*1 compensate for cases to for additional ” Director, COBERT, Acting Beth F. And, 180 n.35. delays.... J.A. those Management, Office of Personnel sessions counseling numerous result of the Petitioner Agency, efforts improvement no doubt aware Shapiro Mr. that he should have Agency’s expectation Systems Mary MILLER, A. Merit year. during But per cases decided more Protection sessions, Shapiro only once these Respondents. Agency cases. The additional asked for con- production numbers complied but his No. 2014-3101. Thus, unacceptable. substan- tinued to be Appeals, United States Court adoption supports the Board’s tial evidence Federal Circuit. ALJ’s conclusion presiding given had been Shapiro] “even if [Mr. Sept. (or cases, full he could complement not) able to meet would have been 195; J.A. J.A. 6-7. quantity.”
desired
Ill error in the Board’s removal
We find no “unac- Shapiro charge based on a
of Mr.
ceptable performance.” The Board’s deci- evidence. supported by
sion is substantial
Moreover, used com- Agency properly ease to establish
parative statistics this was sub- Shapiro’s performance
that Mr. And, peers.
stantially below that his governing complied given ade-
regulations, Shapiro as Mr. alleged along
quate charges notice of the respond. Accord- opportunity
with an
ingly, the Board’s decision to remove Mr. affirmed.
Shapiro good cause is
AFFIRMED
sented Delery, Stuart F. Robert E. Kirschman, Jr., Tara Hogan; K. Kamala Vasagam, Girouard, Robert James Steven Abow, E. Counsel, Office of General Office Management, Personnel Washington, DC. Passman,
Edward H. Passman & Kap- lan, PC, Washington, DC, argued for re- spondent Mary A. Miller.
Jeffrey Gauger, Office of the General Counsel, Systems Merit Protection DC, Washington, argued for respondent Systems Merit Protection Board. Also represented by Bryan G. Polisuk. Sutich, Stefan P. National Federation of Federal Employees, DC, Washington, amicus curiae National Federation of Fed- Employees. eral Stennis, Hampton H. American Federa- tion of Government Employees, Washing- ton, DC, for amicus curiae American Fed- eration of Employees. Government PROST, Before Judge, Chief SCHALL WALLACH, Judges. Circuit Opinion for the court filed Circuit Judge SCHALL.
Concurring opinion filed Circuit Judge WALLACH.
SCHALL, Judge. Circuit appeal This arises out of the action of Interior, Department National Park (“agency”), Service removed Mary A. Miller from her as Park Superintendent of the Sitka National His- (“SNHP” “Park”) Sitka, torical Park or Alaska. Ms. Miller was removed from her position after she a management- refused directed to a different grade tion at the same pay Anchor- Blades, Jr., age, Alaska. Reginald appealed T. Ms. Miller her re- Commercial Lit- Branch, igation Division, Systems moval to the Merit Civil Protection United (“MSPB” “Board”). Justice, States Washington, Following DC, (“AJ”) argued petitioner. Also repre- hearing, judge the administrative met assigned April On appeal issued
whom
Knox,
agency’s Deputy Regional
Victor
ac-
sustaining
removal
initial decision
supervisor.
Interior,
Director and
immediate
No.
