Fedweek Legal

The Merit Systems Protection Board held in Gallegos v. Department of the Air Force, 2014 MSPB 53 (July 17, 2014), that the appellant’s removal for failure to fulfill a condition of employment was proper where the appellant, despite being subject to a mobility requirement, declined a directed reassignment.

The appellant, Gallegos, was a GS-13 criminal investigator. As a condition of her employment, Gallegos was required to execute a mobility agreement in which she acknowledged that any failure to accept a geographic reassignment may subject her to separation from federal service. In 2012, the agency provided Gallegos with notice of an impended directed reassignment from Florida to Virginia. She declined the reassignment, and the agency removed her based on a charge of “failure to fulfill a condition of employment.”

The charge of failure to fulfill a condition of employment contains two elements that the agency needed to prove: (1) the requirement at issue is a condition of employment; and (2) the appellant failed to meet that condition. Absent evidence of bad faith or patent unfairness, the Board defers to the agency’s requirements that must be fulfilled for an individual to qualify for appointment to, or to retain, a particular position. The Board found that the mobility requirement was a condition of employment because all such positions were subject to the mobility requirement and Gallegos, along with her peers, periodically signed mobility agreements.

Gallegos did not dispute that she refused to meet the mobility requirement. Rather, she raised a number of defenses, including the argument that the agency did not provide any evidence, other than the mobility agreements she had signed, that the underlying directed reassignment promoted the efficiency of the service. In this regard, Gallegos argued that the agency needed to make the same showing in a case involving a mobility agreement as it does when there is not a mobility agreement. The Board rejected the appellant’s argument, distinguishing her case from Miller v. Department of the Interior, 119 MSPR 438 (2013). In that case, the Board held that an agency must establish by preponderant evidence that a geographic reassignment of an employee not subject to a mobility agreement was properly ordered due to bona fide management considerations in the interest of promoting the efficiency of the service to sustain a removal issued due to failure to accept a directed reassignment.

To the contrary, in cases where an agency has made a policy decision that an entire group of positions must be mobile, the Board held that its analysis should be less on whether the agency had a bona fide reason for an individual employee’s reassignment and more on whether the agency’s policy was supported by a legitimate management reason. In Gallegos, the Board deferred to the agency’s determination as to the requirements that needed to be fulfilled for the appellant to qualify for and retain her position.

The Board concluded by stating that if it were to accept Gallegos’ contention, it would be intruding upon agency management’s discretion to determine the requirements and conditions for positions in its workforce and that the agency’s policy set forth legitimate management reasons for requiring mobility – organizational effectiveness and employee career progression.

Employees considering taking positions subject to mobility agreements should do so fully aware that any failure to accept a geographical reassignment could result in removal without recourse.

* 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. This book originally sold for $49.95 plus s&h, but is now available for $29.95 plus s&h.