Washington, DC

U.S. Office of Personnel Management
Classification Appeal Decision
Under section 5112 of title 5, United States Code

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Carlos A. Torrico
Acting Classification Appeals and FLSA Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance


11/02/2017

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Date

Introduction

The appellant occupies the position of Physiologist, GS-413-13, in the Division of Pharmacology and Physiology Assessment, Health Sciences Directorate, Office of Hazard Identification and Reduction, at the Consumer Product Safety Commission (CPSC) in Bethesda, Maryland.  He requests reclassification of his position as Physiologist, GS-413-14.  We accepted and decided this appeal under the provisions of section 5112 of title 5, United States Code.

Position information

The Division of Pharmacology and Physiology Assessment is responsible for evaluating the types and severity of actual and projected injuries and illnesses resulting from a wide range of consumer products and provides scientific support to the agency's compliance and regulatory components in determining whether hazardous products should be taken off the market.  The process is usually initiated by receipt of a petition requesting the CPSC examine a particular product for safety.  The CPSC compliance component determines whether a product safety assessment (PSA) will be conducted to determine the possible injuries that can be caused by the product and under what circumstances.  The appellant, as one of several physiologists in the Division and working in conjunction with other agency components (including staff in epidemiology, economics, engineering, human factors, and laboratory sciences), reviews and evaluates the current scientific literature, research data, accident reports, and laboratory studies to determine whether the product poses a hazard.  Although each of the physiologists has particular areas of expertise which overlap to a certain extent, the appellant is considered a technical expert on hazards associated with mechanical, electrical, recreational, and fire-related products such as small parts in toys, power equipment, riding vehicles, sports equipment, amusement rides, etc.  The hazard/injury areas include brain/head injuries; choking, aspiration, ingestion, strangulation, and suffocation hazards; projectile injuries; eye and dental injuries; gravitational-related injuries; among others.

Series and title determination

The position is properly classified to the Physiology Series, GS-413, which covers positions that perform professional, research, or scientific work involving studies of the functions, environmental response, biological activities, and processes of humans and animals, and their component parts.  The basic title for positions in this series is Physiologist.  The appellant does not dispute the series or title allocation of the position.

Grade determination

Positions in the GS-413 series are evaluated by reference to the Job Family Standard (JFS) for Professional Work in the Natural Resources Management and Biological Sciences Group, GS-0400.  This standard is written in the Factor Evaluation System (FES) format, under which factor levels and accompanying point values are to be assigned for each of the following nine factors, with the total then being converted to a grade level by use of the grade conversion table provided in the guide.  The factor point values mark the lower end of the ranges for the indicated factor levels.  For a position to warrant a given point value, it must be fully equivalent to the overall intent of the selected factor level description.  If the position fails in any significant aspect to meet a particular factor level description, the point value for the next lower factor level must be assigned, unless the deficiency is balanced by an equally important aspect that meets a higher level.

The appellant contests the agency’s evaluation of Factors 2, 3, 5, 6, and 7 under the GS-413 JFS.  These factors are addressed in detail below.  After careful review of the record, we agree with the agency’s remaining factor level assignments of Levels 1-8, 4-5, 8-1, and 9-1 and will not address these factors further. 

Factor 2, Supervisory controls

This factor covers the nature and extent of direct or indirect controls exercised by the supervisor, the employee’s responsibility, and the review of completed work.

The agency assigned Level 2-4 under this factor.  The appellant believes Level 2-5 should be assigned.

At Level 2-4, within a framework of overall objectives and available resources, the employee and supervisor, in consultation, discuss timeframes and scope of the assignment including possible stages and approaches.  The employee plans and carries out the assignment; resolves most conflicts that arise; coordinates work with others as necessary; interprets policy and regulatory requirements; keeps the supervisor informed of progress and potentially controversial problems, concerns, or issues; develops changes to plans and/or methodology; and recommends improvements to meet program objectives.  The supervisor reviews completed work for soundness of overall approach, effectiveness in meeting requirements or producing expected results, the feasibility of recommendations, and adherence to requirements.  The supervisor does not review methods used.

At Level 2-5, the supervisor provides administrative and policy direction in terms of broadly defined missions or functions of the agency.  The employee defines objectives; interprets policies promulgated by authorities senior to the immediate supervisor and determines their effect on program needs; independently plans, designs, and carries out the work; and serves as a technical authority.  The supervisor reviews work for potential impact on broad agency policy objectives and program goals; normally accepts work as being technically authoritative; and normally accepts work without significant change.

