UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

LEONARD ANTHONY 

SZYMBORSKI,

Appellant,

v.

DEPARTMENT OF THE ARMY,

Agency.

DOCKET NUMBER

DC-0752-15-0763-I-1

DATE: November 23, 2016

THIS FINAL ORDER IS NONPRECEDENTIAL1

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1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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,2the 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.
3

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).
4

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 court 

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:

Washington, D.C.

______________________________

Jennifer Everling

Acting Clerk of the Board