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.