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

NOTE: This disposition is nonprecedential.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NOTE: This disposition is nonprecedential.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).
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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]
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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.
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