Thomas v. Merit Systems Protection Board ( 2016 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
OMILANA THOMAS,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
DEPARTMENT OF TRANSPORTATION,
Intervenor
______________________
2016-1341
______________________
Petition for review of the Merit Systems Protection
Board in No. NY-0752-15-0111-I-1.
______________________
Decided: September 22, 2016
______________________
OMILANA THOMAS, Rockville Centre, NY, pro se.
KATHERINE MICHELLE SMITH, Office of the General
Counsel, Merit Systems Protection Board, Washington,
DC, for respondent. Also represented by BRYAN G.
POLISUK.
2 THOMAS v. MSPB
ROBERT C. BIGLER, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for intervenor. Also represented by
FRANKLIN E. WHITE, JR., ROBERT E. KIRSCHMAN, JR.,
BENJAMIN C. MIZER.
______________________
Before NEWMAN, LOURIE, and CHEN, Circuit Judges.
NEWMAN, Circuit Judge.
Omilana Thomas appeals the final judgment of the
Merit Systems Protection Board (MSPB) dismissing her
involuntary retirement appeal. 1 The Board held that Ms.
Thomas failed to establish that her retirement from the
Federal Aviation Administration (FAA) was involuntary,
and dismissed the appeal. We affirm the decision of the
Board.
BACKGROUND
Ms. Thomas was employed as a Human Resources
Specialist in the Queens, New York office of the FAA. On
April 22, 2014, Ms. Thomas was informed that she would
be reassigned to a Benefits Operation Center (BOC) in
Kansas City, Missouri, as part of a consolidation of re-
gional benefits specialists into the centralized BOC. Ms.
Thomas was informed that she would hold the same
position at the BOC, be eligible for relocation expenses,
and maintain the same base pay and grade. 2 The reas-
signment notification letter included a conditional elec-
1 Thomas v. Dep’t of Transp., No. NY-0752-15-0111-
I-1, 2015 WL 7199674 (MSPB, Nov. 16, 2015) (Final
Decision).
2 Ms. Thomas’ gross pay would have been reduced
to accommodate the lower Kansas City locality adjust-
ment rate.
THOMAS v. MSPB 3
tion form; Ms. Thomas was informed that electing reas-
signment was for planning purposes only.
On April 28, 2014, Ms. Thomas was also informed
that she was eligible for special consideration for vacan-
cies at her current duty location in Queens. The FAA
explained that hiring officials would consider her applica-
tion before other candidates if she qualified for a particu-
lar vacancy, but did not guarantee selection. The letter
also stated that if Ms. Thomas applied for and accepted a
lower grade position, the demotion would be considered
an “involuntary-management action” for pay retention
purposes. On June 20, 2014, Ms. Thomas returned the
conditional election form, indicating that she accepted the
administrative reassignment. On August 15, 2014, Ms.
Thomas’ manager corrected the pay retention information
and informed Ms. Thomas that under the terms of the
reassignment, pay retention was unavailable.
In August 2014, Ms. Thomas applied for a Labor Rela-
tions Assistant opening. Ms. Thomas was interviewed,
but was not hired for the position. Ms. Thomas did not
report for duty, as scheduled, in Kansas City on January
12, 2015, but instead applied for discontinued service
retirement and retired at a reduced annuity, effective
January 10, 2015.
Ms. Thomas filed an appeal with the MSPB, asserting
that she retired from the FAA involuntarily. She stated
that the reassignment was the result of coercion because
the administrative reassignment was not a valid exercise
of agency authority. She also stated that she was provid-
ed insufficient and misleading information regarding the
reassignment and special consideration, and that she was
placed on sick leave restriction as an intimidation tactic.
She explained that she could not accept reassignment due
to financial and family obligations.
The AJ determined that that although Ms. Thomas
non-frivolously alleged that her retirement was involun-
4 THOMAS v. MSPB
tary, she did not establish by a preponderance of the
evidence that her retirement was involuntary. The AJ
found that the FAA established a bona fide management
reason for reassigning Ms. Thomas to the Kansas City
office. Further, the AJ determined that Ms. Thomas had
not demonstrated that the agency provided her with
inadequate or misleading information. The AJ recognized
that personal and financial issues impacted Ms. Thomas’
ability to relocate, but that those factors did not make her
retirement involuntary. The AJ dismissed Ms. Thomas’
case for lack of jurisdiction, on the basis that the retire-
ment was voluntary.
The full Board affirmed, holding that the difficult na-
ture of Ms. Thomas’ decision did not render the retire-
ment involuntary. Final Decision ¶ 12. The Board
further found that Ms. Thomas had not shown that she
based her retirement decision on misinformation from the
FAA. Final Decision ¶¶ 9–11.
This appeal followed.
DISCUSSION
The issue is whether Ms. Thomas’ retirement was
voluntary, an issue whose determination is within the
Board’s jurisdiction. Ms. Thomas bears the burden of
establishing non-voluntariness by a preponderance of the
evidence. 5 C.F.R. § 1201.56(b)(2)(A).
