From Alaska comes this interesting Merit Systems Protection Board (MSPB) decision, involving the Superintendent of the Sitka National Historic Park. She was reassigned from her position to a job as an “Alaska Native American Liaison” in Anchorage, which is 500 miles from Sitka.
She refused and the agency tried to remove her as superintendent. She appealed and won a unanimous ruling from the MSPB, which ordered the National Park Service (NPS) reinstate her as superintendent, and provide back pay, benefits and her legal fees.
The reassignment and removal failed to promote the efficiency of the park service, and as the MSPB noted, that by attempting to force her to relocate to Anchorage and then remove her when she refused, the agency would have created two openings that it would need to fill.
She claimed the removal was “‘tainted by discrimination’ based on her race, sex, and physical disability.” The MSPB found that the NPS failed to identify specific reasons for reassigning the superintendent and that the agency “invoked its discretion to reassign the appellant as a ‘veil’ to effect her separation.”
In this case, the MSPB used an “efficiency of the service” standard to evaluate the agency’s behavior. When an employee is subjected directed reassignment and they refuse, the agency will need to show by the proper evidentiary standard that the reassignment was based on “bona fide management considerations” that promote the efficiency of the service.
For the employee challenging this assertion, you want an attorney who can carefully and precisely articulate how the agency has failed to present sufficient evidence to support their claims, and as was the case here, how discretion was used to cover a lack of rational basis for the reassignment.
Source: National Parks Traveler, “Sitka National Historical Park Superintendent Wins Latest Battle Against Her Removal, NPT Staff, December 18, 2013