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Classification & Qualifications Appeal Decisions

Washington, DC

U.S. Office of Personnel Management
Classification Appeal Decision
Under section 5112 of title 5, United States Code

Marisa E. Marinos
Equal Opportunity Specialist
GS-260-14
Office of Civil Rights
Office of the Senior Deputy Chairman
National Endowment for the Arts
Washington, D.C.
Equal Employment Specialist,
GS-260-12
C-0260-12-09

Robert D. Hendler
Classification and Pay Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance

04/14/2015


Date

As provided in section 511.612 of title 5, Code of Federal Regulations (CFR), this decision constitutes a certificate that is mandatory and binding on all administrative, certifying, payroll, disbursing, and accounting officials of the Government.  The agency is responsible for reviewing its classification decisions for identical, similar, or related positions to ensure consistency with this decision.  There is no right of further appeal.  This decision is subject to discretionary review only under conditions and time limits specified in the Introduction to the Position Classification Standards (Introduction), appendix 4, section G (address provided in appendix 4, section H).

Since this decision lowers the grade of the appealed position, it is to be effective no later than the beginning of the sixth pay period after the date of this decision, as permitted by 5 CFR 511.702.  The applicable provisions of parts 351, 432, 536, and 752 of title 5, CFR, must be followed in implementing this decision.  If the appellant is entitled to grade retention, the two-year retention period begins on the date this decision is implemented.  The servicing human resources office must submit a compliance report containing the corrected position description and a Standard Form 50 showing the personnel action taken.  The report must be submitted within 30 days from the effective date of the personnel action to the OPM office which accepted the appeal. 

Introduction

The U.S. Office of Personnel Management’s (OPM) Merit System Accountability and Compliance accepted this position classification appeal on April 22, 2014.  The appellant occupies the position of Equal Opportunity Specialist, GS-260-14, in the Office of Civil Rights at the National Endowment for the Arts (NEA) in Washington, D.C.  She requests reclassification of her position to the GS-15 level.  We received the complete agency administrative report (AAR) on September 2, 2014, and the appellant's response to the AAR on October 1, 2014.  We accepted and decided this appeal under the provisions of section 5112 of title 5, United States Code.

Background

The appellant's position had been previously graded at the GS-15 level when it was occupied by her predecessor.  However, the position was downgraded to GS-14 in connection with that individual's acceptance of a buyout under the Voluntary Separation Incentive Program (VSIP).

General Issues

The appellant believes her position warrants upgrading based partly on inter-agency comparison to other “small agency EEO Directors” and intra-agency comparison to other GS-15/SES positions.  However, by law, we must classify positions solely by comparing their current duties and responsibilities to OPM position classification standards (PSCs) and guidelines (5 U.S.C. 5106, 5107, and 5112).  Since comparison to standards is the exclusive method for classifying positions, we cannot compare the appellant's position to others with varying degrees of scope and responsibility and/or in disparate program areas, and which may or may not be correctly classified, as a basis for deciding her appeal.

The appellant raises a number of issues regarding her agency's classification review process, including their failure to include appeal rights in their recent review of her position and their late response to OPM's request for an AAR, and allegations of retaliation on the part of agency management, including what she asserts as their refusal to fill a vacant position in her office and the change in her reporting line from the Chairman, NEA, to the Senior Deputy Chairman and the associated PD revision.  As noted above, we must adjudicate this appeal solely by comparing the appellant’s current duties and responsibilities to OPM PCSs and guidelines, based on the duties and responsibilities as they are currently assigned and performed.  Since our decision sets aside all previous agency decisions, the agency’s classification review process is not germane to this decision.  Further, allegations of retaliation are not reviewable by OPM in connection with its classification appeals authority exercised under 5 U.S.C. 5106, 5107, and 5112. 

Position Information

The NEA is a small agency with approximately 170 employees engaged primarily in the grants, contracting, and general administrative occupations.  The appellant administers the NEA's equal employment opportunity (EEO) program including such functions and activities as processing EEO complaints from employees and job applicants including providing direction to a collateral duty EEO counselor, attempting informal resolution, deciding on acceptance or dismissal of the complaints, arranging for mediation and/or investigation, preparing written decisions (i.e., partial or full dismissals, as no complainants have opted for final agency decision), and consulting with legal counsel to review decisions; planning and coordinating special observance events in conjunction with the co-located National Endowment for the Humanities (NEH) and with the President's Committee on Arts and Humanities; providing consultation to management and employees for informal problem resolution and to the Office of the General Counsel and union president as their responsibilities may relate to the EEO process or policies; conducting new employee training on complaint filing procedures and arranging for contractors to provide management training on such topics as EEO, harassment, and veteran's preference; developing NEA EEO policy statements (such as the agency’s anti-discrimination policy statement, an anti-harassment policy statement, and a pending transgender policy statement); preparing required external reports such as the MD-715 report (“Federal Agency Annual EEO Program Status Report”) incorporating input from the human resources office; reporting recurring complaints to the Senior Deputy Chairman and recommending solutions; soliciting articles and preparing a quarterly newsletter; and preparing and requesting the program budget. 

In addition to the above internal EEO program responsibilities, the appellant administers the NEA's external civil rights (CR) activities in relation to its approximately 4,000 grantees.  These grantees are mostly nonprofit arts or educational groups and State and local arts entities.  The appellant sends emails to new grantees by quarter explaining their civil rights responsibilities with a link to the NEA website where they can download a copy of "Section 504 Self Evaluation Workbook," which is a tool by which grantees can self-evaluate their compliance with the accessibility requirements of Section 504 of the Rehabilitation Act of 1973.  She also responds to discrimination complaints received from members of the public regarding accessibility to grantee venues and events (e.g., lack of wheelchair access or sign language interpreters, or age-restricted activities), by checking for jurisdiction (i.e., receipt of NEA funds) and arranging for mediation. 

