Dennis R. McVey v. Department of the Army

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

DENNIS R. MCVEY, DOCKET NUMBER

Appellant, AT-0752-14-0683-I-1

v.

DEPARTMENT OF THE ARMY, DATE: April 8, 2016

Agency.

THIS ORDER IS NONPRECEDENTIAL 1

Dennis R. McVey, Powell, Tennessee, pro se.

Eric J. Teegarden, Esquire, Fort McCoy, Wisconsin, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

REMAND ORDER

¶1 The appellant has filed a petition for review of the initial decision, which

affirmed his removal for failure to accept a management-directed reassignment.

For the reasons discussed below, we GRANT the appellant’s petition for review,

VACATE the initial decision, and REMAND the case to the regional office for

further adjudication in accordance with this Order.

1

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

2

BACKGROUND

¶2 The appellant was a GS-6 Family Readiness Support Assistant (FRSA) with

the 844th Engineer Battalion, U.S. Army Reserve, stationed in Knoxville,

Tennessee. Initial Appeal File (IAF), Tab 4 at 14. In November 2013, the Army

Reserve Command (ARC) determined that, pursuant to a 2009 order from agency

headquarters, FRSA positions would be redistributed such that the positons would

“be aligned with battalion level or higher organizations” supporting 1,200 or

more soldiers across certain geographical regions. 2 IAF, Tab 8 at 7. The

appellant was assigned to a unit with fewer than 1,200 soldiers, and accordingly,

on November 21, 2013, the agency notified him that his position would be

abolished pursuant to the redistribution, and directed his reassignment to an

FRSA position of like grade and pay with the 391st Engineer Battalion, stationed

in Greenville, South Carolina. IAF, Tab 4 at 50; Petition for Review (PFR) File,

Tab 7 at 16. The appellant refused the reassignment, IAF, Tab 4 at 47, and

subsequently, the agency removed him, effective April 5, 2014, for failure to

accept a management-directed reassignment, id. at 14, 16-17.

¶3 The appellant filed a timely Board appeal challenging his removal and

raising affirmative defenses of discrimination based on race (Caucasian) and sex

(male). IAF, Tab 1, Tab 6 at 5-6, Tab 9 at 3-4. Because the appellant did not

request a hearing, IAF, Tab 1 at 1, the administrative judge decided the appeal

based on the written record, IAF, Tab 10, Initial Decision (ID) at 1-2. He issued

an initial decision affirming the appellant’s removal, finding that the agency met

its burden of proving the charge and that the penalty of removal was reasonable.

ID at 2-6. The administrative judge further found that the appellant failed to

prove his affirmative defenses of discrimination. ID at 6-8.

2

The 2009 order issued by agency headquarters required the ARC to assign one FRSA

per 1,500 to 2,000 soldiers in each Operational and Functional Command. IAF, Tab 4

at 57. However, the November 2013 memorandum from the ARC explained that it

would instead utilize a 1,200 or more soldier ratio due to “geographic dispersion and

operational tempo.” IAF, Tab 8 at 7.

3

¶4 The appellant has filed a petition for review of the initial decision, and the

agency has responded to the petition for review. PFR File, Tabs 1, 3. On

October 2, 2015, the Board issued a show cause order directing the agency to

submit additional evidence and argument regarding several issues related to the

appellant’s assertions below and on review. PFR File, Tab 4 at 4-5. The Board

afforded the appellant an opportunity to respond to the agency’s submissions. Id.

at 5. Both parties timely responded to the show cause order. PFR File, Tabs 7-8.

DISCUSSION OF ARGUMENTS ON REVIEW

We remand the appeal for the administrative judge to reconsider the appellant’s

affirmative defenses of discrimination based on race and sex.

¶5 We grant the appellant’s petition for review for the purpose of addressing

his arguments that the administrative judge erred in finding that he failed to prove

his affirmative defenses of discrimination based on race and sex. PFR File, Tab 1

at 1-4, Tab 8 at 6, 8-12.

¶6 Below, the appellant identified three alleged comparator FRSAs, P.T., J.C.,

and D.M., whom he claimed were similarly situated but were not reassigned.

IAF, Tab 6 at 6, Tab 9 at 3-4. The initial decision indicates that the appellant

alleged that P.T. was an African-American male. ID at 7. The record does not

contain any information regarding J.C.’s or D.M.’s race, but both of these alleged

comparator FRSAs are female. 3 IAF, Tab 6 at 6. The administrative judge found

that the appellant failed to prove his affirmative defenses of discrimination

because, even assuming that the alleged comparator FRSAs were similarly

situated, the agency’s decision not to reassign them because they supported more

than 1,200 troops was nondiscriminatory. ID at 7-8.

