Leslie A. Gallegos v. Department of the Air Force ( 2014 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2014 MSPB 53Docket No. AT-0752-13-0258-I-1
Leslie A. Gallegos,
Appellant,
v.
Department of the Air Force,
Agency.
July 17, 2014
Lawrence A. Berger, Esquire, Glen Cove, New York, for the appellant.
Major Kristina D. Penta, Randolph Air Force Base, Texas, for the agency.
Susan Knutson, Quantico, Virginia, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
OPINION AND ORDER
¶1 The appellant timely petitions for review of an initial decision that
sustained her removal for failure to fulfill a condition of employment. For the
reasons set forth below, we DENY the petition for review and AFFIRM the initial
decision.
BACKGROUND
¶2 The appellant was formerly a GS-1811-13 Criminal Investigator (also
referred to as a Special Agent) with the agency’s Office of Special Investigations
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(OSI). Initial Appeal File (IAF), Tab 22 at 6-7, 12, Tab 7, Subtab 4b. As a
condition of her employment, the appellant was required to execute a mobility
agreement in which she acknowledged that any failure to accept a geographic
reassignment may subject her to separation from federal service. IAF, Tab 7,
Subtab 4t. On May 14, 2012, the agency provided the appellant with notice of an
impending directed reassignment from Miami, Florida, to Quantico, Virginia,
pursuant to the mobility agreement. IAF, Tab 7, Subtab 4r. The appellant
declined the reassignment, and the agency removed her, effective December 14,
2012, based on a charge of “failure to fulfill a condition of employment.” IAF,
Tab 7, Subtabs 4b, 4c, 4e, 4k.
¶3 Because the appellant withdrew her request for a hearing, IAF, Tabs 19, 20,
the administrative judge decided the appeal on the written record. In his initial
decision, the administrative judge found that the reference in the notice of
proposed removal to the appellant’s failure to accept a directed reassignment was
merely descriptive of the charge of failure to fulfill a condition of employment,
and not descriptive of the charge itself. IAF, Tab 26, Initial Decision (ID) at 4-5.
The administrative judge found that the agency proved its charge by preponderant
evidence. ID at 6-9. The administrative judge also found in the alternative that
the agency had satisfied its burden of proving a charge of failure to accept a
directed reassignment. ID at 9-11. The administrative judge found that the
agency proved a nexus between the charged conduct and the efficiency of the
service, and he sustained the penalty of removal. ID at 11-12.
¶4 The appellant petitions for review of the initial decision. Petition for
Review (PFR) File, Tab 1. The agency responds in opposition to the petition for
review. PFR File, Tab 4.
ANALYSIS
¶5 As the administrative judge correctly found, the agency charged the
appellant with failing to fulfill a condition of employment and not with the
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underlying refusal to accept a directed reassignment. ID at 4-5. The agency’s
charging approach is consistent with many years of Board precedent holding that,
after an employee refuses a directed reassignment, an agency may charge the
employee with absence without leave (AWOL) or with failure to follow
instructions if the employee does not report for duty at the new duty station. See
Burrell v. U.S. Postal Service, 76 M.S.P.R. 204, 209-10 (1997) (an agency may
bring a removal action for AWOL if, after a directed reassignment, the employee
fails to report to duty at the new location); see also Cooke v. U.S. Postal Service,
67 M.S.P.R. 401, 406-08 (upholding a removal for AWOL under the “obey, then
grieve” rule after the appellant refused a directed reassignment), aff’d, 73 F.3d
380 (Fed. Cir. 1995) (Table); Jahn v. Department of Agriculture, 45 M.S.P.R.
514, 516-17, 520-21 (1990) (upholding a removal for failing to report to new duty
post after the appellant rejected a directed reassignment), aff’d, 935 F.2d 281(Fed. Cir. 1991) (Table). Whether the agency had a legitimate management
reason for the directed reassignment is a merits issue in terms of whether such a
charge—in this case, failure to fulfill a condition of employment—can be
sustained. See Burrell, 76 M.S.P.R. at 210.
¶6 The charge of failure to fulfill a condition of employment contains two
elements that the agency must prove: (1) the requirement at issue is a condition of
employment; and (2) the appellant failed to meet that condition. See generally
Thompson v. Department of the Air Force, 104 M.S.P.R. 529, ¶¶ 9-10 (2007).
Absent evidence of bad faith or patent unfairness, the Board defers to the
agency’s requirements that must be fulfilled for an individual to qualify for
appointment to, or to retain, a particular position. Thompson, 104 M.S.P.R. 529,
¶ 9.