The appellant reported that internal EEO functions comprise approximately 75 percent of her time as opposed to 25 percent for the civil rights activities.  Within this overall context, she reported that she spends 40-50 percent on what she characterized as "walk-ins"; i.e., informal consultations with managers or employees.  The remainder of her time is more-or-less equally divided among case processing; providing guidance to the collateral-duty counselor; planning and coordinating special observances; attending or participating on interagency committees such as the quarterly EEO Directors Meeting (at EEOC), title 6 Training Committee (at Department of Justice), and the Society of Human Resources Managers (hosted by OPM); and chairing and coordinating the activities of the NEA Diversity and Inclusion Committee.  The time proportions among these activities vary depending on workload fluctuations.

The appellant does not contest the accuracy of her official position description (PD), most recently classified as Equal Opportunity Specialist, GS-260-14, on August 8, 2014.  However, our review of the PD indicates that it overstates the scope of her duties and responsibilities.  The major incongruities between her PD and the information she provided in connection with the appeal are addressed briefly below: 

  • "Serves as the Agency's focal point for ensuring full integration of CR/EEO principles and policies into the programmatic and operational responsibilities of the NEA, including the Agency's personnel management responsibility, its public programming, and its work with grantees." - The appellant has minimal interaction with the NEA human resources staff and no involvement in integrating EEO considerations into their activities, such as recruitment or job design, and her involvement in the NEA's public programming and grants activities is largely limited to arranging for the mediation of infrequent complaints from members of the public.
  • "Agency-wide coordination and analysis of proposals and actions by other government agencies which may impact NEA's CR/EEO program and presenting the results of this analysis to senior management." -  No examples of this work were provided.
  • "Coordinates Agency-wide assessments of CR/EEO activities and conducts and/or reviews evaluation reports concerning the effectiveness of the CR/EEO program." - No examples were provided of this work and as addressed later in this decision, the size of the agency largely precludes performance of these types of program evaluation activities.
  • "Manages, administers, and evaluates the Agency's employee complaint processing system..." - The terms "manages" and "evaluates" are inappropriately applied to self-performance of work.
  • "Manages, administers, and evaluates the Agency's civil rights compliance activities and program... by conducting investigations and compliance reviews (such as pre- and post- award compliance reviews of grant applicants and recipients)... and working to eliminate systemic discriminatory practices in employment and program delivery..." - Same comments as immediately above.  In addition, there is no indication the appellant performs this work.  Rather, she responds to specific discrimination complaints from members of the public but does not initiate reviews of grant applicants and recipients to detect and eliminate systemic discriminatory practices.
  • "Directs the pre- and post award compliance reviews of grant applicants and recipients to determine compliance with the nondiscrimination laws and regulations." - Same comments as immediately above.  In addition, the appellant has no staff to "direct" in the accomplishment of any such functions.
  •  "...negotiates and coordinates settlements with private attorneys, and grant recipients and recommends corrective action." - The appellant does not negotiate settlements internal to NEA, which is done by external mediators, and any coordination is administrative in nature.

Further, Factors 4 and 5 describe responsibilities that are not delegated to or performed by the appellant related to concurring with the awarding or continued funding of grants and conducting pre- and post-award compliance reviews, among other duties that overstate her role in the grants process.

An employee's PD is expected to meet certain minimum standards of accuracy in depicting the duties being performed in that it serves as the basis for determining the employee's pay and other associated benefits based on that pay.  The appellant's PD should be revised to provide a clear understanding and more realistic portrayal of the duties that form the basis for the grade level of her position. 

We conducted an on-site desk audit with the appellant on February 19, 2015, and a subsequent interview with her first-level supervisor, Ms. Laura Callanan, on March 30, 2015.  We decided this appeal by considering the audit findings and all information of record furnished by the appellant and her agency, including her official PD and other material received in the agency administrative report, supplemented by work samples provided by the appellant. 

Series Determination

The appellant performs work associated with both the GS-260 Equal Employment Opportunity Series (i.e., internal EEO program functions) and the GS-360 Equal Opportunity Compliance Series (i.e., external civil rights functions).  Guidance provided in the Introduction indicates that in the case of mixed series positions, the grade-controlling work normally controls the series.  In this case, the GS-260 series represents both the predominant and higher-graded duties of the position.  Therefore, the appellant’s position is properly assigned to the GS-260 series, which covers positions concerned with developing, administering, evaluating, or advising on the Federal Government’s internal EEO program within Federal agencies.  Neither the appellant nor the agency disagrees.

Title Determination

The appellant's position is currently titled as Equal Opportunity Specialist.  However, the authorized title for nonsupervisory positions in the GS-260 series is Equal Employment Specialist. 

The GS-260 PCS instructs that the Equal Employment Manager title is used for positions that have primary responsibility for a total EEO program or an identifiable part of the program (e.g., Federal women’s program, Hispanic employment program, etc.).  The term “managerial” as it relates to program management responsibility, including EEO program management responsibility, is defined in OPM’s General Schedule Supervisory Guide as follows:

The authority vested in some positions under the General Schedule which direct the work of an organizational unit, are held accountable for the success of specific line or staff functions, monitor and evaluate the progress of the organization toward meeting goals, and make adjustments in objectives, work plans, schedules, and commitment of resources.  As described in 5 U.S.C. [United Sates Code] 5104, such positions may serve as head or assistant head of a major organization within a bureau; or direct a specialized program of marked difficulty, responsibility, and national significance.

The GS-260 PCS refers users to OPM’s Digest of Significant Classification Decisions, Number 3 (Digest 3), for additional guidance on distinguishing between “specialist” and “manager” positions.  This guidance includes the below discussion which expands upon the above “managerial” definition within the context of an EEO program:

[OPM] has held that primary responsibility [for a program or identifiable part of a program] includes accountability for performance of the assigned program; e.g., planning, organizing, directing, staffing, coordinating, reviewing, and evaluating the program.  More specifically, seven or all eight of the following program management responsibilities should be included to warrant managerial titling:

  1. development of recommendations to management on the level and mix of resources (staff, money, space and equipment) to be assigned to the program;
  2. allocation of assigned resources within the program to meet program objectives;
  3. assignment, direction, and review of the equal employment opportunity program work of collaterally assigned or subordinate employees;
  4. explaining to and gaining the support of the workforce for management’s equal employment opportunity policies and goals;
  5. coordination of program activities with other staff offices and with line managers to achieve mutual objectives;
  6. systematic evaluation of program activities and functions to measure the degree of success of program efforts;
  7. recommending changes in program methods and approaches based on evaluation results; and
  8. periodic assessment of the applicability of current local equal employment opportunity program objectives and recommending changes.