Dep’t
tion. Miller
meeting, they
At
the newly-
discussed
SF-0752-11-0766-I-1,
position, among things, other “under- tion, *4 qualifications, Ms. Miller’s and his ability to assign mine[d] the and ordering reasons for her reassignment. manage efficiently work manage and Knox, According to Ms. Miller “was workforce.” Id. 89. doing great work at Sitka.” Id. 220 at 26, 2010, July Regional Director Su- On 78:17-79:6; see also id. 206 at 23:15-25:21. sustaining san Masica issued a decision From perspective, only his she “was the accept Miller’s removal for failure to Ms. of that person fully [he] could think management-directed reassignment. needs, met all position’s] [the liaison and unpersuasive 80-87. Ms. found Id. Masica that in working had shown success “to preference remain in Sitka through difficult and building issues rela- family, of financial and medical because in tionships with ... tribes demonstrable also reasons.” Id. 81. She found that way.” Id. 208 at 30:8-31:4. Ms. Masica appropriate penalty “removal [was] similarly. testified lauded Ms. Mil- She promote w[ould] and ler’s work at SNHP and stated that the service.” Id. 80. Ms. Miller’s removal “reassignment agency’s] [the was based August effective became position, need to fill liaison the Native and agency’s] that Ms. Miller [the belief had II. strong qualifications set of and skills Miller timely appealed her removal position.” that were needed in that Id. to the Board. Before the she con- 230 at 120:12-18. decision tended to direct part, For her testified that her to the Native for qualified she was not the Alaska Native position Affairs Liaison not bona fide position, claiming Affairs Liaison that she position created for the because knowledge no Alaskan native had of law. purpose her reassigning sole of from her 13. Ms. Initial Decision at Miller also triggering without superintendent position testified that she did not consider herself an adverse action. also contended She expert being an able to terms of liaise qualified position. she was not Additionally, with native tribes. Ms. Mil- Decision at Ms. Miller also not ler stated that she did share Mr. affirmative several defenses. asserted acceptance view that Knox’s reas- First, argued she that Ms. Masica should signment In would enhance career. deciding not have been the official because that, if regard, she she ac- testified supervisors. was one of her immediate she cepted the she would be Second, reassignment, at 22. Id. she contended decision-making position moving from a removal action involved discrimination race, state, position. on her a staff at 14. She did gender, physical and also Id. at 17. Ms. Stewart testi- as to wheth- SNHP. inquired she had though, that development and iterative and classifi- in Sitka fied that could be based er the positions also new is common. She Ms. Miller cation of level. the GS-14 managers Mr. Knox often work with informed testified that concerns, family par- time to make period over a that she had classifiers seventies, description that she adjustments their ents were con- health financial had both to obtain desired workforce re- herself order cerns. sults. also deciding appeal, the AJ In Ms. Miller’s Perloff, manage- personnel Stephen analytical framework set employed Per- Id. at 15-16. Mr. consultant. Agricul- forth in Ketterer v. claim regarding (1980). loff testified ture, 2 MSPB she was (citing Frey Initial Decision at 5-6 See individuals opined He Labor, (Fed. 1355, 1360 Dep’t creating com- were involved Cir.2004)). Ketterer, the Board estab- GS-13, he grading out to
mitted to two-step approach deciding lished cir- it curious found based upon of a removal action appeal Of- agency’s Regional culated between “In a refusal times Human Resources several fice and following a refusal removal cause *5 it included duties as a GS-12 until stated, accept reassignment,” a the Board a Ac- support grade. to sufficient GS-13 preponder- prove “the must Perloff, to Mr. Ms. Miller had cording the ance of the evidence that removal will edu- experience nor the neither the work of the service. This promote necessary to meet the background cational necessarily a demonstration that includes posi- minimum qualifications for the liaison reassign agency’s decision to the em- conten- As additional for her tion. determination ployee was bona fide for the qualified tion that she was not legitimate management based on consider- position, Affairs Alaska Native Liaison in the of the service.” ations interests showing documentation Ketterer, 2 at 298. The Board M.S.P.R. applied liaison that she had for GS-12 burden, “As of its initial part continued: Army Department with the of the with must come forward evi- Walla, testi- Washington, and she Walla showing legitimate dence rejected she had fied that been the reassignment.” reason for Id. at 299. being minimally qualified. position as not “[tjogether Board Id. at 18. had employee adequate notice of decision to transfer and that Miller’s ar-