¶7 According to written OSI policy, not only the appellant’s particular
Criminal Investigator position, but all OSI Criminal Investigator positions were
subject to a mobility requirement as a condition of employment. IAF, Tab 7,
Subtab 4m at 125. Moreover, the appellant periodically signed mobility
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agreements, most recently in July 2008, acknowledging that the agency required
its Criminal Investigators to be mobile and agreeing to accept relocations or risk
separation from service. 1 IAF, Tab 7, Subtab 4t. The appellant has not proffered
a persuasive reason for her argument that she was somehow not subject to the
same conditions as her peers. We find, therefore, that the administrative judge
correctly determined that the agency proved that the mobility requirement is a
condition of employment. ID at 6-8.
¶8 It is not disputed that the appellant was given a directed reassignment and
that she refused it. Rather, the appellant contends that the agency has not
identified any reason for her reassignment or otherwise explained why the
reassignment served the needs of the agency. PFR File, Tab 1 at 8-11. She
acknowledges that agency policy provides “that civilian mobility is an important
component of organizational effectiveness as well as career progression” but
insists that the agency must show a particular need for reassigning her. Id. 10-11;
IAF, Tab 7, Subtab 4n at 27.
¶9 The appellant’s argument disregards the fact that she is not charged with
refusing a directed reassignment but with failing to fulfill a condition of
employment. Nevertheless, under the circumstances of this appeal, there is some
analytical overlap between those two charges and the reasons for the directed
reassignment matter when a mobility agreement is in place. See Burrell,
76 M.S.P.R. at 210.
¶10 Here, the agency’s policy establishes that it had a legitimate management
reason for directed reassignments based upon its need for “civilian mobility” as
an essential component of its organizational effectiveness and for employee
career progression. IAF, Tab 7, Subtab 4n at 27-28 and Attachment 5. Agency
1
The appellant signed at least two other mobility agreements during her career with the
agency, in 2006 and 2004. IAF, Tab 7, Subtab 4t.
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policy further indicates that “[e]ffective force development depends upon filling
high-level positions with highly qualified employees who have a variety of work
experiences at various locations throughout the Air Force” and requires mobility
agreements for all civilian Criminal Investigators/Special Agents, like the
appellant. IAF, Tab 7, Subtab 4m at 29, 125.
¶11 The appellant may attempt to rebut the agency’s showing with evidence
that the application of the mobility policy to her was patently unfair or based on
bad faith. See Thompson, 104 M.S.P.R. 529, ¶ 9. The appellant’s petition for
review does not address the charge actually at issue in this appeal, namely her
failure to fulfill a condition of employment. PFR File, Tab 1. However, we
construe her petition to allege that the underlying directed reassignment was
patently unfair because the agency was obligated to grant her preferred
assignment, namely, to continue at her existing duty station near Miami, Florida,
without a reassignment. 2 Id. at 8-10, 12-13. However, while the agency has
undertaken an obligation to honor its employees’ geographic preferences “to the
extent the needs of the [agency] permit,” it has not committed itself to honor all
such preferences under all circumstances. IAF, Tab 7, Subtab 4t at 1, ¶ 2.
Similarly, the appellant impliedly asserts that the underlying directed
reassignment was patently unfair because the agency wrongly denied her hardship
request and improperly provided no explanation for its decision. PFR File, Tab 1
at 10-11. The mobility agreement provides for hardship exceptions but only
when “the reasons are acceptable to management.” IAF, Tab 7, Subtab 4t at 1,
¶ 3. The Board has held that an agency is not required to grant an employee’s
2
The appellant was assigned to Patrick Air Force Base near Miami, Florida, from June
2004 through September 2008. IAF, Tab 7, Subtab 4e at 2; PFR File, Tab 1 at 5. From
September 2008 through September 2009, the appellant was assigned to Andrews Air
Force Base, Maryland, and was then granted a hardship reassignment back to the Miami
area. IAF, Tab 7, Subtab 4e at 2, Subtab 4g at 2, ID at 8; PFR File, Tab 1 at 5.
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hardship request where the existing mobility agreement did not create a binding
obligation to accept any reason for the alleged hardship. Kinsella v. Department
of Health & Human Services, 41 M.S.P.R. 643, 649 (1989). Accordingly, we find
that the administrative judge properly sustained the charge.
¶12 In a related argument, the appellant asserts that the agency has not
provided any evidence, other than the mobility agreements she signed, that the
underlying directed reassignment promoted the efficiency of the service. PFR
File, Tab 1 at 6-9. In this regard, the appellant argues that the agency must make
the same showing in a case involving a mobility agreement as it does when there
was not a mobility agreement.