Thus, the terms “management” or “program management” by definition refer to the management of people, money, and other resources.  In order for a position to be titled “manager” or “program manager,” it must include responsibility for managing a staff either through direct supervision or through technical program oversight (i.e., in order to make adjustments in work plans and schedules) and budget (i.e., in order to allocate and make adjustments to the commitment of resources).  It must also be of sufficient size to lend itself to systematic internal evaluation, and it must include coordination of program activities with other staff offices, such as human resources.

The appellant is responsible for the administration of the NEA EEO/CR program and in this capacity performs limited aspects of the program management responsibilities described above.  However, she does not currently have a subordinate staff and has only one collateral duty counselor; thus, she is not responsible for managing a staff and the attendant resources.  Conversely, the agency has no subordinate organizational levels with local EEO staff; thus, she is not responsible for allocating resources across subordinate levels, providing technical program oversight and policy interpretation to lower-level organizational segments, or evaluating field-level EEO program activities.  Her work is largely self-contained and does not involve coordination with other staff offices, particularly human resources, or with line managers to further mutual EEO objectives, such as in increasing representation of targeted groups.  The work is primarily case-oriented in nature, with limited opportunity to systematically evaluate the success of program efforts and recommend changes in program methodology and approaches based on this program assessment.  Therefore, the appellant's position does not entail the breadth and variety of program management functions described above to be considered “managerial” in nature, and the official title Equal Employment Manager is thus not appropriate.  Further, the organizational title of “EEO Officer” is assigned to the NEA Senior Deputy Chairman, who is the appellant’s immediate supervisor and retains primary responsibility for the framework and evaluation of the program and final authority for any major decisions or initiatives.     

The appellant’s position is correctly titled as Equal Employment Specialist.   

Standard Determination

The position's internal EEO program work was evaluated by application of the grade-level criteria in the PCS for the Equal Employment Opportunity Series, GS-260, and her external CR activities by application of the grade-level criteria in the PCS for the Equal Opportunity Compliance Series, GS-360.  These PCSs are written in the Factor Evaluation System (FES) format, under which factor levels and accompanying point values are to be assigned for each of the following nine factors, with the total then being converted to a grade level by use of the grade conversion table provided in the PCS.  The factor point values mark the lower end of the ranges for the indicated factor levels.  For a position to warrant a given point value, it must be fully equivalent to the overall intent of the selected factor level description.  If the position fails in any significant aspect to meet a particular factor level description, the point value for the next lower factor level must be assigned, unless the deficiency is balanced by an equally important aspect that meets a higher level.

In addition to using the GS-260 PCS, the agency also evaluated the appellant's position by application of the General Schedule Supervisory Guide (GSSG).  The basic requirements for a position's coverage under the GSSG is that the work being evaluated: (1) require accomplishment of work through combined technical and administrative direction of others; (2) constitute a major duty occupying at least 25 percent of the position's time; and (3) meet at least the lowest level of Factor 3 in the GSSG, which describes the minimum level of supervisory responsibilities and authorities, such as planning, assigning, and evaluating work, interviewing candidates, hearing complaints and effecting disciplinary actions, providing for training, and developing performance standards.

The GSSG is not applicable to the appellant's position.  The appellant currently exercises technical supervision over one collateral duty counselor, but since she does not have administrative supervision over this employee, this does not constitute supervision creditable under the GSSG.  Although the appellant formerly supervised a GS-12 employee assigned to the EEO/CR program, that position was vacated last year and has not been filled.  The appellant reported in the audit that she was recently informed by higher-level management that the position would be filled but would be shared with the Accessibility Coordinator, and it was not yet determined who would be designated as the administrative supervisor.  Even if the appellant were to be designated as such, it is not reasonable to conclude that supervising one-half of a full-time position could comprise at least 25 percent of the appellant's time.  Therefore, the GSSG may not be applied to her position.

Grade Determination

Evaluation Using the GS-260 PCS

The GS-260 PCS provides separate criteria for "specialist" and
"manager" positions.  Because the appellant has no subordinate staff, she personally performs most of the program's activities consistent with the work of a "specialist." However, although the "specialist" criteria are potentially applicable to her position, they would not allow for full consideration of her broader responsibility for carrying out all of the statutory requirements for the agency's EEO program.  Therefore, we applied the "manager" criteria with appropriate adjustments to account for limitations in the scope of both the NEA EEO program and the appellant's authority and responsibilities.

The GS-260 PCS also includes benchmark job descriptions which describe work situations that represent significant numbers of positions in the occupation.  They describe the duties performed and each of the nine factors as they relate to those duties.  Benchmarks may be used to classify a position alone or in conjunction with the factor level descriptions. The following benchmark for Equal Employment Manager, GS-260-13, benchmark #1, is relevant to the appellant's position, and its factor-level assignments under the nine factors and how they compare to the appellant's position are addressed in the below factor-level analysis. This benchmark describes the following position:

Manages the equal employment opportunity program for a small Federal agency, providing leadership to the agency's top management to carry out its continuing policy and program of nondiscrimination and affirmative action.  The agency includes about 700 employees in several professional occupations and a variety of administrative and clerical occupations.  Most positions are located in headquarters with some positions in small field installations.  The equal employment manager directs the affirmative action program and the complaint adjudication program with the assistance of one full-time secretary and a number of part-time counselors and special emphasis program coordinators as needed.  The equal employment manager directs the minority and female recruitment program.  The affirmative action program is primarily concerned with improving minority and female representation in the professional and administrative occupations and creating upward mobility career ladders from clerical positions to technical and administrative positions. 

The appellant contests the agency’s evaluation of Factors 1, 4, 5, and 7 under the GS-260 PCS.  After careful review of the record, we disagree with the agency’s factor level assignments for Factors 1 through 5.  We discuss these factors in addition to Factor 7 in detail below.

Factor 1, Knowledge Required by the Position

This factor measures the nature and extent of information an employee must understand in order to do the work, and the skills needed to apply that knowledge.

