Appeal from the Merit Systems Protection Board; Docket Nos. DE07528910284-1, DE34439010201.
Newman, Circuit Judge, Skelton, Senior Circuit Judge, and Lourie, Circuit Judge.
Dennis B. Umshler (petitioner) appeals from the August 9, 1990, decision of the Merit Systems Protection Board (the board), Docket No. DE07528910284-1 (our case no. 91-3028), dismissing without prejudice his appeal from the action of the Department of the Interior (the agency) in removing him from his position of Supervisory Geologist GM-13, and from the March 28, 1990, decision of the board, Docket No. DE34439010201 (our case no. 90-3517), dismissing for lack of jurisdiction his appeal from the action of the agency in failing to select him for one of two vacant positions in the district office of the agency in Albuquerque, New Mexico. The two cases have been consolidated in this appeal. We affirm the board's decision of March 28, 1990, in case no. 90-3517, and modify its decision of August 9, 1990, in case no. 91-3028, and remand the case for further proceedings.
The facts in case no. 91-3028 show that petitioner was reassigned from his position of Chief, Branch of Solid Minerals, GM-13, Albuquerque District, Division of Mineral Resources, Albuquerque, New Mexico, to the position of Chief, Branch of Mineral Resources, Albuquerque District, Farmington Resources Area, Farmington, New Mexico, effective April 9, 1989, with the same grade and pay. This reassignment was caused by a reorganization of the District Office in Albuquerque which affected 50 people and which abolished petitioner's office as well as the office of another GM-13 employee. Another reason for the transfer, according to the agency, was that there was a vacancy in the Farmington office which petitioner was well qualified to fill. The petitioner refused to accept the reassignment, giving as his reasons the facts that his home was in Albuquerque, and his wife, a GS-13 employee, worked there for the government, and a transfer to Farmington would require him to travel two or three hours each way every day. When petitioner declined to accept the transfer to Farmington, the agency removed him from his office because of his failure to accept the directed reassignment. The petitioner appealed his removal to the board.
The board assigned petitioner's appeal to an administrative judge, who conducted a trial. At the trial, petitioner asserted a number of defenses to his removal, including the following. He alleged that his supervisor was better qualified to fill the Farmington position than he was; that the agency reassigned him to force him to resign because it knew petitioner would not accept the reassignment because of his wife's employment in Albuquerque; that the agency should have declared a reduction in force (RIF), and did not do so solely to deprive petitioner and others of retention rights; that his reassignment was a reprisal against him for previously appealing his performance rating and for his objecting to a proposed State Wilderness Plan, which were legally protected acts; that the agency discriminated against him because of his male sex and that there was overt discrimination in the form of disparate treatment and disparate impact; and that the agency failed to consider the fact that he had an ulcer and that this was handicap discrimination. The AJ held that petitioner had failed to prove these claims and defenses by a preponderance of the evidence.
Finally, petitioner alleged that the agency has a "pattern or practice" of reassigning an unwanted employee to a location where the agency knows the employee would not go in order to cause the employee to resign and that this practice was used in reassigning the petitioner to force him to resign. He offered to prove this practice by two witnesses, Mike Reitz and Richard Niemeyer, both of whom were former employees who had been reassigned by the agency. The AJ refused to allow Reitz to testify on the ground that his testimony was not relevant. He denied petitioner's request for Mr. Niemeyer to testify because he had been reassigned more than three years before the present case and it was unlikely that he had any knowledge of the agency's current practices. Petitioner offered an affidavit of Niemeyer which was filed in the record as a part of petitioner's objection to the agency's rebuttal evidence.
The AJ found that the agency had a legitimate management reason for petitioner's reassignment without using RIF procedures, and that it promoted the efficiency of the service. He affirmed the agency's action.
The petitioner then appealed to the full board. Upon review, the board held on April 16, 1990, that it was error for the AJ to refuse to let witnesses Reitz and Niemeyer testify. It held further that the AJ had not made sufficient findings on all material issues of fact and law, and had not summarized the evidence, resolved issues of credibility, stated her conclusions of law, legal reasoning and the authorities on which that reasoning rests. The board remanded the case to the AJ with instructions to reconvene the hearing to accept the testimony of Mr. Reitz and, if necessary, that of Mr. Niemeyer, and to issue a new initial decision which includes findings on all material issues raised by petitioner, and a finding as to whether petitioner had rebutted the agency's prima facie case.
Upon remand, the AJ set the case for a hearing on July 10, 1990, and the petitioner appeared and informed the AJ that Mr. Reitz had taken a boat to Alaska and might not return for a year. He stated further that he would be prejudiced without the testimony of both Reitz and Niemeyer. Acting for the board, the AJ then dismissed the appeal without prejudice on August 9, 1990, to allow petitioner to find and present both witnesses. The AJ ordered petitioner to file a request to reinstate the appeal, together with a request for a hearing, not later than 30 days from the date Mr. Reitz becomes available as a witness and/or not later than June 30, 1991. He ordered the parties to preserve the testimony of Mr. Niemeyer in the event he is unavailable upon the refiling of the appeal.
Petitioner filed an appeal to this court on October 15, 1990, without having filed with the AJ a request to reinstate the appeal or a request for a hearing.
During oral argument of the appeal before us, in response to questions from the bench, petitioner's attorney stated that Mr. Reitz was now available to testify, and that she was willing to move before us that the petitioner's appeal to the board be reinstated and that the case be remanded for a new trial to be held by a different AJ. We conclude that the motion for reinstatement of the appeal, remand and a new trial should be granted, but we decline the request to designate the AJ who will conduct the trial, as that is a function of the board.
Accordingly, we modify the August 9, 1990, decision of the board by eliminating the dismissal without prejudice provision and the provisions relating to requests for reinstatement of the appeal and for a hearing, and remand the case to the board for a new trial in accordance with the board's remand order of April 16, 1990.
Petitioner's claims and defenses are not before us, because they have not been finally adjudicated by the board. Consequently, ...