Supervisors hold all the cards during a RIF

Do you think you've got the right to protest decisions made by your supervisor during a reduction in force (RIF)? Think again. A case recently decided by the U.S. Court of Appeals for the Federal Circuit [Case 98-3090, Thomas K. Winans v. Department of the Navy, April 13, 1998] shows that those rights are almost nonexistent.

The case involved Thomas Winans, whose Navy job was classified as a resource specialist in anticipation of a RIF about three years ago. During the RIF, Winans was bumped from his position by another employee with more seniority.

Although Winans accepted reassignment to the position of contract specialist— a position he currently occupies— he appealed the Navy's action to the Merit Systems Protection Board. He contended that the Navy should have classified his position as program analyst and that his replacement was not qualified to work in Winans' old job.

In an initial decision, the MSPB administrative judge handling the case affirmed the Navy's actions. The judge found that Winans' position had been properly categorized.

"[Winans] performs work requiring specialized knowledge of a subject matter occupation (contract management) and performs work in one core function (contract management), which matches Navy classification guidance identifying resource specialist positions as focused [upon] one core function or specialty area," the judge wrote.

The judge also concluded that although Winans' replacement did not have specific knowledge of the systems used by the Navy, he did have the necessary "fundamental knowledge" of the "contract management functions" of the job. Therefore, he concluded that Winans' replacement was qualified.

The full board supported the judge's ruling and denied Winans' petition for review. Winans then went to the U.S. Court of Appeals. In his appeal, Winans argued that his replacement had no experience with automated data processing system acquisition, data communication technology or serving as a contracting officer's technical representative.

The court disagreed and cited Office of Personnel Management regulations that indicate an employee is qualified for assignment during a RIF if the employee meets the government's standards for the position, including minimum educational requirements and any selective placement factors.

The employee also must display "the capacity, adaptability and special skills needed to satisfactorily perform the duties of the position without undue interruption," according to OPM. When appropriate, the determination for assigning an employee during a RIF also may hinge upon how recently the employee gained related experience.

The court went on to explain that a replacement employee during a RIF must have enough experience to learn the basics of the job and become reasonably proficient within 90 days. In other words, an employee with seniority who has never performed your job but is judged capable of learning it within 90 days can bump you.

The court also dismissed Winans' contention that his job was not classified properly after citing classification standards prescribed by OPM.

In a nutshell, the court ruled that an agency should be "accorded wide discretion in conducting a [RIF]."

"Absent clear abuse of that discretion, a substantial departure from applicable procedures, a misconstruction of governing statutes or the like, we do not upset a final agency's decision," the court stated.

I interpret the court's statement to mean that during a RIF, almost anything goes. That does not sound very encouraging to federal employees who think they've been treated unfairly during a RIF.

It also ignores the fact that anyone bumped out of a job is out of luck, even if the guy who has moved into the job turns out to be totally unfit for the work.

This case teaches that feds are at the mercy of their superiors during a RIF. That's not much different from the way things go in the private sector. But if you thought you had rights during a RIF, this case should serve as a wake-up call.

Bureaucratus is a retired federal employee who contributes regularly to Federal Computer Week.

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