¶7 The appellant’s primary argument on review is that the administrative judge

erred in finding that the alleged comparator FRSAs supported more than 1,200

3

On review, the appellant asserts that one of the alleged female comparator FRSAs was

Caucasian, and the other was Hispanic. Petition for Review (PFR) File, Tab 1 at 4.

4

troops. PFR File, Tab 1 at 1-4, Tab 8 at 6, 8-12. The sole evidence in the record

below regarding this issue is a September 4, 2014 email from a Management

Analyst, submitted by the agency, which was created in response to the

appellant’s Board appeal, and stated that the comparator FRSAs were assigned to

units with more than 1,200 soldiers. IAF, Tab 8 at 11. In response, the appellant

raised arguments disputing the accuracy of that assertion. IAF, Tab 9 at 3. The

agency did not respond to those arguments, and the administrative judge did not

address them in the initial decision. See ID.

¶8 In addition, in analyzing the appellant’s discrimination claims, the

administrative judge referenced the burden-shifting analysis of McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). See ID at 7-8. After the

initial decision was issued, the Board issued its decision in Savage v. Department

of the Army, 122 M.S.P.R. 612, ¶¶ 42-43, 46, 51 (2015), which clarified the

evidentiary standards and burdens of proof under which the Board analyzes

discrimination claims. In Savage, the Board held that the burden-shifting

framework in McDonnell Douglas has no application to Board proceedings.

Savage, 122 M.S.P.R. 612, ¶ 46. Rather, the Board in Savage reaffirmed that it

will adhere to the test set forth in Mt. Healthy City School District Board of

Education v. Doyle, 429 U.S. 274, 287 (1977), in cases involving discrimination

or retaliation allegations under 42 U.S.C. § 2000e–16. Savage, 122 M.S.P.R.

612, ¶ 50. Thus, where an appellant asserts an affirmative defense of

discrimination, the Board first will inquire whether the appellant has shown by

preponderant evidence that the prohibited consideration was a motivating factor

in the contested personnel action. Id., ¶ 51. An appellant may make this initial

showing using direct evidence or any of three types of circumstantial evidence: a

convincing mosaic of evidence from which a discriminatory intent may be

inferred; evidence of disparate treatment of similarly situated comparators; or

evidence that the agency’s stated reason is not worthy of credence but rather a

pretext for discrimination. Id., ¶¶ 42–43 (quoting Troupe v. May Department

5

Stores Co., 20 F.3d 734, 736-37 (7th Cir. 1994)). If the appellant meets that

burden, the Board then will inquire whether the agency has shown by

preponderant evidence that the action was not based on the prohibited personnel

practice, i.e., that it still would have taken the contested action in the absence of

the discriminatory motive, and, if the Board finds that the agency has made that

showing, its violation of 42 U.S.C. § 2000e–16 will not require reversal of the

action. Savage, 122 M.S.P.R. 612, ¶ 51.

¶9 Because Savage was issued after the initial decision in this case, the

administrative judge’s instructions to the appellant regarding proof of his

affirmative defenses of discrimination did not provide the appellant with notice of

the correct standards. IAF, Tab 6 at 6–7; see Milner v. Department of

Justice, 77 M.S.P.R. 37, 46 (1997) (finding that an appellant did not receive a fair

and just adjudication of an affirmative defense where there was no indication the

administrative judge apprised him of the applicable burdens of proof or of the

types of evidence required to meet his burden). For example, the administrative

judge advised the appellant that his proof could consist of elements of his

prima facie case under the burden-shifting framework applicable to motions for

summary judgment; however, the prima facie case has no application to the

Board’s adjudication of discrimination claims. IAF, Tab 6 at 6; see

Savage, 122 M.S.P.R. 612, ¶ 46 (holding that the summary judgment standards

for title VII cases do not apply to Board appeals).

¶10 For these reasons, we vacate the administrative judge’s finding that the

appellant failed to prove his affirmative defenses, and remand the case to the

regional office for the administrative judge to reconsider this issue. On remand,

the administrative judge should instruct the parties of the standards of proof

applicable to an affirmative defense of discrimination pursuant to Savage,

consider the appellant’s arguments below and on review and the evidence that the

parties submitted in response to the Board’s show cause order, and afford the

6

parties an opportunity to submit additional evidence and argument on the issue of

the appellant’s affirmative defenses.

