Fedweek Legal

The Merit Systems Protection Board rejected the Office of Personnel Management’s request for reconsideration of its decision in Mary Miller v. Department of the Interior, 119 MSPR 438 (5/13/13), in another precedential decision affirming the reversal of a removal for failure to accept a directed reassignment.Miller v. Department of the Interior, 2013 MSPB 94 (12/6/13). The Board affirmed that the management-directed geographic reassignment from Sitka, Alaska to an Alaska Native Affairs Liaison position in Anchorage, Alaska, more than 500 miles away, was not bona fide and therefore Miller’s removal from her former position of Superintendent, Sitka National Historical Park did not promote the efficiency of the service.In doing so, the Board upheld its prior decision “departing from its existing three-step analytical framework for deciding adverse actions based on a refusal to accept a directed reassignment in favor of a single efficiency of the service standard.”

OPM contended that the Board had imposed a new higher requirement that the agency must prove that its geographic reassignment was “necessary.”The Board countered that “the emphasis in this case has always been on the agency’s failure to show that its reasons for the reassignment were bona fide and that its actions promoted the efficiency of the service.”Not only did the agency fail “to establish a rational basis for the geographic reassignment, but also failed to show by preponderant evidence that the reassignment was properly ordered to bona fide management considerations in the interest of promoting the efficiency of the service.”

The Board went on to modify its earlier decision to clarify that the agency failed to provide a “rational basis” for the geographic reassignment “because, for example, it did not show that the Superintendent position had been eliminated or that the agency had no need for her continued performance in that position, there was no indication that the appellant has performance problems in the Superintendent position, and the agency did not proffer any evidence of a RIF or reorganization.”

The Board also disagreed with OPM that its decision usurped the agency’s core determination whether to discipline an employee at all.It also denied that it had abandoned its prior burden-shifting approach for reviewing a removal for an employee refusing to accept a management-directed reassignment and that its decision conflicted with an agency’s right to deploy its employees.The Board concluded that Miller’s directed geographic reassignment was not bona fide “and that the agency instead invoked its discretion to reassign the appellant as ‘veil’ to effect her separation.”

Ms. Miller is represented by Passman & Kaplan Founding Principal Edward H. Passman.

* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com.

The attorneys at Passman & Kaplan, P.C, are the authors of The Federal Employees Legal Survival Guide, Second Edition, a comprehensive overview of federal employees’ legal rights. To order your copy, go to http://www.passmanandkaplan.com/CM/Custom/Federal-Employees-Survival-Guide.asp. This book originally sold for $49.95 plus s&h, but is now available for $29.95 plus s&h.