Johnson v. Department of Veterans Affairs , 172 F. App'x 1008 ( 2006 )

NOTE: Pursuant to Fed. Cir. R. 47.6, this
disposition is not citable as precedent. It is a
public record.
United States Court of Appeals for the Federal Circuit
05-3149
SHERI P. JOHNSON,
Petitioner,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
________________________
DECIDED: March 9, 2006
________________________
Before NEWMAN, MAYER, and GAJARSA, Circuit Judges.
GAJARSA, Circuit Judge.
DECISION
Sheri P. Johnson, a former cemetery representative for the Department of
Veterans Affairs ("DVA"), petitions us from the Merit Systems Protection Board
(“MSPB”), which denied jurisdiction over her removal claim. The administrative judge
("AJ") found that Johnson failed to allege facts that show she involuntarily resigned from
the position. Because the MSPB's jurisdiction does not cover voluntary removals, the
AJ dismissed the case. The initial decision was made final by the board on January 28,
2005. We affirm.
BACKGROUND
Johnson began work with the federal government on December 25, 1992. She
was appointed as a Cemetery Representative for the National Cemetery in
Leavenworth, Kansas on August 11, 2002. Several months later on November 25,
2002, she received a "Notice of Unacceptable Performance" explaining that she violated
agency policy by, among other things, scheduling internments without identification,
failing to properly schedule burials, and scheduling multiple internments at the same
time. On January 13, 2003 the DVA notified Johnson of her deficient performance
again. She was given 90 days to improve performance.
In June of 2003, Johnson was informed that she was still failing to meet certain
requirements of “Organizational Support.” She was given another 35 days to improve
performance, and, in July of 2003, the DVA notified her that she did improve but warned
that she could be removed if she failed to maintain a satisfactory level of performance.
After further unsatisfactory performance from July through October, the DVA proposed
her removal on November 3, 2003.
Johnson responded to the removal notice on November 17, 2003 taking
responsibility for the errors she made but claiming that she had insufficient time and
training to learn the position, that her degree negatively impacted her position, and that
she was not represented by the union. On January 2, 2004, the deciding official issued
a decision to remove Johnson on January 29, 2004.
The day before her scheduled removal, on January 28, 2004, Johnson met with a
human resources assistant, Marylin Buzzell, who was responsible for processing
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actions such as removals and resignations. In Buzzell's declaration, she admitted to
meeting with Johnson and summarized the meeting as follows:
3. During our meeting, the Appellant asked me what I would do if I had the
choice to resign or be terminated. Initially, I responded that the decision
was hers and that it was a uniquely individual decision. I gave this
response to the Appellant despite her repeated requests. Finally,
however, I told the Appellant that personally, I would resign. I did not offer
any further explanation as to why I would make that choice.
4. At no time did I advise the Appellant that resignation was a better option
than termination. At no time did I discuss any benefits associated with
resignation or any other advantages I feel resignation might have as
opposed to termination. My comment to the Appellant was limited to the
statement that I would resign rather than be terminated.
At the end of the meeting, Johnson signed a handwritten note resigning her position as
cemetery representative effective January 28, 2004. On the same day, the DVA issued
a Form 50-B documenting her resignation.
In her pro se response to the jurisdictional issue, Johnson claimed that the
resignation was involuntary because (1) her grandfather died the week of her removal
and the funeral was being held January 30th, (2) the Agency officials urged her to
resign rather than be terminated, (3) the deciding official continually asked her
employment status, (4) Buzzell advised her to resign in lieu of termination. Taking
these facts as true, the AJ found that Johnson failed to allege a claim of involuntary
removal because there was no "evidence that the resignation was obtained through
duress, coercion, misinformation, or some other condition precluding a voluntary
decision."
STANDARD OF REVIEW
We review questions of MSPB jurisdiction de novo. See Butler v. Social Sec.
Admin., 331 F.3d 1368, 1371-72 (Fed. Cir. 2003). In constructive removal cases where
05-3149 3
a petitioner was not afforded an evidentiary hearing on the jurisdiction, we must
determine whether the petitioner made a non-frivolous allegation of jurisdiction that
entitles her to an evidentiary hearing where she may establish jurisdiction by a
preponderance of the evidence. See Garcia v. Dep't of Homeland Sec., ___ F.3d ___
(2006).