We vacate the administrative judge’s findings that the agency proved the charge,

nexus, and the reasonableness of the penalty.

¶11 We turn next to the issue of whether the administrative judge’s findings that

the agency proved the charge, nexus, and penalty can be sustained at this time in

light of the fact that his findings regarding the appellant’s affirmative defenses

have been vacated.

In analyzing the appellant’s removal based on his failure to accept a

management-directed reassignment, the Board must apply the pertinent

burden-shifting methodology.

¶12 As an initial matter, in finding that the agency met its burden of proving the

charge, the administrative judge applied the methodology in the Board’s decision

in Miller v. Department of the Interior, 119 M.S.P.R. 438, ¶ 7 (Miller I), aff’d as

modified, 120 M.S.P.R. 426 (2013) (Miller II), rev’d sub nom., Cobert v.

Miller, 800 F.3d 1340 (Fed. Cir. 2015). ID at 3-6. In Miller I, the Board rejected

the prior burden-shifting methodology for analyzing removal actions based on an

employee’s failure to accept a management-directed reassignment set forth in

Ketterer v. Department of Agriculture, 2 M.S.P.R. 294, 298-99 (1980).

Miller I, 119 M.S.P.R. 438, ¶ 7. Instead, the Board held that it would simply

weigh all of the evidence and make a finding on the ultimate issue of whether the

agency proved by a preponderance of the evidence that the misconduct occurred

and that its removal action promoted the efficiency of the service. Id.

Subsequently, in Miller II, the Board affirmed Miller I as modified to clarify that

an agency did not need to prove that a geographic reassignment was “necessary.”

See Miller II, 120 M.S.P.R. 426, ¶ 12.

¶13 After the initial decision in the present appeal was issued, the U.S. Court of

Appeals for the Federal Circuit issued its decision in Cobert v. Miller, 800 F.3d

1340, which reversed the Board’s decision in Miller II. The Federal Circuit held

that the Board’s prior burden-shifting analytical framework in Ketterer,

7

2 M.S.P.R. at 294, had been adopted by the court in Frey v. Department of

Labor, 359 F.3d 1355, 1360 (Fed. Cir. 2004), and was the law of the circuit.

Cobert, 800 F.3d at 1349. However, although the administrative judge did not

apply the analytical framework in Ketterer in the initial decision in the instant

appeal, the parties were provided with notice of the burden-shifting methodology

in Ketterer during the prehearing conference, IAF, Tab 6 at 5, and the

administrative judge did not notify them that he would apply the Board’s revised

methodology in Miller I prior to the issuance of the initial decision, ID at 3.

Therefore, we find that the parties were apprised of the analytical framework that

the Board will apply on review. See Burgess v. Merit Systems Protection

Board, 758 F.2d 641, 643-44 (Fed. Cir. 1985) (finding that an appellant must

receive explicit information on what is required to establish an appealable

jurisdictional issue).

¶14 Under the burden-shifting framework in Ketterer, the agency has the initial

burden of showing that its decision to reassign the employee was based on

legitimate management considerations in the interest of the service. 2 M.S.P.R.

at 299. Such a showing, along with evidence that the employee had adequate

notice of the decision to transfer and refused to accept the reassignment, is

ordinarily sufficient to establish the agency’s prima facie case. Id. Once the

agency makes out a prima facie case, the burden shifts to the appellant to produce

rebuttal evidence to demonstrate that the reassignment had no solid or substantial

basis in personnel practice or principle, although the ultimate burden of

persuasion never shifts from the agency. See Umshler v. Department of the

Interior, 44 M.S.P.R. 628, 630 (1990); Ketterer, 2 M.S.P.R at 299-300.

The agency established a prima facie case supporting the validity of the

appellant’s reassignment.

¶15 Here, we find that the agency established a prima facie case supporting the

validity of the appellant’s reassignment. It is undisputed that the appellant had

adequate notice of the decision to transfer and refused to accept the reassignment.

8

IAF, Tab 4 at 47, 50. We further find that the agency met its initial burden of

showing that its decision to reassign the appellant was based on legitimate

management considerations in the interest of the service.

