                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     DENNIS R. MCVEY,                                DOCKET NUMBER
                   Appellant,                        AT-0752-14-0683-I-1

                  v.

     DEPARTMENT OF THE ARMY,                         DATE: April 8, 2016
                 Agency.



                  THIS ORDER IS NONPRECEDENTIAL 1

           Dennis R. McVey, Powell, Tennessee, pro se.

           Eric J. Teegarden, Esquire, Fort McCoy, Wisconsin, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                     REMAND ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     affirmed his removal for failure to accept a management-directed reassignment.
     For the reasons discussed below, we GRANT the appellant’s petition for review,
     VACATE the initial decision, and REMAND the case to the regional office for
     further adjudication in accordance with this Order.

     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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

                                      BACKGROUND
¶2        The appellant was a GS-6 Family Readiness Support Assistant (FRSA) with
     the 844th Engineer Battalion, U.S. Army Reserve, stationed in Knoxville,
     Tennessee. Initial Appeal File (IAF), Tab 4 at 14. In November 2013, the Army
     Reserve Command (ARC) determined that, pursuant to a 2009 order from agency
     headquarters, FRSA positions would be redistributed such that the positons would
     “be aligned with battalion level or higher organizations” supporting 1,200 or
     more soldiers across certain geographical regions. 2       IAF, Tab 8 at 7.      The
     appellant was assigned to a unit with fewer than 1,200 soldiers, and accordingly,
     on November 21, 2013, the agency notified him that his position would be
     abolished pursuant to the redistribution, and directed his reassignment to an
     FRSA position of like grade and pay with the 391st Engineer Battalion, stationed
     in Greenville, South Carolina. IAF, Tab 4 at 50; Petition for Review (PFR) File,
     Tab 7 at 16.   The appellant refused the reassignment, IAF, Tab 4 at 47, and
     subsequently, the agency removed him, effective April 5, 2014, for failure to
     accept a management-directed reassignment, id. at 14, 16-17.
¶3        The appellant filed a timely Board appeal challenging his removal and
     raising affirmative defenses of discrimination based on race (Caucasian) and sex
     (male). IAF, Tab 1, Tab 6 at 5-6, Tab 9 at 3-4. Because the appellant did not
     request a hearing, IAF, Tab 1 at 1, the administrative judge decided the appeal
     based on the written record, IAF, Tab 10, Initial Decision (ID) at 1-2. He issued
     an initial decision affirming the appellant’s removal, finding that the agency met
     its burden of proving the charge and that the penalty of removal was reasonable.
     ID at 2-6.   The administrative judge further found that the appellant failed to
     prove his affirmative defenses of discrimination. ID at 6-8.

     2
       The 2009 order issued by agency headquarters required the ARC to assign one FRSA
     per 1,500 to 2,000 soldiers in each Operational and Functional Command. IAF, Tab 4
     at 57. However, the November 2013 memorandum from the ARC explained that it
     would instead utilize a 1,200 or more soldier ratio due to “geographic dispersion and
     operational tempo.” IAF, Tab 8 at 7.
                                                                                        3

¶4         The appellant has filed a petition for review of the initial decision, and the
     agency has responded to the petition for review.        PFR File, Tabs 1, 3.     On
     October 2, 2015, the Board issued a show cause order directing the agency to
     submit additional evidence and argument regarding several issues related to the
     appellant’s assertions below and on review. PFR File, Tab 4 at 4-5. The Board
     afforded the appellant an opportunity to respond to the agency’s submissions. Id.
     at 5. Both parties timely responded to the show cause order. PFR File, Tabs 7-8.

                      DISCUSSION OF ARGUMENTS ON REVIEW
     We remand the appeal for the administrative judge to reconsider the appellant’s
     affirmative defenses of discrimination based on race and sex.
¶5         We grant the appellant’s petition for review for the purpose of addressing
     his arguments that the administrative judge erred in finding that he failed to prove
     his affirmative defenses of discrimination based on race and sex. PFR File, Tab 1
     at 1-4, Tab 8 at 6, 8-12.
¶6         Below, the appellant identified three alleged comparator FRSAs, P.T., J.C.,
     and D.M., whom he claimed were similarly situated but were not reassigned.
     IAF, Tab 6 at 6, Tab 9 at 3-4. The initial decision indicates that the appellant
     alleged that P.T. was an African-American male. ID at 7. The record does not
     contain any information regarding J.C.’s or D.M.’s race, but both of these alleged
     comparator FRSAs are female. 3 IAF, Tab 6 at 6. The administrative judge found
     that the appellant failed to prove his affirmative defenses of discrimination
     because, even assuming that the alleged comparator FRSAs were similarly
     situated, the agency’s decision not to reassign them because they supported more
     than 1,200 troops was nondiscriminatory. ID at 7-8.
¶7         The appellant’s primary argument on review is that the administrative judge
     erred in finding that the alleged comparator FRSAs supported more than 1,200


