Kelly v. Merit Systems Protection Board , 602 F. App'x 831 ( 2015 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
CLINTON L. KELLY, JR.,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
DEPARTMENT OF TRANSPORTATION,
Intervenor
______________________
2014-3144
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-0752-13-0043-I-1.
______________________
Decided: March 10, 2015
______________________
CLINTON L. KELLY, JR., Fairburn, GA, pro se.
KATRINA LEDERER, Office of the General Counsel,
Merit Systems Protection Board, Washington, DC, for
respondent. Also represented by BRYAN G. POLISUK.
MICHELLE MUSGRAVE, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
2 KELLY v. MSPB
Washington, DC, for intervenor. Also represented by
JOYCE R. BRANDA, ROBERT E. KIRSCHMAN, JR., DEBORAH A.
BYNUM.
______________________
Before LOURIE, BRYSON, and CHEN, Circuit Judges.
PER CURIAM.
Clinton L. Kelly, Jr., appeals from the final order of
the Merit Systems Protection Board, which affirmed the
administrative judge’s decision that the Board lacks
jurisdiction to review Mr. Kelly’s appeal from his reas-
signment. Because Mr. Kelly failed to make a non-
frivolous allegation that his reassignment was involun-
tary, we affirm.
BACKGROUND
Mr. Kelly worked as an Air Traffic Control Specialist
at the Peachtree-DeKalb Air Traffic Control Tower (PDK)
in Atlanta, Georgia. Kelly v. Dep’t of Transp., No. AT-
0752-13-0043-I-1, 2013 MSPB Lexis 917, at *1 (Feb. 19,
2013) (“Initial Decision”). Mr. Kelly obtained the Level 7
certification required to work at PDK, commensurate with
the complexity of the systems and amount of air traffic at
that facility. Id. at 1–2.
Mr. Kelly requested transfer to the Atlanta Terminal
Radar Approach Control Tower (TRACON/A-80) at Atlan-
ta Hartsfield International Airport, which required Mr.
Kelly to first undergo extensive training to achieve Level
12 certification. Id. at 2; Petitioner’s Br. at 12. Under
Agency policy at the time, if Mr. Kelly did not successfully
complete training, he would not retain his position at
TRACON/A-80, but “may be given an opportunity at a
lower level facility if a vacancy exists.” Initial Decision at
*2; Respondent’s Appendix at 22 (“R.A.”). The Depart-
ment of Transportation (Agency) approved Mr. Kelly’s
transfer to TRACON/A-80 and placed him in the required
KELLY v. MSPB 3
training. Initial Decision at *2. After ten months of
training, the Agency notified Mr. Kelly that his training
had been discontinued based on the unanimous determi-
nation of his trainers that he failed to demonstrate an
acceptable level of performance to warrant certification on
the necessary radar equipment. Id.; R.A. 33–34. The
Agency then offered to reassign Mr. Kelly to a Level 7 or
lower tower and invited Mr. Kelly to provide input about
specific locations to which he preferred to be reassigned.
Initial Decision at *3; R.A. 30–34.
Mr. Kelly identified three preferred locations for a re-
assignment: Atlanta Hartsfield/Jackson, Atlanta Center,
and PDK. Initial Decision at *3; R.A. 35. Atlanta Harts-
field/Jackson and Atlanta Center, however, required
higher level certifications than Mr. Kelly possessed.
Initial Decision at *3. The Agency then performed a
search for vacancies at locations matching Mr. Kelly’s
certification level and offered Mr. Kelly reassignment
back to PDK or to the Level 5 facilities of Poughkeepsie,
New York or St. Thomas, U.S. Virgin Islands. Id.; RA 38–
39. Mr. Kelly signed a memorandum stating that he
voluntarily accepted a reassignment to PDK. Kelly v.
Dep’t of Transp., 121 M.S.P.R. 78, 2014 MSPB Lexis 4752,
at *3 (2014) (“Final Order”); R.A. 36–37.
After Mr. Kelly’s reassignment from TRACON/A-80 to
PDK, Mr. Kelly filed an Equal Employment Opportunity
complaint at the Agency in which he asserted that his
reassignment was involuntary because the decision to
terminate his training was “discriminatory based upon
his race, gender, and age.” Initial Decision at *3. The
Agency found that no discrimination occurred, and Mr.
Kelly appealed to the Board. Id.
The administrative judge, without conducting a
hearing, dismissed Mr. Kelly’s appeal for lack of jurisdic-
tion, and held that Mr. Kelly failed to make a non-
frivolous allegation that he had suffered an involuntary
4 KELLY v. MSPB
reduction in grade or pay. Id. at 5–9. Mr. Kelly peti-
tioned for review to the Board, which denied the petition
and affirmed the administrative judge. Final Order at *8.
Mr. Kelly timely appeals. We have jurisdiction pur-
suant to 28 U.S.C. § 1295(a)(9).
