What can an employee do when she is demoted because management says it improperly promoted her in violation of regulations?  As if that is not bad enough, what can she do if aside from the demotion the agency also demands that she repay all the money she received because of the improper promotion?  The MSPB has made is quite clear that it will only rarely review an agency action to correct a pay mistake.  However, in this case the employee met the narrow Board criteria for reversing a pay error, where the employee did nothing wrong to cause the pay error.

The MSPB has held that it will review agency actions involving a demotion from a recent promotion when: (1) the promotion was approved by an authorized official aware that he or she was making the promotion or appointment; (2) the appellant took some action denoting acceptance of the promotion or appointment; and (3) the promotion or appointment was not revoked before the appellant performed in the position. In fact, when those three criteria are met, the agency cannot treat it as a mere correction of a pay-setting error, but must use adverse action procedures. In this case the employee, a GS-15 supervisor at HUD, had been promoted for a year before the agency realized it made an error.  Consequently, the Board told the agency this was not the simple correction of a classification or pay-setting error, but a denial of due process, “The agency selected the appellant for a position that was properly graded as a GS-15 position, and the appellant performed GS-15 level work. Any error in noncompetitively promoting the appellant was in the hiring process, and the agency’s action to correct such error by retroactively cancelling the appellant’s promotion and placing her in a different GS-14 position is an appealable reduction in grade and pay.” The Board also let it be known that any doubt about this being an adverse action was certainly removed when, “ the agency took these actions retroactively, effective the date of the appellant’s appointment. The agency also sought the difference in pay during the time that the appellant was in the GS-15 position even though she performed the duties of her GS-15 position. Further, the appellant asserts that she lost service credit at the GS-15 level for the time that she performed in the position. These consequences far exceed a correction of a pay-setting error.”

If you want to read more about the MSPB’s reasoning, this case is titled at Wandra Simmons v. HUD, 2014 MSPB 1.

About AdminUN

FEDSMILL staff has over 40 years of federal sector labor relations experience on the union as well as management side of the table and even some time as a neutral.
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