In yet another precedent-setting ruling, the Merit Systems Protection Board has affirmed that the National Park Service must reinstate Mary A. Miller to her position as superintendent of Sitka National Historical Park in Alaska.
In issuing its order, the MSPB rejected a June 2013 "request for reconsideration" that had been filed by the Office of Personnel Management with written support of the NPS.
The unanimous ruling on December 6 (attached below) also directs the Park Service to award Superintendent Miller back-pay and benefits for the more than two-year interim period during which she was forced to challenge her removal. She is also eligible to apply for recovery of legal expenses incurred in her challenge.
Superintendent Miller's removal in August 2010 occurred after she refused a directed reassignment from her position as superintendent to a newly created "Alaska Native American Liaison" position 500 miles away in the NPS regional offices in Anchorage.
The superintendent protested the reassignment and subsequent removal, arguing that those actions were "'tainted by discrimination' based on her race, sex, and physical disability," and were also taken in "reprisal for protected equal employment opportunity activity." In making her case, Superintendent Miller also argued that the reassignment and subsequent removal failed to promote the efficiency of the NPS.
In its ruling, the MSPB agreed with the superintendent, noting that according to even her own supervisors, she had successfully performed her duties as superintendent and that "the agency had a high regard for the appellant’s performance as Superintendent in Sitka, and the agency’s actions caused it to lose an apparently valued and successful employee while creating two vacancies that the agency had to fill after her removal."
The Board added that, "(N)ot only did the agency fail to establish a rational basis for the geographic assignment, but also failed to show by preponderant evidence that the reassignment was properly ordered to bona fide management considerations in the interest of promoting the efficiency of the service."
"The Board [also] found that the appellant had submitted sufficient credible evidence to cast doubt on the agency's motivation in effecting her removal...," repeatedly noting that the NPS had "instead invoked its discretion to reassign the appellant as a 'veil' to effect her separation."
The Board concluded that it did not promote the efficiency of the Park Service to direct Superintendent Miller to take the position in Anchorage against her will and to remove her from employment altogether when she declined the position.
In Alaska, John Quinley, the Park Service's assistant regional director for communications, said the agency would respect the decision and is happy with Superintendent Miller back in Sitka.
"The last several months Mary has been working as superintendent in Sitka, leading the folks down there, an active participant in our regional superintendents' leadership council, and is a full performer," he said Tuesday.
When asked why the Park Service pursued the case so far, Mr. Quinley said it was Alaska Regional Director Sue Masica's belief that Superintendent Miller was the best person for the Native liaison job.
"The original decision was made in recognition that she had good performance capabilities there in Sitka and the belief that she was the best fit for the job and this was for the benefit of the Service," he said.
However, he was vague when asked why the Park Service was willing to lose a very capable and esteemed superintendent because she declined to be relocated to a new position 500 miles away from Sitka.
"That was the decision of the regional director, that this was the person we wanted in the job. And I think that that was felt at the time, and described in the brief, as a management prerogative in how we manage the Service," said Mr. Quinley.
The MSPB decision is precedent-setting for its departure "from its existing three-step analytical framework for deciding adverse actions based on a refusal to accept a directed reassignment, which involved establishment of a prima facie case and shifting burdens of production, in favor of a single efficiency of the service criterion.
"The Board held that it would weigh all of the evidence and make a finding on the ultimate issue of whether the action promotes the efficiency of the service, that the agency must establish by preponderant evidence that the reassignment was properly ordered due to bona fide management considerations in the interest of promoting the efficiency of the service and in accordance with agency discretion under 5 C.F.R. part 335."
The December 6 order is the latest ruling from the MSPB in a series of decisions stemming from Superintendent Miller's challenge to her removal. That ruling is final unless the OPM appeals the MSPB decision to the U.S. Court of Appeals for the Federal Circuit. Authority to file that appeal rests solely with the OPM director.
Superintendent Miller holds an Executive MBA degree from the University of Washington and is a licensed Professional Engineer. She was employed as an engineer and program manager with the U.S. Forest Service in Sitka for 15 years before receiving a competitive appointment to her position as superintendent of Sitka NHP in April of 2008. A native of Sitka, Superintendent Miller is an enrolled tribal citizen of the Sitka Tribe of Alaska.
Superintendent Miller was represented by the District of Columbia law firm of Passman and Kaplan, P.C.
Passman and Kaplan is the same employment and labor law firm that successfully represented a number of NPS rangers during the 1990s in their efforts to secure "6(c)" law enforcement retirement coverage for past NPS service.