Leonard Anthony Szymborski v. Department of the Army ( 2016 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LEONARD ANTHONY DOCKET NUMBER
SZYMBORSKI, DC-0752-15-0763-I-1
Appellant,
v.
DATE: November 23, 2016
DEPARTMENT OF THE ARMY,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Leonard Anthony Szymborski, Santa Maria (Camisano Vicentino), AE,
pro se.
Stephen G. Salerno, APO, AE, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained his removal. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2 In August 2009, the appellant entered into a rotational agreement and
relocated to Valencia, Italy, for an overseas tour as a series 1101 Contract
Management Specialist. Initial Appeal File (IAF), Tab 6 at 31-33. The
assignment was subsequently extended on two occasions, resulting in a scheduled
end date of January 29, 2015. Id. at 29-30. The terms of the rotational agreement
included a requirement that the appellant apply for assignment in the
United States prior to completion of his overseas tour. Id. at 31. It also required
that he accept the first valid offer he received. Id. The agreement further
provided that failure to abide by these terms might result in a proposal to separate
him from Federal service. Id.
¶3 On January 26, 2015, days before the scheduled end of his rotational
assignment, 2 the appellant received an offer for a series 1102 Contract Specialist
position with the Department of the Navy in Bremerton, Washington, pursuant to
the Priority Placement Program. Id. at 21-22. The agency specified that this was
a “VALID job offer.” Id. at 21. It also reminded the appellant that if he declined
the offer or failed to respond, a proposal to separate him could be initiated. Id.
2
The appellant’s rotational assignment was subsequently extended to April 13, 2015,
and again to June 1, 2015. IAF, Tab 5 at 4, 24.
3
The appellant declined the offer, claiming he was not qualified for the position.
Id. at 15-20.
¶4 In February 2015, the agency proposed the appellant’s removal based upon
a charge that he failed to comply with the agency’s rotational policy by declining
the valid job offer. Id. at 12-14. The appellant responded, again alleging that he
was not qualified for the offered position. Id. at 9-11. He also rightfully noted
that the proposal letter misidentified his existing position as series 1102, rather
than series 1101. Id. at 11-12, 33. As a result, the agency issued a correction to
the proposed removal. IAF, Tab 5 at 35. The deciding official also forwarded the
appellant’s concerns regarding his qualifications to the agency’s Civilian
Personnel Advisory Center (CPAC), requesting a technical review. IAF, Tab 6
at 8. The CPAC Director responded, confirming that the appellant was well
qualified for the series 1102 Contract Specialist position and reiterating that it
was a valid job offer. Id. at 6-7. After receiving this, the appellant filed another
response to his proposed removal. IAF, Tab 5 at 37, Tab 6 at 4 -5.
¶5 In April 2015, the deciding official sustained the appellant’s removal, with
an effective date of June 1, 2015. IAF, Tab 4 at 21 -26. Just before that date,
however, the appellant retired. 3 Id. at 19. The appellant filed the instant appeal,
challenging the removal action. IAF, Tab 1. The parties stipulated that the only
material issue to be decided was whether the agency proved its charge. IAF,
Tab 11.
¶6 Because the appellant did not request a hearing, the administrative judge
issued a decision based upon the written record, sustaining the removal action.
IAF, Tab 22, Initial Decision (ID). The appellant has filed a petition for review,
3
The appellant’s retirement before the effective date of his removal does not divest the
Board of jurisdiction over the matter. See Norton v. Department of Veterans Affairs,
112 M.S.P.R. 248, ¶ 2 (2009) (recognizing that the Board retains jurisdiction over an
appeal when an employee retires when faced with an agency’s final decision to remove
him).
4
reasserting that he was not qualified for the position he was offered. Petition for
Review (PFR) File, Tab 1. The agency has filed a response. PFR File, Tab 3.
¶7 The administrative judge construed the sole charge as analogous to one of
failure to accept a directed reassignment. See, e.g., IAF, Tab 18. Our reviewing
court recently clarified that the approach first established in Ketterer v.
Department of Agriculture, 2 M.S.P.R. 294 (1980), remains the proper standard in
a removal appeal based upon a refusal to accept a directed reassignment. Cobert
v. Miller, 800 F.3d 1340, 1344-45, 1349 (Fed. Cir. 2015). Under the
burden-shifting framework set forth 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.
¶8 The administrative judge applied the aforementioned standard, finding that
the agency met its burden. ID at 5-7. He further found the appellant’s rebuttal
arguments and evidence unavailing, including arguments that he lacked the
qualifications necessary for the series 1102 Contract Specialist position. ID
at 7-11.
¶9 On review, the appellant reasserts that the reassignment he refused was
improper because his experience, including that as an 1101 Contract Management
Specialist, did not qualify him for the 1102 Contract Specialist position. PFR
File, Tab 1 at 5-8. Because no hearing was held, the Board is free to reweigh the
5
evidence and reach its own conclusions. White v. Department of Housing
& Urban Development, 95 M.S.P.R. 299, ¶ 27 (2003). However, we discern no
basis for reaching a conclusion contrary to that of the administrative judge.
¶10 As the administrative judge properly recognized, the record shows that
appropriate agency officials reviewed the appellant’s credentials, pursuant to
agency policy, and found him well qualified for the position he refused. ID
at 8-9; IAF, Tab 6 at 6-7, 15. These officials included a Human Resources
Specialist representing the offered position, a Human Resources Specialist
representing the position he was to vacate, the Career Transition Program
Administrator, and the agency’s Vicenza CPAC Director. IAF, Tab 6 at 6 -7, 15.
They all deemed the appellant well qualified for the position, even after
considering his stated objections. Id. Among other things, these officials
explained that while the appellant claimed he lacked a pertinent certification, that
certification was not required upon entry into the position. Id. at 6-7.
¶11 In his petition, the appellant has presented brief descriptions of the
series 1101 position he held and the series 1102 position he was offered. PFR
File, Tab 1 at 6-8. Yet, he failed to provide any persuasive argument or evidence
to overcome the agency’s evidence, which indicates that the totality of his
experience, including that gained in the series 1101 position, rendered him well
qualified for the series 1102 position. The appellant suggests that the agency
should have contacted a specific individual he considers an expert in the field,
because that person would have better compared his qualifications to that of the
offered position. Id. at 8. However, he has not identified any requirement that
the agency do so.
¶12 The appellant’s broad arguments provide no basis for disturbing the
administrative judge’s well-reasoned findings. His disagreements fail to
demonstrate that the reassignment had no solid or substantial basis in personnel
practice or principle. Accordingly, we affirm the initial decision , sustaining the
appellant’s removal.
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NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the
U.S. Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar days
after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff.
Dec. 27, 2012). If you choose to file, be very careful to file on time. The cour t
has held that normally it does not have the authority to waive this statutory
deadline and that filings that do not comply with the deadline must be dismissed.
See Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law and other sections of the United States
Code, at our website, http://www.mspb.gov/appeals/uscode.htm. Additional
information is available at the court’s website, www.cafc.uscourts.gov. Of
particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,”
which is contained within the court’s Rules of Practice, and Forms 5, 6, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
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Merit Systems Protection Board neither endorses the services provided by any
attorney nor warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.