DISCUSSION
Employee removal actions are appealable to the MSPB. See 5 U.S.C §§ 7701,
7512. For a removal to be covered by § 7512, however, it must be involuntary. See
Schultz v. United States Navy, 810 F.2d 1133, 1135-36 (Fed. Cir. 1987). From the
outset, resignations are presumed to be voluntary. Id. at 1136. However, a petitioner
may prove her resignation was involuntary if "(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." Shoaf v. Dep't of Agric., 260 F.3d 1336, 1341
(Fed. Cir. 2001). Essentially, we ask whether, under all the circumstances, an
employee has been deprived of free choice. See id. at 1342. If, on the other hand, the
employee is merely faced with a choice between two unpleasant alternatives, either
resign or be removed for cause, then such a choice is not involuntary. See Schultz, 810
F.2d at 1136.
We have recognized several situations where an employee's resignation may
have been involuntary. They include:
(1) an employee resigns under duress brought on by government action,
(2) an employee unsuccessfully tries to withdraw his resignation before its
effective date, (3) an employee submits a resignation under time pressure,
. . . (4) an employee fails to understand the situation due to mental
05-3149 4
incompetence, . . . [and (5) the resignation was] obtained by agency
misrepresentation or deception.
Scharf v. Dep’t of the Air Force, 710 F.2d 1572, 1574 (Fed. Cir. 1983) (citations
omitted). Here, Johnson suggests that her resignation was involuntary due to time
pressure, duress, and/or misrepresentation. Taking her allegations as true we may
assume that in the last week of work Johnson was repeatedly asked by DVA officers
when her last day of work would be, and she was advised by the Human Resources
Department to resign. Without more, these actions do not raise a non-frivolous
allegation that her decision to resign was involuntary or somehow coerced.
Courts have, on occasion, allowed employees to appeal when faced with
insufficient time to make the resignation decision, e.g., Perlman v. United States, 490
F.2d 928 (Ct. Cl. 1974), but these instances usually require that the agency demand an
immediate decision. See Staats v. U.S. Postal Serv., 99 F.3d 1120, 1126 (Fed. Cir.
1996) (two weeks to decide whether to resign was not sufficient time pressure to make
the choice involuntary). In Perlman, the Court of Claims held that an employee’s
decision to retire was involuntary when he had inadequate time to determine his appeal
rights and inadequate assistance to inform him of his rights. The employee was notified
that he would be terminated in a RIF on June 24, 1971. Id. at 930. He was later
informed by a personnel specialist that he could retire by May 31, 1971 and receive a
greater annuity benefit. Id. In an interest to protect his appeal rights, he sought advice
from the Civil Service Commission (“CSC”), but he was unable to contact the CSC and
determine his appeal rights. Facing the deadline, he was forced to retire in order to
preserve the financial benefit of the increased annuity. Id. at 931.
05-3149 5
To establish involuntary removal by misinformation or deception, we do not
require intentional misinformation. Covington v. Department of Health & Human
Services, 750 F.2d 937, 942 (Fed. Cir. 1984). Negligent or innocent misinformation will
suffice if the employee relied on the misinformation to his or her detriment. Id.In the present case, the allegations that she was under time constraints and
pressure to make the decision do not overcome the fact that there was a decision to be
made. Without more, repeated requests by agency supervisors and officials asking
when her last day would be do not rise to the level of no realistic alternative but to
resign.
Likewise, her contention that Bruzzell advised her to resign is no indication that
the agency has somehow misled her into believing that her appeal rights would be
secure or that the agency misinformed her of the consequences. Johnson had three-
and-a-half weeks to make her decision after the deciding official announced her
removal. This was sufficient time for her to make an informed decision and her
allegations fail to raise any facts of coercion, duress, or deception on the part of the
DVA.
CONCLUSION
The MSPB denied Johnson’s appeal because it lacked jurisdiction. For the
reason stated in this opinion we find no reversible error. Accordingly, we affirm.
No costs.
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