Heck No, We Won’t Go
prooting employees for reassignments to other cities is common at some agencies and rare at others. Agencies are more likely to relocate supervisors and managers to other positions than they are rank-and-file employees. Frequently, employees who want to rise in an organization or move to a more desirable city request reassignments. But some regard reassignment-whether it's expected or a bolt from the blue-as an agency's act of malevolence. If so, what options does an employee have?
The sad truth is that a reassignment without reduction in grade or pay is largely unappealable. The Merit Systems Protection Board is a creature of statute and can only exercise jurisdiction where Congress has specifically authorized it to do so. In disciplinary matters, the MSPB has the authority to hear appeals of agency decisions to remove or demote employees or to suspend them for more than 14 days. Thus, a suspension of 14 days or less, an official letter of reprimand, or a reassignment in grade cannot ordinarily be appealed, and the agency's decision is final.
"[We do] not have jurisdiction over an employee's allegation of an improperly motivated reassignment," the MSPB bluntly stated in one case. This leaves the reassigned employee with Hobson's choice. The employee can appeal the reassignment through the agency's administrative or negotiated grievance process to the very people who have just ordered his relocation. But this process, not surprisingly, is rarely successful. Also, collective bargaining agreements exclude supervisors and managers from the negotiated grievance process. Or the reassigned employee can get himself fired for refusing the reassignment and thus acquire MSPB appeal rights based on his removal. This route is, of course, usually unpalatable.
Most agencies are smart enough to cast a reassignment in terms that will pass muster with the MSPB as a legitimate action for the good of the service. Years ago, as a middle manager at a federal agency, I received a two-page letter from the deputy administrator. Page 1 sung my praises and recited what a wonderful job I had done in City A. It opined that these skills would be highly useful to the organization in City B. Page 2 consisted of two boxes with an order to check one: "I accept this reassignment" or "I resign." Well done. I went.
If an agency has a mobility policy, the MSPB will hold the agency to it. However, most agencies use wording such as: "If the geographical reassignment would work a hardship on the employee due to personal problems and the reasons are acceptable to management, the employee will not be required to move." The MSPB has held that such an agreement "does not create a binding obligation to accept any excuse."
A few end runs around this dilemma exist, but the course is perilous and often unsuccessful. An employee fired for refusing reassignment can appeal to the MSPB on the grounds that the action was not based on legitimate management reasons. The MSPB thereupon could conclude that the reassignment was not a "valid discretionary management determination," but rather an improper effort to get the employee to resign or retire or that it was arbitrary and capricious (see Cooke v. U.S. Postal Service, 67 M.S.P.R. 401, 1995). A more circuitous route to this same end is to resign or retire and then allege that the agency coerced or forced the employee to quit-an appealable action. This approach is even less successful than appealing a removal, because resignations and retirements are presumed to be voluntary and MSPB judges are inclined to decide they lack jurisdiction.
What are illegitimate reasons for ordering a reassignment? Unfortunately, disruption of family, hardship, inconvenience and subjective dissatisfaction do not pass muster. Even severe and documented health reasons do not make the grade if the agency considers the health issue and decides to reassign the employee anyway. The MSPB has gone so far as to say reversing dismissals for refusing reassignment is rarely, if ever, appropriate.
In one of the few cases where the employee prevailed, the MSPB reversed the dismissal of a Drug Enforcement Administration agent who refused to report to his new post. The board said the agent's reassignment from Burlington, Vt., to Newark, N.J., was not "properly ordered for a legitimate management reason."
The MSPB said in its decision that the agency "presented no evidence of claimed deficiencies (that he had an 'elitist attitude,' was stagnating, and had retired in his own mind) in the appellant's conduct or work performance in the Burlington office; it failed to prove that conditions in the Burlington office would be improved by his reassignment." The board determined that "the appellant's evidence was credible and uncontested, and that it rebutted the agency's contentions that the appellant's reassignment was necessary to improve the productivity and efficiency of the Burlington office and to enhance the appellant's career development" (Raybourn v. Justice Department, 38 M.S.P.R. 5323).
Even egregious agency misconduct is unlikely to save an employee. In another case, a Postal Service employee represented a co-worker who had filed a sex and age discrimination complaint against their second-level manager. The manager was so angry with the employee for helping his co-worker that he downgraded his annual performance rating and reassigned him. The employee refused to go and was fired. The U.S. Court of Appeals upheld his removal, even though the manager had clearly retaliated against him. The court said the employee should have accepted the reassignment and then filed his appeal, stating that the "right to oppose discrimination is not the right to refuse to work on account of discrimination." Instead, he chose the path of insubordination. Always remember the cardinal rule of survival: Obey then grieve.
Another avenue of appeal is in the context of disciplinary reassignment. An appeal is only possible if the agency couples the reassignment with an appealable action, such as a demotion or a suspension of more than 14 days. If an agency suspends an employee for 30 days and reassigns him, the MSPB might find the two actions were bound together as a unified penalty and possibly deem the reassignment too harsh. On the other hand, if the agency imposes a suspension of 14 days or less and reassigns the employee, the MSPB would find it lacks jurisdiction for an appeal. In most of these cases, the agency claims that the reassignment and the demotion or suspension are unrelated. But the MSPB sometimes sees through the ruse.
Two other approaches are possible. If an employee alleges his reassignment is the result of a prohibited personnel action and he can get the Office of Special Counsel to investigate, he may succeed. However, the special counsel usually is uninterested or finds the allegation lacks merit. The sole exception is a complaint of retaliation for whistleblowing. In such a case, the employee can file an "individual right of action appeal" with the MSPB after exhausting the Office of Special Counsel process. Sometimes, employees are successful, but not as often as they might hope.
Last but not least, there is the discrimination route. One often hears the expression: "You can always take it to EEO," but this process is frequently the old snare and delusion. Even if the Equal Employment Opportunity Commission determines the agency's action is unjustified, capricious, or even vicious or insane, it cannot right the wrong unless the employee is able to prove that the reassignment was based on race, religion, color, national origin, gender, age or disability-a tough thing to prove.
The ugly truth is that frequently the only options the employee has are to accept the reassignment or quit. The other responses, such as grievances, appeals to the MSPB or complaints to the Office of Special Counsel or the EEOC are often unsuccessful, time-consuming and expensive. The forced reassignment is a perfect paradigm for the axiom: There is no single, overarching way to right wrongs in the government, and many wrongs are simply unrightable.
William N. Rudman is an attorney who specializes in federal employment law. With 26 years of federal service, he retired in 1993 as deputy undersecretary of Defense and director of the Defense Technology Security Administration