Denied a promotion

The Environmental Protection Agency recently tried ? and failed ? to sidestep merit procedures

The Environmental Protection Agency recently tried—and failed—to sidestep merit procedures and deny a fed a promotion he justly deserved. The case involved Eusebio Manlogon.

On Sept. 29, 1995, the EPA reassigned Manlogon from his GM-13 position as chief of the financial section to the GS-13 position of financial management officer. On Sept. 7, 1999, Manlogon filed an appeal, asserting that his reassignment was really a demotion. The EPA had upgraded his former position to a GS-14 financial officer position four days before his reassignment, and the duties of that position were virtually identical to those of his former GM-13 position.

Manlogon explained that in 1994, the EPA determined that his position was incorrectly graded, and new Office of Personnel Management classification standards dictated that it merited "at least" a GS-14. Then, under the guise of a reorganization, the EPA reclassified Manlogon's GM-13 position as a GS-14 and advertised it at the higher level. Manlogon applied for the position but was not selected. Instead, the EPA reassigned him to a GS-13 position just four days after it reclassified his old position at the higher level.

Manlogon alleged that the EPA did this to provide higher grades for other employees and not because of a planned reorganization, as it claimed. Manlogon contended that he suffered a constructive demotion when he was reassigned, and he requested a hearing. The EPA contended that the newly created GS-14 position had significant, grade-controlling additional duties and responsibilities and differed from the previous position. Yeah, right!

The EPA then tried to get the case quashed by arguing that the Merit Systems Protection Board lacked jurisdiction over Manlogon's appeal. The MSPB administrative judge dismissed Manlogon's appeal for that reason. He said Manlogon had not established his claim because he did not show that the EPA took any classification action on the GS-14 position "subsequent to" his re.assignment. The judge further found that Manlogon did not suffer a constructive demotion because he remained at the same grade and did not displace anyone, and he had no right to appeal a reassignment to the MSPB.

Manlogon didn't quit—he appealed to the full MSPB, which found that he raised a serious objection worthy of consideration. Therefore, Manlogon's appeal was remanded back to the judge for a jurisdictional hearing.

To prevail, however, Manlogon was told that he'd have to prove that at the time of his reassignment, his former position was reclassified to correct an error in the original classification or because a new classification standard was issued (rather than because of the addition of duties and responsibilities through a planned management action). He also must prove that he, in fact, met the legal and qualification requirements for promotion to the upgraded GS-14 position.

Will he be able to prove that? Stay tuned.

Zall is a retired federal employee who since 1987 has written the Bureaucratus column for Federal Computer Week. He can be reached at miltzall@starpower.net.

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