     3
      On review, the appellant asserts that one of the alleged female comparator FRSAs was
     Caucasian, and the other was Hispanic. Petition for Review (PFR) File, Tab 1 at 4.
                                                                                     4

     troops. PFR File, Tab 1 at 1-4, Tab 8 at 6, 8-12. The sole evidence in the record
     below regarding this issue is a September 4, 2014 email from a Management
     Analyst, submitted by the agency, which was created in response to the
     appellant’s Board appeal, and stated that the comparator FRSAs were assigned to
     units with more than 1,200 soldiers. IAF, Tab 8 at 11. In response, the appellant
     raised arguments disputing the accuracy of that assertion. IAF, Tab 9 at 3. The
     agency did not respond to those arguments, and the administrative judge did not
     address them in the initial decision. See ID.
¶8        In addition, in analyzing the appellant’s discrimination claims, the
     administrative judge referenced the burden-shifting analysis of McDonnell
     Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). See ID at 7-8. After the
     initial decision was issued, the Board issued its decision in Savage v. Department
     of the Army, 122 M.S.P.R. 612, ¶¶ 42-43, 46, 51 (2015), which clarified the
     evidentiary standards and burdens of proof under which the Board analyzes
     discrimination claims.    In Savage, the Board held that the burden-shifting
     framework in McDonnell Douglas has no application to Board proceedings.
     Savage, 122 M.S.P.R. 612, ¶ 46. Rather, the Board in Savage reaffirmed that it
     will adhere to the test set forth in Mt. Healthy City School District Board of
     Education v. Doyle, 429 U.S. 274, 287 (1977), in cases involving discrimination
     or retaliation allegations under 42 U.S.C. § 2000e–16.     Savage, 122 M.S.P.R.
     612, ¶ 50.     Thus, where an appellant asserts an affirmative defense of
     discrimination, the Board first will inquire whether the appellant has shown by
     preponderant evidence that the prohibited consideration was a motivating factor
     in the contested personnel action. Id., ¶ 51. An appellant may make this initial
     showing using direct evidence or any of three types of circumstantial evidence: a
     convincing mosaic of evidence from which a discriminatory intent may be
     inferred; evidence of disparate treatment of similarly situated comparators; or
     evidence that the agency’s stated reason is not worthy of credence but rather a
     pretext for discrimination.   Id., ¶¶ 42–43 (quoting Troupe v. May Department
                                                                                           5

      Stores Co., 20 F.3d 734, 736-37 (7th Cir. 1994)).         If the appellant meets that
      burden, the Board then will inquire whether the agency has shown by
      preponderant evidence that the action was not based on the prohibited personnel
      practice, i.e., that it still would have taken the contested action in the absence of
      the discriminatory motive, and, if the Board finds that the agency has made that
      showing, its violation of 42 U.S.C. § 2000e–16 will not require reversal of the
      action. Savage, 122 M.S.P.R. 612, ¶ 51.
¶9          Because Savage was issued after the initial decision in this case, the
      administrative judge’s instructions to the appellant regarding proof of his
      affirmative defenses of discrimination did not provide the appellant with notice of
      the correct standards.        IAF, Tab 6 at 6–7; see Milner v. Department of
      Justice, 77 M.S.P.R. 37, 46 (1997) (finding that an appellant did not receive a fair
      and just adjudication of an affirmative defense where there was no indication the
      administrative judge apprised him of the applicable burdens of proof or of the
      types of evidence required to meet his burden). For example, the administrative
      judge advised the appellant that his proof could consist of elements of his
      prima facie case under the burden-shifting framework applicable to motions for
      summary judgment; however, the prima facie case has no application to the
      Board’s   adjudication   of    discrimination   claims.      IAF,   Tab 6   at 6;   see
      Savage, 122 M.S.P.R. 612, ¶ 46 (holding that the summary judgment standards
      for title VII cases do not apply to Board appeals).
¶10         For these reasons, we vacate the administrative judge’s finding that the
      appellant failed to prove his affirmative defenses, and remand the case to the
      regional office for the administrative judge to reconsider this issue. On remand,
      the administrative judge should instruct the parties of the standards of proof
      applicable to an affirmative defense of discrimination pursuant to Savage,
      consider the appellant’s arguments below and on review and the evidence that the
      parties submitted in response to the Board’s show cause order, and afford the
                                                                                       6

      parties an opportunity to submit additional evidence and argument on the issue of
      the appellant’s affirmative defenses.
      We vacate the administrative judge’s findings that the agency proved the charge,
      nexus, and the reasonableness of the penalty.
¶11        We turn next to the issue of whether the administrative judge’s findings that
      the agency proved the charge, nexus, and penalty can be sustained at this time in
      light of the fact that his findings regarding the appellant’s affirmative defenses
      have been vacated.

