NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
GARTH K. TRINKL,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2017-1378
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-0752-16-0387-I-1.
______________________
Decided: March 30, 2018
______________________
J. DEREK MCCORQUINDALE, Finnegan, Henderson,
Farabow, Garrett & Dunner, LLP, Reston, VA, argued for
petitioner. Also represented by DANIEL CRAIG COOLEY;
JOSE M. RECIO, JASON LEE ROMRELL, Washington, DC.
STEPHEN FUNG, Office of the General Counsel, Merit
Systems Protection Board, Washington, DC, argued for
respondent. Also represented by KATHERINE M. SMITH,
JEFFREY A. GAUGER.
______________________
2 TRINKL v. MSPB
Before NEWMAN, LOURIE, and REYNA, Circuit Judges.
Opinion for the court filed by Circuit Judge REYNA.
Dissenting opinion filed by Circuit Judge LOURIE.
REYNA, Circuit Judge.
Petitioner Garth K. Trinkl seeks review of the deci-
sion of the Merit Systems Protection Board, sustaining
the Initial Decision of the Administrative Judge dismiss-
ing Trinkl’s appeal from an alleged involuntary retire-
ment. Trinkl claims that multiple incidents during his
employment created a hostile work environment and led
to his involuntary resignation. Because the Board im-
properly concluded that Trinkl failed to present non-
frivolous allegations of jurisdiction, we vacate the deci-
sions below and remand for a jurisdictional hearing.
BACKGROUND
Trinkl was an economist with the Department of
Commerce in the Bureau of Economic Analysis (“BEA”)
from 1998 to his retirement in 2015. During his service to
the agency, Trinkl received numerous “high quality”
ratings related to his job performance.
In 2007, Howard Krakower was appointed as Trinkl’s
first line supervisor. In 2013, Trinkl submitted a com-
plaint to the BEA’s Human Resources Division, alleging
that he had overheard Kurt Kunze, Trinkl’s second line
supervisor, refer to older employees as the “peanut gal-
lery.” J.A. 228–29. Trinkl and a fellow BEA employee
also observed Kunze push another agency employee into a
wall.
Subsequently, 1 Trinkl alleges that he endured a
“near-physical” attack from his supervisors Krakower and
1 Trinkl’s amended petition before the Board alleges
that this event took place in October of 2013. J.A. 143,
TRINKL v. MSPB 3
Kunze. Specifically, Krakower and Kunze met with
Trinkl for a mid-year performance review; Trinkl claims
that during the meeting, he stood up to protest false
allegations concerning his performance deficiencies and
was yelled at to sit down. Trinkl further alleges that
when he announced he was leaving the review and
walked towards the conference room door, Kunze yelled to
Krakower to stop him, and Krakower “quickly rose and
came within inches and micro-seconds of grabbing and
restraining” Trinkl from opening the door. J.A. 5. Trinkl
allegedly yelled at Krakower not to touch him and left the
room. Trinkl claims that he left the meeting room in
great fear and immediately reported the incident by
telephone to a Physical Security Officer. Trinkl provides
emails with the Officer discussing the incident. J.A. 95,
185–86.
Trinkl claims that the “near-physical attack,” coupled
with his recollection of the earlier incident of another
employee being pushed against a wall, left a profound
impact on him and exacerbated Trinkl’s preexisting post-
traumatic stress disorder (“PTSD”). Trinkl alleges the
agency nurse was aware of Trinkl’s PTSD condition, and
provides an email describing how he sought refuge in the
nurse’s station to avoid meeting with Krakower and
Kunze. J.A. 186.
Trinkl alleges that after the “near-physical” attack, he
had been instructed by the Physical Security Officer not
to meet with his supervisors Krakower and Kunze in
person. Trinkl provides emails in which he requests
assistance from other supervisors in maintaining physical
144, 149. Other documents in the record suggest that the
event in question took place in April of 2014. J.A. 102,
109. Trinkl alleges that his PTSD caused him to have
difficulty recalling the exact date of the incident. J.A.
149.
4 TRINKL v. MSPB
distance from Krakower and Kunze. J.A. 296. In Sep-
tember 2014, Krakower and Kunze sent emails to Trinkl
for performance reviews, to which Trinkl replied that he
had been advised against meeting with the two men in
any setting. J.A. 193.
On August 27, 2014, the Human Resources division of
the Census Bureau finished its administrative investiga-
tion into Trinkl’s separate allegations of harassment and
retaliation, concluding that “[t]he investigation revealed
that there is no conclusive evidence to suggest that
[Trinkl had] been subjected to prohibited harassment,
based on age and retaliation/reprisal.” J.A. 187.
On October 31, 2014, Trinkl submitted an Application
for Immediate Retirement, and indicated that he wished
to retire because he no longer felt safe working at the
agency “due to reported supervisory threats and violence.”
