It is rare when the MSPB finds that an employee's retirement in lieu of accepting a directed reassignment is involuntary. In Jones v. Department of the Treasury, 107 MSPR 466, 2007 MSPB 304 (12/13/07), Mr. Jones was one of several project managers working in the IRS Dallas, Texas office. Mr. Jones alleged that his supervisor informed him that there were problems with his performance and therefore he was going to be reassigned immediately to an IRS office in New Carrollton, Md. When Mr. Jones stated that he did not wish to move from Texas to Maryland, the supervisor informed him that if he did not accept the reassignment, Mr. Jones would either have to retire or face removal within 90 days. The supervisor then told Mr. Jones that if he retired within a matter of days, he would be eligible for a voluntary separation incentive payment (VSIP), commonly referred to as a "buyout." However, because the IRS's VSIP authority did not extend to the position Mr. Jones held, the IRS would have to first reassign him to another position in Dallas to qualify him for the VSIP.
While Mr. Jones was considering his options, and before he had made any decision to retire and accept the VSIP, the IRS reassigned him to the position which would qualify him for the VSIP without his knowledge. Mr. Jones then applied for immediate retirement and the VSIP; both applications were approved.
Mr. Jones subsequently filed an appeal with the MSPB claiming that his retirement was involuntary. The IRS defended its actions, claiming that Mr. Jones's reassignment was due to an agency reorganization. In response to the administrative judge's (AJ's) order for Mr. Jones to make a nonfrivolous showing that his retirement was coerced, Mr. Jones alleged that the IRS had no legitimate reason to reassign him to a position in New Carrollton, because there was, in fact, no reorganization and that other project managers on his project were not reassigned. The IRS also alleged that Mr. Jones experienced performance difficulties, which he denied. The AJ credited the IRS's assertion that Mr. Jones had performance issues without holding a hearing. Because the AJ concluded that the IRS had legitimate reasons to reassign Mr. Jones, the AJ held that Mr. his retirement was voluntary and that, therefore, the Board lacked jurisdiction over his appeal.
The Board members unanimously agreed that Mr. Jones had made a nonfrivolous showing that his retirement was coerced and, therefore, that his appeal could not be dismissed without an evidentiary hearing. The Board reiterated the long-standing rules that retirements are presumed to be voluntary and that an employee who asserts that a retirement is involuntary bears the burden to prove the action was coerced by showing: 1) agency misrepresentation; 2) the agency threatened removal knowing the removal could not be substantiated; 3) the employee was placed under time pressure to make a decision; or 4) the agency exhibited bad faith in encouraging the employee to retire. The Board looks at the "totality of the circumstances" to determine if they would have forced a reasonable person to retire.
With respect to directed reassignments in particular, the Board noted that in order to remove an employee for failure to accept a directed reassignment, the agency's decision to direct the reassignment "must be bona fide and based upon legitimate management considerations in the interest of the service. An unjustifiable reassignment cannot serve as the basis for a removal action."
In this case, the Board found that Mr. Jones had presented evidence refuting the IRS's claim that the reassignment was part of a reorganization because no other employees on the project were reassigned. This evidence constituted a nonfrivolous showing that the IRS's justification for the reassignment to Maryland was not a bona fide reason. Further, the IRS contended that Mr. Jones had performance problems. Mr. Jones contested those allegations. The Board reiterated that an agency's bald refutation of the employee's argument cannot be credited without a hearing, and that it was improper for the AJ to conclude that Mr. Jones's supposed performance difficulties were a reason for his reassignment in the absence of an evidentiary hearing on the matter.
Lastly, the Board addressed the IRS's actions in reassigning Mr. Jones to another position in Dallas in order to qualify him for the VSIP. The Board noted that all parties agreed that the only reason the IRS changed Mr. Jones's position in Dallas was to qualify him for the VSIP. Mr. Jones argued that the IRS showed bad faith in encouraging his retirement by qualifying him for a VSIP for which he was not otherwise eligible. Because of the rapidly approaching expiration of VSIP authority, Mr. Jones alleged that this exerted additional time pressure on his decision to retire.
The Board found that Mr. Jones's evidence was sufficient to make a nonfrivolous argument that the agency offered him a VSIP to coerce his retirement. As the Board held, "A coercive threat of removal coupled with a VSIP offered in bad faith to encourage retirement and to apply time pressure to the retirement decision may constitute circumstances which would make a reasonable person feel compelled to retire." Because, if proven, Mr. Jones's allegations would render his retirement coerced and involuntary, the Board remanded this case back to the AJ to hold a hearing to determine the actual facts of the case.
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/.