¶16 The agency abolished the appellant’s position as part of an agency-wide

redistribution of FRSA positions, which was conducted because the agency

determined that the transformation of the ARC had resulted in a misalignment of

FRSA positions. IAF, Tab 4 at 50, 57, Tab 8 at 7. The ARC Family Programs

Directorate determined that, pursuant to the redistribution, it would abolish a total

of 22 existing FRSA positions aligned with smaller units and numbers of soldiers,

including the appellant’s position, and create new positions that better aligned

with the intent of the 2009 order from agency headquarters. 4 PFR File, Tab 7

at 13. We agree with the administrative judge that the agency’s plan to relocate

FRSAs aligned with small numbers of soldiers to positions aligned with units

with larger troop concentrations was a bona fide management consideration in the

interest of promoting the efficiency of the service. ID at 5; see Cooke v. U.S.

Postal Service, 67 M.S.P.R. 401, 406 (finding that an agency’s nationwide

restructuring was a legitimate reason for effectuating an appellant’s

reassignment), aff’d, 73 F.3d 380 (Fed. Cir. 1995) (Table).

¶17 The agency also met its initial burden of demonstrating a legitimate

management reason for selecting the appellant’s particular position as one to be

abolished pursuant to the redistribution. The appellant’s position was assigned to

the 844th Battalion, which had an authorized strength of only 778 soldiers, 5 and

4

According to the agency, although 22 FRSA positions were abolished pursuant to the

redistribution, PFR File, Tab 7 at 13, a total of 43 FRSA positions were affected, 19 of

which were vacant, id. at 6, 27-28.

5

In the initial decision, the administrative judge erroneously stated that the 844th

Battalion had 788 soldiers, as opposed to 778. ID at 4. However, this error was not

prejudicial to the appellant’s substantive rights, because, regardless of whether the unit

had 778 or 788 soldiers, the 844th Battalion had considerably fewer than 1,200 soldiers.

See Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984) (finding that

9

did not satisfy the 1,200 or more soldier criteria in the November 2013 ARC

memorandum, or the even higher ratio of soldiers per FRSA in the 2009 order

from agency headquarters. IAF, Tab 4 at 14, 57, Tab 8 at 7, 11; PFR File, Tab 7

at 16.

¶18 On review, as he did below, the appellant argues that his position should not

have been abolished because, although he was assigned to the 844th Battalion, he

actually supported a total of more than 1,200 soldiers across three battalions.

IAF, Tab 9 at 4; PFR File, Tab 1 at 4, Tab 8 at 7. Specifically, he contends that,

in addition to the 844th Battalion, he provided support to the 478th Battalion,

headquartered in Fort Thomas, Kentucky, and the 391st Battalion, headquartered

in Greenville, South Carolina. PFR File, Tab 1 at 4, Tab 8 at 6-7. However, in

response to the Board’s show cause order, the agency submitted evidence, in the

form of an affidavit from a Human Resources Specialist for the 412th

Engineering Command, which stated that the appellant was a resource of the

844th Battalion, and supported the 478th and 391st Battalions as “a convenience”

to those battalions. 6 PFR File, Tab 7 at 16. The Human Resources Specialist

further averred that, because the appellant was a resource of the 844th Battalion,

the Commander of that battalion could have withheld the appellant’s support from

the other battalions. 7 Id. Thus, although the appellant may have provided

support to a total of more than 1,200 soldiers across three battalions, his position

an adjudicatory error that is not prejudicial to a party’s substantive rights provides no

basis for reversal of an initial decision).

6

The Human Resources Specialist characterized the support that the appellant provided

to these other battalions as “dotted line support,” but did not further explain that

concept. PFR File, Tab 7 at 16.

7

This assertion is supported by evidence that the appellant submitted in response to the

show cause order. PFR File, Tab 8 at 17. In a February 23, 2014 letter to Senator

Lamar Alexander, sent in response to an inquiry regarding the appellant’s reassignment,

the Director of Army Reserve Family Programs explained that “[t]he Battalion does not

have command and control or the authority to direct work across Battalions; however,

positions assigned at the Brigade level have the authority to support the workload of all

reporting subordinate elements.” Id.

10

was actually assigned to a single battalion with fewer than 1,200 soldiers, and

accordingly, the abolishment of that position was consistent with both the

November 2013 ARC memorandum and the 2009 order from

agency headquarters. 8

The issue of whether the appellant produced rebuttal evidence

demonstrating that his reassignment had no solid or substantial basis in

personnel practice must be remanded for further adjudication.

¶19 Having found that the agency proved its prima facie case, we proceed to the

issue of whether the appellant produced rebuttal evidence demonstrating that his

reassignment had no solid or substantial basis in personnel practice or principle.

