Wednesday, May 22, 2013
In a precedent-setting decision, the MSPB previously reversed an initial decision of its administrative judge (AJ) which upheld a removal for failure to accept a management directed reassignment. Miller v. Department of the Interior, 2013 MSPB 27 (4/3/13).Surprisingly, upon further consideration, the Board reopened the case on its own, vacated the prior decision, and substituted a new Opinion and Order reaffirming its prior decision with more supporting rationale. Miller v. Department of the Interior, 2013 MSPB 35 (5/13/13).
Miller, the now-reinstated superintendent at the Sitka National Historical Park, had been removed after refusing to accept an involuntary reassignment from Sitka, Alaska to a new Alaska Native Affairs Liaison position in Anchorage, Alaska, more than 500 miles from Sitka. Miller had no performance issues in her Sitka post, and the Sitka position was not being abolished; the agency then had to advertise and fill both the Sitka and Anchorage slots after removing Miller.
In general, federal personnel law permits agencies to direct the lateral reassignment of employees from one position to another, even outside of their commuting area. If the employee declines to accept the reassignment, the agency can then remove the employee for failure to accept the management directed reassignment if the agency meets its burden of showing that the removal promotes the efficiency of the federal service. In its new decision, the Board found that "the appellant had submitted sufficient credible evidence to cast doubt on the agency's motivations in effecting her removal."
It said: "Under these circumstances, where the agency has failed to provide any evidence that the appellant's geographic reassignment was necessary and where the ensuing removal action does not appear to be rationally related to the efficiency of the service, we find - consistent with our longstanding precedent - that the agency invoked its discretion to reassign the appellant "as a veil to effect" her separation."
In reversing the AJ's decision, the MSPB used the opportunity to overturn its prior procedural framework, as a result simplifying the pleading standards and legal analysis used in cases involving removals for failure to accept a management directed reassignment. While prior case law involved a multi-step analysis, the new framework announced by the MSPB in Miller simplifies the analysis to a single question: has the agency met its burden of showing that the removal promotes the efficiency of the service. Because Miller's Sitka position was not abolished, Miller had no performance problems in her Sitka position, the agency was not claiming that it had no need for Miller's continued performance in her Sitka position, Miller had volunteered to perform the work of the new liaison position in Sitka, and the agency received 120 applications for the new position, the MSPB found that the agency failed to meet its burden of showing that her removal for refusing this contested reassignment promoted the efficiency of the service.
The Board concluded that it did not promote the efficiency of the service to direct her to take the position in Anchorage against her will and to remove her from employment altogether when she declined the position. As a result of the agency's actions, it lost an apparently valued and successful employee, and created two vacancies that the agency had to fill after her removal.
The MSPB again ordered Miller reinstated to her former position as the superintendent of Sitka National Historical Park retroactive to August 6, 2010, with back pay, interest and benefits and possible attorney fees and costs.
Miller is represented by Passman& Kaplan Founding Principal Edward H. Passman.
prooting employees for reassignments to other cities is common at some agencies and rare at others. Agencies are more likely to relocate supervisors and managers to other positions than they are rank-and-file employees. Frequently, employees who want to rise in an organization or move to a more desirable city request reassignments. But some regard reassignment-whether it's expected or a bolt from the blue-as an agency's act of malevolence. If so, what options does an employee have?
The sad truth is that a reassignment without reduction in grade or pay is largely unappealable. The Merit Systems Protection Board is a creature of statute and can only exercise jurisdiction where Congress has specifically authorized it to do so. In disciplinary matters, the MSPB has the authority to hear appeals of agency decisions to remove or demote employees or to suspend them for more than 14 days. Thus, a suspension of 14 days or less, an official letter of reprimand, or a reassignment in grade cannot ordinarily be appealed, and the agency's decision is final.
"[We do] not have jurisdiction over an employee's allegation of an improperly motivated reassignment," the MSPB bluntly stated in one case. This leaves the reassigned employee with Hobson's choice. The employee can appeal the reassignment through the agency's administrative or negotiated grievance process to the very people who have just ordered his relocation. But this process, not surprisingly, is rarely successful. Also, collective bargaining agreements exclude supervisors and managers from the negotiated grievance process. Or the reassigned employee can get himself fired for refusing the reassignment and thus acquire MSPB appeal rights based on his removal. This route is, of course, usually unpalatable.
Most agencies are smart enough to cast a reassignment in terms that will pass muster with the MSPB as a legitimate action for the good of the service. Years ago, as a middle manager at a federal agency, I received a two-page letter from the deputy administrator. Page 1 sung my praises and recited what a wonderful job I had done in City A. It opined that these skills would be highly useful to the organization in City B. Page 2 consisted of two boxes with an order to check one: "I accept this reassignment" or "I resign." Well done. I went.