Apparently anticipating Ms. reassignment, this he refused gument qualifications, during as to ordinarily be sufficient establish a would case-in-chief, the the tes- agency presented prima facie case.” Id. The stated Helen at 17-18. timony of Stewart. that, makes out a prima “[o]nce Re- Supervisory is a Human Ms. Stewart case, going facie the burden of forward Specialist with Fish and source the U.S. em- testified, with rebuttal evidence shifts Wildlife Service. Ms. Stewart persuasion but the burden of Perloff, ployee contrary to agency.” (quot- from never shifts qualified was v. Commerce that, ing Losure Interstate qualified if she was not Comm’n, 195, tion, MSPB would not been have (1980)). Subsequently, Umshler Superintendent position Park at prior 201-02 Interior, the Board the Department Army position, even that, reiterated once the estab- if it had been offered. Id. at 19. Based case, prima lishes a facie the burden of on findings her factual credibility de- going forward with rebuttal evidence shifts terminations, agen- AJ sustained the employee, though to the even the ultimate cy’s reassignment directed being as “bona proof burden of never shifts from the fide.” Id. at 30. The AJ stated: (1990) (cit- agency. M.S.P.R. I find that the management directed Ketterer, 298-99). ing M.S.P.R. at And lawful, it was the Board elaborated: based on management consid- employee If the can demonstrate that erations and that the appellant giv- had no solid or sub- adequate en notice of reassignment. stantial in personnel practice basis or I also find no merit in the appellant’s principle, may conclude assertion that she is not qualified for the discretionary was not a valid manage- position. Lastly, dispute there is no determination, ment but was instead ei- appellant declined the manage- improper ther an effort pressure reassignment. directed The rec- retire, appellant to least an ord contains her written election. arbitrary capricious adverse action. (citation omitted). Id. at 19-20 Ruling on Ms. Miller’s affirmative de- The AJ found through the testimo- fenses, Masica, ny of Mr. Knox and the AJ held that agen- Ms. Miller had cy had met its initial showing, burden of failed to establish error associated by preponderance evidence, that it with serving Ms. Masica deciding legitimate management reasons for official; view, in the AJ’s the decision was Initial Deci- properly made an official superior to sion at 6-13. The AJ also found that Ms. official, proposing Mr. Knox. Id. at 23. *6 Miller had failed agency’s to rebut The AJ also determined that Ms. Miller prima facie case for reassignment. Id. at had failed to establish her several claims of 13-21. The AJ determined that the Alas- discrimination. Id. at 23-28. AJ re- ka Native Affairs Liaison was cre- jected retaliation, Ms. Miller’s claim of ated based on valid concerns. The finding that there was no nexus between testimony, AJ credited Mr. Knox’s finding any equal employment opportunity of her merely was not created complaints and the removal. Id. at 28-29. Miller, purposes reassigning for of but Finally, the held that AJ ac- had been discussed months in advance of removing tion Ms. Miller for failure to reassignment order as a result of an accept reassignment the directed rea- undisputed need for a promoted efficiency sonable and of the Region. the Alaska at Id. 20. With re- Citing service. Doe v. Jus- spect qualifications, the AJ found that tice, 1375, (Fed.Cir.2009), 1379 perform Miller “was v. Department Navy, Brown ... position.” duties of the new at 1356, (Fed.Cir.2000), F.3d the AJ time, At the same she found that Ms. accept found that Ms. Miller’s refusal Miller’s regarding applica- reassignment provided the directed tion for the liaison within the De- necessary efficiency nexus to the of the partment Army of the to be “not credible” service. Initial at far 18, 19, 30. As “unpersuasive.” Id. at 21. The reasonableness of the “highly improb- penalty AJ determined that it was con- cerned, able” that Ms. Miller accepted citing Frey, would have 359 F.3d at adjudication of an fully add to the well established “It AJ stated: accept a refusal to action based on adverse unreasonably pen- harsh an removal is not reassignment.” geographic reas- a directed accept a directed refusing alty, for Board stated further on Wieser 441-42. The (relying signment.” unnec- cumbersome and Fed.Appx. “abandoning Army, Dep’t it was (Fed.Cir.2008)). accordingly