Browne v. Merit Systems Protection Board ( 2015 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ROSETTA R. BROWNE,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2015-3136
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-0752-13-7373-I-1.
______________________
Decided: December 21, 2015
______________________
ROSETTA R. BROWNE, Buford, GA, pro se.
STEPHEN FUNG, Office of the General Counsel, Merit
Systems Protection Board, Washington, DC, for respond-
ent. Also represented by BRYAN G. POLISUK.
______________________
Before NEWMAN, PLAGER, and REYNA, Circuit Judges.
2 BROWNE v. MSPB
NEWMAN, Circuit Judge.
Rosetta Browne asks this court to reverse the Merit
Systems Protection Board’s dismissal of the appeal of her
alleged involuntary retirement. 1 Having considered the
arguments and the trial proceedings, and particularly the
issues of credibility raised by Ms. Browne, we affirm the
Board’s decision.
BACKGROUND
Ms. Browne was employed as a Supervisory Associate
Advocate in Taxpayer Advocate Services within the
Internal Revenue Service. In January 2011 workplace
issues arose between Ms. Browne and her secretary
Denise McGrain, and each made multiple complaints to
management. These issues escalated, culminating in an
altercation wherein Ms. McGrain allegedly threw a 3-ring
binder at Ms. Browne. Ms. Browne reported the incident
to the Treasury Inspector General for Tax Administration.
Ms. Browne describes various actions by her first-level
and second-level supervisors, and states that she contin-
ued to experience a hostile work environment, causing her
to retire, effective January 3, 2013.
Ms. Browne filed an appeal with the MSPB, stating
that her retirement was involuntary and therefore a
constructive removal. Her allegations included that her
supervisors and an EEO director suggested that she
resign; that her telework was forced; that her alternative
detail was comprised of light clerical work lacking sub-
stance; that she overheard her supervisor laughing in a
derisive fashion when speaking about her behind closed
doors; that she was not given any “collegiality or courtesy”
1 Browne v. Dep’t of the Treasury, MSPB Docket
No. AT-0752-13-7373-I-1 (Initial Decision, August 10,
2014; Final Order, March 4, 2015).
BROWNE v. MSPB 3
during her detail; and that she was informed she was to
be permanently reassigned to an analyst position.
The AJ conducted a hearing, at which Ms. Browne
testified and the Agency presented witnesses. The AJ
found that, even if Ms. Browne’s allegations were all true,
they did not establish by a preponderance of the evidence
that the Agency’s actions made working conditions so
unpleasant that a reasonable person in her position would
have felt compelled to retire or resign. Applying the
standards established by precedent, the AJ found that
Ms. Browne’s retirement was voluntary.
Ms. Browne filed a petition for review with the Board,
stating that the AJ made incorrect findings of fact and
drew incorrect conclusions of law based on those findings.
Ms. Browne stated that the AJ improperly rejected some
of Browne’s requested witnesses, and that the AJ had
failed to consider her mental condition, allegations of
discrimination, and allegations of whistleblower reprisal.
The full Board affirmed the AJ’s findings, and adopt-
ed the AJ’s decision. The Board found no error in the AJ’s
exclusion of certain witnesses. This appeal followed.
DISCUSSION
Although Ms. Browne had made allegations of dis-
crimination, the MSPB’s decision was on the ground that
her retirement was voluntary, so we have jurisdiction.
See Conforto v. Merit Sys. Prot. Bd., 713 F.3d 1111, 1120–
21 (Fed. Cir. 2013) (“[T]he plain language of section
7702(a)(1) dictates that when the Board dismisses a
purported mixed case appeal for lack of jurisdiction, any
appeal from that decision is to this court.”).
A voluntary action is not an appealable action. Gar-
cia v. Dep’t of Homeland Sec., 437 F.3d 1322, 1328–29
(Fed. Cir. 2006) (en banc). Thus the threshold question is
whether Ms. Browne’s retirement was taken under such
extreme conditions as to be deemed involuntary. Shoaf v.
4 BROWNE v. MSPB
Dep’t of Agric., 260 F.3d 1336, 1340–41 (Fed. Cir. 2001).
If the employee makes a nonfrivolous allegation of invol-
untary retirement or resignation, she is entitled to a
hearing at which she must prove, by a preponderance of
the evidence, that the retirement or resignation was not
voluntary, and thus is tantamount to an adverse action.
Shoaf, 260 F.3d at 1341.
Involuntary action may be manifested in a variety of
ways. Applied to Ms. Browne, a retirement or resignation
may be shown to be involuntary when the agency
“creat[ed] working conditions so intolerable for the em-
ployee that he or she is driven to involuntarily resign or
retire.” Shoaf, 260 F.3d at 1341; Staats v. U.S. Postal
Serv., 99 F.3d 1120, 1123 (Fed. Cir. 1996); Christie v.
