An employee isn't always an employee

What does it take to fit the definition of "employee" in the U.S. Postal Service? Not tenure. Rather, the ability to fit within the narrow confines of the U.S. Code, as one postal worker recently discovered.

This Catch-22 saga began in 1993, when Joseph DeQuarto - who went to work for USPS in 1982 - decided to accept an agency offer of a lump-sum cash payment as an incentive to take a demotion and pay cut. DeQuarto had become a superintendent of building operations for USPS in 1987 and was in that position when he decided to take advantage of the cash-for-demotion scheme.

In April 1993, DeQuarto agreed to accept $20,000 and a demotion to custodial laborer, PS-03. His demotion became effective on May 13, 1993, and he remained in that position through Aug. 6, 1993. On Aug. 7, 1993, DeQuarto was promoted to supervisor of maintenance operations, EAS-16, the same grade level he had held as a superintendent of building operations from 1987 until early 1993.

In January 1994, however, USPS informed DeQuarto that his Aug. 7 promotion was an administrative error; he was returned to the position of custodial laborer on Feb. 19, 1994. Keep the dates in mind because they are important to the resolution of the case DeQuarto took to the Merit Systems Protection Board (MSPB) challenging the February 1994 demotion.

An administrative judge dismissed DeQuarto's appeal because he had failed to satisfy the board that it had jurisdiction. The administrative judge explained that DeQuarto had failed to show that he met the statutory requirement for the board to consider his case, i.e. one year of current continuous service as a maintenance supervisor.

DeQuarto appealed to the U.S. Court of Appeals for the Federal Circuit. That court agreed that the MSPB did not have jurisdiction over DeQuarto's appeal. DeQuarto cited Subchapter 2, Chapter 75 of Title V of the U.S. Code as the basis for his right to appeal. That section deals with "preference eligible" employees who work for USPS. But the court said DeQuarto could invoke the jurisdiction of the MSPB only if he was an "employee" within the meaning of the applicable code section. That statute, in turn, says that an individual is regarded as an employee only if the individual has "completed one year of current, continuous service in the same or similar positions."

In other words, if you are a preference-eligible employee, you are entitled to file an appeal with the MSPB. But in order to be considered an employee, you have to have worked one year in the same or a similar position.

Catch-22.

The court noted that when DeQuarto was demoted in February 1994, he had held his supervisory position for only six months, although he previously had put together more than five years as a supervisor. Although DeQuarto had accumulated more than a year of continuous service in a supervisory position, his period of one year of continuous service in that position was not "current."

Catch-22 again.

The court ruled that DeQuarto failed to satisfy the terms of the statute. DeQuarto argued that because he had completed a probationary period as a supervisory employee before being downgraded in May 1993, he should be considered an employee for purposes of MSPB jurisdiction and protection, even though he had less than a year of current, continuous service in the supervisory position from which he more recently was demoted.

The court invoked Section 7511(a)(1)(B) of the U.S. Code, which says the MSPB cannot assert jurisdiction on the basis of prior periods of service. The court ruled that the MSPB has jurisdiction only if an employee has at least a year of current, continuous service in the same or similar positions. To add insult to injury, the court also noted that 5 U.S.C. provides that the board has no jurisdiction over a reduction in grade of a supervisor who has not completed a probationary period.

That section of the law defines the kind of adverse actions that do or do not fall within the MSPB's jurisdiction, but it does not authorize the MSPB to assume jurisdiction over an action brought by an individual who is not an employee within the meaning of Section 7511 of 5 U.S.C.

I don't see why individuals are not entitled to certain protections based upon the duration of their employment.

Why is DeQuarto not considered an employee? He has been with USPS since 1982. Why does it matter whether there was an interruption in his tenure in a supervisory position? Why should it take one year of continuous service in a supervisory position in order to at least appeal a demotion? Why are employees' rights based upon such frivolous requirements?

Whoever wrote this section of the law should be forced to unload 100 tractor-trailers filled with mail single-handedly; those who voted for this law should suffer a similar fate. There is no excuse for such sloppy language. If someone is demoted, to deny that individual the right to appeal because he has not been in the job for a certain period of time is unacceptable. If that's the way the law reads, it should be changed, and its writers should be thrown out of office, without the right to appeal.

**

Bureaucratus is a retired federal employee who is a regular contributor to Federal Computer Week and author of Bureaucratus Moneyline, a personal finance newsletter for feds, available by subscription on FCW's Web page at http://www.fcw.com.

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