Legal Briefs: Retreat rights

Every Friday on GovExec.com, Legal Briefs reviews cases that involve, or provide valuable lessons to, federal managers. We report on the decisions of a wide range of review panels, including the Merit Systems Protection Board, the Federal Labor Relations Authority and federal courts.

During a reduction-in-force (RIF), certain employees have a right to retreat into a lower graded position, but that right is limited to positions that are no more than three grade levels below the employee's current position.

That formula proved tricky in the case of Sharon Henderson, an Interior Department employee. In 1995, Henderson was laid off during a RIF, and her request to move to a GS-5 position was denied. She appealed to the Merit Systems Protection Board, arguing that the entry level of the position from which she was released was GS-5, and that, due to grade progression, she was promoted over time from GS-5 to GS-7 to GS-9 and finally to GS-11.

So, even though she was a GS-11, Henderson argued she should be considered a GS-5 and be allowed to retreat back to that level.

MSPB didn't need a calculator to figure this one out. Henderson's request was denied again.

Lesson: Eleven minus three does not equal five.

Sharon L.C. Henderson vs Interior, Merit Systems Protection Board (98-3343), January 28, 2000.

Denial of Discrimination

Marlon Primes, an African-American assistant U.S. attorney in the northern district of Ohio, filed an informal racial discrimination complaint against his boss after he was rated "fully successful" in his second annual performance evaluation. His boss, also an African-American, noted that Primes complained about being overworked, despite his lighter-than-normal workload, that he made errors in his briefs and that his legal analysis was sometimes off.

Later that year, after another evaluation that expressed concerns with his work, Primes filed a formal complaint of racial discrimination, and alleged he was a victim of reprisal for his first one.

A district court dismissed all of Primes's claims, saying he did not show an adverse employment action based on racial discrimination. Primes appealed to the Merit Systems Protection Board, which upheld the district court's judgment.

"If every low evaluation or other action by an employer that makes an employee unhappy or resentful were considered an adverse action, Title VII would be triggered by supervisor criticism or even facial expressions indicating displeasure," MSPB ruled.

Lesson: A less-than-perfect performance review is not enough to support a claim of discrimination.

Marlon Primes v. Dept. of Justice, Merit Systems Protection Board (98-3448), September 13, 1999.