burden-shifting approach,” essary The AJ jurispru- declining for departing affirmed removal “from not governing reassignment order. otherwise legitimate principles dential on action based review of an adverse [the] III. reassign- accept geographic a refusal to 442. The Board stated re- Id. at the Board for ment.” petitioned weigh all the “simply it would petition, henceforth of the AJ’s decision. view (1) the ulti- finding make a arguments: main evidence and she made two agency proved lacked whether the because the mate issue of the AJ erred reasons for reas- occurred and that the misconduct legitimate Affairs efficiency Alaska Native promotes her to the signing its action (2) that she did position; Liaison service.” Id. qualifications minimum
meet the rejected burden-shift- Having Ketterer’s framework, Board ruled that ing 3, 2013, the Board issued April On did not vacating the AJ’s deci- and Order Opinion fide was due to bona reversing Ms. Miller’s removal. sion and or that her re- management considerations decision, revisited and the Board In its of the ser- promoted moval two-step analytical Ketterer’s abandoned It found that Ms. vice. Id. at 443. instead actions reviewing for adverse framework evidence to cast submitted “credible a directed reas- on refusal to motivations in ef- doubt on the Interior, Dep’t Miller v. signment. reassign- and that the fecting her removal” (M.S.P.B. Apr. No. SF-0752-11-0766-1-1 merely a “veil” to effect her ment was 2013) (vacated). In its place, Specifically, Id. at 444. separation. efficiency of the service adopted single agency, while Board concluded analyzing together both the standard creating having basis action. and the adverse position, Affairs Liaison Alaska Native so, it ruled that Ms. Miller’s Having done for re- to establish a rational basis failed *7 promote not reassignment and removal did reassign- quiring Ms. Miller Several efficiency of the service. reaching that con- ment. Id. at 443. however, May later, on weeks clusion, out that pointed the Board pursu- the case on its own reopened Board reassign- agency had not shown so, doing § After ant to 1201.118. 5 C.F.R. “necessary” park due to the ment was opinion and issued April it vacated its being eliminated superintendent Mil- reversing still opinion, substitute program. or due to a reduction-in-force I, at ler’s removal. Miller the Board ruled Accordingly, Id. 440. provide any ... failed to evidence “agency reassign- geographic appellant’s the Board opinion,
In its substitute necessary” any or ment was abandoning it was again stated “rationally related to the her removal was In the of Ketterer. two-step framework Id. at 444. efficiency of the service.” view, burden-shifting appara- “the Thus, agency’s re- the Board reversed the meaning- in Ketterer does not tus outlined reinstate- moval and ordered Ms. Miller’s failure to show a bona fide Superintendent ment as Park SNHP.3 reason for reassignment. Id. at 431-32. Id. Accordingly, the Board modified Miller I by stating that “an prove need not petitioned the Board to reconsider OPM geographic that a reassignment is ‘neces- 6, 2013, Miller I. On December ” sary.’ 433. It further modified opinion, denying pe issued a third OPM’s I by stating modifications, affirming, tition and its failed to show II, “rational basis” for re- decision in Miller I. Miller quiring II, Ms. Miller to accept reassign- at 428. In Miller M.S.P.R. Board show, addressed OPM’s contention that ment because it did not for example, obligated Board was to follow Ketterer’s that “the Superintendent position had been two-step approach adopted because it was eliminated” or that there was “no need for in Frey, this court 359 F.3d as the performance.” [Ms. Miller’s] continued though law of the circuit. Even we stated Finally, the Board reiterated that it had in Frey ap that we “endorse the Board’s found that “the did not show that proach and Umshler [Ketterer ] and its reasons for the directed geographic circuit,” adopt it as the law of the id. at reassignment were bona fide and that the 1360, the Board disagreed that it was agency instead invoked its discretion to bound the Ketterer framework. Miller reassign appellant as a ‘veil’to effect II, that, 120 M.S.P.R. at It 434. stated separation.” Id. at 438. The Board view, in Frey, merely this court had affirmed, modified, accordingly as its deci- “endorsed” the approach. Ketterer I, sion Miller making it the final deci- The Board viewed our in Frey decision sion of the Board. Id. premised on deference to the MSPB. Id. at noted, As pursuant to 5 U.S.C. It Frey therefore reasoned that could 7703(d), § OPM petitioned us to review precedential not be and binding because it decision, the Board’s final granted and we could panels be modified later of this Miller, petition. Fed.Appx. court, without en banc review. Id. at 436- jurisdiction We have over appeal pur- this (citing Bd., Tunik v. Sys. Merit Prot. 1295(a)(9). 