In January 2014, I wrote about a Merit Systems Protection Board decision in Miller v. Department of Interior that found an agency’s geographic reassignment of an employee to be legally insufficient. OPM took issue with the legal standard for ordering an employee’s geographic reassignment that MSPB imposed on agencies through that case, and appealed the MSPB decision to the U.S. Court of Appeals for the Federal Circuit. A few weeks ago, that court issued a decision reversing the MSPB. I opined in my earlier column that it seemed possible that the use of geographic reassignments may be getting a fresh look by the MSPB as to whether the need to move the employee was bona fide or just a means to force an employee to quit. With the decision of the court of appeals, I now doubt it.
Miller involved a National Park Service Superintendent at Sitka National Historical Park who was removed from her position after she refused a management-directed reassignment to a different position. The newly-created position featured the same grade and pay, but was located in Anchorage, Alaska. The employee appealed the removal to the MSPB, contending that she was not qualified for the position and that “the agency’s decision to direct her reassignment was not bona fide because the position was created for the sole purpose of reassigning her from her superintendent position without triggering an adverse action.”
An MSPB administrative judge found that the agency had met its initial burden of showing, by a preponderance of the evidence, that it had legitimate management reasons for the employee’s reassignment, and used the two-step, burden-shifting analytical framework set forth in Ketterer v. Department of Agriculture, 2 M.S.P.R. 294 (1980) to reach that holding. Per Keterrer, an agency’s decision to reassign the employee must be a bona fide determination based on legitimate management considerations in the interests of the service.
The employee appealed, and in a series of three decisions that reversed the administrative judge’s decision, the board abandoned the two-step framework of Ketterer, calling it “cumbersome and unnecessary,” and stating that going forward the board would “simply weigh all the evidence and make a finding on the ultimate issue of whether the agency proved…that the misconduct occurred and that its action promotes the efficiency of the service.” The board found that there was credible evidence that the employee’s reassignment was merely a “veil” to effectuate a removal, and also found that the agency failed to establish a rational or bona fide basis for requiring the employee to accept the new position, and failed to show that the employee’s removal was “rationally related to the efficiency of the service.”
In reversing, the court of appeals found that the board erred in abandoning the Ketterer approach. The court of appeals applied the Ketterer framework to determine whether substantial evidence supported the administrative judge’s holding “that the agency established, by a preponderance of the evidence, that it had legitimate management reasons for [the employee’s]reassignment; and that [the employee]failed to rebut the agency’s prima facie case.” The appeals court found that substantial evidence supported the administrative judge’s finding that, due to testimony regarding the employee’s “unique strengths to fill the [new]position” and the “recognized need for the position” from the employee’s supervisors, the agency had acted to reassign the employee based on legitimate management considerations. The appeals court also determined that the employee did not rebut the agency’s prima facie case for reassignment when she argued that she was not qualified for the new position. The appeals court added that no evidence cited by the full board “supports either its conclusion that credible evidence ‘cast doubt on the agency’s motivations’ or its conclusion that [the employee’s]reassignment was a ‘veil’ to effect her removal.”
I see no practical difference between the board’s analysis which was to determine whether there was proof of a rational or bona fide basis for geographically reassigning the employee which served the efficiency of the service, and the two-step analysis used by the court of appeals. Both were trying to determine whether the agency proved a legitimate reason for the reassignment. A nuanced difference in how to define the standard of reviewing an agency’s geographic reassignment shouldn’t affect a conclusion on legality. The reassignment was either legally legitimate or not. In the end, the true essence of the decision is that the court of appeals viewed the evidence on the bona fides of the reassignment as much weaker than did the MSPB. No doubt this court decision makes it harder again for employees to successfully challenge a refusal to accept a geographic reassignment, regardless of how the standard of review is defined.