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In NSPS' wake: confusion and lawsuits

Mar. 4, 2012 - 06:00AM   |  
By STEPHEN LOSEY   |   Comments
Thomas Patterson was improperly downgraded to a GS-11 after the National Security Personnel System was killed.
Thomas Patterson was improperly downgraded to a GS-11 after the National Security Personnel System was killed. ()

Thomas Patterson was excited to be hired as a Defense Department clinical social worker in 2008 after serving as a GS-12 employee at the Veterans Affairs Department. He was placed under the National Security Personnel System, which was intended to reward high-performing employees with bonuses and raises beyond what they could earn under the General Schedule. But when the ill-fated NSPS was killed and Patterson was moved back to the GS system last September, he received an unwelcome surprise: He had been downgraded to a GS-11.

"I don't think there was any intent to deceive me, but the way it worked out was kind of a bait and switch," Patterson said in an interview.

Patterson is one of at least 21 former NSPS employees who were improperly downgraded when they were shifted back to their old pay system. Of those cases, the Merit Systems Protection Board has already ruled in favor of 11 employees, and ordered Defense to return them to their old grades and reimburse them for any lost pay.

On Jan. 24, MSPB issued a precedent-setting ruling that found Navy employee Glenda Arrington was improperly downgraded to GS-13 when she was shifted out of NSPS. The board ordered her to be returned to GS-14 and be compensated for any lost pay. Over the next two weeks, MSPB ruled in favor of 10 more Defense employees who were similarly downgraded.

Being placed in a lower grade is "kind of a long-term demotion," said San Francisco attorney William Wiley, who specializes in federal employment and discrimination law. "They have a legitimate gripe."

The problem is especially acute since NSPS was meant to reward Defense's best and brightest employees.

The roots of the problem lie in the 2009 law Congress passed to cancel NSPS. The Pentagon had two years to move roughly 226,000 employees back to their original pay systems and shutter the highly unpopular NSPS. But the transitions happened in phases, which meant some components had to act in a matter of months.

Some human resources offices were overwhelmed. In a December 2010 news release, the Air Force Space Command said some employees had been placed in the wrong GS grades, partly because the Air Force had to move so quickly.

"The rapid transition resulted in errors that may have been prevented had more time been given to accurately transition employees," Air Force human resources specialist Siobhan Berry said in the release.

Lawmakers also ordered Defense not to reduce employees' salaries when transferring them back to their original pay systems. But the law did not forbid Defense from lowering an employee's grade.

The Pentagon did not respond to Federal Times' inquiries by press time.

Downgraded

Patterson, who counsels individuals and married couples who are struggling with depression, anxiety and post-traumatic stress disorder, said he was a GS-12 at the Little Rock Veterans Affairs Medical Center in Arkansas in 2008 when a major at Whiteman Air Force Base in Missouri offered him a job.

Patterson's new boss explained that he would be classified as a YA-2 under NSPS, which was equivalent to his old GS-12 position.

"Had I made a case that said, ‘Show this job is a GS-12,' I would have been laughed out of town," Patterson said. "GS was a dead system, as far as we were concerned."

When Patterson heard Congress was terminating NSPS in 2011, he was confident he would be returned to a GS-12. But last September, during the final days of NSPS, he got the bad news that he had been classified as a GS-11, Step 9. Patterson said DoD viewed him as a new hire not a GS-12 transfer from VA and graded the position as a GS-11.

Because Patterson's pay wasn't cut, his downgrading didn't technically violate the 2009 law that ended NSPS. Congress said no employee should suffer a loss of pay when being shifted out of NSPS.

But Patterson felt the spirit of that law was violated, since his opportunity for future raises is now limited because he can hope to get only one more step increase before reaching the top of the GS-11 pay scale. Patterson said he does not think Whiteman or the Air Force downgraded him on purpose. He said his boss is trying to help him straighten out the problem and has pledged to rewrite his position description to reflect that he should be a GS-12.

Other former NSPS employees who were downgraded such as the Air Force's Wayland Patterson, who is no relation to Thomas Patterson landed above their new grade's pay caps and were placed on retained pay status. That means they are ineligible for any step increases and can receive only half of the pay scale increases approved by Congress until their grade catches up to their salaries.

Wayland Patterson, who works as a contract augmentation program manager at Florida's Tyndall Air Force Base, said he was a GS-13 for five years before being shifted to NSPS. In September 2010, he was bumped down to GS-12 and put on retained pay status.

In a sign of how chaotic the NSPS transfer was, Wayland Patterson said that he was given supervisory duties and put in charge of managing GS-13s who were above his paygrade.

"Prior to the release of the results of the conversion, the deputy director of the agency at the time went around saying, ‘This is so broken I have a 12 supervising 13s,'" Wayland Patterson said. "I had no idea he was talking about me. It's broken, and they realize it's broken."

Wayland Patterson's story has a happy ending. Last November, the Air Force told him it was reclassifying him as a GS-13, Step 10. He didn't lose any money while he was on retained pay status because Congress passed no pay raises in 2011 and 2012. But he had filed an MSPB complaint shortly after being downgraded and is still pursuing the complaint because he wants his promotion backdated and his demotion stricken from his record. He's not sure when MSPB will rule on his case.

"I know the judge has a lot of similar cases," Patterson said. "During a telephonic prehearing, they had five other judges on the line because they had similar cases."

File a complaint, attorney advises

It's unknown how many Defense employees have been downgraded, and an MSPB spokesman said he wasn't sure how many people have filed cases alleging they were improperly downgraded.

Wiley said former NSPS employees who feel they were improperly placed in a grade lower than where they started should file an MSPB claim as soon as possible.

MSPB usually requires adverse action appeals to be filed within 30 days, but is being lenient in the case of former NSPS employees. Arrington, for example, filed her appeal 50 days after being downgraded. But MSPB ruled in her precedent-setting case that the Navy did not tell her of her appeal rights at the time, as was required by law, and as a result waived the deadline.

Wiley said many employees who think they were wronged probably don't even know they have the option of going to MSPB. But they need to be able to show that once they learned about their appeal rights, they acted fast.

The board typically looks at when a complaining employee was notified about his appeal rights, Wiley said. "Republican boards can be stricter, but now it's a Democratic board, and I expect they will be more generous. But it's up to them to decide."

Pat Niehaus, president of the Federal Managers Association, said she mostly heard complaints from people who were promoted or took on additional duties under NSPS, but were returned to their original grades after NSPS was shut down. Those employees, Niehaus said, felt they should have been placed in a higher grade than the ones in which they originally started.

But those employees may have a tougher time making their case. MSPB last month dismissed the cases of two employees who felt they should have been bumped up a grade. In those cases, the board ruled the Arrington decision did not apply because their grades were not lowered. The board also said it did not have jurisdiction to consider the proper classification of a position.

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