According to recent press reports, agencies are preparing to issue management-directed reassignments to federal employees previously working remotely. In light of this move, as well as possible plans from the Administration to relocate federal offices outside of the Washington, DC area, a review of management directed reassignments and their ramifications is timely.
Federal agencies have the ability to involuntarily reassign employees. The employee is supposed to be given notice of the upcoming reassignment, and given the option to accept or reject the reassignment. If the employee rejects the reassignment, the agency can discipline the employee up to and including removal from federal service. While only some executive branch employees have so-called “mobility agreements” concerning reassignments, the agency can potentially impose a management-directed reassignment even without a mobility agreement; the existence of the mobility agreement merely affects what disciplinary charges the agency than then use against the employee. See Gallegos v. Dept. of the Air Force, 121 M.S.P.R. 349 (2014). Senior executive service employees fall under different rules for management directed reassignments, but still risk removal if they reject a reassignment. See 5 U.S.C. § 7543; 5 C.F.R. § 752.603.
An employee who accepts a management directed reassignment outside of their commuting area may be entitled to receive government financial benefits in support of their move, as provided under provisions of the Federal Travel Regulations. These benefits do not apply if the reassignment is within the employee’s commuting area.
Employees removed for refusing to accept a management directed reassignment who have appeal rights to the Merit Systems Protection Board (MSPB) can appeal the removal there. Under relevant precedent, a two-step analysis is used. The Agency must first prove by preponderance of the evidence that the decision to reassign was based on legitimate management considerations; the burden then shifts to the employee to provide rebuttal evidence to show that the reassignment had no solid or substantial basis in personnel practice or principle. See, e.g., Cobert v. Miller, 800 F.3d 1340 (Fed. Cir. 2015); Frey v. Dept. of Agriculture, 359 F.3d 1355 (Fed. Cir. 2004); Ketterer v. Department of Agriculture, 2 M.S.P.R. 294 (1980). If the facts of a management directed reassignment indicate that the employee was targeted for the reassignment based on an illegal motive (such as discrimination under the EEO statutes, EEO reprisal or whistleblower reprisal), the employee can also raise those claims in the MSPB appeal as affirmative defenses.
Alternatively, consistent with the “obey first, grieve later” principle, an employee may potentially accept the management directed reassignment under protest, then challenge the action later through other complaint processes (such as an EEO complaint or a whistleblower reprisal claim). Employees may also potentially request reasonable accommodations at their post-reassignment position if medically warranted (including if appropriate requesting the reasonable accommodation of telework in the new position), and then litigate an EEO complaint for denial of reasonable accommodation if the reasonable accommodation request is improperly denied.
Finally, an employee whose removal has been effectuated for rejecting a management directed reassignment outside their commuting area who is eligible for CSRS discontinued service retirement or FERS early retirement (which is sometimes also colloquially referred to as discontinued service retirement) may then retire without reduction in their annuity for retiring before reaching age 62. The minimum eligibility requirements are the same: 20 years of creditable civilian service and being over age 50, or retiring at any age with over 25 years of creditable civilian service. Please note that this only applies if the rejected management directed reassignment is to a position outside the employee’s commuting area, that generally the final removal must have occurred first (as opposed to resigning prior to the effective date of the removal), and that the removal must be for charges relating to rejecting the management directed reassignment.
If you are an employee facing a management directed reassignment and wish to discuss your rights or seek legal advice regarding your situation, consider contacting Gilbert Employment Law to request an initial consultation.