See Frey, 359 F.3d at 1360; Umshler, 44 M.S.P.R. at 630. On review, the

appellant notes that the Command Executive Officer of the 412th Engineer

Command recommended that his reassignment be rescinded. PFR File, Tab 8

at 11. The Command Executive Officer asserted that the appellant could support

the 391st Battalion from Knoxville without the relocation and moving expenses

associated with a directed reassignment, and argued that the directed

reassignment would potentially result in the loss of a valued employee. Id. at 32;

IAF, Tab 4 at 37. We agree with the administrative judge that it is not the

Board’s role to weigh the relative merits of the agency’s policy decision to

redistribute its FRSA positions such that the positions would be aligned with

units with larger troop concentrations. ID at 4-5; see Frey, 359 F.3d at 1358

(finding that, once it is established that a reassignment was properly ordered in an

exercise of agency discretion, the Board will not review the management

8

We have considered the appellant’s argument on review that the Supervisory Staff

Administrator for the 926th Engineer Brigade ordered him to support the 478th and

391st Battalions from his position with the 844th Battalion, and could have ordered him

to continue to do so. PFR File, Tab 8 at 7. We find this argument unpersuasive. Even

assuming that the Supervisory Staff Administrator could have ordered the appellant to

continue supporting these other battalions, the agency was not required to hope that he

would exercise his discretion to do so, but instead could exercise its discretion to

require that FRSAs be aligned with “battalion level or higher organizations” supporting

larger numbers of troops.

11

considerations underlying that exercise of discretion); Ketterer, 2 M.S.P.R. at 299

n.8 (same). Similarly, we find that it is not the Board’s role to review the merits

of the agency’s policy decision to require that FRSAs be assigned to locations

where the units with larger troop concentrations were headquartered.

¶20 However, although the Board will not review the merits of the agency’s

broader policy decision to redistribute FRSA positions, here, the appellant has

alleged that his particular reassignment was the result of discrimination based on

race and sex. IAF, Tab 6 at 5-6, Tab 9 at 3-4. The appellant’s discrimination

claims, if proven, relate to the issue of whether he demonstrated that his

reassignment had no solid or substantial basis in personnel practice or principle.

See Umshler, 44 M.S.P.R. at 634 (vacating an initial decision sustaining an

appellant’s removal for failure to accept a management-directed reassignment,

where, among other things, the administrative judge failed to address the

appellant’s assertions that his reassignment constituted a prohibited personnel

practice). Accordingly, because we are remanding the appellant’s affirmative

defenses of discrimination for further adjudication, we vacate the administrative

judge’s findings regarding the charge, nexus, and penalty. 9 See Viana v.

Department of the Treasury, 114 M.S.P.R. 659, ¶¶ 1, 8 (2010) (vacating an

administrative judge’s findings that an agency proved the charge, nexus, and

penalty where the appeal was remanded for further adjudication of the appellant’s

affirmative defense of discrimination).

¶21 On remand, the administrative judge shall issue a new initial decision that

addresses the appellant’s affirmative defenses and their effect on the outcome of

9

Although the administrative judge did not make a separate finding explicitly stating

that the agency proved a nexus to the efficiency of the service, such a finding was

implicit in his discussion of the charge and the penalty. ID at 3, 5-7; see Ketterer,

2 M.S.P.R. at 298 (finding that, in a removal for cause following a refusal to accept a

management-directed reassignment, proof that the removal will promote the efficiency

of the service includes proof that the agency’s decision to reassign the employee was a

bona fide determination based on legitimate management considerations in the interests

of the service).

12

the appeal, giving appropriate consideration to the evidence submitted in response

to the Board’s show cause order, and any additional relevant evidence developed

on remand. In addition, the administrative judge shall address the appellant’s

argument, which was raised below but not addressed in the initial decision, that

his reassignment had no solid or substantial basis in personnel practice or

principle because the unit to which he was reassigned had fewer than 1,200

soldiers assigned to the unit. IAF, Tab 9 at 4; ID; see PFR File, Tab 8 at 7, 10.

In the new initial decision, if the appellant fails to prove his affirmative defenses

of discrimination, the administrative judge may adopt his original findings

regarding the charge, nexus, and penalty, if he finds that they are supported by

the additional evidence and argument considered on remand, and the Federal

Circuit’s decision in Cobert v. Miller, 800 F.3d 1340.

ORDER

¶22 For the reasons discussed above, we remand this case to the regional office

for further adjudication in accordance with this Remand Order.

FOR THE BOARD: ______________________________

William D. Spencer

Clerk of the Board

Washington, D.C.