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Pickthorn v. Dept. of Interior

November 4, 1999


Before Newman, Circuit Judge, Archer, Senior Circuit Judge, and Clevenger, Circuit Judge.


William J. Pickthorn (Pickthorn) appeals the decision of the Merit Systems Protection Board (Board) affirming the Department of Interior's (Interior) decision to separate Mr. Pickthorn from his position as a result of a reduction-in-force (RIF) conducted in 1995 at the United States Geological Service (USGS) *fn1 . Because Pickthorn has not demonstrated any error in the Board's decision, we affirm.


Pickthorn was separated from the position of Geologist, GS-1330-12, at the USGS's Menlo Park, California facility as a result of a RIF. In his appeal of the separation action, Pickthorn asserted, inter alia, that the agency should have allowed him to bump into one of seven positions.

In the Initial Decision, the administrative Judge (AJ) determined that of the seven positions, Pickthorn could not displace employees in two of the positions because those employees had higher standing than Pickthorn, and as to the remaining five positions, that Pickthorn did not have sufficient qualifications to meet the unique requirements of those positions without undue interruption.

Pickthorn's appeal concerns two of the five positions for which he was not found eligible, both GS-1350-07 Geologist positions. The AJ reviewed and considered the position description for these positions, documentary evidence that the subject matter experts (SMEs) did not consider Pickthorn qualified for the positions, and expert testimony from Todd Fitzgibbon (Fitzgibbon), a Department of Interior employee in the Western Geologic Mapping Team who had expertise in digital mapping (and in the ARC/INFO Geographic Information System (GIS)). The AJ concluded that the positions required basic ARC/INFO GIS experience, which entailed one year of experience at the GS-5 level or equivalent training. The AJ determined that Pickthorn did not have the experience necessary to meet the requirements of the positions, and thus was not qualified to fill either of the positions. The full Board denied Pickthorn's petition for review and this appeal followed.


Pickthorn contends that the AJ improperly relied upon the testimonial evidence of Fitzgibbon regarding the qualifications necessary for the two Geologist positions. In particular, the AJ's reliance on Fitzgibbon's testimony required Pickthorn to possess qualifications beyond those listed in the official position description. He further contends that the AJ failed to apply the proper test for undue interruption in determining Pickthorn's assignment rights.

We may only set aside a decision of the Board when it is "(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence . . . ." 5 U.S.C. § 7703(c) (1994). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a Conclusion. See Frederick v. Department of Justice, 73 F.3d 349, 352 (Fed. Cir. 1996) (citing Consolidated Edison Co. v. National Labor Relations Board, 305 U.S. 197, 229 (1938)).

Pickthorn alleges that the AJ erred in placing reliance on Fitzgibbon's testimony because Fitzgibbon was not knowledgeable about the qualifications for the position. He was neither a supervisor of the positions in question nor one of the SMEs who participated in the RIF. Essentially, Pickthorn challenges the propriety of accepting Fitzgibbon's testimony and the weight afforded it by the AJ.

"We do not substitute our judgment for that of the Board as to the weight of the evidence or the inferences to be drawn therefrom." Cross v. Department of Transp., 127 F.3d 1443, 1448-49 (Fed. Cir. 1997) (citing Consolo v. Federal Maritime Comm'n, 383 U.S. 607, 620 (1966) (stating that "the possibility of drawing two inconsistent Conclusions from the evidence does not prevent [the fact finder's] findings from being supported by substantial evidence")).

The record includes Fitzgibbon's testimony that he helped write the position descriptions for these positions, and that he was the GIS manager when the people occupying these positions were first hired. Moreover during their tenure, he helped train them and worked with them. The AJ noted these qualifications, as well as that Fitzgibbon had expertise in digital mapping and GIS applications. The AJ found Fitzgibbon to be an expert in these areas and that his testimony was entitled to great weight. See Initial Decision at 28-29. We conclude that substantial evidence supports the AJ's reliance on Fitzgibbon's testimony and the weight accorded it.

Pickthorn also contends that the AJ erred in relying on testimonial evidence rather than on the position descriptions as written, in making the finding that he was not qualified for the positions at issue. Pickthorn further asserts that the AJ did not properly apply the test for undue interruption because he relied upon Fitzgibbon's characterization of the position and did not properly consider the critical elements of the position. We are not persuaded.

In order to claim an assignment right by "bumping," an employee must have "the capacity, adaptability, and special skills needed to satisfactorily perform the duties of the position without undue interruption." 5 C.F.R. ยง 351.702(a)(4) (1995). The AJ was aware of and acknowledged this statutory requirement. He determined that "the test is not whether [Pickthorn] meets the basic qualifications based on a review of the [position description] of the encumbered position. Rather, an otherwise qualified employee must, in addition, not cause undue interruption of requisite quality and quantity of work in light of the actual pressures of priorities, deadlines, and other demands of the ordinary work program of the actual position at issue." Initial Decision at 28. The AJ concluded that Pickthorn did not have sufficient qualifications, especially the requisite specialized computer system knowledge and applications for digital mapping, to meet the unique requirements of the positions without undue interruption. In reaching this determination, the AJ considered, in ...

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