11 F. 3d 1073 - Daum v. Department of the Army

Lawrence F. Daum appeals the April 1, 1993 decision of the Administrative Judge (AJ), Dkt. No. AT-0351-93-0174-I-1, affirming the decision of the Department of the Army (agency) to separate him effective December 12, 1992 due to a reduction-in-force (RIF). That decision became the final decision of the Merit Systems Protection Board (Board) when Daum failed to file a petition for review. We affirm.

On appeal, our standard of review is statutorily defined and narrow. We must affirm the decision of the Board unless it is found to be

(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law;

(2) obtained without procedures required by law, rule, or regulation having been followed; or

(3) unsupported by substantial evidence.

5 U.S.C. Sec. 7703(c) (1988).

Daum argues that the agency did not meet its burden of showing that it properly applied the RIF regulations to him. See 5 U.S.C. Sec. 7701(c)(1)(B) (1988). According to Daum, the agency incorrectly determined the competitive level of his position in the course of making the decision to eliminate it.1 Had the competitive level of his position been properly determined, argues Daum, it would have been classified at the same level as two other positions within his department. Daum's position may thus not have been the one that was subject to the RIF.

We are unpersuaded. The AJ specifically found, based on the testimony of a classification specialist, that the three positions in question--Daum's position and the two others--were each in a different classification series, and that pursuant to 5 C.F.R. Sec. 351.403(a) (1992)2, the agency lacked the discretion to classify them at the same competitive level. Daum's argument--that the AJ ignored testimony showing that a "team concept" was in place according to which the incumbents of the three positions performed substantially similar duties--is irrelevant. As the AJ correctly determined, the dispositive issue for purposes of classification is the official position occupied by an individual rather than the actual duties performed. See Townsel v. Tennessee Valley Authority, 36 M.S.P.R. 356, 360 (1988); Estrin v. Social Security Administration, 24 M.S.P.R. 303, 307 (1984).

Daum next argues that the agency improperly denied him reassignment to a technical position in lieu of separation as called for by 5 C.F.R. Secs. 351.701, 351.702 (1992).

Again, we are unpersuaded. The AJ found that the agency properly denied Daum reassignment to the technical position on the ground that, pursuant to 5 C.F.R. Sec. 351.702(a)(4) (1992)3, Daum could not perform the duties of that position without "undue interruption" to the activities in the new facility. Daum's argument on appeal, that he does not suffer from a particular physical infirmity, and thus can successfully perform the duties of the new position, is insufficient to rebut the AJ's finding. Even if it were true that Daum does not suffer from the infirmity in question, there is substantial evidence in the record--testimony from Daum's immediate supervisor (and the officer in charge) during a 30-day period in which he was detailed to the new position--to support the AJ's finding. According to that testimony, Daum was unable to successfully complete the duties of the new assignment and committed a number of safety violations. Daum has thus not shown the AJ's finding to be unsupported by substantial evidence.

For all the foregoing reasons, we find nothing in the present record that warrants reversal.