12.56) and WL-7

($10.66 to $12.54). Regular and Special Production Facilitating

Wage Rates Schedule, Federal Wage System, Wags Area - Denver

Colorado, issued by the Vetc ans Administration May 31, 1985,

effective June 23, 1985. (Exnibit B to Appellant's Response to

Agency's Request for Clarification).

2/ A training period of up to ninety days would not be

considered an undue interruption of the agency's mission in this

case.

I/ The grade for this temporary placement shall not exceed the

equivalent of a WS-1. See note 1, supra.
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which the agency elects to fill. The particular position to

which appellant is to be assigned shall be at the considered

discretion of the agency^ to the extent consistent with this

Order.

Proof of compliance with this Order shall be submitted by

the agency to the Office of the Clerk of the Board within twenty

days of the date of issuance of this Order. Any petition for

enforcement of this Order shall be made to the Denver Regional

Office of the Board in accordance with 5 C.F.R. § 1201.181(a).

This is the final order of the Merit Systems Protection Board in

this appeal. 5 C.F.R § 1201.113(c).

The appellant is hereby notified of the right under 5 U.S.C.

§ 7703 to seek judicial reviexv, if the court has jurisdiction, of

the Board's action by filing a petition for review in the United

States Court of Appeals for the Federal Circuit, 717 Madison

Place, N.W., Washington, D.C., 20439.

4/ In its request for clarification, the agency states that

appellant is qualified for work in the agency's animal care

facility. If placed in that unit, the agency notes he would be

supervised by the employee whose charges led to his demotion.

This Order shall not be considered as prohibiting such an

assignment.
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The petition for judicial review must be received by the court no

later than thirty days after the appellant's receipt of this

Order.

FOR THE BOARD:

E. Taylor

clerk of the Board