J.A. 215. Trinkl chose a final separation date of January
10, 2015, but in the interim requested transfer to new
supervisors. The transfer request was denied because
Trinkl had been placed under a Performance Improve-
ment Plan (“PIP”), reviewed by Krakower. Trinkl claims
he was further harassed by Krakower after submitting
his separation paperwork. Trinkl continued to refuse to
meet with Krakower and Kunze in any capacity until he
retired on January 10, 2015.
On February 25, 2016, Trinkl filed an appeal with the
Board alleging that he had involuntarily retired due to
coercion and agency deception and misrepresentation.
After reviewing the incidents above, the administrative
law judge (“ALJ”) issued an Initial Decision granting the
government’s motion to dismiss for lack of jurisdiction on
the basis that Trinkl failed to state a non-frivolous allega-
tion that his retirement was involuntary due to misrepre-
sentation or coercion. J.A. 18–19. Accordingly, the ALJ
found that the Board lacked jurisdiction over Trinkl’s
discrimination claims. Id. The Board subsequently
TRINKL v. MSPB 5
issued a final order affirming dismissal, which Trinkl
appealed to this court pursuant to
5 U.S.C. § 7703(b)(1)(A)
and
28 U.S.C. § 1295(a)(9).
DISCUSSION
Whether the Board has jurisdiction over an appeal is
a question of law that we review de novo. Forest v. Merit
Sys. Prot. Bd.,
47 F.3d 409, 410 (Fed. Cir. 1995). We
review the Board’s underlying factual findings for sub-
stantial evidence. Parrott v. Merit Sys. Prot. Bd.,
519
F.3d 1328, 1334 (Fed. Cir. 2008).
“Resignations are presumed voluntary, and the bur-
den of showing that the resignation was involuntary is on
the petitioner.” Terban v. Dep’t of Energy,
216 F.3d 1021,
1024 (Fed. Cir. 2000). An employee asserting claims of
involuntary retirement on the basis that the agency
coerced the employee to retire must show that the agency
effectively imposed the terms of the employee’s resigna-
tion, the employee had no realistic alternative but to
resign or retire, and the employee’s resignation or retire-
ment was the result of improper acts by the agency.
Shoaf v. Dep’t of Agric.,
260 F.3d 1336, 1341 (Fed. Cir.
2001). To objectively determine whether a reasonable
person in the employee’s position would have felt com-
pelled to resign, the tribunal must consider the totality of
the circumstances.
Id. A retirement will not be deemed
involuntary where the employee retires simply because he
“does not want to accept [actions] that the agency is
authorized to adopt.” Terban,
216 F.3d at 1025 (altera-
tion in original) (quoting Staats v. U.S. Postal Serv.,
99
F.3d 1120, 1124 (Fed. Cir. 1996)). “When determining
whether a resignation was involuntary, the MSPB exam-
ines ‘the surrounding circumstances to test the ability of
the employee to exercise free choice.’” Lentz v. Merit Sys.
Prot. Bd.,
876 F.3d 1380, 1384 (Fed. Cir. 2017) (quoting
Perlman v. United States,
490 F.2d 928, 933 (Ct. Cl.
1974)).
6 TRINKL v. MSPB
“The [Board] possesses jurisdiction over an appeal
filed by an employee who has resigned or retired if the
employee proves, by a preponderance of the evidence, that
his or her resignation or retirement was involuntary and
thus tantamount to forced removal.” Shoaf, 260 F.3d at
1341. Once a claimant makes a non-frivolous allegation
of MSPB jurisdiction, he is entitled to a jurisdictional
hearing. Garcia v. Dep’t of Homeland Sec.,
437 F.3d 1322,
1325, 1330 (Fed. Cir. 2006) (en banc); Shoaf, 260 F.3d at
1341 n.2 (“When there is a question as to the voluntari-
ness of a petitioner’s resignation or retirement and the
petitioner makes a non-frivolous allegation of that invol-
untariness, . . . an evidentiary hearing is required to
determine whether the resignation or retirement was in
fact involuntary.” (citing Braun v. Dep’t of Veterans Af-
fairs,
50 F.3d 1005, 1008 (Fed. Cir. 1995))). Non-frivolous
allegations of jurisdiction are those that, if proven, can
establish jurisdiction. Garcia,
437 F.3d at 1330.
In the Initial Decision, the ALJ found that “the one-
time display of ‘non-verbal aggressive behavior,’ would
not constitute working conditions that were so difficult
that a reasonable person in the appellant’s position would
have felt compelled to retire.” J.A. 17. The Board similar-
ly concluded that given the length of time between the
alleged near-physical altercation, the physical altercation
witnessed by Trinkl, and Trinkl’s eventual retirement
meant that Trinkl failed to make a non-frivolous allega-
tion of involuntary retirement. The Board stated that
“given the lapse in time between these incidents in 2007
and 2013 and the appellant’s January 10, 2015 retire-
ment, they are not particularly probative evidence of
involuntariness of the appellant’s retirement,” and that
“the lack of clarity in the record regarding when the ‘near
physical attack’ occurred . . . reduces its probative value.”
