Board Reverses Thirty Years of Precedent, Alters Analysis Framework for Adverse Action Cases Based on Refusal to Accept Directed Reassignment
The Merit Systems Protection Board has reversed thirty years of precedent and has changed the framework it uses when deciding adverse action cases based on a refusal to accept a directed reassignment.
Mary Miller was a Superintendent at the Sitka National Historical Park in Alaska when the Department of the Interior determined it had a need for a Liaison in Anchorage, Alaska, and that Miller would be a good candidate for the position. In April 2010, Miller’s supervisor offered her a voluntary reassignment to the Liaison position, which Miller declined because of various hardships. Miller’s supervisor then gave her a memorandum explaining that, if she did not accept the new position, removal procedures would commence against her.
Miller declined the position and Interior effected her removal in August 2010 for failure to accept a management-directed reassignment to the Liaison position. Interior then filled both the Superintendent and Liaison position vacancies. Miller appealed her removal, arguing that she did not possess the minimum qualifications for the Liaison position.
The Merit Systems Protection Board reversed Miller’s removal and ordered Interior to reinstate her to her Superintendent position.
In abandoning the three-step analysis framework for deciding adverse actions based on a refusal to accept a directed assignment in favor of a single efficiency of the service criterion, the Board noted that, in employment discrimination and retaliation claims, it does not use a three-step framework when it has a fully developed record because, at that point, the Board will weigh all the evidence and make a finding on the ultimate issue of whether the action performed by the agency was, in fact, discriminatory or retaliatory.
“Similarly, in adverse action cases based on a refusal to accept a directed reassignment, the Board shall weigh all of the evidence and make a finding on the ultimate issue of whether the action promotes the efficiency of the service,” the Board wrote.
Under the new framework, an agency must do more than establish a rational basis for the reassignment, the Board explained, and instead must prove by a preponderance of the evidence that the reassignment was ordered because of “bona fide management considerations” that further the efficiency of the service.
In Miller’s case, the Board found that her removal did not promote the efficiency of the service. Despite Interior’s management reasons for creating the Liaison position in Anchorage, the Board cited Miller’s successful work record as a Superintendent and found that removal did not promote the efficiency of the service since it “lost an apparently valued and successful employee and created two vacancies that the agency had to fill after her removal.”
Therefore, the Board reversed Miller’s removal.
The case is Miller v. Department of the Interior and is available here.
Posted in Case Law Update