DISCUSSION
We must affirm the Board’s decision unless it was (1)
arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law; (2) obtained without proce-
dures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence. 5
U.S.C. § 7703(c). We review the Board’s decision regard-
ing its own jurisdiction de novo. Palmer v. Merit Sys.
Prot. Bd., 550 F.3d 1380, 1382 (Fed. Cir. 2008).
Mr. Kelly bears the burden of establishing that the
Board has jurisdiction over his appeal. 5 C.F.R.
§ 1201.56(a)(2)(i); Garcia v. Dep’t of Homeland Sec., 437
F.3d 1322, 1328 (Fed. Cir. 2006) (en banc). Mr. Kelly is
entitled to a Board hearing on the issue of jurisdiction
only if he has made a non-frivolous allegation that, if
proven, would demonstrate that the Board has jurisdic-
tion. Garcia, 437 F.3d at 1344. Here, the Board’s juris-
diction turns on whether Mr. Kelly has overcome the
presumption that his reassignment was voluntary. The
Board does not have jurisdiction over voluntary reduc-
tions in grade or pay. 5 U.S.C. § 7512; 5 C.F.R.
§ 752.401(b)(9). Mr. Kelly’s reduction in grade and pay is
presumed voluntary because he accepted the Agency’s
proposal that he be reassigned to the PDK location. See
Gaudette v. Dep’t of Transp., 832 F.2d 1256, 1258 (Fed.
Cir. 1987). Mr. Kelly’s presumptively voluntary reas-
signment was constructively involuntary, however, if it
was based on misinformation, deception, or coercion.
Garcia, 437 F.3d at 1328.
KELLY v. MSPB 5
Mr. Kelly alleges that he “was subjected to training
which he deemed discriminatory and hostile” and “[u]nder
such environment [he] received negative evaluations” that
led to his termination from the TRACON/A-80 training.
Plaintiff’s Br. at 2. And, in his arguments to the Board,
Mr. Kelly alleged that “he was treated differently than
other employees due to his race, gender, and age.” Final
Order at *6. These conclusory allegations do not demon-
strate that Mr. Kelly’s reassignment was involuntary.
Mr. Kelly cannot demonstrate that his reassignment was
based on alleged misinformation, deception, or coercion
simply by deeming his training environment to be dis-
criminatory and hostile, without a hint of further expla-
nation. Nor can Mr. Kelly meet his burden by stating
generally that he was treated differently due to his race,
gender, and age. Discrimination can be found without
evidence that the discriminatory conduct related to Mr.
Kelly’s decision to accept reassignment, or that the dis-
criminatory conduct was so serious as to compel him to
take reassignment. See Conforto v. Merit Sys. Prot. Bd.,
713 F.3d 1111, 1120 (Fed. Cir. 2013). As Conforto con-
firms, some on-the-job discrimination, though wrongful, is
not necessarily grave enough in its effects to compel an
employee’s actions. Id. Mr. Kelly provided very little
argument and no supporting evidence to suggest that
agency officials caused his training failure. To the contra-
ry, the record indicates that the decision to terminate Mr.
Kelly’s training was unanimous among several trainers,
and was reached only after months of well-documented
retraining efforts failed.
Mr. Kelly focuses much of his appeal on the Agency’s
offer to reassign him to PDK, New York, or the U.S.
Virgin Islands. Mr. Kelly listed PDK among his three
preferred locations, and the Agency honored his request
by including the PDK location in the reassignment choices
it presented to Mr. Kelly. Mr. Kelly chose reassignment
to PDK, but alleges that his reassignment was involun-
6 KELLY v. MSPB
tary because the other two locations—New York and the
U.S. Virgin Islands—were not viable options as they were
below his Level 7 certification and were not within a
reasonable geographic location. Mr. Kelly alleges that
there were over forty Level 7 and thirty Level 6 facilities
within the same geographic parameters. The record,
however, shows the Agency performed a job search for
positions that met Mr. Kelly’s placement criteria, which
indicates that the Level 7 and Level 6 facilities identified
by Mr. Kelly did not have any open positions. R.A. 38.
Mr. Kelly did not allege to the contrary, and having to
choose between unpleasant alternatives does not make a
decision coerced or involuntary. See Gaudette, 832 F.2d at
1258–59.
Mr. Kelly makes several new arguments on appeal,
including that the Agency failed to act in good faith in
finding locations to offer to Mr. Kelly for reassignment.
Mr. Kelly also asserts, without providing evidence or
citations to the record, that the Agency made several
errors in his training and evaluations, and failed to give
proper feedback. To the extent that these claims contain
factual allegations that differ from those we have already
discussed, Mr. Kelly did not make those arguments to the
Board, and we decline to consider them. Frank v. Dep’t of
Transp., 35 F.3d 1544, 1559 (Fed. Cir. 1994) (“[W]e do not
consider issues that were not raised in the proceedings
below.”).
We have considered Mr. Kelly’s remaining arguments
and do not find them persuasive.
AFFIRMED
No costs.