Hall v. Merit Systems Protections Board , 342 F. App'x 603 ( 2009 )


Menu:
  •                        NOTE: This disposition is nonprecedential.
    United States Court of Appeals for the Federal Circuit
    2009-3114
    DORIS ANN HALL,
    Petitioner,
    v.
    MERIT SYSTEMS PROTECTION BOARD,
    Respondent.
    Doris Ann Hall, of Charlotte, North Carolina, pro se.
    Stephanie Conley, Attorney, Office of the General Counsel, Merit Systems
    Protection Board, of Washington, DC, for respondent. With her on the brief were B. Chad
    Bungard, General Counsel, and Keisha Dawn Bell, Deputy General Counsel.
    Appealed from: Merit Systems Protection Board
    NOTE: This disposition is nonprecedential.
    United States Court of Appeals for the Federal Circuit
    2009-3114
    DORIS ANN HALL,
    Petitioner,
    v.
    MERIT SYSTEMS PROTECTIONS BOARD,
    Respondent.
    Petition for review of the Merit Systems Protection Board in DC0752080544-I-1.
    ___________________________
    DECIDED: July 13, 2009
    ___________________________
    Before NEWMAN, LOURIE, and RADER, Circuit Judges.
    PER CURIAM.
    I.
    The Merit Systems Protection Board dismissed Ms. Doris Ann Hall’s claim of
    involuntary retirement for lack of jurisdiction. Hall v. Dep’t of Homeland Sec., No. DC-
    0752-08-0544-I-1 (M.S.P.B. December 11, 2008). Because Ms. Hall did not make a
    non-frivolous allegation of involuntary retirement, this court affirms.
    II.
    Petitioner Doris Hall was employed as a human resources specialist with the
    Transportation Security Administration in Arlington, Virginia. In January 2005, Hall had
    a meeting with her supervisor, Deborah Grade, and her team leader, Andrea McKinney,
    to discuss her career goals. At that meeting, Hall expressed the option of retirement in
    the coming year. In her words: “I explained that I was 61 years old and would be
    turning 62 years of age and would explore the possibility of retirement as my goal.” As
    a result of the meeting, Grade instructed McKinney to review Hall’s employment file to
    assess her retirement options.
    According to Hall, from that moment onwards Grade improperly used Hall’s
    interest “as a means to harass” her into retirement in order to replace her with a
    younger employee. In support of this claim, Hall alleges that she was frequently omitted
    from assignment lists for training and given simple assignments which she found
    demeaning and detrimental to her health. Hall also relies on an incident where she
    attended a training session and was dismissed upon voicing her opinion that the
    session was unhelpful.
    In October 2005, Hall alleges that she attended another meeting with Grade and
    McKinney where Grade stated: “If you don’t retire, I’m going to terminate you. If I have
    time, I’ll look for an Assistant’s job for you.” Later that month, Hall submitted a voluntary
    retirement notice indicating that her effective date of retirement would be November 30,
    2005. As further evidence to support her discrimination claim, Hall highlights that she
    was not given “the usual office wide retirement celebration.” Shortly after the effective
    date of her retirement, Hall filed a formal complaint of age discrimination with the Equal
    Employment Opportunity Commission. The complaint was remanded to her employing
    agency who ultimately found no evidence of age discrimination. Hall then appealed the
    decision to the Board who dismissed Hall’s claim for lack of jurisdiction without granting
    an evidentiary hearing. Hall timely appealed to this court under 
    28 U.S.C. § 1295
    (a)(9).
    2009-3114                                     2
    III.
    The scope of our review from a Board appeal is limited. This court must affirm
    unless the Board’s decision was “arbitrary, capricious, an abuse of discretion, or
    otherwise not in accordance with law; obtained without procedures required by law, rule,
    or regulation having been followed; or unsupported by substantial evidence.” 
    5 U.S.C. § 7703
    (c); Chase-Baker v. Dep’t of Justice, 
    198 F.3d 843
    , 845 (Fed. Cir. 1999). This
    court also reviews the Board’s jurisdiction without deference. Bolton v. Merit Sys. Prot.