J.A. 6. The Board also considered Trinkl’s requests for
reassignment and allegations about being placed on the
TRINKL v. MSPB 7
PIP, and dismissed each as insufficient non-frivolous
allegations of involuntary retirement. J.A. 7–8.
The question at this stage is whether Trinkl has non-
frivolously alleged circumstances such that a reasonable
person in Trinkl’s position would have felt compelled to
resign. On that question, we reach a conclusion different
from that of the Board. Considering Trinkl’s allegations
of his experiences at the BEA collectively, rather than
dismissing them one by one, as the Board did, we find
that a person in like circumstances could reasonably feel
unable to exercise free choice and compelled to retire.
Specifically, Trinkl alleges that after serving the agency
for several years with favorable reviews, he experienced
multiple instances of hostility from his first- and second-
line supervisors, Krakower and Kunze, culminating in a
near-physical attack in a small, closed room. Trinkl
reported the incident and consistently refused to meet
with his supervisors in person following the attack, re-
sorting even to hiding in the nurse’s station to avoid
meeting with Krakower and Kunze. Trinkl submitted his
retirement paperwork approximately two months after
the investigation into his now-dismissed discrimination
claims against Krakower and Kunze concluded. Prior to
actually retiring, Trinkl was placed on a PIP reviewed by
Krakower. Trinkl also sought transfer away from Kra-
kower and Kunze but was denied. In light of Trinkl’s
allegations of threatened violence and compounded PTSD,
being forced to continue working with Krakower and
Kunze created working conditions so intolerable for
Trinkl that he could reasonably feel driven to resign. We
conclude that, viewed in totality, Trinkl makes a non-
frivolous claim of involuntary retirement. Such a “non-
frivolous allegation is all that is required to trigger the
Board’s jurisdiction at this threshold stage.” See Braun,
50 F.3d at 1008.
The Board erred in considering and dismissing
Trinkl’s allegations individually, rather than viewing
8 TRINKL v. MSPB
Trinkl’s claims collectively as a series of escalating inci-
dents culminating in his retirement. The Board further
erred by considering the relative probative value of
Trinkl’s allegations over time and discounting the proba-
tive value of the alleged near-physical attack due to
uncertainty as to when it occurred. See J.A. 6. Weighing
allegations as more or less probative is appropriate only
following a jurisdictional hearing. See Terban,
216 F.3d
at 1024 (discounting events that occurred long before
retirement as less probative to the voluntariness inquiry
following an evidentiary jurisdictional hearing).
CONCLUSION
Because the Board improperly concluded that Trinkl
failed to present non-frivolous allegations of jurisdiction,
we vacate the decisions below and remand for a jurisdic-
tional hearing.
VACATED AND REMANDED
COSTS
No Costs.
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
GARTH K. TRINKL,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2017-1378
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-0752-16-0387-I-1.
______________________
LOURIE, Circuit Judge, dissenting.
I respectfully dissent. Mr. Trinkl voluntarily retired.
There is no doubt that Mr. Trinkl was not happily sit-
uated in his job when the events recited in the majority
opinion occurred. He may feel that he was not treated
well, and the “near-physical attack” in November 2013
was certainly not pleasant. But the Board determined
that the totality of Mr. Trinkl’s evidence indicated that
his workplace environment was not so severe that his
retirement was coerced. We owe deference to those find-
ings of the Board.
2 TRINKL v. MSPB
The ultimately persuasive factor in this appeal in my
view, aside from deference, is that it took until October
31, 2014, fully 11 months after this “near-physical attack”
for Mr. Trinkl to submit his resignation, in which he
mentioned that he felt unsafe in his work environment,
and until January 10, 2015, almost another 3 months
after that for Mr. Trinkl to resign. In the interim, Mr.
Trinkl was issued a performance improvement plan, and
he requested a transfer. But these were not evidence of
coercion, and the main event seemed to be the “near-
physical attack.”
Aside from the standard of review, which we are re-
quired to observe, it hardly seems credible that one could
find a retirement to have been coerced when the most
serious precipitating event occurred 14 months before the
retirement. If Mr. Trinkl had resigned shortly after that
event, one might understand that the retirement might
have been coerced. But this one seems to have been the
product of extended and prolonged contemplation, and
hence was voluntary.
The full two-person Board, affirming the administra-
tive judge, so found and we are obligated to defer to that
ruling.