If an agency has a mobility policy, the MSPB will hold the agency to it. However, most agencies use wording such as: "If the geographical reassignment would work a hardship on the employee due to personal problems and the reasons are acceptable to management, the employee will not be required to move." The MSPB has held that such an agreement "does not create a binding obligation to accept any excuse."
A few end runs around this dilemma exist, but the course is perilous and often unsuccessful. An employee fired for refusing reassignment can appeal to the MSPB on the grounds that the action was not based on legitimate management reasons. The MSPB thereupon could conclude that the reassignment was not a "valid discretionary management determination," but rather an improper effort to get the employee to resign or retire or that it was arbitrary and capricious (see Cooke v. U.S. Postal Service, 67 M.S.P.R. 401, 1995). A more circuitous route to this same end is to resign or retire and then allege that the agency coerced or forced the employee to quit-an appealable action. This approach is even less successful than appealing a removal, because resignations and retirements are presumed to be voluntary and MSPB judges are inclined to decide they lack jurisdiction.
What are illegitimate reasons for ordering a reassignment? Unfortunately, disruption of family, hardship, inconvenience and subjective dissatisfaction do not pass muster. Even severe and documented health reasons do not make the grade if the agency considers the health issue and decides to reassign the employee anyway. The MSPB has gone so far as to say reversing dismissals for refusing reassignment is rarely, if ever, appropriate.
In one of the few cases where the employee prevailed, the MSPB reversed the dismissal of a Drug Enforcement Administration agent who refused to report to his new post. The board said the agent's reassignment from Burlington, Vt., to Newark, N.J., was not "properly ordered for a legitimate management reason."
The MSPB said in its decision that the agency "presented no evidence of claimed deficiencies (that he had an 'elitist attitude,' was stagnating, and had retired in his own mind) in the appellant's conduct or work performance in the Burlington office; it failed to prove that conditions in the Burlington office would be improved by his reassignment." The board determined that "the appellant's evidence was credible and uncontested, and that it rebutted the agency's contentions that the appellant's reassignment was necessary to improve the productivity and efficiency of the Burlington office and to enhance the appellant's career development" (Raybourn v. Justice Department, 38 M.S.P.R. 5323).
Even egregious agency misconduct is unlikely to save an employee. In another case, a Postal Service employee represented a co-worker who had filed a sex and age discrimination complaint against their second-level manager. The manager was so angry with the employee for helping his co-worker that he downgraded his annual performance rating and reassigned him. The employee refused to go and was fired. The U.S. Court of Appeals upheld his removal, even though the manager had clearly retaliated against him. The court said the employee should have accepted the reassignment and then filed his appeal, stating that the "right to oppose discrimination is not the right to refuse to work on account of discrimination." Instead, he chose the path of insubordination. Always remember the cardinal rule of survival: Obey then grieve.
Another avenue of appeal is in the context of disciplinary reassignment. An appeal is only possible if the agency couples the reassignment with an appealable action, such as a demotion or a suspension of more than 14 days. If an agency suspends an employee for 30 days and reassigns him, the MSPB might find the two actions were bound together as a unified penalty and possibly deem the reassignment too harsh. On the other hand, if the agency imposes a suspension of 14 days or less and reassigns the employee, the MSPB would find it lacks jurisdiction for an appeal. In most of these cases, the agency claims that the reassignment and the demotion or suspension are unrelated. But the MSPB sometimes sees through the ruse.
Two other approaches are possible. If an employee alleges his reassignment is the result of a prohibited personnel action and he can get the Office of Special Counsel to investigate, he may succeed. However, the special counsel usually is uninterested or finds the allegation lacks merit. The sole exception is a complaint of retaliation for whistleblowing. In such a case, the employee can file an "individual right of action appeal" with the MSPB after exhausting the Office of Special Counsel process. Sometimes, employees are successful, but not as often as they might hope.
Last but not least, there is the discrimination route. One often hears the expression: "You can always take it to EEO," but this process is frequently the old snare and delusion. Even if the Equal Employment Opportunity Commission determines the agency's action is unjustified, capricious, or even vicious or insane, it cannot right the wrong unless the employee is able to prove that the reassignment was based on race, religion, color, national origin, gender, age or disability-a tough thing to prove.
The ugly truth is that frequently the only options the employee has are to accept the reassignment or quit. The other responses, such as grievances, appeals to the MSPB or complaints to the Office of Special Counsel or the EEOC are often unsuccessful, time-consuming and expensive. The forced reassignment is a perfect paradigm for the axiom: There is no single, overarching way to right wrongs in the government, and many wrongs are simply unrightable.
William N. Rudman is an attorney who specializes in federal employment law. With 26 years of federal service, he retired in 1993 as deputy undersecretary of Defense and director of the Defense Technology Security Administration