The agency assigned Level 1-8 under this factor.  The appellant believes Level 1-9 should be assigned.

The knowledge requirements of the position meet Level 1-7.  At this level, equal employment managers apply managerial and technical knowledges and skills to direct a program that meets basic requirements for complying with laws, regulations, and agency policies.  The manager provides advice to management and employees or applicants on legal and procedural program requirements, and reviews affirmative action plans developed by line managers (where intensive before-the-fact consulting generally is not provided).  Other affirmative action efforts may focus on questionnaires to identify problem areas, training for managers and supervisors, and similar efforts.  The manager may also provide general oversight of minority and female recruitment planning (but little technical involvement).  The program may include complaint counseling, investigation, and adjudication if delegated to the organization served.  Typically, programs at this level are case oriented; i.e., they focus on resolving individual complaints or problems.  The GS-260-13 benchmark #1 describes Level 1-7 knowledge and skills needed to "plan, direct, staff, carry out and evaluate a full equal employment program including affirmative action, special emphasis programs, minority and female recruitment planning and complaint counseling, investigation, and adjudication," where the program "focuses on identifying problems through complaint monitoring, employee questionnaires, and input from an advisory committee, on developing an annual affirmative action plan, and on resolving individual complaints." 

The NEA program does not exceed the "basic requirements for complying with laws, regulations, and agency policies," including complaints processing and EEO training.  As described at this level and consistent with the above-cited benchmark, the program is focused on resolving individual employee complaints and advising management on potential EEO-related problems, but does not involve intensive management consulting on such broader issues as reaching representation targets or technical involvement in recruitment planning beyond the provision of lists of potential minority recruitment sources.  The appellant has no input to the agency's affirmative action plan, which is developed by the NEA human resources office, but affirmative action is not a major issue within the NEA context given the small size of the agency, its low employee turnover, and relatively modest underrepresentation rates. Therefore, since Level 1-7 is the lowest level under this factor at which "manager" criteria are provided, assignment of this level is considered appropriate.

Level 1-8 is not met.  At this level, equal employment managers apply managerial and technical knowledges and skills to plan, organize, direct, staff, carry out, and evaluate a program that, in addition to meeting basic regulatory requirements, focuses on the solution of systemic problems, elimination of barriers to equal employment including agency management policies and practices, and the provision of management advisory services designed to effect major changes.  For example, the program includes regular efforts to identify and solve systemic problems through onsite organizational reviews, by participation in agency management audits or personnel management evaluation reviews, or by similar activities.  Efforts to deal with systemic problems may require the program staff to become deeply involved in technical personnel administration or management issues such as the development or modification of merit promotion systems, upward mobility plans, job design programs, minority and female recruitment planning, or the negotiation or administration of labor agreements.  The program emphasizes the interrelationship of equal employment with personnel management functions such as labor relations, staffing, training, compensation, and position classification and with other management functions such as budget and planning.

This level describes a much broader and in-depth EEO program than is permitted by the size of the appellant's agency.  Because there are no subordinate staff or organizational levels, she does not plan, organize, direct, staff, or evaluate the program within the meaning of these terms in a managerial context; i.e., through the accomplishment of work performed by others.  As noted above, her work focuses primarily on the resolution of individual complaints and issues rather than the solution of systemic problems or the elimination of barriers to equal employment.  As an example of what she considers as solving "systemic problems," the appellant described receiving multiple complaints or allegations against a particular supervisor or employee, which she reports to the Senior Deputy Chairman with suggestions for resolution.  However, "systemic problems" within the context of Level 1-8 refers to widespread issues of discrimination or underrepresentation which are identified through systematic reviews, and the resolution to which lies in fundamental changes in agency policies and practices and significant involvement with all aspects of the human resources function.  The appellant provided no examples of any such systemic problems or the efforts she has taken to resolve them, such as changes in management policies or practices for which she has been the catalyst, or any technical involvement on her part with the various human resources functions. 

Level 1-7 is credited (1250 points).                                                                                            

Factor 2, Supervisory Controls

This factor covers the nature and extent of direct or indirect controls exercised by the supervisor, the employee’s responsibility, and the review of completed work.

The agency assigned Level 2-5 under this factor and the appellant agrees.  

At Level 2-4, the supervisor sets the overall objectives and resources available.  The supervisor and employee collaborate in developing deadlines and approaches to unusual or particularly sensitive problems.  The employee exercises judgment in planning and carrying out the work, but advises the supervisor when major unexpected problems or significant controversies arise.  Completed work is reviewed in terms of fulfillment of objectives within established target dates. 

At Level 2-5, the supervisor provides administrative direction, giving assignments in terms of broadly defined missions or functions.  This may include setting budget or personnel limits on the program or setting broad policy goals and objectives. The employee is responsible for independently planning, designing, and carrying out the EEO assignments. Results of the work are considered technically authoritative and are normally accepted without change. If the work is reviewed, the review concerns such matters as fulfillment of program objectives or the overall effect of the program.  The GS-260-13 benchmark #1 depicts Level 2-5 as involving responsibility for “independently planning and designing the agency's equal employment opportunity program."

This factor addresses not only the degree of supervision under which the employee works but also the degree of authority vested in the position as the context for the supervision exercised.  The appellant carries out her day-to-day work with considerable independence and is expected to initiate required program activities.  However, the appellant’s supervisor, the Senior Deputy Chairman, is designated as the NEA EEO Officer.  Although this has limited practical implications for the conduct of the routine functions of the program, the appellant’s supervisor has final authority for any major decisions or initiatives and takes an active rather than a mere signatory role in discussing courses of action.  This precludes assignment of Level 2-5, which is predicated on EEO manager positions with full responsibility for the planning and design of their programs. 

Level 2-4 is credited (450 points).                                                                                      

Factor 3, Guidelines

This factor covers the nature of the guidelines used and the judgment needed to apply them.

The agency assigned Level 3-5 under this factor and the appellant agrees.

At Level 3-4, managers work within agency policies, guidelines, and instructions and use judgment to interpret agency guidelines to formulate policies and plans for specific programs covering one or more components of an independent agency or department. 

