Agency Can Reassign Employee--And Fire An Employee Who Refuses to Go
By Susan Smith
Monday, June 23, 2008
An employee who refuses to accept a directed reassignment can pretty much count on being removed as a consequence. This is what one civil engineer with the Army Corps of Engineers learned the hard way in Wieser v. Department of the Army, C.A.F.C. No. 2007-3161 (nonprecedential), 6/4/08.
Wieser worked in Kansas City, Missouri and was ordered to be reassigned to Ft. Riley, Kansas. He asked for and was given more time to consider what he should do. But, in the end he declined the reassignment. The agency removed him. (Opinion, p. 2)
Wieser took his case to the Merit Systems Protection Board where he argued that the agency should have filled the Ft. Riley position either through an outside hire or by someone else in his office. He ended up finding out the hard way that the agency did not have to do either of those things. The Administrative Judge found the directed reassignment was based on "legitimate management considerations," that Wieser had been given ample notice, and that the agency was "under no legal obligation to fill the position with an outside hire or …with someone having less seniority than Mr. Wieser." (p.2)
The appeals court now sustains the removal and in doing so plainly spells out that an employee may be removed if the agency "show[s] that its decision to reassign the employee was based on legitimate management considerations, that the employee was given adequate notice…, and that the employee refused to accept the reassignment." (pp. 2-3; citations omitted)
The agency demonstrated that it was restructuring operations, realigning its field offices and was shifting much of the Kansas City work to Ft. Riley. That adds up to legitimate justification. (p. 3)
As to Wieser's contention that he had not signed a mobility agreement and therefore the agency should have used other options in filling the job, the court states: "There is simply no legal requirement…that the agency limit its options in that manner….[T]he agency's authority to reassign its employees is based on regulations that do not make the agency's power to transfer an employee dependent on the employee's execution of a mobility agreement. … [T]he agency does not obtain its right to transfer from a particular employee's consent, nor is it denied the right to transfer…because that employee has not previously given such consent or been specifically notified of the possibility of a transfer…" (pp. 3-4)
Finally, the court made short work of Wieser's argument that removal was not an appropriate penalty: "Because the agency is entitled to insist that the employee accept the reassignment, the agency is not required to leave the employee in place if the employee refuses to move." (p. 5)
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