MSPB MODIFIES DIRECTED REASSIGNMENT CASE LAW
Not long ago we posted a story entitled, “Directed Reassignment Case Law Overhauleds ruling and the Board has made issued a clarification. OPM argued that the MSPB was wrong to state that an agency has to prove that a directed reassignment is “necessary” in order to prevail. The Board agreed that was a poor choice of words, stating that the agency must prove the “reasons for the reassignment were bona fide” and additionally that its proposal to fire the employee for refusing the reassignment promoted “the efficiency of the service.”
The Board went on to make clear that the “bona fide” standard requires that the agency do more than merely establish “a rational basis” for the reassignment. It mentioned as examples situations where the employee’s current position was being eliminated. It also quoted from a court case stating that the agency has the burden to prove a bona fide reason by the preponderance of the evidence, which the court quickly noted meant there was “no solid or substantial basis in personnel practice or principle.” (Check out Miller v. Dept. of the Interior, 2013 MSPB 94 (12/6/1013)
So, when an employee comes to complain that he/she has been given a directed reassignment, refuses to move, and expects an adverse action proposal any minute, ask for all the analysis and documentation behind the decision to move the position.