At Level 3-5, managers work within guidelines that are broadly stated and nonspecific such as basic legislation, broad court decisions, and governmentwide policies, and use judgment to interpret the guidelines that do exist to formulate operating policies and plans for specific programs covering independent agencies or departments, or the primary organizational subdivisions of very large departments.

The GS-260-13 benchmark #1 depicts Level 3-5 as a situation where "[t]he employee uses considerable judgment and ingenuity in interpreting guidelines to develop agencywide equal employment opportunity policies and to design the program in the context of the agency's organization and functions to meet specific equal employment opportunity goals for the independent agency."

Although Level 3-5 covers EEO policy development for independent agencies, these “operating policies and plans” are designed to cover “specific programs” and are based on the interpretation of basic legislation, broad court decisions, and governmentwide policies.  As further articulated in the above-cited benchmark, at this level the manager is required to "design the program" (i.e., to develop agency-specific policy that responds to the unique EEO-related problems inherent to that agency).  Within this context, the appellant provided copies of three policy statements she developed.  The first, the “Equal Employment Opportunity and Civil Rights (Anti-Discrimination) Policy Statement,” is a generic statement of the agency’s commitment to “maintaining an inclusive, diverse, and discrimination-free work environment,” gives the appearance of an annual or periodic notification of employee rights, and is neither tailored to the NEA’s specific programs or work environment nor could its development be reasonably construed as having required the interpretive work described at this level.  The second, the “Anti-Harassment Policy Statement,” is likewise generic in defining the term “harassment” and notifying employees of reporting procedures, and is not tailored to the NEA’s specific programs or work environment.  The third, “Transgender Employment Policy Statement,” notes that it was “adapted from the model policy provided by the Transgender Law Center and the Office of Personnel Management’s Guidance Regarding the Employment of Transgender Individuals in the Federal Workplace.”  However, our review of these source documents indicates they were largely transcribed with only minor modifications, such as a few additional definitions and deletion of references to field offices.  Thus, this policy statement was not derived from the independent interpretation of basic legislation, court decisions, or governmentwide policies in order to craft a document that addresses the specific programs and EEO-related problems of the agency but was rather a reiteration of generically-applicable content developed by others.  As such, notwithstanding NEA's status as an independent agency, Level 3-5 is not fully met in terms of the judgment required in the development of guidelines, and the appellant’s position is not considered to exceed Level 3-4.   

Level 3-4 is credited (450 points).                                                                                                    

Factor 4, Complexity

This factor covers the nature, number, variety, and intricacy of the tasks or processes in the work performed, the difficulty in identifying what needs to be done, and the difficulty and originality involved in performing the work.

The PCS notes that since generally, the difficulty and breadth of management processes are related to the breadth and complexity of the organization served, under this factor the breadth and complexity of the organization is illustrated by numbers of employees, levels of supervision, occupations, and lines of progression.  The relative terms "small," "medium," "moderately large," and "large" are used to denote significant differences with respect to the size of Federal agency organizations, with "small" referring to organizations of approximately 350-750 employees; "medium" 1,000-5,000 employees; "moderately large" 7,500-15,000 employees; and "very large" 75,000 or more.  The PCS also notes that although size of the organization may be a rough indicator of complexity, the problems handled must be examined for their complexity level and variety.  In other words, organizational size alone without the corresponding complexity characteristics does not support a given level.

The agency assigned Level 4-5 under this factor.  The appellant believes Level 4-6 should be assigned.

The complexity of the appellant's work meets Level 4-4.  At this level, managers direct the day-to-day operations of a program or a major component thereof, where the processes include planning individual program activities, problem solving, and recommending changes in emphasis and the level of resources of the program.  The program is limited to solving problems in a medium-sized organization of moderate complexity.  Advisory responsibilities include keeping management aware of their EEO responsibilities, such as participating in general training sessions or seminars.  The work requires making such decisions as recommending disposition of individual complaints, accepting or rejecting affirmative action plans, setting program priorities when resources are limited, and advising organizational decision makers.  The PCS provides the following illustration of Level 4-4 complexity:

Equal employment managers direct Federal equal employment opportunity programs for medium size organizations of varying complexity having 1000 to 5000 employees, four or more levels of supervision, and a variety of occupations with many lines of progression in each occupation.  Generally the work force is geographically dispersed.

Plans and directs day-to-day program activities in an established equal employment opportunity program oriented toward solving individual complaints of varying complexity, developing equal employment opportunity affirmative action plans for review by higher organizational levels, and monitoring action plan accomplishment.  Advisory services include informational programs, educational seminars, training sessions, and individual consulting to make managers and supervisors aware of their equal employment opportunity responsibilities and to increase their knowledge of equal employment opportunity program requirements and procedures. 

Level 4-4 is the lowest level under this factor at which “manager” criteria are provided.  However, the illustration provided in the PCS describes the position of an EEO manager for a medium-sized organization (1000-5000 employees) with a variety of occupations and a geographically dispersed work force.  The GS-260-13 benchmark #1 depicts Level 4-4 as the employee having "full responsibility for managing the agency's equal employment opportunity program" for an agency with 700 employees, the upper limit for a small-sized organization (350-750 employees).  The PCS does not contemplate an organizational situation for managers with less than 350 employees, presumably because organizations of such small size would not be expected to generate enough “managerial” work to justify establishment of such a position.  Regardless, assignment of this level is considered appropriate as the appellant carries out most of the duties described (with the notable exception of affirmative action plan development, which is assigned to the human resources office), such as resolving individual complaints, monitoring action plan accomplishment, providing advisory services, and conducting training.