A
An involuntary retirement is deemed equivalent to
forced removal. Staats v. U.S. Postal Serv., 99 F.3d 1120,
1123-24 (Fed. Cir. 1996). An employee’s resignation or
retirement is presumed to be voluntary, placing the
burden of demonstrating involuntariness on the employ-
ee. Id. at 1124. Ms. Thomas contends that the actions of
the FAA led her to retire involuntarily and that the
agency’s reassignment plan amounted to an improper
removal action.
THOMAS v. MSPB 5
There are two principal grounds on which a retired
employee may overcome the presumption of voluntari-
ness: (1) the retirement was the product of misinfor-
mation or deception by the agency; or (2) the retirement
was the product of coercion by the agency. Id. at 1124.
To establish that the agency coerced her into retiring,
Ms. Thomas must show “that the agency effectively
imposed the terms of [her] resignation or retirement, that
[she] had no realistic alternative but to resign or retire,
and that [her] resignation or retirement was the result of
improper acts by the agency.” Id. 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 as-
signment, a transfer, or other measures that the agency is
authorized to adopt, even if those measures make contin-
uation in the job so unpleasant for the employee that he
feels that he has no realistic option but to leave.” Id.
Ms. Thomas first asserts that her retirement was co-
erced by an improper reassignment. For a directed reas-
signment to be coercive, it must be based on neither a
legitimate nor a bona fide management reason, that is, a
reason that has no solid or substantial basis in personnel
practice or principle. Rayfield v. Dep’t of Agricul., 26
M.S.P.R. 244, 246 (1985). However, if the agency estab-
lishes that a reassignment is legitimate, the Board does
not review the management considerations that underlie
the exercise of agency discretion. Frey v. Dep’t of Labor,
359 F.3d 1355, 1358 (Fed. Cir. 2004).
Ms. Thomas argues that the reassignment was not
bona fide and was not based on legitimate management
considerations because the benefits specialists in the
FAA’s Washington, D.C. headquarters were not required
to relocate to Kansas City. She also argues that the
reassignment was sudden and was inconsistent with the
policy of the prior leadership team; that the relocation
was unnecessary because her work performance was
6 THOMAS v. MSPB
effective at her regional duty station; and that the cen-
tralized BOC has not achieved greater efficiency or more
consistent service. She states that the leadership respon-
sible for the Kansas City consolidation has left the agen-
cy.
The FAA submitted declarations establishing that the
headquarters benefits specialists perform different func-
tions, and that the FAA decided to fully consolidate
operations in Kansas City after partial centralization
failed to realize the desired efficiency gains. The Board
found that the reassignment was a legitimate exercise of
FAA authority, and declined to consider the underlying
reasons for the centralization plan. The success or failure
of an agency’s legitimate reorganization plan is not rele-
vant to whether the employee’s reassignment was bona
fide.
Ms. Thomas also states that she was threatened with
sick leave restriction, affecting her caretaking responsibil-
ities and personal health issues. The Board concluded
that the requirement for documentation from a doctor for
sick leave did not render Ms. Thomas’ working conditions
so intolerable that a reasonable employee would have felt
compelled to retire.
Ms. Thomas asserts that she was faced with choosing
between retiring and relocating to Kansas City, rendering
her retirement involuntary. The relocation presented Ms.
Thomas with difficult familial, health, and financial
situations; however, precedent establishes that such a
dilemma does not make the choice to retire involuntary.
“The fact that an employee is faced with an unpleasant
situation or that [her] choice is limited to two unattractive
options does not make the employee’s decision any less
voluntary.” Staats, 99 F.3d at 1124; see also Covington v.
Dep’t of Health & Human Servs., 750 F.2d 937, 942 (Fed.
Cir. 1984). The Board’s decision was in accordance with
the law in ruling that her retirement was not coerced.
THOMAS v. MSPB 7
B
Ms. Thomas also states that the FAA provided her
with misleading information, on which she relied in
deciding to retire. For example, Ms. Thomas states that
agency officials were unprepared for or cancelled meet-
ings; that they provided conflicting, piecemeal, or disin-
genuous information about relocation; and delayed
providing information on voluntary early retirement
options and incentives (VERA/VSIP). Ms. Thomas also
states that the offer of priority consideration in applying
for other positions was misleading because she did not
receive special consideration. She states that the agency
did not assist her in finding a new placement without
relocation, and that she was given inaccurate information
about the availability of pay retention for positions at
lower grade.
The FAA submitted declarations from the hiring offi-
cial explaining that Ms. Thomas received special consid-
eration and was interviewed in accordance with the
special consideration letter. The FAA also provided
information to Ms. Thomas about the VERA and VSIP
programs approximately eight months before she retired
on January 10, 2015. The FAA conceded that it had
misstated pay retention in the initial letter, and stated
that it had corrected its error by email five months before
Ms. Thomas’ retirement.
The Board found that the FAA provided Ms. Thomas
with sufficient information and time to decide whether to
resign, retire, or relocate. The Board found that the
agency did not act improperly, and that Ms. Thomas had
not established that her retirement was due to agency
misinformation, coercion, or other misfeasance. These
findings were supported by substantial evidence.
8 THOMAS v. MSPB
CONCLUSION
We affirm the Board’s dismissal of Ms. Thomas’ ap-
peal.
AFFIRMED
No Costs.