            In analyzing the appellant’s removal based on his failure to accept a
            management-directed reassignment, the Board must apply the pertinent
            burden-shifting methodology.
¶12        As an initial matter, in finding that the agency met its burden of proving the
      charge, the administrative judge applied the methodology in the Board’s decision
      in Miller v. Department of the Interior, 119 M.S.P.R. 438, ¶ 7 (Miller I), aff’d as
      modified, 120 M.S.P.R. 426 (2013) (Miller II), rev’d sub nom., Cobert v.
      Miller, 800 F.3d 1340 (Fed. Cir. 2015). ID at 3-6. In Miller I, the Board rejected
      the prior burden-shifting methodology for analyzing removal actions based on an
      employee’s failure to accept a management-directed reassignment set forth in
      Ketterer v. Department of Agriculture, 2 M.S.P.R. 294, 298-99 (1980).
      Miller I, 119 M.S.P.R. 438, ¶ 7. Instead, the Board held that it would simply
      weigh all of the evidence and make a finding on the ultimate issue of whether the
      agency proved by a preponderance of the evidence that the misconduct occurred
      and that its removal action promoted the efficiency of the service.             Id.
      Subsequently, in Miller II, the Board affirmed Miller I as modified to clarify that
      an agency did not need to prove that a geographic reassignment was “necessary.”
      See Miller II, 120 M.S.P.R. 426, ¶ 12.
¶13        After the initial decision in the present appeal was issued, the U.S. Court of
      Appeals for the Federal Circuit issued its decision in Cobert v. Miller, 800 F.3d
      1340, which reversed the Board’s decision in Miller II. The Federal Circuit held
      that the Board’s prior burden-shifting analytical framework in Ketterer,
                                                                                       7

      2 M.S.P.R. at 294, had been adopted by the court in Frey v. Department of
      Labor, 359 F.3d 1355, 1360 (Fed. Cir. 2004), and was the law of the circuit.
      Cobert, 800 F.3d at 1349. However, although the administrative judge did not
      apply the analytical framework in Ketterer in the initial decision in the instant
      appeal, the parties were provided with notice of the burden-shifting methodology
      in Ketterer during the prehearing conference, IAF, Tab 6 at 5, and the
      administrative judge did not notify them that he would apply the Board’s revised
      methodology in Miller I prior to the issuance of the initial decision, ID at 3.
      Therefore, we find that the parties were apprised of the analytical framework that
      the Board will apply on review.       See Burgess v. Merit Systems Protection
      Board, 758 F.2d 641, 643-44 (Fed. Cir. 1985) (finding that an appellant must
      receive explicit information on what is required to establish an appealable
      jurisdictional issue).
¶14         Under the burden-shifting framework 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.

            The agency established a prima facie case supporting the validity of the
            appellant’s reassignment.
¶15         Here, we find that the agency established a prima facie case supporting the
      validity of the appellant’s reassignment. It is undisputed that the appellant had
      adequate notice of the decision to transfer and refused to accept the reassignment.
                                                                                              8

      IAF, Tab 4 at 47, 50. We further find that the agency met its initial burden of
      showing that its decision to reassign the appellant was based on legitimate
      management considerations in the interest of the service.
¶16         The agency abolished the appellant’s position as part of an agency-wide
      redistribution of FRSA positions, which was conducted because the agency
      determined that the transformation of the ARC had resulted in a misalignment of
      FRSA positions. IAF, Tab 4 at 50, 57, Tab 8 at 7. The ARC Family Programs
      Directorate determined that, pursuant to the redistribution, it would abolish a total
      of 22 existing FRSA positions aligned with smaller units and numbers of soldiers,
      including the appellant’s position, and create new positions that better aligned
      with the intent of the 2009 order from agency headquarters. 4 PFR File, Tab 7
      at 13. We agree with the administrative judge that the agency’s plan to relocate
      FRSAs aligned with small numbers of soldiers to positions aligned with units
      with larger troop concentrations was a bona fide management consideration in the
      interest of promoting the efficiency of the service. ID at 5; see Cooke v. U.S.
      Postal Service, 67 M.S.P.R. 401, 406 (finding that an agency’s nationwide
      restructuring   was    a   legitimate    reason   for   effectuating    an    appellant’s
      reassignment), aff’d, 73 F.3d 380 (Fed. Cir. 1995) (Table).
¶17         The agency also met its initial burden of demonstrating a legitimate
      management reason for selecting the appellant’s particular position as one to be
      abolished pursuant to the redistribution. The appellant’s position was assigned to
      the 844th Battalion, which had an authorized strength of only 778 soldiers, 5 and