Level 4-5 is not met.  At this level, manager work typically involves a full range of management processes such as setting program goals, making long-term and short-term program plans, directing day-to-day operations, systematically evaluating progress, and recommending levels of resources and overall organization of the program.  The program typically focuses on solving broad and significant problems and correcting the underlying causes of the problems of complex organizations.  Advisory responsibilities involve recommendations to resolve very difficult and complex individual problems, change specific management policy or practice, take other actions to change conditions underlying problems, and develop detailed affirmative action plans and monitor their implementation.  There are major areas of uncertainty in approach or methodology resulting from continuing changes in program emphasis and direction, changing conditions in the organization, and conflicts between program requirements and the fundamental and long- established policies and practices of the institution.  The work requires a high degree of judgment in setting program priorities, recommending changes in program direction, recommending decisions on individual cases with broad impact, and recommending actions to correct conditions underlying problems.  The work requires continuing efforts to analyze a wide variety of interrelated complex problems and to advise management on the best course of actions to eliminate barriers to equal employment opportunity such as changes in management policy or practice.  The PCS provides the following illustration of Level 4-5 complexity:

An equal employment manager directs or manages a complete program for a segment of a Federal department or agency having 7,500 to 15,000 employees, many levels of supervision, several major organizational subdivisions, and a nationwide field structure.  The equal employment manager recommends the program goals and the level of resources to be set by higher level managers, plans, directs, and evaluates the program, and occasionally performs some individual day-to-day assignments and coordinates work performed by other offices.  Advises managers throughout the organization on difficult equal employment opportunity matters such as resolving complex individual complaints and developing specific affirmative action plans.  Advisory services are based on detailed analysis of elements affecting a particular problem or situation.

This level describes a much larger, more complex, and more dynamic organization than depicted at Level 4-4 or that would be considered representative of NEA, with the associated higher-level managerial responsibilities. The small size of the appellant's agency does not permit the performance of such duties as making long-term and short-term program plans, directing day-to-day operations, systematically evaluating progress, and recommending levels of resources and overall organization of the program.  The appellant’s advisory responsibilities relate primarily to the resolution of individual employee complaints rather than to correcting the underlying causes of broad and significant problems, changing specific management policies or practices, or changing program emphasis or direction in response to changing conditions in the organization.  The above Level 4-5 illustration makes clear its intent that at this level, the manager has a subordinate staff to carry out most of the casework, allowing the manager to focus on broader issues such as the development of affirmative action plans.   

The appellant believes the approximately 4,000 NEA grant recipients (most of which are groups or organizations) covered under the civil rights program should be credited under this factor toward the size of the organization (i.e., the serviced population).  However, the GS-260 series covers positions involved in the administration of internal Federal agency EEO programs; i.e., in addressing EEO problems and issues internal to the Federal agency.  Therefore, the size of the organization is determined by the number of Federal employees to whom the full range of EEO program responsibilities applies.  The appellant does not have EEO responsibility over the grantee organizations, which are private or State/local entities; e.g., she does not process EEO complaints from their employees, monitor their hiring practices, develop their affirmative action plans, or advise them on changing their management policies and practices to eliminate EEO barriers.  The work she performs in relation to the NEA grants programs is properly addressed within the context of the GS-360 evaluation in this decision rather than under the GS-260 PCS. 

Level 4-4 is credited (225 points).                                                                                        

Factor 5, Scope and Effect

This factor covers the relationship between the nature of the work, and the effect of the work products or services both within and outside the organization.  The PSC notes that the concept of effect alone (as measured by the number of employees covered by the program) does not provide sufficient information to properly understand and evaluate a position under this factor without consideration of the scope (i.e., breadth) of the work.  In other words, the breadth and variety of the work performed is interrelated with the size of the organization.

The agency assigned Level 5-5 under this factor.  The appellant believes Level 5-6 should be assigned. 

At Level 5-4, managers direct complete EEO programs affecting equal employment opportunity for an assigned organization or for a class of persons in the organization.   The PCS provides the following illustration of Level 5-4 scope and effect:

An equal employment manager is assigned primary staff responsibility for all equal employment opportunity functions delegated to the organization served.  This includes affirmative action, special emphasis programs, minority and female recruitment planning, and, if delegated to the organization, complaint investigation and adjudication.  The program affects equal employment opportunity in an organizational segment of a department or agency.

At Level 5-5, managers direct, evaluate, and carry out extensive EEO programs including planning and organizing program resources, setting goals, and evaluating results.  The program affects equal employment opportunity in extensive organizations or they affect the equal employment opportunities of substantial numbers of people. The PCS provides the following illustration of Level 5-5 scope and effect:

An equal employment manager is assigned primary staff responsibility for an equal employment opportunity program including affirmative action planning, special emphasis programs, minority and female recruitment planning, and, if delegated to the organization, complaint adjudication.  The manager plans, organizes, directs, staffs, and evaluates the program.  The program affects equal employment opportunity for persons (employees or applicants) in a major agency organization such as a major industrial field activity or a region of a department.

At Level 5-6, managers plan, develop, staff, coordinate, direct, evaluate, and carry out broad EEO programs involving integration of various components of the program such as affirmative action planning, program evaluation, special emphasis programs, minority and female recruitment planning, and complaint adjudication with agency personnel, budget, and general management policies and practices, where planning includes allocating program resources over an extended period of time (e.g., several years) and setting short-and long-term program goals.   The program affects equal employment opportunity for an independent agency or a primary component of a department.  The PCS provides the following illustration of Level 5-6 scope and effect:

An equal employment manager is assigned primary staff responsibility for all equal opportunity functions delegated to the organization served.  This includes affirmative action, special emphasis programs, (e.g., Hispanic employment programs, Federal women's program, etc.), minority and female recruitment planning, and complaint investigation and adjudication activities. The program affects equal employment opportunity for an independent agency or a primary component of a department.

The GS-260-13 benchmark #1 depicts Level 5-6 as a situation where "[t]he work involves developing and managing a comprehensive program for a small Federal agency, developing an affirmative action plan, insuring the proper processing and resolution of complaints, analyzing and evaluating employment policies, and making recommendations to solve difficult discrimination problems."

