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Federal Employees News Digest : July 15, 2013
July 15, 2013 Vol. 62, No. 50 5 Visit us on the Internet at www.FederalDaily.com Interior Department employee wins removal appeal M ary A. Miller, an employee of the Department of the Interior who served as a Superintendent of the Sitka National Historical Park in Alaska, won her most recent removal appeal. Miller had been removed in August 2010 as a result of a single charge of "failure to accept a management directed reassign- ment." The agency had ordered her reassignment to the newly created post of Alaska Native Affairs Liaison. Miller had rejected the assignment, claiming she was not qualified because she "did not meet the minimum qualifications" for the new slot, according to official documents in the case. Subsequent to her removal, Miller appealed to the Merit Systems Protection Board. She alleged that the agency's removal decision was "tainted by discrimination" based on her sex, race and physical disability. Miller further claimed the agency had acted in retaliation for previous protected equal employment opportunity activity. Finally, She argued that agency management had committed "harmful procedural error," that her removal did not promote agency efficiency, and that the penalty of removal was "unduly harsh." An administrative judge with the board examining the case found to the contrary regarding the basis of the removal. The AJ found that the agency "proved by preponderant evidence that its decision to reassign the appellant was based upon legitimate management reasons, that it gave adequate notice to the appel- lant, and that the appellant refused the reassignment." The AJ also found that Miller had improperly rejected the reassignment, had been qualified for it, and failed to meet the burden of proof on all her affirmative defenses and claims of discrimination. Miller appealed again, to the full MSPB. The board considered the evidence. First, the board noted, based on precedent (Ketterer v. Department of Agriculture (1980)), the agency must show that its reassignment decision "was based on legitimate management considerations in the interest of the service." To prove Miller's error, the agency also had to show there had been adequate notice of the transfer and yet the appellant had "refused to accept" the assignment. But the board next determined that, here, it did not need to adjudicate this key part of the case---called the "burden-shifting apparatus" because after these facts are demonstrated to show the employee's improper actions, the burden shifts to the employee to defend himself. That's because in a case of "refusal to accept a directed geographic reassignment," in addition to adjudicat- ing the burden-shifting apparatus the panel had to be provided proof that the removal also would "promote the efficiency of the service." Specifically, according to the documents, in such cases "the board should simply weigh all the evidence and make a finding on the ultimate issue of whether the agency proved by a prepon- derance of the evidence that the misconduct occurred and that its action promotes the efficiency of the service." Here, the board found, the agency failed to provide adequate evidence that Miller's reassignment would improve efficiency. She had been "successful in her position" and the agency failed to show a "rational basis" for the geographic reassignment. Finally, the panel held, the appellant submitted "sufficient cred- ible evidence" to cast doubt on the agency's motivations for the reassignment. The board, in a precedential decision drawing on various prec- edents, therefore, ordered Miller's removal reversed---and ordered her reinstated and paid back pay and interest to cover the period of her removal. (Miller v. Department of Interior, MSPB Docket No. SF-0752- 11-0766-R-1) VA employee gains hearing to revise agreement Marilyn L. Weldon, a Food Service Worker with the Department of Veterans Affairs, won her recent appeal asking for review of a settlement agreement in which she agreed to resign in lieu of fac- ing charges in a workplace incident. Weldon had been brought up on charges of violence in the workplace and disrespectful conduct subsequent to a "physical altercation" in which she was allegedly involved, according to offi- cial documents in the case. Instead of pursuing those charges, the agency signed a settlement agreement with Weldon in which she agreed to resign and not pursue an appeal with the Merit Systems Protection Board. Weldon later filed papers arguing the settlement is invalid, because the agency allegedly violated its terms. Specifically, she says she was informed that the other party to the incident would also be separating from service, and instead this party "was rein- stated in her previous position." Further, Weldon claims, she was improperly prevented from presenting witnesses. The MSPB considered Weldon's appeal. The panel noted two key precedents apply---Hazelton v. Department of Veterans Affairs (2009) and Henson v. Department of the Treasury (2000)---which together invalidate settlements which involve fraud or misrep- resentation. Here, specifically, the other employee was retained, contrary to the agreement---and a misleading statement was indeed made by the agency. Accordingly, the board vacated the decision validating the settlement---and remanded the case for reconsideration. (Weldon v. Department of Veterans Affairs, MSPB Docket No. Docket No. SF-0752-12-0393-I-1, 5/24/13)
July 8, 2013
July 22, 2013