Appealed from: Merit Systems Protection Board
Before Mayer, Chief Judge, Michel and Lourie, Circuit Judges.
The opinion of the court was delivered by: Michel, Circuit Judge.
In this appeal, Arturo Vidal challenges a decision by the Merit Systems Protection Board (the "Board") affirming as modified a decision by an Administrative Judge (the "AJ"). See Vidal v. United States Postal Serv., No. DC-0752-96-0310-I-1 (Opinion & Order June 4, 1997). The AJ upheld the decision by the United States Postal Service (the "agency") to remove Vidal for failure to satisfy job qualification requirements for an upgraded machine operator position to which he was reassigned. See Vidal v. United States Postal Serv., No. DC-0752-96-0310-I-1 (Initial Decision Mar. 19, 1996). Vidal argued that he should not have been removed but instead should have been returned to his prior part-time position operating a different machine for which he was qualified. We conclude that the Board applied an incorrect legal standard concerning whether Vidal's removal promoted the efficiency of the Postal Service. The Board considered efficiency in isolation and failed to apply the comparative analysis required by settled Board law. We hold, therefore, that the Board's decision to affirm Vidal's removal was an abuse of discretion as not in accordance with law. The appropriate legal test for considering removal actions in these circumstances had previously been settled by the Board, and the agency therefore had ample opportunity to present evidence to meet its burden of proof under this test; we note, however, that the Federal Circuit has never explicitly adopted the Board's test before today. Thus, we vacate the decision and remand this case to the Board for further fact-finding, based on the existing evidentiary record, in accordance with this opinion.
Vidal was hired by the agency in 1993 as a part-time flexible ("PTF") clerk, and was assigned to operate a flat sorting machine ("FSM"). *fn1 For two years, his performance operating that machine was satisfactory.
In 1995, a permanent position operating a different machine -- a multi-purpose letter sorting machine ("LSM") -- opened and was posted for bids in accordance with the agency's national collective bargaining agreement (the "national agreement"). The LSM is more difficult to operate than the FSM at the standard of accuracy required by the agency. No employees volunteered for the position; therefore, pursuant to the requirements of the national agreement, Vidal, the PTF clerk with the most seniority, was involuntarily reassigned to the permanent LSM position.
While Vidal received training on the LSM during a portion of each work day, he continued to work several hours each day on the FSM. To qualify for the LSM position, an employee must achieve a score of 98.0% accuracy on the LSM keyboard; Vidal's highest score during his training period was 96.0%. Because of his failure to meet the minimum qualifying score for his new position, Vidal received a Notice of Proposed Removal on September 27, 1995, charging him with unsatisfactory job performance. Pending removal, Vidal continued his training on the LSM keyboard, and improved his score to 97.3%, still below the minimum required score of 98.0%. Therefore, on October 12, the Plant Manager issued a decision to remove Vidal for his failure to attain the requisite score; the removal became effective on November 9, 1995.
Vidal appealed his removal to the Board. The AJ, in her initial decision, concluded that the agency had proved by a preponderance of the evidence that Vidal had failed to meet the qualification requirements for his reassignment. The AJ then noted that, although in general the efficiency of the service is not promoted by reassigning a skilled employee from a job he can perform to required standards into one which he cannot and then removing him, "legitimate management reasons" may allow such a removal action in some circumstances, citing Majors v. United States Postal Service, 3 M.S.P.R. 146, 149 (1980). See Vidal, slip op. at 3 (Initial Decision). The AJ then determined that, although the national agreement prevented the agency from disciplining or discharging an employee who volunteered for a new position and then failed to qualify for that position, the national agreement did not protect an employee such as Vidal, who was reassigned involuntarily to a new position. The AJ therefore concluded that Vidal's removal was proper.
The Board denied Vidal's petition to review the initial decision, but reopened the appeal on its own motion pursuant to 5 C.F.R. § 1201.117 (1997). The Board affirmed the decision upholding Vidal's removal, focusing in its opinion solely on the AJ's interpretation of the national agreement and concluding that it made no provision to protect PTF employees who are involuntarily reassigned to a permanent position for which they later fail to qualify. The Board also modified the AJ's decision with respect to Vidal's allegation of disability discrimination, concluding that Vidal had in fact properly raised the issue as an affirmative defense. The Board determined, however, that Vidal failed to prove the allegation because he introduced no evidence at all to suggest the agency knew of his visual impairment when it reassigned him. *fn2 Chairman Erdreich, however, filed a Dissenting opinion, noting in part that the agency had failed to present any evidence suggesting Vidal could not continue to serve in his original PTF position on the FSM after he had failed to qualify on the more difficult LSM.
Vidal filed a timely petition for review, challenging both the Board's interpretation of the national agreement and the Board's conclusion that his removal promoted the efficiency of the service. The petition was submitted for our decision following oral argument on March 4, 1998. We have jurisdiction over this petition under 28 U.S.C. § 1295(a)(9) (1994). *fn3
Our review of Board decisions is strictly limited by statute; we may not reverse a Board decision unless it is arbitrary and capricious, an abuse of discretion, unsupported by substantial evidence, or otherwise not in accordance with law. See 5 U.S.C. § 7703 (1994); Wright v. Department of Transp., 900 F.2d 1541, 1544 (Fed. Cir. 1990). We conclude, however, that the decision to sustain the agency's removal here cannot withstand our review. The removal was upheld because the Board agreed it promoted the efficiency of the service, but the Board's analysis was not in accordance with law because it failed to consider whether it was more efficient to remove Vidal than to retain him in his prior position.
I. The National Collective Bargaining Agreement
At the outset, we examine the terms of the national agreement to determine whether, as Vidal contends, it mandates his retention by protecting him from discipline or dismissal for his failure to qualify for the LSM position. Article 37, section 5, paragraph A(4) establishes that "[p]art-time flexible employees who have exercised a preference [for a vacancy in a permanent position] and fail to qualify shall not be discharged or disciplined as a result of such failure." The agency relies on this provision, arguing that because this protection accrues only to employees who volunteer for a new position, employees who are reassigned involuntarily by operation of the national agreement are by omission not protected from ...