Boyd v. Department of Labor ( 2014 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
THASHA A. BOYD,
Petitioner,
v.
DEPARTMENT OF LABOR,
Respondent.
______________________
2014-3015
______________________
Petition for review of the Merit Systems Protection
Board in No. AT0752120513-I-1.
______________________
Decided: April 11, 2014
______________________
THASHA A. BOYD, of Kennesaw, Georgia, pro se.
ANTONIA R. SOARES, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for respondent. With her
on the brief were STUART F. DELERY, Assistant Attorney
General, BRYANT G. SNEE, Acting Director, and DEBORAH
A. BYNUM, Assistant Director.
______________________
Before DYK, PROST, and REYNA, Circuit Judges.
2 BOYD v. LABOR
PER CURIAM.
Thasha A. Boyd appeals from a final order of the Mer-
it Systems Protection Board (“Board”) denying her peti-
tion for review of the Board’s July 13, 2012 initial decision
dismissing her involuntary resignation claim for lack of
jurisdiction. Boyd v. Dep’t of Labor, No. AT0752120513-I-
1 (M.S.P.B. Sept. 17, 2013) (“Final Order”). For the
reasons that follow, we affirm.
BACKGROUND
Ms. Boyd was previously employed as an Immigration
Services Officer with the U.S. Citizenship and Immigra-
tion Service at the GS-11 level. In February 2010, she
assumed the GS-12 position of Immigration Program
Analyst with the Department of Labor’s Atlanta National
Processing Center (“ANPC”). She worked there until
March 17, 2010, when she was demoted back to a GS-11
position because management had discovered that she did
not have the specialized experience required for the GS-12
position. She appealed her demotion to the Board, which
ultimately reversed the demotion because the agency had
failed to provide her with notice and an opportunity to
respond.
Throughout Ms. Boyd’s tenure at ANPC, she filed
several complaints with management regarding harass-
ment by other employees and contractors’ staff, and her
coworkers and contract staff also filed several complaints
against her. For example, in November 2011, a contract
employee named Kathleen Kurth filed a complaint
against Ms. Boyd, alleging that she had intentionally
bumped into Ms. Kurth’s shoulder when Ms. Kurth had
discovered Ms. Boyd going through documents on her
desk. Ms. Boyd filed a cross-complaint that Ms. Kurth
had harassed her by hitting her on the arm when she was
trying to leave Ms. Kurth’s cubicle. On February 16,
2012, the Department of Labor (“Labor”) proposed to
suspend Ms. Boyd for ten days for the physical altercation
BOYD v. LABOR 3
with Ms. Kurth. Then, in April 2012, another employee,
Ms. Tracey Harbour, filed a complaint against Ms. Boyd,
alleging that she had held the stairway door closed and
would not allow Ms. Harbour to enter the office. Shortly
thereafter, Ms. Boyd’s supervisor told her that he needed
to speak with her about the allegations filed against her
by Ms. Harbour and others. On April 11, 2012, Ms. Boyd
submitted her resignation, effective that day.
Ms. Boyd filed an appeal with the Board, alleging that
her resignation was involuntary because Labor made her
working conditions so difficult that a reasonable person in
her position would have been compelled to resign. The
administrative judge assigned to her case granted Ms.
Boyd a jurisdictional hearing to establish that her resig-
nation was in fact involuntary. At the hearing, Ms. Boyd
declined to testify, but instead submitted a written state-
ment. Several witnesses testified about their alleged
confrontations with Ms. Boyd. Ultimately, the adminis-
trative judge concluded that Ms. Boyd had failed to estab-
lish that a reasonable person in her position would have
felt compelled to resign, and thus the Board lacked juris-
diction over her appeal. Boyd v. Dep’t of Labor, No.
AT0752120513-I-1 (M.S.P.B. July 31, 2012) (“Initial
Decision”) at 13. Ms. Boyd filed a petition for review of
that decision with the Board. The Board affirmed the
administrative judge’s decision and denied the petition for
review. Final Order at 2.
Ms. Boyd timely appealed the Board’s final order. We
have jurisdiction under 28 U.S.C. § 1295(a)(9).
DISCUSSION
Our review of Board decisions is limited by statute.