      4
        According to the agency, although 22 FRSA positions were abolished pursuant to the
      redistribution, PFR File, Tab 7 at 13, a total of 43 FRSA positions were affected, 19 of
      which were vacant, id. at 6, 27-28.
      5
        In the initial decision, the administrative judge erroneously stated that the 844th
      Battalion had 788 soldiers, as opposed to 778. ID at 4. However, this error was not
      prejudicial to the appellant’s substantive rights, because, regardless of whether the unit
      had 778 or 788 soldiers, the 844th Battalion had considerably fewer than 1,200 soldiers.
      See Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984) (finding that
                                                                                             9

      did not satisfy the 1,200 or more soldier criteria in the November 2013 ARC
      memorandum, or the even higher ratio of soldiers per FRSA in the 2009 order
      from agency headquarters. IAF, Tab 4 at 14, 57, Tab 8 at 7, 11; PFR File, Tab 7
      at 16.
¶18            On review, as he did below, the appellant argues that his position should not
      have been abolished because, although he was assigned to the 844th Battalion, he
      actually supported a total of more than 1,200 soldiers across three battalions.
      IAF, Tab 9 at 4; PFR File, Tab 1 at 4, Tab 8 at 7. Specifically, he contends that,
      in addition to the 844th Battalion, he provided support to the 478th Battalion,
      headquartered in Fort Thomas, Kentucky, and the 391st Battalion, headquartered
      in Greenville, South Carolina. PFR File, Tab 1 at 4, Tab 8 at 6-7. However, in
      response to the Board’s show cause order, the agency submitted evidence, in the
      form of an affidavit from a Human Resources Specialist for the 412th
      Engineering Command, which stated that the appellant was a resource of the
      844th Battalion, and supported the 478th and 391st Battalions as “a convenience”
      to those battalions. 6 PFR File, Tab 7 at 16. The Human Resources Specialist
      further averred that, because the appellant was a resource of the 844th Battalion,
      the Commander of that battalion could have withheld the appellant’s support from
      the other battalions. 7     Id.   Thus, although the appellant may have provided
      support to a total of more than 1,200 soldiers across three battalions, his position

      an adjudicatory error that is not prejudicial to a party’s substantive rights provides no
      basis for reversal of an initial decision).
      6
        The Human Resources Specialist characterized the support that the appellant provided
      to these other battalions as “dotted line support,” but did not further explain that
      concept. PFR File, Tab 7 at 16.
      7
        This assertion is supported by evidence that the appellant submitted in response to the
      show cause order. PFR File, Tab 8 at 17. In a February 23, 2014 letter to Senator
      Lamar Alexander, sent in response to an inquiry regarding the appellant’s reassignment,
      the Director of Army Reserve Family Programs explained that “[t]he Battalion does not
      have command and control or the authority to direct work across Battalions; however,
      positions assigned at the Brigade level have the authority to support the workload of all
      reporting subordinate elements.” Id.
                                                                                            10

      was actually assigned to a single battalion with fewer than 1,200 soldiers, and
      accordingly, the abolishment of that position was consistent with both the
      November 2013       ARC        memorandum       and     the    2009      order      from
      agency headquarters. 8

            The issue of whether the appellant produced rebuttal evidence
            demonstrating that his reassignment had no solid or substantial basis in
            personnel practice must be remanded for further adjudication.
¶19         Having found that the agency proved its prima facie case, we proceed to the
      issue of whether the appellant produced rebuttal evidence demonstrating that his
      reassignment had no solid or substantial basis in personnel practice or principle.
      See Frey, 359 F.3d at 1360; Umshler, 44 M.S.P.R. at 630.              On review, the
      appellant notes that the Command Executive Officer of the 412th Engineer
      Command recommended that his reassignment be rescinded.               PFR File, Tab 8
      at 11. The Command Executive Officer asserted that the appellant could support
      the 391st Battalion from Knoxville without the relocation and moving expenses
      associated with     a    directed   reassignment, and argued      that   the     directed
      reassignment would potentially result in the loss of a valued employee. Id. at 32;
      IAF, Tab 4 at 37.       We agree with the administrative judge that it is not the
      Board’s role to weigh the relative merits of the agency’s policy decision to
      redistribute its FRSA positions such that the positions would be aligned with
      units with larger troop concentrations.      ID at 4-5; see Frey, 359 F.3d at 1358
      (finding that, once it is established that a reassignment was properly ordered in an
      exercise of agency discretion, the Board will not review the management