1326, 1336-38(Fed.Cir.2005)). § suant to 28 U.S.C. The argu- Board also addressed OPM’s Discussion it had improperly imposed a of our scope appeal review in an requirement new that an prove from a decision of the Board is limited. that a “necessary” We must affirm the decision of the Board just on reason. The (1) arbitrary, capricious, unless it is rejected OPM’s claim that it had discretion, abuse of or otherwise not in requirement added a new (2) law; accordance with cases. It obtained without despite its focus procedures law, rule, on whether Ms. required by regu- had been or 'eliminated, (3) “emphasis” followed; its overall having lation been unsup- *8 premised As far as Ms. Miller's affirmative defenses on deference the to MSPB. Id. at concerned, were the Board stated: dis- "[W]e Frey It therefore reasoned that could findings, cern no in error the the [AJ]’s which precedential binding not be because it review, appellant challenge does not on that by panels could be modified later of this appellant prove the failed to her affirmative court, without en banc review. Id. at 436-37 discrimination, retaliation, defenses of Bd., (citing Sys. Tunik v. Merit Prot. I, procedural harmful Miller error.” (Fed.Cir.2005)). 1336-38 Frey M.S.P.R. at 441 n. 2. our decision in working Super- position 5 U.S.C. in the while as the evidence.
ported
substantial
7703(e);
Health
Kewley Dep’t
Sitka.”).
§
&
points
intendent in
OPM further
of
(Fed.
Servs.,
F.3d
Human
“the
the
of Ms. Masica that
Cir.1998).
job
great
building
appellant
doing
of
solv-
relationships
good
and had
ideas for
I.
ing problems and how to tackle them.”
us to reverse the Board’s
OPM asks
Board’s
argues
OPM therefore
reinstating
Ms.
to her
Miller
decision
agency’s
conclusion that
decision
Superintendent of
It
tion as Park
SNHP.
AJ’s
not bona fide is inconsistent with the
re-
argues that the Board committed
first
findings of fact.
undisturbed
effectively en-
because it
versible error
in
merits of
gaged
a review
part,
her
Miller
that the
argues
For
Ms.
agency’s reassignment order.
It contends
agen-
correctly
Board
determined that the
have,
agencies
broad dis-
require,
showing a
cy failed to meet its burden of
work-
cretion in the
of their
fide
contends
bona
She
forces,
includes the
which
that,
decision,
in
did
reaching its
reassign-
employees.
points
It
out that
scope
authority by
exceed
of its
ment,
itself,
action”
is not
“adverse
reviewing
managerial discretion
whether
subject
plenary
to the Board’s
review.
It
agency.
had been
invoked
properly
argues the Board’s review is limited under
Miller
that the
urges
properly
Board
Frey
determining only
in
precedent
our
reassign-
“no solid or
found that
that her
whether the
had
she showed
personnel
in
practice.”
substantial basis
in personnel practice.
ment had no basis
Frey,
OPM further contrary decision to the AJ’s undis- resignation, ration or in- nevertheless of fact. It findings points turbed within authori- sists the Board was finding AJ’s that the demonstrated ty to infer from actions position need in reassigned good Sig- she was not faith. as well region, Alaska as her nificantly, appeal, on Ms. Miller does not also demonstrated need challenge credibility the AJ’s determina- Anchorage. to be See tions, fact, rejection findings (“The at 20 evidence ... of Ms. several defens- affirmative cre- shows that the had decided to Neither argue es. does Miller ate for valid new grounds reversing AJ’s decision concerns” and that there a “need for a removal, sustaining her other than those po- full Alaska Native Affairs Liaison time Board relied. upon which the in Anchorage.”). sition be OPM points crediting also to the AJ’s appeal agrees The MSPB on testimony of Mr. Knox that Ms. Miller was correct the Board reached the employee considered the best addition, in this result case. it contends See, (“Mr. region. e.g., id. part statutory as a of the Board’s credibly Knox testified that he decided to authorization to conduct de novo review reassign when working Miller] he was [Ms. actions, may of adverse removal look new creating spring agency’s underlying the merits of an reas- and discussed her abilities for the urges It signment order. new with Ms. Masica because she very they review in its en- exhibited skills wanted must action
1349 1557, tirety, including agency’s management (Fed.Cir.1993)) 1570 (stating that ordering reassignment.4 considerations “stare decisis is a doctrine that binds courts to follow their own earlier decisions
II.