Under 5 U.S.C. § 7703(c), we may only reverse a Board
decision if we find the decision to be (1) arbitrary, capri-
cious, an abuse of discretion, or otherwise not in accord-
ance with law; (2) obtained without procedures required
by law; or (3) unsupported by substantial evidence. Ward
4 BOYD v. LABOR
v. U.S. Postal Serv., 634 F.3d 1274, 1278 (Fed. Cir. 2011).
“The [Board’s] determination that it lacked jurisdiction is
a question of law that the court reviews de novo.” Bennett
v. Merit Sys. Prot. Bd., 635 F.3d 1215, 1218 (Fed. Cir.
2011) (citing Forest v. Merit Sys. Prot. Bd., 47 F.3d 409,
410 (Fed. Cir. 1995)). “Before the Board, an appellant
bears the burden of establishing Board jurisdiction.”
Fields v. Dep’t of Justice, 452 F.3d 1297, 1302 (Fed. Cir.
2006).
An employee initiated action such as resignation is
presumed to be voluntary and, thus, outside the Board’s
jurisdiction. Garcia v. Dep’t of Homeland Sec., 437 F.3d
1322, 1329 (Fed. Cir. 2006) (en banc); 5 C.F.R.
§ 752.401(b)(9). “[T]his presumption will prevail unless
plaintiff comes forward with sufficient evidence to estab-
lish that the resignation was involuntarily extracted.”
Garcia, 437 F.3d at 1329 (citation omitted). Thus, the
Board only possesses jurisdiction over an employee’s
appeal “if the employee proves, by a preponderance of the
evidence, that [his or her action] was involuntary and
thus tantamount to [a forced enumerated adverse ac-
tion].” Id. at 1329-30 (alterations in original) (citing
Shoaf v. Dep’t of Agric., 260 F.3d 1336, 1341 (Fed. Cir.
2001)).
[T]o establish involuntariness on the basis of co-
ercion 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. The test is an objective one; the
employee must “establish that a reasonable employee
confronted with the same circumstances would feel co-
BOYD v. LABOR 5
erced into resigning.” Middleton v. Dep’t of Defense, 185
F.3d 1374, 1379 (Fed. Cir. 1999).
Ms. Boyd challenges the Board’s decision on several
grounds, none of which is persuasive. 1
First, Ms. Boyd raises numerous challenges to the
administrative judge’s factual findings, as affirmed by the
Board. For example, she argues that there are inconsist-
encies in the evidence because her supervisor testified
that she did not observe certain incidents between Ms.
Boyd and other employees that other witnesses testified
to having happened. Pet’r Br. 1. However, without more,
the mere fact that some witnesses observed an incident
while others did not does not render the testimony incon-
sistent. Similarly, Ms. Boyd relies heavily on the lack of
documentary evidence to corroborate certain portions of
the testimony. In particular, she notes that “Michael
Holston’s testimony that Appellant physically accosted
Kim Starling” is unsupported by documentary evidence
because “the Notice and Final Determination of the 10-
day suspension issued against Appellant make no men-
tion of incidents with Michael Holston, Kim Starling or
any other employees and Appellant.” Pet’r Br. Continua-
tion 2. But that is unsurprising, as the suspension was
based only on the incident with Ms. Kurth. And moreo-
ver, there is no requirement that reliable testimonial
evidence be corroborated by documentary evidence. Ms.
Boyd’s other arguments regarding the administrative
judge’s factual findings are no more compelling. Thus,
she has failed to demonstrate that the Board or adminis-
1 Ms. Boyd filed virtually identical informal briefs
in both this case and No. 2014-3022, which relates to her
Individual Right of Action appeals under the Whistle-
blower Protection Act. We have attempted to determine
which of her arguments relates to each appeal and have
addressed them in the corresponding opinions.
6 BOYD v. LABOR
trative judge incorrectly decided or failed to take into
account any relevant facts.
Second, Ms. Boyd argues that the administrative
judge committed several legal errors. Many of her argu-
ments focus on the standard the administrative judge
applied in making his credibility determinations. Ms.