Factor 2 measures not only supervisory controls and review but also the employee’s level of responsibility and must be considered within its entirety.  Level 2-4 describes work carried out with a high degree of independence and recognized expertise, sufficient to be able to carry out all of the necessary steps to complete the assignments without supervisory intervention.  Level 2-5 recognizes not only independence of action, but also the degree of responsibility and authority inherent in the work as the context for the independence exercised.  The language of Level 2-5, that direction is provided in terms of “broadly defined missions or functions,” the employee “defines objectives” and “interprets policies” for the purposes of defining program needs, and work is reviewed for impact on “broad agency policy objective and program goals,” makes clear that some degree of management responsibility and authority are implicit at this level.  At Level 2-5, work is assigned less in terms of discrete projects or continuing assignments as in terms of an area of responsibility, within which the employee determines what work is needed to accomplish or further the agency’s mission. This is done in the capacity of a “technical authority” and the results of the work are considered “technically authoritative.”  Further, that the work is reviewed only for potential impact on “broad agency policy objectives” makes clear that the employee is expected to be a technical authority on major mission-oriented areas of responsibility.  “Technical authority” within the context of Level 2-5 means the delegated decision-making authority that derives from program management, i.e., the authority inherent in managerial positions to not only provide technical advice and expertise but to translate and implement that expertise into agency policy or program direction.

Although the appellant’s position exceeds Level 2-4 in certain respects, Level 2-5 is not fully met.  The appellant carries out his project work independently without either the preliminary supervisory input or the degree of subsequent supervisory review described at Level 2-4.  Like the other Division staff, he conducts PSAs for products within his areas of expertise (e.g., brain/head injuries, choking/aspiration, projectiles/lacerations, ophthalmology/dental injuries, gravitational-related injuries, electrocution, among others), and he is considered and recognized as a technical expert within these areas.  However, any recommendations he makes are confined to the technical aspects of the reviews themselves rather than such broader considerations as overall program needs or direction.

Level 2-4 is credited (450 points).

Factor 3, Guidelines

The agency assigned Level 3-4 under this factor.  The appellant believes Level 3-5 should be assigned.

This factor covers the nature of the guidelines used and the judgment needed to apply them.

At Level 3-4, the employee uses guidelines and precedents that are very general regarding agency policy statements and objectives.  Guidelines specific to assignments are often scarce, not applicable, or have gaps in specificity that require considerable interpretation and/or adaptation for application to issues and problems.  The employee uses judgment, initiative, and resourcefulness in deviating from established methods to deal with specific issues; research trends and patterns; propose new policies and practices; develop new methods and criteria; and/or modify, adapt, and/or refine broader guidelines to resolve specific complex and/or intricate issues and problems.

At Level 3-5, the employee uses guidelines such as broad policy statements, basic legislation, recent scientific findings, or reports that are often ambiguous and require extensive interpretation.  The employee uses judgment and ingenuity and exercises broad latitude to determine the intent of applicable guidelines; develop policy and guidelines for specific areas of work; and formulate interpretations that may take the form of policy statement, regulations, and guidelines.

The appellant’s position meets Level 3-4.  Like this level, in addition to physiological and medical literature and standard reference books, he applies Federal laws, rules, regulations, precedents, and agency policy statements and objectives which are very general in nature.  Similar to Level 3-4, in applying relevant guidelines he uses judgment, initiative, and resourcefulness to deviate from established methods in dealing with specific physiological issues or problems, drawing on his expertise to develop new methods and criteria, and sometimes modifying, adapting, and refining broader guidelines to address specific issues.

The appellant’s position does not meet Level 3-5.  Unlike this level, while the appellant uses general agency policies and Federal laws sometimes requiring considerable interpretation, his guidelines do not require the degree of judgment, ingenuity, and the exercise of broad latitude to determine the intent of applicable references.  In contrast to Level 3-5, at his organizational level he does not develop agency policy and guidelines for specific areas of work, or formulate interpretations that may take the form of policy statements, regulations, or agency guidelines.

Level 3-4 is credited (450 points).

Factor 5, Scope and effect

The agency assigned Level 5-5 under this factor.  The appellant believes Level 5-6 should be assigned.

This factor covers the relationship between the nature of the work, and the effect of the work products or services both within and outside the organization.

At Level 5-5, the criteria are expressed in terms of the scope of two types of work, resource management programs and regulatory functions.  Resource management work involves such characteristics as isolating and defining critical conditions and problems with the program; resolving critical problems of limited scope impacting natural resources; determining the validity of theories and standards for improving resource use; and coordinating activities to meet economic needs while promoting resource conservation.  Regulatory functions involve conducting assays of all products under regulatory control and in the area of functional responsibility, and developing new assay methods and new interpretations of findings; or designing simulation or optimization models to contribute to interdisciplinary multi-resource evaluation procedures.  In either case, the work affects the development of major aspects of agency programs, long-range plans, and/or missions; well-being of a large number of people on a short-term basis; major activities of private organizations; operations of other Government agencies; and/or the state-of-the art in the area of functional responsibility.

