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.”