Detailed Employee Gets Job, More Money, Files Appeal

By on August 29, 2005 in Current Events with 0 Comments

A recent decision of the Federal Circuit Court of Appeals discusses the MSPB’s “constructive demotion” concept in the case of an air traffic controller who was detailed to another position, got more total compensation in the bargain, but believed it all amounted to a demotion. Because the detail and then permanent reassignment were voluntary on Elmore’s part, the court concluded that MSPB was correct in refusing to apply its “constructive demotion” concept to this case. (Elmore v. Department of Transportation, No. 03-3333, August 26, 2005)

The MSPB fashioned the concept of constructive demotion to deal with situations where an employee misses out on a promotion opportunity as the result of a transfer, even where pay is not affected: “[W]here an employee is reassigned from a position which due to issuance of a new classification standard or correction of classification error is worth a higher grade, the employee meets the legal and qualification requirements for promotion to the higher grade, and where the employee who held that position is permanently reassigned to a position classified at a grade level lower than the grade level to which the employee would otherwise be promoted, then the employee is reduced in grade.” (See Russell v. Department of the Navy, 6 MSPB 585 (1981))

Michael Elmore was detailed for four months from Miami International to Tamiami, a smaller airport in the same city. The detail was into a supervisory position at a lower grade, but he retained his pay. He applied for and was selected to hold the position permanently and continued to retain the pay from his previous higher-graded position in Miami. About a year later FAA put into place a new pay banding system for its controllers. Elmore ended up receiving more pay as a result, along with increased locality pay. A few months later, Elmore requested and was given reassignment back to Miami into his previous position. This put him in a lower graded position, but at a higher pay level because of a locality adjustment.

Elmore appealed to the MSPB arguing that the detail/reassignment to Tamiami was a “constructive demotion.” The AJ did not buy the argument and found that since the reassignment was an actual demotion at Elmore’s request and therefore not a constructive one, hence no MSPB jurisdiction. The full Board denied his petition for review so Elmore went to the Federal Circuit.

The Federal Circuit sided with the MSPB: “If an employee voluntarily seeks transfer out of a position that subsequently is reclassified to a higher grade, he cannot properly complain that his transfer was a demotion.” (Opinion p. 7) The court left possibly for another day and another case the question whether the new pay system for air traffic controllers would constitute a “reclassification, or a new classification standard” under the constructive demotion concept, stating, “Unfortunately, the Board did not address that issue here.”

© 2016 Susan McGuire Smith. All rights reserved. This article may not be reproduced without express written consent from Susan McGuire Smith.


About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.