Leonard Anthony Szymborski v. Department of the Army
Background
- Appellant Leonard Szymborski, a series 1101 Contract Management Specialist, was on an extended overseas rotational assignment with a contractual obligation to apply for U.S. assignments and accept the first valid offer.
- In January 2015 the agency notified him of a “VALID job offer” for a series 1102 Contract Specialist position in Bremerton, WA, under the Priority Placement Program; he declined claiming he was not qualified.
- The Army proposed removal for failure to comply with the rotational agreement; agency HR/CPAC officials reviewed his credentials and determined he was well qualified for the 1102 position.
- The deciding official sustained the removal effective June 1, 2015; Szymborski retired shortly before the effective date and then appealed the removal to the MSPB.
- The parties stipulated the only material issue was whether the agency proved its charge; the AJ sustained the removal on the written record, applying the Ketterer burden-shifting standard for refusal of a directed reassignment.
- On petition for review the Board affirmed: the agency met its prima facie showing and Szymborski failed to rebut that the reassignment had a solid or substantial basis in personnel practice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether agency proved charge of refusing a valid directed reassignment | Szymborski: not qualified for 1102 position; therefore refusal was justified | Agency: followed policy, notified him of a valid offer, CPAC/HRS reviews found him well qualified | Held: Agency proved prima facie case; Board affirmed removal |
| Proper standard for reassignment/refusal appeals | Szymborski: (implicitly) agency must prove qualification mismatch | Agency: Ketterer burden-shifting standard applies | Held: Ketterer standard applies as clarified by Cobert; burden shifting used |
| Sufficiency of agency qualifications review | Szymborski: agency should have sought outside expert he suggested | Agency: multiple HR/CPAC officials reviewed and confirmed well-qualified status | Held: Agency reviews were adequate; appellant failed to rebut |
| Effect of appellant’s retirement before effective removal date on jurisdiction | Szymborski: retirement may affect appeal | Agency: Board retains jurisdiction over retirement before removal effective date | Held: Board retains jurisdiction; retirement does not divest Board of jurisdiction |
Key Cases Cited
- Ketterer v. Department of Agriculture, 2 M.S.P.R. 294 (1980) (establishes burden-shifting framework for refusal of directed reassignment)
- Cobert v. Miller, 800 F.3d 1340 (Fed. Cir. 2015) (affirms Ketterer approach remains proper standard)
- Umshler v. Department of the Interior, 44 M.S.P.R. 628 (1990) (explains that ultimate burden of persuasion remains with the agency)
- White v. Department of Housing & Urban Development, 95 M.S.P.R. 299 (2003) (Board may reweigh evidence when no hearing is held)
- Norton v. Department of Veterans Affairs, 112 M.S.P.R. 248 (2009) (Board retains jurisdiction when an employee retires after agency issues final decision)