At Level 5-6, the criteria are expressed in generalized terms.  The scope of the work involves planning, developing, and implementing major agency programs, projects, or activities of national scope and significance, and/or especially critical, sensitive, and controversial issues related to an area of assigned responsibility.  Work results affect programs that are essential to the agency mission; large numbers of people on a long-term or continuing basis; or decisions and proposals that have a long-term effect on public and private organizations and/or regulated industries.

Keeping in mind that the element “scope” relates to the nature of the work, the distinction between Level 5-5 and Level 5-6 is that at Level 5-5, the work is of an operating level or staff support nature (i.e., carrying out or coordinating ongoing functions of the organization) whereas Level 5-6 involves the management aspect of planning, developing, and implementing major agency programs, projects, or activities.  Within this context, the appellant’s work is clearly comparable to Level 5-5 in its depiction of conducting assays, developing new assay methods, and designing simulation models.  However, because his work derives from the established flow of review in the organization, he is not responsible for independently planning, developing, and implementing major programs or projects. The appellant’s work, in that it contributes to keeping unsafe products off the market, certainly can be said to affect the well-being (be it short-term or long-term) of large segments of the public who may potentially use those products.  However, in this case the effect is on the continued availability of discrete products rather than on the overall agency program as expected at Level 5-6. The appellant is not responsible for planning, developing, and implementing major agency programs or projects, or especially critical, sensitive, and controversial issues.  The key words here are “planning, developing, and implementing.”  The appellant serves as a member of a team and contributes his expertise to the ultimate decisions made on the products, but is not responsible for the overall product assessment or for deciding whether the product should be removed from the market.

Level 5-5 is credited (325 points).

Factor 6, Personal contacts

This factor includes face-to-face and remote dialogue; e.g., telephone, email, and video conferences, with persons not in the supervisory chain. 

The agency assigned Level 2 under this factor.  The appellant believes Level 3 should be assigned.

At Level 2, contacts are with employees in the same agency and/or with members of the public in a moderately structured setting.  Contacts may include professionals and specialists in different functional areas within the agency and at different organizational levels.

At Level 3, contacts are with individuals or groups inside and outside the employing agency representing high levels of organizations internal and external to the Federal government, such as contractors; legal professionals; representatives of community action committees; management officials or senior technical staff of corporations; and Federal agencies, academia, or professional organizations.

The appellant’s contacts meet Level 3.  Like this level, his contacts are with high level technical staff both inside and outside the agency including persons at the agency’s Directorate level, medical staff at other Federal agencies, and public and private business, consumer, and scientific groups concerned with evaluating health risks from consumer products.

Level 3 is credited.

Factor 7, Purpose of contacts

This factor measures the reasons for contacts ranging from factual exchanges of information to situations involving significant or controversial issues and differing viewpoints, goals, or objectives.

At Level C, the purpose of contacts is to influence and persuade persons or groups who may be skeptical or uncooperative.  Employees must be experienced in approaching the individual or group to obtain the desired effect, such as gaining compliance with established policies or acceptance of established methods using persuasion or negotiation, or establishing rapport to gain information.

At Level D, the purpose of contacts is to justify, defend, negotiate, or settle matters involving significant or controversial issues and/or programs.  Work at this level usually involves active participation in conferences, meetings, hearings, or presentations involving problems or issues of considerable consequence or importance.  Persons contacted typically have diverse viewpoints, goals, or objectives.  The employee must achieve a common understanding of the problem and a satisfactory solution by persuading, compromising, or developing suitable alternatives.

The appellant’s position meets Level C.  Like this level, the appellant obtains and evaluates data regarding the safety and usage of a variety of consumer products, and based on this information explains to technical staff and manufacturing representatives the agency’s regulatory requirements and policies.  Because there are often conflicting views from those contacted on these topics and the agency’s findings, the appellant uses persuasion and negotiation to gain a better understanding and compliance by contacts with the agency’s assessment of certain products.

The position does not meet Level D.  Unlike this level, the appellant does not justify, defend, or negotiate matters involving significant or controversial issues and/or programs.  He is not actively involved in conferences or hearings concerning problems or issues of considerable consequence or importance to the agency or industry.

Level C is credited.

A combination of Level 3 for Personal Contacts, and Level C for Purpose of Contacts, results in the overall assignment of Level 3-C and 180 points are credited.

Summary
Factors	Level	Points
Knowledge required by the position	1-8	1550
Supervisory controls	2-4	450
Guidelines	3-4	450
Complexity	4-5	325
Scope and effect	5-5	325
Personal contacts/Purpose of contacts	3c	180
Physical demands	8-1	5
Work environment	9-1	5
Total		3290

The total of 3290 points falls within the GS-13 range (3155-3600) on the grade conversion table provided in the standard.

Decision

The position is properly classified as Physiologist, GS-413-13.

           

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