This Assignment to Non-Supervisory Job Not an Adverse Action

Reassignment from a supervisory to a non-supervisory position-with no reduction in grade or pay-does not add up to an adverse action subject to appeal to the Merit Systems Protection Board.

A Human Resources expert at the Internal Revenue Service tried unsuccessfully to appeal his reassignment from a supervisory to a nonsupervisory position as a reduction in rank. In Tsungu v. Merit Systems Protection Board (CAFC No. 2012-3155 (nonprecedential), 3/7/13) the appeals court has sided with the MSPB, holding that such a reassignment where there is no reduction in pay or grade is not an adverse action.

Tsungu was a supervisory HR specialist with IRS serving as an associate director in the Workforce Relations Labor Strategy & Negotiations office when the agency decided it was time for a change. He was in the “Senior Management” band and his base and locality pay totaled $155,500 before his reassignment. After his reassignment to a GS-15 Step 10 HR specialist job serving as a senior program advisor with no supervisory responsibilities, his base and locality pay totaled $155,500, the exact same as before his reassignment. (Opinion pp. 2-3)

Tsungu appealed the reassignment action to the MSPB. The Board ruled that it had no jurisdiction to entertain an appeal of a reassignment with no loss of grade or pay. He argued the agency had in effect engaged in a reduction-in-force by eliminating his old position after the reassignment. He also argued that the agency action added up to an involuntary demotion, claiming that his boss “strongly suggested” he accept the reassignment or  he would be held accountable for improvements in relationships with his staff and that she “would scrutinize every action and complaint.” (p. 3)

However,  because Tsungu had not been reduced in grade or pay, he did not prove duress, nor did he prove an improper RIF had occurred., the Board had no jurisdiction and his appeal was dismissed.

The appeals court has now sided with MSPB, concluding the Board had properly dismissed the appeal for lack of jurisdiction. There was no reduction in grade or pay. Further, a reassignment from a supervisory to a non-supervisory job does not add up to a demotion. The court points out that the Civil Service Reform Act of 1978 got rid of the old reduction in rank standard in favor of the present reduction in grade or pay standard to “increase the flexibility of agencies to assign employees to positions and duties where they are needed.” (p. 6)

Tsungu v. MSPB

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.