    Bd., 
    154 F.3d 1313
    , 1316 (Fed. Cir. 1998).
    Because a decision to resign or retire is presumed to be voluntary, an employee
    who voluntarily resigns or retires has no right to appeal to the Board. Shoaf v. Dep't of
    Agric., 
    260 F.3d 1336
    , 1340-41 (Fed. Cir. 2001). Where the resignation or retirement
    was “involuntary and thus tantamount to forced removal,” however, the Board
    possesses jurisdiction over the appeal. To establish involuntariness on the basis of
    coercion we have required an employee to show that: (1) the agency effectively
    imposed the terms of the employee’s resignation or retirement; (2) the employee had no
    realistic alternative but to resign or retire; and (3) the employee’s resignation or
    retirement was the result of improper acts by the agency. Garcia v. Dep’t of Homeland
    Sec., 
    437 F.3d 1322
    , 1329 (Fed. Cir. 2006). This court notes that “the doctrine of
    coercive involuntariness is a narrow one” requiring that the employee “satisfy a
    demanding legal standard.” Staats v. U.S. Postal Serv., 
    99 F.3d 1120
    , 1124 (Fed. Cir.
    1996). The test for involuntariness is objective. An employee must “establish that a
    reasonable employee confronted with the same circumstances would feel coerced into
    resigning.” Middleton v. Dep't of Defense, 
    185 F.3d 1374
    , 1379 (Fed. Cir. 1999). “[A]
    2009-3114                                     3
    hearing is required with respect to jurisdictional questions only if the employee makes a
    non-frivolous allegation that, if proved, would establish Board jurisdiction.” Staats, 
    99 F.3d at 1125
    .
    In Staats, we explained that the doctrine of 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 assignment, a transfer, or other measures that the agency 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 option but to leave.” 
    Id. at 1124
    .
    Presenting an employee with “an unpleasant situation” or “two unattractive options”
    does not make the employee’s decision any less voluntary. 
    Id.
     See also Christie v.
    United States, 
    207 Ct.Cl. 333
    , 
    518 F.2d 584
    , 587 (1975) (“[W]hile it is possible plaintiff,
    herself, perceived no viable alternative but to tender her resignation, the record
    evidence supports CSC's finding that plaintiff chose to resign and accept discontinued
    service retirement rather than challenge the validity of her proposed discharge for
    cause. The fact remains, plaintiff had a choice. She could stand pat and fight. She
    chose not to.”)
    This record does not show any non-frivolous allegations that rise to the level of
    coercive involuntariness. Thus, Hall showed no entitlement to an evidentiary hearing
    with respect to jurisdiction. It was Hall ─ not Grade or McKinney ─ who first brought up
    the possibility of retirement in the meeting where her career goals were discussed. It
    was Hall ─ not the agency ─ who set the date of her retirement. The vast majority of
    Hall’s alleged discriminatory actions amount to nothing more than speculation. Her
    claims that she was treated unfairly by being precluded from attending training
    2009-3114                                    4
    sessions, by being given “demeaning” job tasks, and by not receiving “the usual office
    wide retirement celebration” are the exact type of contentions we have previously held
    are not actionable under the doctrine of coercive involuntariness. Even Grade’s alleged
    statement that she would terminate Hall if she refused to retire, when viewed in light of
    the entire record, does not save Hall’s claim. Grade’s statement was itself immediately
    qualified with, “[i]f I have time, I’ll look for an Assistant’s job for you.” Hall has alleged
    no supporting facts beyond this isolated exchanged. Nor has she alleged that an
    appointment to an assistant’s position would be beyond the agency’s scope of authority.
    In sum, the record shows that Hall’s retirement was not forced or coerced, as
    those terms are used in this context. Instead, when the totality of the circumstances are
    considered, we agree with the administrative judge that Hall’s proffer failed to provide
    the basis for a non-frivolous involuntary-resignation claim. We therefore affirm the
    Board’s decision.
    COSTS
    No costs.
    2009-3114                                       5