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By Debra Roth

Forced to move vs. forced out

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If you follow decisions from the Merit Systems Protection Board, you may have seen that, last year, the board issued three decisions in the case of Mary A. Miller v. Department of the Interior. This case involved the removal of a national park superintendent in Alaska who did not work under a mobility agreement, and who declined a geographic reassignment and was subsequently terminated from her employment for her refusal.

In each of the three board decisions, it reversed the agency action finding that the agency failed to carry its burden of proof that the reassignment was for a bona fide reason and not simply to pressure the employee to resign.

The case now seems in a posture to be appealed to the board’s reviewing court, the U.S. Court of Appeals for the Federal Circuit. The legal issue is whether the board has prescribed a heightened standard for upholding an agency’s directed geographic reassignment action that requires showing the directed reassignment was “necessary.”

I don’t intend to weigh in on whether the board erred or not. But The Miller case is worth discussing in this column for the simple reason that directed geographic reassignments are getting a fresh look by the board.

For many years, most federal employees who were terminated for refusing a subject to a directed geographic reassignment accepted the reality that appealing their removal to the board after being terminated for refusing to accept the reassignment would not be meaningful. The belief has been that the board gave a pro forma review of an agency’s action, rarely finding that the reassignment lacked legitimacy. Likewise, there has been a widely held belief among the federal workforce that agencies use directed geographic reassignments as a means to force out an employee who is not willing to relocate, rather than a real need to fill that job with that person. Employees facing such actions feel tremendous pressure in deciding between accepting the new position in a location usually far from their current duty station (and home) or quitting. So to see the board take a hard look at the bona fides of such an action could mean a change is on the horizon worth considering.

The Miller case holds that when an employee is terminated for refusing to accept a geographic reassignment, the agency carries the burden of proving by a preponderance of evidence that “the reassignment was properly ordered due to bona fide considerations in the interest of promoting the efficiency of the service and in accordance with agency discretion.” In reversing the agency’s action, the board found that “the agency invoked its discretion to reassign the appellant ‘as a veil to effect’ her separation.”

So what did the board focus on to conclude the agency lacked a bona fide management reason that is worth considering as agencies proceed with such actions or if you are subjected to one?

By way of example, the The board held that proof of a bona fide management reason for a reassignment could be by showing that the agency showing that it had eliminated or no longer had a need for the employee’s continued performance in her current position, or because that it needed to address a specific performance issue in her former position. Proof alone that there is a legitimate reason to create and/or fill the position is not enough. The proof must show that there is a rational basis for requiring the employee to accept a geographic reassignment out of her position.

While the board’s Miller decision explains why in deciding the case it is not straying from its precedent, notably, the result it reaches is different: reversal of the agency action. This case has surely caught the eye of many agencies, but not necessarily the workforce. Many of you with years of working in federal service may think you’ve seen an agency use a directed reassignment to force an employee to quit rather than having a legitimate need for that employee to fill that position located far away from his or her duty station. Putting aside whether the board’s decision is appealed to the Federal Circuit, it’s worth taking a fresh look at the use of geographic reassignments with regard to employees who do not work under mobility agreements. At a minimum, and for the good of workplace morale and engagement, it may be time to work on changing the perception that geographic reassignments are being used to force a resignation rather than a legitimate management need for that person to fill that position.

Debra L. Roth is a partner at the law firm Shaw Bransford & Roth in Washington. She is general counsel to the Senior Executives Association and the Federal Managers Association, host of the “FEDtalk” program on Federal News Radio, and a regular contributor to Federal News Radio’s “Federal Drive” morning show. Email your legal questions to lawyer@federaltimes.com and view her blog at blogs.federaltimes.com/federal-law.

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