Boyd insists that, rather than consider all of the factors
enumerated in Hillen v. Department of the Army, 35
M.S.P.R. 453 (1987), the administrative judge based his
conclusion solely on the witnesses’ “demeanor.” Pet’r Br.
1, Pet’r Br. Continuation 6-7. Moreover, Ms. Boyd insists
that the administrative judge inappropriately discounted
her own evidence because there were a greater number of
witnesses on the other side. Pet’r Br. Continuation 10-11.
We disagree.
Hillen explains that an administrative judge making
a credibility determination must consider the following
factors:
(1) [t]he witness’s opportunity and capacity to ob-
serve the event or act in question; (2) the witness’s
character; (3) any prior inconsistent statement by
the witness; (4) a witness’s bias, or lack of bias; (5)
the contradiction of the witness’s version of events
by other evidence or its consistency with other ev-
idence; (6) the inherent improbability of the wit-
ness’s version of events; and (7) the witness’s
demeanor.
35 M.S.P.R. at 458. The administrative judge did exactly
that. In his opinion, he noted that he found the testimony
of two witnesses—Mr. Holston and Ms. Kurth—credible
because (a) the record contained no evidence contradicting
their testimony; (b) they testified in a straightforward,
consistent, and believable manner; (c) their testimony was
not inherently improbable; and (d) there was no reason to
question their opportunity and capacity to observe the
events in question. Initial Decision at 10. Similarly, he
BOYD v. LABOR 7
did not err in discounting the probative value of Ms.
Boyd’s own testimony, which was provided only in the
form of a hearsay written statement. Consistent with the
factors laid out in Borninkhof v. Department of Justice, 5
M.S.P.R. 77, 87 (1981), the administrative judge noted
that Ms. Boyd was available to testify but chose not to,
that she was not a disinterested party, that there was a
lack of corroborating evidence, and that there was signifi-
cant (and credible) contradictory evidence. Initial Deci-
sion at 9-12. Moreover, because the administrative
judge’s credibility determinations were based on a full
consideration of all of the proper factors, the Board did
not err in deferring to those determinations. Thus, nei-
ther the administrative judge nor the Board committed
legal error in crediting the testimony of the hearing
witnesses over Ms. Boyd’s out-of-court hearsay statement.
Ms. Boyd also argues that the administrative judge
violated our ruling in Whitmore v. Department of Labor,
680 F.3d 1353 (Fed. Cir. 2012), by failing to identify every
piece of record evidence he considered in reaching his
decision. Pet’r Br. Continuation 8. It is true that in
Whitmore we admonished that “[a]ny determination by an
administrative judge that is based on findings made in
the abstract and independent of the evidence which fairly
detracts from his or her conclusions is unreasonable and,
as such, is not supported by substantial evidence.” 680
F.3d at 1376. However, in that case we found that there
was “considerable countervailing evidence” that the
administrative judge had “manifestly ignored, overlooked,
or excluded.” Id. The same is not true here. In this case,
the administrative judge did consider Ms. Boyd’s written
statement, he merely concluded—entirely appropriately—
that it was of limited probative value.
Next, Ms. Boyd argues that the Board erred by find-
ing that her involuntary resignation claim is “undercut”
by the fact that many of the events she complained of took
place more than six months prior to her resignation. Pet’r
8 BOYD v. LABOR
Br. Continuation 14-15. But, as the government notes, we
have previously stated that “the most probative evidence
of involuntariness will usually be evidence in which there
is a relatively short period of time between the employer’s
alleged coercive act and the employee’s retirement.”
Terban v. Dep’t of Energy, 216 F.3d 1021, 1042 (Fed. Cir.
2000). Thus, there was no legal error in the Board’s
simple observation that certain (though admittedly not
all) of Ms. Boyd’s allegations occurred well before her
resignation.
We have considered Ms. Boyd’s remaining arguments
and find them unpersuasive. We find no reason to con-
clude that the Board’s findings were unsupported by
substantial evidence or were not in accordance with law.
CONCLUSION
For the foregoing reasons, we conclude that the Board
correctly denied Ms. Boyd’s petition for review and af-
firmed the dismissal of her appeal for lack of jurisdiction.
Accordingly, we affirm.
AFFIRMED
COSTS
Each party shall bear its own costs.