Washington, DC

U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code

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Damon B. Ford
Compensation and Leave Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance


05/10/2017

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Date

The claimant seeks grade or pay retention in connection with his change to a lower grade while employed by the Internal Revenue Service (IRS) in Maitland, Florida, from the time he was assigned to the lower-graded position until he retired.[1]  We received the claim on July 28, 2015, and the agency administrative report (AAR) on September 3, 2015.  For the reasons discussed herein, the claim is denied. 

The claimant was employed as a Criminal Investigator, GS-1811-14, at the National Criminal Investigation Training Academy in Maitland, Florida, during the claim period.  On May 1, 2014, he was issued a letter with subject “Directed Reassignment” by the then-Director of Strategy for Criminal Investigations (CI) directing him to report to the Headquarters office in Washington, D.C., on July 14, 2014, stating the following:

Based upon Career Board discussions, it was decided that your reassignment was in the best interest of CI.  We had delayed issuance of this letter because you requested a voluntary change to lower grade.  At your request, plans were underway for you to return to the field as a GS-13 special agent; however, you rescinded this request.  Recently you again advised your supervisor that you would like to return as a GS-13 agent.  Due to these events, and the uncertainty of your plans, it is necessary to issue you the Career Board decision.  This letter does not alter any plans you may have to request a voluntary change to [a] lower grade; however, please provide your response through this process.

The aforementioned letter also provided the claimant with four options: (1) accept the reassignment and relocate to Washington, D.C., effective July 13, 2014, (2) accept the reassignment but request a different relocation date, (3) decline the reassignment because he was within a year of retirement and voluntarily request a change to a lower grade to the GS-13 Special Agent position, or (4) decline the reassignment if he planned to retire or resign from the IRS.  The record shows the claimant selected option 3 and was moved to the position of Criminal Investigator, GS-1811-13, effective May 4, 2014.  The claimant’s pay was set at GS-13, step 10.        

In a letter dated April 3, 2015, from the Deputy Director of Strategy, CI, the following was stated:

This is in response to your letter dated May 6, 2014, requesting pay and/or grade retention pursuant to 5 C.F.R. 536.202 and 536.301, in connection with your voluntary request for a change to a lower grade.  Pursuant to 5 C.F.R. 536.102(b), pay retention and grade retention are not authorized when an employee who [sic] is “reduced in pay or grade for personal cause or at the employee’s request.”  Because your reduction in grade was voluntary, you are not entitled to pay or grade retention.  Accordingly your request is denied.  

The claimant believes he was entitled to grade or pay retention under section 536.301 of title 5, Code of Federal Regulations (CFR), Mandatory Pay Retention, or 5 CFR 536.202, Optional Grade Retention, because he considers the directed reassignment to Washington, D.C., a “management action,” not a voluntary action.  Additionally, he states that the “management action” does not meet the requirements of a “reasonable offer” per 5 CFR 536.104. 

The claimant appears to rely on the definition provided in 5 CFR 536.103 of management action which is, in pertinent part, “an action (not for personal cause) by an agency official not initiated or requested by an employee which may adversely affect the employee’s grade or rate of basic pay.”  He states that because the “directed reassignment letter [was] a management action and not a voluntary action,” he was entitled to mandatory pay retention under 5 CFR 536.301(a)(3) as “an employee who moves between positions under a covered pay system … and whose payable rate of basic pay otherwise would be reduced (after application of any applicable geographic conversion under § 536.303(a)) as a result . . . of a management action that places an employee in a non-special rate position or in a lower paid special rate position from a special rate position.”  However, the claimant’s intended directed reassignment to Washington, D.C., was not a “management action” within the meaning of 5 CFR 536.103 because the reassignment would have allowed him to maintain his GS-14 grade at a different duty location.  Therefore, his payable rate of basic pay, after application of any applicable geographic conversion, would not have been reduced if he had accepted the reassignment to Washington, D.C.  

Under 5 CFR 536.102(b)(1), which implements the provisions of title 5 United States Code (U.S.C.) 5363, an agency may not provide grade or pay retention under this part to an employee who “[i]s reduced in grade or pay … at the employee’s request.”  Under 5 CFR 536.103, reduced in grade or pay at the employee’s request is defined, as “a reduction in grade or rate of basic pay that is initiated by the employee for his or her benefit, convenience, or personal advantage.  A reduction in grade or pay that is caused or influenced by a management action is not considered to be at an employee’s request, except that the voluntary reduction in grade or pay of an employee in response to a management action directly related to personal cause is considered to be at the employee’s request.”  The claimant’s decision to request and accept a lower-graded position within his agency falls within the parameters of this definition.  As described by the claimant, he accepted the GS-13 position so that he could avoid repayment of relocation expenses and not be obligated to work beyond his projected retirement date.  The reduction in grade was not caused or influenced by management because the directed reassignment to Washington, D.C. was not a management action, as explained in the previous paragraph.  Therefore, we find the claimant’s change to a lower-graded position was a result of his own request and thus considered voluntary.  Accordingly, 5 CFR 536.102(b)(1) bars the claimant from receiving pay retention. 

Alternatively, the claimant believes that he was entitled to grade retention under 5 CFR 536.202(a) “based on this management initiated action and [his] resulting change to a lower grade.”  This provision states (in relevant part):

An authorized agency official may provide grade retention to an employee moving from a position under a covered pay system to a lower-graded position under a covered pay system when—

(1) Management announces a reorganization or reclassification decision in writing (including a general notice or a specific notice) that may or would affect the employee; and

(2) The employee moves to a lower-graded positon (either at the employee’s initiative or in response to a management-initiated offer) on or before the date the announced reorganization or reclassification is effected. 

However, there is no documentation in the record to indicate that the claimant’s directed reassignment to Washington, D.C., was the result of either a reorganization[2] or a reclassification[3] decision.  Therefore, the agency did not have the discretionary authority to offer grade retention to the claimant under 5 CFR 536.202(a).

The claimant states, “The directed reassignment letter does not meet the requirements for a reasonable job offer, and does not include the required information per 5 C.F.R. 536.104.”  However, the term “reasonable offer” has the specific meaning under 5 CFR 536.104 of an offered position which meets the criteria described in that provision for “the purpose of determining whether grade retention eligibility or entitlement must be terminated under section 536.207 or 536.208,” or for “the purpose of determining whether pay retention eligibility or entitlement must be terminated under section 536.308.”  In other words, this provision defines “reasonable offer” in relation to an employee who is eligible for or already receiving grade or pay retention.   Since the claimant was not in grade or pay retention status when he received the directed reassignment and was not eligible for grade or pay retention, whether the position was a “reasonable offer” is not applicable to his situation. 

This settlement is final.  No further administrative review is available within the OPM.  Nothing in this settlement limits the claimant’s right to bring an action in an appropriate United States court.

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