United States, 518 F.2d 584, 587 (Ct. Cl. 1975). This
court has adopted the so-called “Fruhauf test” for estab-
lishing coercion by an agency:
To establish involuntariness on the basis of coer-
cion this court requires an employee to show: (1)
the agency effectively imposed the terms of the
employee’s resignation or retirement; (2) the em-
ployee had no realistic alternative but to resign or
retire; and (3) the employee’s resignation or re-
tirement was the result of improper acts by the
agency.
Shoaf, 260 F.3d at 1341; see Fruhauf Sw. Garment Co. v.
United States, 111 F. Supp. 945, 951 (Ct. Cl. 1953). In
evaluating involuntariness, the proper test is “an objec-
tive one,” Christie, 518 F.2d at 587, that “consider[s] the
totality of the circumstances,” Shoaf, 260 F.3d at 1342.
The employee must “establish that a reasonable employee
confronted with the same circumstances would feel co-
erced into resigning.” Middleton v. Dep’t of Defense, 185
F.3d 1374, 1379 (Fed. Cir. 1999); see also Shoaf, 260 F.3d
at 1342. Precedent emphasizes that freedom of choice is a
central issue. As explained in Staats,
BROWNE v. MSPB 5
[coercive involuntariness] does not apply to a case
in which an employee decides to resign or retire
because he does not want to accept a new assign-
ment, a transfer, or other measures that the agen-
cy is authorized to adopt, even if those measures
make continuation in the job so unpleasant for the
employee that he feels that he has no realistic op-
tion but to leave. As this court has explained, the
fact that an employee is faced with an unpleasant
situation or that his choice is limited to two unat-
tractive options does not make the employee's de-
cision any less voluntary.
99 F.3d at 1124.
Precedent establishes that “the doctrine of coercive
involuntariness is a narrow one” requiring that the em-
ployee “satisfy a demanding legal standard.” Id. Thus,
“employee resignations are presumed to be voluntary
[and] this presumption will prevail unless plaintiff comes
forward with sufficient evidence to establish that the
resignation was involuntarily extracted.” Christie, 518
F.2d at 587. Ms. Browne urges that the MSPB incorrectly
decided or failed to take into account various facts, ap-
plied the wrong law, and failed to consider important
grounds for relief.
The Board’s factual determinations are sustained if
they are supported by substantial evidence. 5 U.S.C.
§ 7703(c)(3). “As a reviewing court, it is not our duty to
make factual determinations by reweighing the evidence
or reevaluating witness testimony, but only to review the
record and determine whether, in the absence of legal
error, the Board’s decision is supported by substantial
evidence.” Olson v. Dep’t of Labor, 60 F. App’x 818, 821
(Fed. Cir. 2003). It is “necessary for the court to ‘canvas’
the entire record, because ‘[t]he substantiality of evidence
must take into account whatever in the record fairly
detracts from its weight.’” Spurlock v. Dep’t of Justice,
6 BROWNE v. MSPB
894 F.2d 1328, 1330 (Fed. Cir 1990) (quoting Universal
Camera Corp. v. Nat’l Labor Relations Bd., 340 U.S. 474,
488 (1951)).
We have considered the arguments and reviewed the
record, including the recorded proceedings conducted by
the AJ. Although Ms. Browne states that almost all of the
Agency’s witnesses “lied about everything” to protect their
careers or reputations, the AJ found the witnesses to be
credible.
Ms. Browne attributes to the AJ both bias and inap-
propriate comments and actions. Our review of the
recorded proceedings did not uncover bias or inappropri-
ate comments by the AJ, and Ms. Browne has not identi-
fied any specific objectionable act or comment. It appears
that the Agency’s attorney made inappropriate off-the-
record comments that were inadvertently captured on the
recording; however, these comments do not overcome the
substantial evidence in support of the AJ’s decision.
Ms. Browne also criticizes her own attorney. For ex-
ample, she alleges that the exclusion of certain Appellant
witnesses was not objected to at the appropriate time, nor
were claims of constructive demotion or suspension in-
cluded in the initial statement to the MSPB. However,
“[i]t is well settled that a person is bound by the conse-
quences of his representative’s conduct, which includes
both his acts and omissions.” Rowe v. Merit Sys. Prot.
Bd., 802 F.2d 434, 437 (Fed. Cir. 1986); see Link v. Wa-
bash R.R. Co., 370 U.S. 626, 633–34 (1962) (“Petitioner
voluntarily chose this attorney as his representative in
the action, and he cannot now avoid the consequences of
the acts or omissions of this freely selected agent.”).
Attorney malfeasance is not apparent on the record, and
Ms. Browne has not shown that the outcome was preju-
diced. It also appears that the now alleged deficiencies
were not raised at the MSPB.
BROWNE v. MSPB 7
The Board’s factual findings are supported by sub-
stantial evidence on the record, and the conclusion that
Ms. Browne’s retirement was voluntary is in accordance
with law and the criteria required by precedent. The
MSPB’s action is affirmed.
No costs.
AFFIRMED