United States Court of Appeals for the Federal Circuit
October 12, 1999
LOIS PARKER, PETITIONER,
DEPARTMENT OF THE AIR FORCE, RESPONDENT.
Before Plager, Schall, and Gajarsa, Circuit Judges.
Lois Parker appeals from a final decision of the Merit Systems Protection Board ("Board"), No. DC-531D-98-0315-I-1 (Feb. 4, 1999). In its decision, the Board dismissed her appeal from the Air Force's ("agency's") denial of a within grade increase. The Board found that Ms. Parker was not denied a within grade increase, and that even if she was denied the increase, the Board did not have jurisdiction over such an appeal as it would fall under the agency's collective bargaining agreement negotiated procedures. Because the Board's decision is in accordance with the law and is not unsupported by substantial evidence, see 5 U.S.C. § 7703(c)(1) (1994), we affirm.
On appeal, Ms. Parker contends that she should have received a within grade increase on September 15, 1996. Employees are eligible to receive a within grade increase if they are paid less than the maximum rate of their grades. See 5 C.F.R. § 531.402 (1996). Ms. Parker originally held a GS-7 position, but was downgraded to a GS-5 position on July 24, 1994 as a result of a reduction-in-force. She retained her GS-7 grade for two years thereafter, but was reduced to the grade of GS-5 on July 23, 1996, pursuant to 5 C.F.R. § 536.202(a) (1996). Despite her reduction in grade to GS-5, Ms. Parker retained her GS-7 pay. Thus, there is substantial evidence in the record to support the Board's finding that Ms. Parker was not eligible for a within grade increase on September 15, 1996, because she was earning more than the maximum rate of her GS-5 level at the time in question.
Even assuming that Ms. Parker was eligible for and was wrongly denied a within grade increase, it appears that she has no appeal rights to the Board. In its opinion, the Board noted that under the agency's collective bargaining agreement, the negotiated grievance procedures contained in the agreement are the only processes for appealing a within grade increase denial. Since such a denial is not specifically excluded from the collective bargaining agreement and does not constitute a prohibited personnel practice, unsatisfactory performance, or an adverse action, the Board did not err in concluding that Ms. Parker's only avenue of appeal is through the negotiated grievance procedures. See 5 U.S.C. § 7121(a)(1) (1994); Espenschied v. Merit Sys. Protection Bd., 804 F.2d 1233, 1236-38 (Fed. Cir. 1986); 5 C.F.R. § 1201.3(c)(1) (1996). Therefore, for the reasons stated in Board's decision, we affirm the Board's dismissal of Ms. Parker's case for lack of jurisdiction.
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