                           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             THIS FINAL ORDER IS NONPRECEDENTIAL 1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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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.
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     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).
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     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
                                                                                  7

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.
