Agencies have the right to terminate an employee who refuses an order to reassign, but only so long as the agency has a bona fide need for the employee to be located elsewhere.  Or at least that is what the law has suggested for about three decades.  MSPB just overturned that approach and made it harder to terminate employees for refusing a directed reassignment.

The Board recently declared in Miller v. Dept. of Interior, 2013 MSPB 27 (April, 2013) that now the agency must prove that the reassignment promotes the efficiency of the service, which is the same standard it must meet when firing someone for conduct reasons. That will be a tougher standard to meet than the former “bona fide reason” test.  The Board described the new standard as follows: The agency must do more than merely establish a “rational basis” for the reassignment. Else v. Department of Justice, 3 M.S.P.R. 397, 399 (1980). The agency must establish by a preponderance of the evidence that the reassignment was properly ordered due to bona fide management considerations in the interest of promoting the efficiency of the service and in accordance with agency discretion under 5 C.F.R. part 335. Ketterer, 2 M.S.P.R. at 298 & n.8; see also McClelland v. Andrus, 606 F.2d 1278, 1290-91 (D.C. Cir. 1979) (“An action supportable on ‘any rational basis’ is not necessarily one that will promote the efficiency of the service.”).

On May 13, 2013, weeks after this posting was written the Board issued a revised version of the Miller decision at Miller v. Department of Interior, 2013 MSPB 35 (May 2013).  Check it out before relyin g on the intial decision.

(UPDATE: A few weeks alter MSPB modified this decision and we reported on the change in a post entitled, “MSPB Modifies Directed Reassignment Case Law.” dated December 15, 2013.)

About AdminUN

FEDSMILL staff has over 40 years of federal sector labor relations experience on the union as well as management side of the table and even some time as a neutral.
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