The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARY A. MILLER, DOCKET NUMBER
Appellant, SF-0752-11-0766-M-1
v.
DEPARTMENT OF THE INTERIOR, DATE: December 31, 2015
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL ∗
Edward H. Passman, Esquire, Washington, D.C., for the appellant.
Mike Gieryic, Anchorage, Alaska, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The U.S. Court of Appeals for the Federal Circuit remanded this matter to
the Board with instructions to instate the administrative judge’s initial decision as
the final decision of the Board. Cobert v. Miller, 800 F.3d 1340, 1351 (Fed. Cir.
2015). As instructed by the court, we hereby VACATE the Board’s December 6,
∗
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
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2013 Opinion and Order, and we INSTATE the administrative judge’s January 6,
2012 initial decision as the final decision of the Board in this matter.
¶2 The agency removed the appellant for failure to accept a
management-directed reassignment to a new position. Miller v. Department of
the Interior, MSPB Docket No. SF-0752-11-0766-I-1, Initial Appeal File (IAF),
Tab 1 at 4, 7, Tab 3, Subtabs 4e, 4h, 4m. She filed an appeal with the Board
seeking reversal of the removal on several grounds, including the affirmative
defenses of discrimination based on race, sex, and physical disability, and
retaliation for protected equal employment opportunity activity. IAF, Tab 1 at 5.
The administrative judge found that the agency proved by preponderant evidence
that its decision to reassign the appellant was based upon legitimate management
reasons and that it gave adequate notice to the appellant. IAF, Tab 16, Initial
Decision (ID) at 12, 19-20. The administrative judge found that there was no
dispute that the appellant declined the management-directed reassignment.
ID at 20. The administrative judge further found that the appellant was qualified
to perform the duties of the new position. ID at 20-21. The administrative judge
found that the appellant failed to meet her burden of proof on each of her
affirmative defenses and that the penalty was reasonable and promoted the
efficiency of the service. ID at 22-30.
¶3 The appellant filed a petition for review with the Board, and the Board
vacated the initial decision, reversed the appellant’s removal, and ordered the
agency to reinstate her to her former position. Miller v. Department of the
Interior, 2013 MSPB 27, ¶¶ 1, 4, 10-11. The Board subsequently reopened the
case, vacated its earlier decision, and issued a new Opinion and Order that still
vacated the initial decision and reversed the removal action. Miller v.
Department of the Interior, 119 M.S.P.R. 438, ¶¶ 1-2 (2013). In pertinent part,
the Board found that the burden-shifting analytical framework applied by the
administrative judge based on earlier precedent was cumbersome and
unnecessary. Id., ¶ 8. The Director of the Office of Personnel Management
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petitioned the Board for reconsideration. Miller v. Department of the Interior,
120 M.S.P.R. 426, ¶ 1 (2013). The Board denied the Director’s petition and
affirmed its prior decision as modified, further clarifying that, although it was
abandoning the burden-shifting approach, it was in no way departing from any of
the jurisprudential principles otherwise governing its review of an adverse action
based on a refusal to accept a geographic reassignment. Id., ¶¶ 1, 12.
¶4 Pursuant to 5 U.S.C. § 7703(d), the Director petitioned for review with the
U.S. Court of Appeals for the Federal Circuit, which granted the petition and
reversed the Board’s decision. Cobert, 800 F.3d at 1342, 1351. The court
concluded that the administrative judge properly utilized the analytical
framework for deciding an appeal of a removal action based upon refusal to
accept a reassignment, a framework that had been set forth in Ketterer v.
Department of Agriculture, 2 M.S.P.R. 294, 298-99 (1980), and adopted by the
court in Frey v. Department of Labor, 359 F.3d 1355, 1360 (Fed. Cir. 2004), as
the law of the circuit. Cobert, 800 F.3d at 1344, 1349, 1351. The court further
found no basis to disturb the administrative judge’s credibility determinations and
findings of fact underlying her conclusions that the agency had made out a prima
facie case that the decision to reassign the appellant was supported by legitimate
management reasons and that the appellant had failed to rebut that prima facie
case. Id. at 1351. The court, therefore, reversed the Board’s decision. Id. The
court remanded the case to the Board with instructions to instate the
administrative judge’s initial decision as the final decision of the Board. Id.
¶5 Accordingly, as instructed by the court, we hereby vacate the Board’s
December 6, 2013 Opinion and Order, and we instate the administrative judge’s
January 6, 2012 initial decision as the final decision of the Board in this matter.
See 5 C.F.R. § 1201.113.
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NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request further review of this final decision.
Discrimination Claims: Administrative Review
You may request review of this final decision on your discrimination
claims by the Equal Employment Opportunity Commission (EEOC). Title 5 of
the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you
submit your request by regular U.S. mail, the address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit your request via commercial delivery or by a method requiring a
signature upon delivery, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, NE
Suite 5SW12G
Washington, D.C. 20507
You should send your request to EEOC no later than 30 calendar days after
your receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.
Discrimination and Other Claims: Judicial Action
If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate U.S. district court.
See 5 U.S.C. § 7703(b)(2). You must file your civil action with the district court
no later than 30 calendar days after your receipt of this order. If you have a
representative in this case, and your representative receives this order before you
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do, then you must file with the district court no later than 30 calendar days after
receipt by your representative. If you choose to file, be very careful to file on
time. If the action involves a claim of discrimination based on race, color,
religion, sex, national origin, or a disabling condition, you may be entitled to
representation by a court-appointed lawyer and to waiver of any requirement of
prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f);
29 U.S.C. § 794a.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.