¶13 When there is no mobility agreement in place and a directed reassignment
addresses an individual’s situation, rather than reflecting an agency policy
decision about the need for a mobile workforce, then the willingness to relocate is
not a condition of employment. In such cases, it is appropriate to charge the
employee with failure to accept a directed reassignment or some other charge
appropriate to the circumstances. For example, in Miller v. Department of the
Interior, 119 M.S.P.R. 438, ¶¶ 3, 9-10, aff’d as modified on recons.,
120 M.S.P.R. 426 (2013), the agency removed the appellant for failure to accept a
management directed reassignment to fill a new position it had created.
However, the appellant did not occupy a position subject to a mobility agreement.
Under the circumstances presented in Miller, the Board held that the agency must
establish by preponderant evidence that the geographic reassignment was
properly ordered due to bona fide management considerations in the interest of
promoting the efficiency of the service. Id., ¶ 7. It concluded that the agency did
not establish a rational basis for requiring the appellant to accept the directed
reassignment at issue and, therefore, it failed to prove that her removal was for
the efficiency of the service. Id., ¶ 10.
¶14 The same “efficiency of the service” standard applies in cases such as this
one where the appellant occupied a position subject to a mobility agreement.
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However, when an agency has made a policy decision that an entire group of
positions must be mobile, the focus of our analysis is less on whether the agency
had a bona fide reason for the individual employee’s reassignment and more on
whether the agency’s policy was supported by a legitimate management reason.
As noted previously, the Board defers to the agency’s determination as to the
requirements that must be fulfilled in order for an individual to qualify for
appointment to a particular position and to retain that position. See, e.g.,
Thompson, 104 M.S.P.R. 529, ¶ 9.
¶15 The appellant’s argument that her situation should be treated the same as a
directed reassignment where there is no mobility agreement in place would render
irrelevant the mobility agreement. Were we to accept her contention, we would
be intruding on agency management’s discretion to determine the requirements
and conditions for positions in its workforce. We decline to do so and conclude
that the agency’s policy sets forth legitimate management reasons for requiring
mobility—organizational effectiveness and employee career progression. IAF,
Tab 7, Subtab 4m at 29, 125, Subtab 4n at 27-28 and Attachment 5.
¶16 Finally, the appellant appears to claim that the removal is tainted by
harmful error in that the agency purportedly did not completely and accurately
document her most recent mobility assignment according to the letter of agency
policy. PFR File, Tab 1 at 11-12. On March 4, 2013, the appellant, who
throughout this appeal has been represented by counsel with extensive experience
before the Board, filed a written motion below to “withdraw [her] affirmative
defenses of harmful procedural error and violations of law.” IAF, Tab 12 at 4.
The administrative judge granted the motion in a March 5, 2013 order and stated
that the Board would not consider the appellant’s affirmative defenses. IAF, Tab
13. The administrative judge afforded the appellant 7 days in which to object to
his ruling. Id. The appellant did not file a timely objection, but subsequently,
during a March 19, 2013 prehearing conference, the appellant attempted to
reassert her affirmative defense of harmful error. IAF, Tab 18 at 2. The
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administrative judge denied the request. Id. Despite being afforded the
opportunity to object to the administrative judge’s rulings as set forth in the
Order and Summary of Telephonic Prehearing Conference, see id. at 3, the
appellant did not object to the administrative judge’s ruling denying her request
to reassert her affirmative defense. Her failure to timely object to the
administrative judge’s ruling precludes the appellant from raising arguments
regarding her affirmative defenses, which were not considered below, on review.
See McCarthy v. International Boundary and Water Commission, 116 M.S.P.R.
594, ¶ 25 (2011) (the appellant's failure to timely object to rulings during the
hearing precludes his doing so on petition for review), aff’d, 497 F. App’x 4 (Fed.
Cir. 2012), cert. denied, 134 S. Ct. 386 (2013); Tarpley v. U.S. Postal Service,
37 M.S.P.R. 579, 581 (1988) (the appellant’s failure to timely object to the
administrative judge’s rulings on witnesses precludes his doing so on petition for
review); see also Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271
(1980) (the Board generally will not consider an argument raised for the first time
in a petition for review absent a showing that it is based on new and material
evidence not previously available despite the party’s due diligence).
¶17 Accordingly, we find that the agency proved by preponderant evidence that
the appellant failed to fulfill a condition of employment when she refused to
accept a directed reassignment pursuant to a valid agency mobility policy. We
also find that a nexus exists between the sustained charge and the efficiency of
the federal service and discern no reason to disturb the administrative judge’s
conclusion that the penalty of removal is reasonable for the sustained charge.
ORDER
¶18 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R.
§ 1201.113(c)).
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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 United
States 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 court 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 as well as 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 your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
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Protection Board neither endorses the services provided by any attorney nor
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FOR THE BOARD:
______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.