David J. Dreher v. United States Postal Service and Merit Systems Protection Board

FACTS:

David Dreher is a preference-eligible veteran, working as a Post Office distribution clerk. In 1981 his shift was changed from Tour I (3:30 p.m. to 12 midnight) to Tour III (10 p.m. to 6:30 a.m.). To avoid having him work a fifteen-hour shift during the transition, his supervisors ordered him to take a day off, but required that he either charge the day to his annual leave or take it as leave without pay. Dreher protested the shift assignment and reluctantly took annual leave for the day.

He appealed the action to the Merit Systems Protection Board, .which asked him to establish Board jurisdiction. Dreher claimed the reassignment was a prohibited personnel practice under 5 U.S.C. § 2302 because ordered in retaliation for his having filed an EEO complaint against local postal officials. Additionally, he claimed that the forced leave amounted to a one-day furlough.

The Board issued a decision on June 8, 1981, finding that: (1) “reassignments without a change in grade, pay or competitive level are not adverse actions appealable to the Board”; (2) an allegation of prohibited personnel practice may be an affirmative defense to enforcement of a management order, but does not…