Wednesday, April 10, 2013
In a precedent-setting decision, the MSPB 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).Miller, the former superintendent at the Sitka National Historical Park, had been removed after refusing to accept an involuntary reassignment from Sitka, Alaska to a new 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 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-step 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, she had no performance problems in her Sitka position, and the agency was not claiming that it had no need for Miller's continued performance in her Sitka 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."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 ordered Miller reinstated retroactive to August 6, 2010, with back pay, interest and benefits and possible attorneys' fees and costs.
Miller was 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.