Although the PCS allows crediting of Level 5-6 for EEO manager positions at "small" independent agencies, it also requires that the program be "broad" or "comprehensive" and include the responsibilities listed at this level.  Thus, this factor is not designed to credit equally programs at independent agencies varying in size from thousands of employees to one or two hundred without consideration of the content of the individual programs.  As noted previously, the NEA EEO program neither meets the size threshold for a "small" agency nor does it provide the organizational context (i.e., a subordinate staff or levels) to permit the performance of such functions as staffing, coordinating, directing, or evaluating the program.  Further, it does not include such activities as affirmative action planning, program evaluation, special emphasis programs, and minority and female recruitment planning.  (Planning and coordinating special emphasis program events is not tantamount to planning and directing special emphasis recruitment and hiring programs.)  Therefore, notwithstanding NEA's status as an independent agency, the scope of the program cannot be considered to meet Level 5-6.  Similarly, Level 5-5 includes essentially the same characteristics; i.e., "planning and organizing program resources, setting goals, and evaluating results" for a program which includes "affirmative action planning, special emphasis programs, minority and female recruitment planning, and, if delegated to the organization, complaint adjudication."  The absence of most of these elements in the NEA EEO program thus precludes crediting of Level 5-5.  Since Level 5-4 is the lowest level under this factor at which managers direct "complete equal opportunity programs," assignment of this level is considered appropriate.

Level 5-4 is credited (225 points).                                                                                                    

Factor 6, Personal Contacts

This factor includes face-to-face and telephone contact and other dialogue with persons not in the supervisory chain.

The agency assigned Level 6-3 under this factor and the appellant agrees.  At this level, contacts outside the agency may be with attorneys or counterparts at other agencies, and inside the agency with managers such as when providing consulting services.  This is consistent with GS-260-13 benchmark #1where contacts are with management and staff and with individuals from outside the agency, such as attorneys representing complainants. 

Levels 6-3 is credited (60 points).                                                                                  

Factor 7, Purpose of Contacts

This factor covers the purpose of the contacts identified under Factor 6.

The agency assigned Level 7-3 under this factor.  The appellant believes Level 7-4 should be assigned.

The purpose of the appellant's contacts meets Level 7-3.  At this level, the purpose of the contacts is to negotiate on procedural points, conduct formal interviews for complaint cases, or to persuade individuals.  This expresses the appellant's use of persuasion in attempting informal resolution of complaint cases.

Level 7-4 is not met.  At this level, the purpose of the contacts is to negotiate or conciliate resolutions to highly controversial or major issues, or to justify or defend decisions on major controversial issues.  Negotiations or conciliations typically involve two or more of the following elements:  the issues involved affect the interests of the parties because major changes in their policies or practices are being proposed, or because the money involved is very large, or because of potential adverse publicity; one or more parties to the negotiations strongly contest or dispute the position of the negotiator; the matters being negotiated involve multiple but related broad and complex issues; and matters being negotiated are basic to the policy positions being taken by the agency and there is considerable pressure on the negotiator.

The appellant presents as support for crediting Level 7-4 her "many meetings and negotiations across agency offices" in writing the new EEO policy and anti-harassment policy.  However, this is clearly consistent with the GS-260-13 benchmark #1 which assigns Level 7-3 in describing the purpose of contacts as "to resolve difficult employment problems, obtain agreement and/or necessary action concerning employment policies, and to negotiate changes in employment practices affecting opportunities of agency employees."  Given the relatively generic nature of these policies, it cannot be said they involved negotiating resolutions to "highly controversial or major issues" or had the degree of policy or monetary impact described at this level. 

The appellant also believes that her certification and service as a mediator in a Federal cadre of free mediators called “Shared Neutrals” contributes toward crediting of Level 7-4, and she provides as an example her having mediated external complaints for other Federal agencies through this program.  However, the appellant’s participation in this program is voluntary, neither assigned by nor under the control of NEA management, nor directly related to her NEA EEO responsibilities, and therefore cannot be considered in the evaluation of her position.  She provided no examples of negotiations or conciliations she personally conducted within NEA with the characteristics described at Level 7-4. 

Level 7-3 is credited (120 points).                                                                                       

Summary
Factors Level Points
Knowledge Required 1-7 1250
Supervisory Controls 2-4 450
Guidelines 3-4 450
Complexity 4-4 225
Scope and Effect 5-4 225
Personal Contacts 6-3 60
Purpose of Contacts 7-3 120
Physical Demands 8-1 5
Work Evironment 9-1 5
Total 2790

 

The total of 2,790 points falls within the GS-12 point range (2,755-3,150) on the grade conversion table provided in the PCS.

Evaluation Using the GS-360 PCS

The appellant reported that she spends approximately 25 percent of her time on external civil rights activities, and this is the threshold percentage duties must occupy in order to be potentially grade-controlling. (See the Introduction.) However, given that these activities consist of emailing quarterly notices to new grantees and responding to about 2-3 formal complaints and perhaps a dozen "504" telephone inquiries per year, this percentage would appear to be somewhat inflated.  Therefore, we address this work cursorily below.

Factor 1, Knowledge Required by the Position

Level 1-6 is met.  At this level, work requires knowledge of the principles, legal requirements, and methodology of an equal opportunity function, and skill in applying this knowledge to perform independent assignments for which there are precedents.  This includes practical knowledge and skill in interpreting, explaining, and applying a body of law, regulations, and procedures; knowledge of the common policies, practices, and operations of the involved institutions; and skill in analyzing facts, identifying problems, and recommending corrective action.  An example provided in the PCS is investigating allegations of employment discrimination based on a single issue against a single respondent, when there are clear precedents and no unusual public interest.

This level fully covers the appellant’s responsibility for explaining section 504 compliance requirements to grantees and responding to discrimination/accessibility complaints from members of the public regarding individual grantees. 

Level 1-7 is not met.  At this level, work requires comprehensive and thorough knowledge of laws, regulations, Executive Orders, and court decisions related to an equal opportunity program area and skill in applying this knowledge to a variety of difficult and complex work assignments.  This includes broad knowledge of the structure, policies, and operating or business practices of the institutions covered by the laws being enforced.  An example provided in the PCS is planning and conducting complete investigations or conciliating a variety of charges of employment discrimination where either individual cases or the total caseload involve unusual issues, hidden and fragmented facts, and uncooperative parties; or reviewing and monitoring agency grants to determine whether they meet equal opportunity requirements.

The appellant responds to limited complaints primarily regarding venue accessibility, such as the lack of wheelchair ramps or failure to provide sign language interpreters.  These cannot be described as unusual issues nor are the grantees uncooperative given that their continued funding is contingent on compliance.  She is not responsible for investigating allegations of employment discrimination on the part of grantees, or monitoring NEA grants to determine whether they are meeting EEO requirements.

