DEBRA D’AGOSTINO, FOUNDING PARTNER OF THE FEDERAL PRACTICE GROUP, AUTHORS A COLUMN FOR FEDSMITH ON LATEST AT USDA
Posted By smay || 11-Sep-2019
Déjà vu for USDA?
Since June, when the USDA announced that it would be moving both the Economic Research Service (ERS) and the National Institute of Food and Agriculture (NIFA), its two research agencies, to Kansas City, the USDA has been sliding downhill in this uphill battle.
In August, the USDA’s own the inspector general concluded the Agency may have violated federal rules in funding the transfers without receiving the proper budgetary authority or issuing proper notice to Congress. Now, with two-thirds of the 400 affected staff saying that they would face termination from the agency rather than relocate, USDA extended the deadline for some employees to accept the reassignment to September 27th and cut the buyout amount for employees who declined the reassignment from $25,000 to $10,000, citing the unexpected volume of interested employees.
Under 5 USC 7106(a)(2), executive agencies like the USDA have the right to reassign employees to different locations and to fire them for refusal to accept a new assignment. Notably, the case where the U.S. Merit Systems Protection Board first established a burden of proof to address the potential abuses that can occur if an agency should use directed reassignments to procure an employee’s separation through retirement, resignation, or removal, Ketterer v. Department of Agriculture, 2 MSPR 294 (1980), involved the USDA’s decision in 1980 to reassign an employee to Kansas City, which was known then among USDA employees as a dumping ground for the employees the USDA wanted to get rid of but lacked a legitimate reason to do so through normal disciplinary processes.
In Kettler, the MSPB warned that “agency discretion to reassign may no more properly be invoked as a veil to effect an employee’s separation than may a reduction in force,” and held that USDA failed to show it had a bona fide reason for the decision to reassign the employee to Kansas City as it appeared designed to force the employee to resign.
Since that time, the U.S. Court of Appeals for the Federal Circuit refined the burden of proof in cases involving removal for failure to accept a geographical reassignment, which the Board set forth in Krawchuk v. VA, 94 MSPR 641, 645 ¶¶ 9–10 (2003).
The agency bears the initial burden of proving by preponderant evidence that its decision to reassign the employee was bona fide, and based upon legitimate management reasons. To meet that burden, the agency must show that (1) the reassignment was based upon a legitimate management reason, (2) the employee was given adequate notice of the reassignment, and (3) the employee refused to accept the reassignment. Once the agency shows that it met these criteria, the burden shifts to the employee to demonstrate that the reassignment had no solid or substantial basis in personnel practice or principle.
The USDA’s stated goals for the proposed relocation are to: (1) improve USDA’s ability to attract and retain highly qualified staff with interests in agriculture, (2) place certain USDA resources geographically closer to many of its stakeholders, and (3) benefit American taxpayers via savings on employment costs and rent, which would therefore help retain employees, even in light of tightening budgets.
The events that have unfolded since USDA announced the relocation show that it will likely struggle to meet its burden if a fired employee appeals to the Board. The relocation plan has driven away, not helped retain, highly qualified staff, and USDA has done little to nothing to evaluate the cost of the relocation or whether it will actually save taxpayers money.
Adding to the appearance that the USDA’s stated reasons are a pretext is the statement by Mick Mulvaney, the acting White House chief of staff, that “By simply saying to people, ‘You know what, we’re going to take you outside the bubble, outside the Beltway, outside this liberal haven of Washington, D.C., and move you out in the real part of the country,’ and they quit — what a wonderful way to sort of streamline government, and do what we haven’t been able to do for a long time.”
If the USDA is unable to show that the reassignments were based upon a legitimate management reason, its entire plan may come undone, as it did back in 1980, although this time the scale of its failure would be much greater.
Debra D’Agostino is a founding partner of the Federal Practice Group. She has nearly 20 years of experience in employment law and has represented federal employees in matters before the EEOC, MSPB, the U.S. Court of Appeals for the Federal and D.C. and 4th Circuits and the U.S. Court of Federal Claims.
© 2019 Debra D’Agostino. All rights reserved. This article may not be reproduced without express written consent from Debra D’Agostino.