Federal Manager's Daily Report

The Federal Circuit court has affirmed a conclusion

reached by the Merit Systems Protection Board that the

Department of Labor correctly terminated a supervisory

inspector who refused a geographical reassignment.


The Federal Circuit also affirmed MSPB’s method for

reviewing “management’s discretion” to reassign employees:

“The agency must prove by a preponderance of the evidence

that: the employee received adequate notice of the

reassignment; the reassignment decision was bona fide

and based upon legitimate management considerations in

the interest of the service; the employee refused to accept

the reassignment; and, the removal will promote the

efficiency of the service.”


However, if the appellant can show that the reassignment

had no solid or substantial basis in personnel practice or

principle, a third party may conclude that the reassignment

was an improper effort to force retirement or was arbitrary

and capricious.


The administrative judge found the agency had established

legitimate reasons for the reassignment, discipline was

warranted, and there was no vacant inspector position in

the office to which the employee could have been demoted

and reassigned.


DoL said it felt that another inspector was better suited

to handle a situation involving a string of incidents at

mines under the field office’s watch and it successfully

argued why, as well as why the reassignment was a good fit

for the reassigned employee — so the initial decision became

the final decision for MSPB.


The employee had argued in part that the agency did not prove

its case because it presented no written report or notes

regarding the reassignment, but the court decided the

evaluation of witness credibility is a matter within the

discretion of the administrative judge and is “virtually

unreviewable.”

opm.gov