or the decisions
a superior tribunal”);
of
Turning
analysis,
to our
we first
see also
Mills,
Soc. Sec. Admin. v.
hold that the Board erred
(1996) (decisional
as matter of M.S.P.R.
law
abandoning
law in
two-step
Ketterer
“adopted” by the Federal Circuit is “bind
burden-shifting approach described
Board”),
ing on the
aff’d,
above.5
and that
the
location was
Conclusion
place
used “as a
employees
to send
Decision,
In her Initial
the AJ properly
order to encourage
agen-
them to leave the
utilized the
two-step,
Ketterer
burden-
cy by
resignation.”
retirement
2 shifting framework adopted by this court
Accordingly,
M.S.P.R.
299-300.
the
in Frey as law of the circuit. The AJ
agency
ordered the
to cancel the
determined —based on credibility determi-
appellant’s reassignment and removal.
In
findings
nations and
of fact
by
undisturbed
Umshler, the Board found that
agency
the Board and unchallenged on appeal—
prima
established a
support-
facie case
that
had made out
prima
ing
validity
of the appellant’s reassign-
facie case that the decision to reassign Ms.
ment.
443-44. organization- the record is a supported by cides there need factual contrary to the AJ’s uncontested gives general description findings. help classifier duties position description.” Id. at develop Majority. AJ disagree
I with the Ms. Stewart further findings factual within made required captures classifier what “[t]he present- assessing after *12 position for the and works with the man- weighing the credi- parties the and ed supervisor adjustments testimonies.' These bility ager of the witnesses’ to make credibility determina- findings factual and the desired re- position the to obtain appeal, uncontested on and added). tions remain (emphasis Ms. sult.” Id. Stewart challenge failure to we are bound qualified for [Ms. “considered Miller] However, appears obvious to me them. quali- and if was not position [Ms. Miller] entirely were actions position for the Liaison fied Alaska Native and bad faith. pretextual does not see [Ms. Miller] she how would Superintendent The AJ credited the Mr. have been for the Masica, Knox, Ms. Stewart years.” Ms. and when held two previous she Knox, findings. her Ms. Mil- making Id. at that he was supervisor, ler’s testified “fa- credibility The AJ’s determinations for background miliar with be- [Ms. Miller’s] on ap- these are uncontested testimonies participated cause he her selection for fact, however, peal. the evidence dem- Superintendent for the onstrates dishonest manner which [Park], super- called her references and Miller was Ms. selected Alaska years.” her for over vised two Liaison Mr. Knox position. Native stated, at 9. Mr. “he Knox made background familiar with Ms. Miller’s fill the decision to Native Af- [Alaska capabilities. current Mr. Knox direct- prior fairs several weeks Liaison] ed Ms. Masica to on Ms. Miller focus when making the offer [Ms. Miller].” making position. selection Further, at 8. Mr. Knox noted description adjusted to duties were obtain modeling exactly they Miller “was what the desired result. It is obvious me accomplish”
wanted to in the modified the standards Masica, Regional Director qualifications to make Ms. and the deciding only person uniquely qualified, within the official, requested stated pool employees that were considered for position, created. filling tion be When position; actions testified, pool at a Ms. Masica “she looked entirely pretextual; they were among of candidates the staff and [Ms. solely present were intended was the best for the Miller] improperly with an motivated Hobson’s Knox’s that she on Mr. assessment choice. Such conduct skills[,] strongest so the was on focus States is reprehensible. United her to Id. at 11 position.” new fill added). (emphases Stewart, Additionally, Ms. a Supervisory Specialist
Human Resource with the U.S. Service,
Fish and Wildlife testified as a personnel
rebuttal witness to
management consultant. Ms. Stewart tes-