      8
        We have considered the appellant’s argument on review that the Supervisory Staff
      Administrator for the 926th Engineer Brigade ordered him to support the 478th and
      391st Battalions from his position with the 844th Battalion, and could have ordered him
      to continue to do so. PFR File, Tab 8 at 7. We find this argument unpersuasive. Even
      assuming that the Supervisory Staff Administrator could have ordered the appellant to
      continue supporting these other battalions, the agency was not required to hope that he
      would exercise his discretion to do so, but instead could exercise its discretion to
      require that FRSAs be aligned with “battalion level or higher organizations” supporting
      larger numbers of troops.
                                                                                          11

      considerations underlying that exercise of discretion); Ketterer, 2 M.S.P.R. at 299
      n.8 (same). Similarly, we find that it is not the Board’s role to review the merits
      of the agency’s policy decision to require that FRSAs be assigned to locations
      where the units with larger troop concentrations were headquartered.
¶20         However, although the Board will not review the merits of the agency’s
      broader policy decision to redistribute FRSA positions, here, the appellant has
      alleged that his particular reassignment was the result of discrimination based on
      race and sex. IAF, Tab 6 at 5-6, Tab 9 at 3-4. The appellant’s discrimination
      claims, if proven, relate to the issue of whether he demonstrated that his
      reassignment had no solid or substantial basis in personnel practice or principle.
      See Umshler, 44 M.S.P.R. at 634 (vacating an initial decision sustaining an
      appellant’s removal for failure to accept a management-directed reassignment,
      where, among other things, the administrative judge failed to address the
      appellant’s assertions that his reassignment constituted a prohibited personnel
      practice).   Accordingly, because we are remanding the appellant’s affirmative
      defenses of discrimination for further adjudication, we vacate the administrative
      judge’s findings regarding the charge, nexus, and penalty. 9            See Viana v.
      Department of the Treasury, 114 M.S.P.R. 659, ¶¶ 1, 8 (2010) (vacating an
      administrative judge’s findings that an agency proved the charge, nexus, and
      penalty where the appeal was remanded for further adjudication of the appellant’s
      affirmative defense of discrimination).
¶21         On remand, the administrative judge shall issue a new initial decision that
      addresses the appellant’s affirmative defenses and their effect on the outcome of

      9
        Although the administrative judge did not make a separate finding explicitly stating
      that the agency proved a nexus to the efficiency of the service, such a finding was
      implicit in his discussion of the charge and the penalty. ID at 3, 5-7; see Ketterer,
      2 M.S.P.R. at 298 (finding that, in a removal for cause following a refusal to accept a
      management-directed reassignment, proof that the removal will promote the efficiency
      of the service includes proof that the agency’s decision to reassign the employee was a
      bona fide determination based on legitimate management considerations in the interests
      of the service).
                                                                                        12

      the appeal, giving appropriate consideration to the evidence submitted in response
      to the Board’s show cause order, and any additional relevant evidence developed
      on remand. In addition, the administrative judge shall address the appellant’s
      argument, which was raised below but not addressed in the initial decision, that
      his reassignment had no solid or substantial basis in personnel practice or
      principle because the unit to which he was reassigned had fewer than 1,200
      soldiers assigned to the unit. IAF, Tab 9 at 4; ID; see PFR File, Tab 8 at 7, 10.
      In the new initial decision, if the appellant fails to prove his affirmative defenses
      of discrimination, the administrative judge may adopt his original findings
      regarding the charge, nexus, and penalty, if he finds that they are supported by
      the additional evidence and argument considered on remand, and the Federal
      Circuit’s decision in Cobert v. Miller, 800 F.3d 1340.

                                            ORDER
¶22         For the reasons discussed above, we remand this case to the regional office
      for further adjudication in accordance with this Remand Order.




      FOR THE BOARD:                            ______________________________
                                                William D. Spencer
                                                Clerk of the Board
      Washington, D.C.