Level 1-6 is credited (950 points).

Factor 2, Supervisory Controls

Level 2-3 is met.  At this level, the supervisor defines objectives, priorities, and deadlines and advises on potential problems or unusual situations. The employee executes the project or task according to accepted practices and within the established policy framework of the organization but has latitude for altering the sequence of steps and coverage of factfinding.  Completed work such as investigative reports or conciliation agreements is reviewed for technical soundness, appropriateness, and conformance with program policies. 

Level 2-4 is not met.  At this level, the supervisor sets the overall objectives and resources available, but the supervisor and employee collaborate in developing deadlines and approaches to unusual or particularly sensitive problems.  The employee uses judgment in planning and carrying out the work and selects the appropriate techniques to complete the assignment.  Completed work is reviewed for fulfillment of objectives within target dates.

Although the appellant’s work is neither assigned nor reviewed with the level of specificity described at Level 2-3, the nature of the work lends itself to the application of accepted practices in terms of the sequence of steps and factfinding process.  Unlike Level 2-4, the work is not sufficiently complex to require collaboration with the supervisor on deadlines and approaches to unusual or sensitive problems given that issues are generally resolved informally through mediation. 

Level 2-3 is credited (275 points).

Factor 3, Guidelines

Level 3-3 is met.  At this level, the work is covered by available guidelines such as laws, Executive Orders, precedent decisions, directives, and manuals, although many significant factual situations and issues are encountered which are not covered by guidelines, or where the guidelines are vague or conflicting.  The employee exercises judgment in interpreting, adapting, or extrapolating from existing guidelines in order to arrive at a finding or conclusion or to take a particular course of action.

Level 3-4 is not met.  At this level, the guidelines are similar to those at Level 3-3, but are often inadequate in dealing with unusual cases such as investigating or settling precedent-setting discrimination cases.

Consistent with Level 3-3, the complaints received relate primarily to accessibility issues which can be resolved through the application of well-established guidelines and requirements.  Unlike Level 3-4, the appellant does not investigate or settle precedent-setting discrimination cases involving grantees.

Level 3-3 is credited (275 points).

Factor 4, Complexity

Level 4-3 is met.  At this level, assignments require the use of a variety of investigative, analytical, and other techniques to solve such problems as those characterized by, for example, some disputed facts, a single respondent, and one or more related simple issues, where the parties to the complaint are generally cooperative.

Level 4-4 is not met.  At this level, assignments involve the complete cycle of factfinding, problem definition and identification, determining cause-and-effect relationships, making conclusions, and proposing action to perform comprehensive analyses of broad policies and practices of complex organizations such as industrial plants or large service organizations, where the problems include such characteristics as a large body of interrelated facts, many sources of information, many disputed facts or the facts must be reconstructed, and the parties to the complaint are reluctant to cooperate.  Assignments include compliance reviews of (or investigations of discrimination complaints on the part of school systems, major employers, or housing developers concerning a broad range of improper policies and systemic practices.

As at Level 4-3, the complaints received by the appellant are generally clear-cut with few disputed facts and no subjective issues, they involve a single complainant, and the grantees are generally cooperative as their grant continuance is dependent on adhering to accessibility requirements.  The appellant does not analyze and evaluate the broad hiring and employment policies and practices of large organizations or major employers as described at Level 4-4. 

Level 4-3 is credited (150 points).   

Factor 5, Scope and Effect

Level 5-3 is met.  At this level, the purpose of the work is to investigate conventional charges of discrimination or individual equal opportunity problems and to recommend or negotiate resolution.  The work results in the resolution of individual discrimination cases and affects specific practices of individual employers or business firms. 

Level 5-4 is not met.  At this level, the work involves the solution of particularly difficult and historically unyielding equal opportunity problems thorough systematic enforcement efforts, where the work results in resolution of a wide variety of problems ranging from individual or class action complaints to elimination of systemic barriers such as policies or widespread practices in a particular institution.

As at Level 5-3, the purpose of the appellant’s work is to resolve individual complaints rather than the types of systemic equal employment problems associated with grantee organizations as described at Level 5-4.

Level 5-3 is credited (150 points). 

Factor 6, Personal Contacts

Level 6-3 is met, where contacts are with persons outside the employing agency such as attorneys, managers of firms, or complainants. 

Level 6-4 is not met, where contacts are with high-ranking officials from outside the agency, such as governors, Members of Congress, majors of the largest cities, or presidents of large national corporations.

As at Level 6-3, the appellant has outside-agency contacts with complainants and grantees (i.e., private and State/local arts or education groups) but does not have the types of high-level contacts described at Level 6-4.

Level 6-3 is met (60 points).

Factor 7, Purpose of Contacts

Level 7-2 is met, where the purpose is to advise and assist and when the goals of the persons contacted are essentially similar to those of the employee.

Level 7-3 is not met, where the purpose is to negotiate on procedural points, conduct formal interviews to question witnesses, or to persuade, where the persons contacted may be fearful, skeptical, or uncooperative.

Consistent with Level 7-2, the purposes of the appellant’s external contacts are to advise grantees of compliance requirements and assist members of the public in resolving complaints.  This does not involve the types of negotiating, interviewing, or persuading described at Level 7-3 given that complaints are generally resolved through mediation by third parties.

Level 7-2 is met (50 points).

Summary
Factors Level Points
Knowledge Required 1-6 950
Supervisory Controls 2-3 275
Guidelines 3-4 275
Complexity 4-3 150
Scope and Effect 5-3 150
Personal Contacts 6-3 60
Purpose of Contacts 7-2 50
Physical Demands 8-1 5
Work Evironment 9-1 5
Total 1920

 

The total of 1,920 points falls within the GS-9 point range (1,855-2,100) on the grade conversion table provided in the PCS.

Decision

The highest grade level of work performed is the work associated with the GS-260 series.  Therefore, the position is properly classified as Equal Employment Specialist, GS-260-12.

 

 

 

 

 

 

 

 

 

 

 

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