position description, title, series and grade to actually challenge.
This position is untenable. "Prohibited personnel practices," by definition, encompass the very situation described by plaintiff. The relevant statute specifically prohibits "tak[ing] or fail[ing] to take any action if the taking of or failure to take such action violates any law, rule or regulation implementing, or directly concerning, the merit system principles contained [herein]." 5 U.S.C. Sec. 2302(b)(11) (emphasis added).
Moreover, plaintiff's own witness, Ms. Hazel Mingo, former ACDA Personnel Officer, testified that a classification challenge could be effectively lodged with the Office of Personnel Management even if plaintiff had no position description. Ms. Mingo stated that, once an employee who was without a position description complained, OPM would require the agency to prepare a position description. Thereafter, the individual could renew the challenge.
Second, plaintiff contends that the failure to provide her with a position description or appropriate classification meant that she was outside the Civil Service and, thereby, not covered by the CSRA remedial scheme. In effect, plaintiff would have this Court find that she was a type of sui generis employee not within the Civil Service. This simply cannot be the case.
During the entire period in question, plaintiff received pay as a member of the competitive service. Plaintiff paid money into the pension fund. Plaintiff made career decisions based on her desire to retain the benefits of her many years of government service. There can be no doubt that plaintiff was a member of the Civil Service.
Concededly, at times plaintiff's position was not appropriately described and at times she served without a position description. Obviously, every employee is entitled to a position description. However, I am not prepared to find that such an omission provides plaintiff with the ability to circumvent the CSRA and establish jurisdiction in this Court.
Moreover, plaintiff learned in 1980 that she was "overcomplement" and sat on her rights until the filing of this lawsuit. Dr. Manfred Eimer, plaintiff's supervisor, testified and plaintiff has admitted
that plaintiff was attempting to secure a position as a career GS-10. Plaintiff stated that her job "should be classified GS-10 but has never been officially established due to my reluctance to accept a Schedule C and ACDA's unwillingness to establish the job in the competitive service."
ACDA had a policy of requiring secretaries to Assistant Directors be Schedule C, not career, GS-10s. Plaintiff was attempting to establish herself as an exception to this policy.
It also should be noted that plaintiff did receive a position description in 1985. Plaintiff now claims that the position description is not to her liking.
I cannot find any reason to believe that these past missteps or present grievances resulted in plaintiff being beyond the reach of the CSRA or not a civil servant. Indeed, plaintiff refused to accept the Schedule C position because she did not want to jeopardize the benefits to which she was entitled as a career civil servant. Moreover, during the entire period at issue, plaintiff continued to draw salary and pay into her pension plan. In fact, if I were to accept plaintiff's argument, there is little doubt that she would be endangering those rights and benefits she has accrued during her many years in government.
Furthermore, the CSRA itself demonstrates that plaintiff was a civil servant. "Covered position" under the CSRA is defined as "any position in the competitive service." 5 U.S.C. Sec. 2302(a)(2)(B). "Competitive service" is defined as:
all civil service positions in the executive branch, except