Tough Dilemma for Employee Does Not Provide Basis for Appeal
By Susan Smith
Tuesday, July 29, 2008
In Rathbun v. Department of Veterans Affairs, C.A.F.C. No. 2008-3182 (nonprecedential), 7/11/08, an employee who voluntarily accepted a demotion in lieu of removal was not able to convince the court that his demotion should be tossed out.
Rathbun was a GS-13 Clinical Psychologist with the Department of Veterans Affairs for a little over 3 years when the agency learned that he did not have the required educational credentials for his position. He was supposed to have a PhD from a school whose psychology curriculum was approved by the American Psychological Association. (APA). Without explanation as to why it took 3 years to figure out that Rathbun's university did not have an APA approved curriculum, the agency proposed to remove him because he lacked the required credentials. When his removal was imminent, Rathbun requested in writing that he be reduced in grade to a Social Worker GS-12. The agency agreed, changed his position and grade, and kept him on its rolls. (Opinion, p. 2)
Rathbun then appealed to the Merit Systems Protection Board, arguing that his demotion was involuntary. The MSPB found that it did not have jurisdiction over Rathbun's voluntary demotion and dismissed his case. Undaunted, he took it to the appeals court.
Pointing out that in these types of situations there is a presumption of voluntariness, the court found that Rathbun had a choice: "He could have fought the proposed removal, or he could have avoided it as he did by his voluntary action. This dilemma is not new." (p. 3)
The court notes that it is "uncontested" that Rathbun did not meet the qualification requirement for his position. The agency can set such requirements and its decision to do so "entails no appealable adverse action. The efficiency of the service is clearly advanced by employment of personnel who meet hiring requirements." (p. 3)
Further, the court was not fazed by Rathbun's argument that the agency was "estopped" from enforcing its credentials requirements since it had let him work in his position for 3 years before realizing that his credentials were deficient.
The court has sustained the MSPB's finding that it lacks jurisdiction to review Rathbun's voluntary demotion. (p. 4)
© 2008 FedSmith Inc. All rights reserved. This article may not be reproduced without express written consent of FedSmith Inc.
Readers' Comments
Posted: September 16, 2008 9:31 AM
Posted: July 30, 2008 11:12 AM
Posted: July 30, 2008 10:11 AM
View All Comments »