Job Reassignment Standards Continue to Concern Federal Employees

The standard for job promotions and reassignments is a frequent cause for concern in federal employment. In my prior column regarding frivolous allegations about employment regulations, I discussed a Federal Circuit case from December 2015, Miranne v. M.S.P.B., where a job applicant was not selected for a supervisory position and claimed this failure to reassign him to a higher position used unfair criteria. The Merit Systems Protection Board (MSPB) denied this claim, and Mr. Miranne was unsuccessful in his federal appeal.

Job reassignments were also the subject of a case in September 2015 in Cobert v. Miller, where an Alaska Park Superintendent, Mary A. Miller, refused a management-directed reassignment to a different positon at the same grade and pay in Anchorage, Alaska. She was then removed from her superintendent position, and appealed her removal to the MSPB. While she was initially successful in this appeal, the Acting Director of the Office of Personnel Management (OPM), Beth Cobert, appealed the case to the Federal Circuit, where Ms. Miller’s removal was held to be legitimate and proper.

The Federal Circuit observed that the MPSB had to follow a prior case, Ketterer v. Dep’t of Agriculture (1980), which required the agency to (1) “establish, by a preponderance of the evidence,” that it had legitimate management reasons for Ms. Miller’s reassignment; and (2) [show] that Ms. Miller failed to rebut the agency’s prima facie case” (quoting Cobert v. Miller).

The Court found that the agency was able to show “legitimate management reasons” for the reassignment, given that there was a need for the position and that it was not created specifically to affect Ms. Miller. Furthermore, since Ms. Miller agreed to consider the position at a higher pay grade, she was therefore predisposed towards the position and her conflicting testimony that followed did not help her case. Though the Court acknowledged that Ms. Miller may have undergone some hassle if she had accepted the new position, hassle alone is insufficient to rebut the agency’s decision. Ms. Miller further possessed valuable skills that the agency would lose if she did not accept the position.

Though the MSPB supported Ms. Miller rather than Acting OPM Director Cobert, the Federal Circuit Court nonetheless reversed the MSPB decision, stating that the decision to reassign Ms. Miller was proper. As can be seen from this case, federal employee reassignments are generally proper. However, if you believe your reassignment has been unfairly requested or improperly decided, consulting an experienced federal employment law attorney can provide answers and assistance.

© 2016 Mathew B. Tully, Esq.. All rights reserved. This article may not be reproduced without express written consent from Mathew B. Tully, Esq..

About the Author

Mathew B. Tully is a founding partner of Tully Rinckey PLLC. He concentrates his practice on representing federal government employees and military personnel and can be reached at mtully@fedattorney.com. To schedule a meeting with one of the firm’s federal employment law attorneys call 202-787-1900. The information in this column is not intended as legal advice.

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