Costa v. Merit Systems Protection Board ( 2010 )

NOTE: This disposition is nonprecedential
United States Court of Appeals
for the Federal Circuit
__________________________
SELINDA B. COSTA,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent,
AND
DEPARTMENT OF JUSTICE,
Intervenor.
__________________________
2010-3054
__________________________
Petition for review of the Merit Systems Protection
Board in case no. DE0752090075-I-2.
___________________________
Decided: October 13, 2010
___________________________
SELINDA B. COSTA, of Aurora, Colorado, pro se.
JEFFREY A. GAUGER, Attorney, Office of the General
Counsel, Merit Systems Protection Board, of Washington,
DC, for respondent. With him on the brief were JAMES M.
COSTA v. MSPB 2
EISENMANN, General Counsel, and KEISHA DAWN BELL,
Deputy General Counsel.
GREGG PARIS YATES, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for intervenor. With him
on the brief were TONY WEST, Assistant Attorney General,
JEANNE E. DAVIDSON, Director, and MARTIN F. HOCKEY,
JR., Assistant Director. Of counsel was DAVID M. HIBEY,
Attorney.
__________________________
Before BRYSON, DYK, and MOORE, Circuit Judges.
PER CURIAM.
Selinda B. Costa (“Costa”) petitions for review of a fi-
nal decision of the Merit Systems Protection Board
(“Board”) that dismissed her appeal for lack of jurisdic-
tion. Costa v. Dep’t of Justice, No. DE0752090075-I-2
(M.S.P.B. Oct. 8, 2009). We affirm.
BACKGROUND
On October 23, 2008, Costa resigned from her position
at the Federal Correctional Institution (“FCI”) Englewood,
in Littleton, Colorado. At that time, Costa was the sub-
ject of an ongoing investigation by the Office of the In-
spector General (“OIG”) regarding allegations of an
improper relationship with a former inmate. Costa al-
leged that her resignation was involuntary due to misrep-
resentation and acts of coercion by FCI, including
unsubstantiated threats of adverse action, undue time
pressure, and intolerable working conditions. The evi-
dence presented at the hearing primarily consisted of
directly conflicting testimony—allegations of wrongdoing
by Costa supported in part by the testimony of her union
representative Robert Neal (“Neal”), contrasted with
3 COSTA v. MSPB
outright denials of those allegations by FCI’s Warden
Blake Davis (“Davis”) and Assistant-Warden Zeigler
(“Zeigler”). After finding Davis and Zeigler’s testimony to
be more credible, the administrative judge (“AJ”) con-
cluded that Costa’s resignation was voluntary and there-
fore dismissed her case for lack of jurisdiction. See Costa
v. Dep’t of Justice, No. DE0752090075-I-2, slip op. at 7-8
(M.S.P.B. Aug. 4, 2009) (“Initial Decision”). The Board
denied Costa’s petition for review, and the AJ’s decision
became the final decision of the Board. Costa timely
appealed to this court. We have jurisdiction pursuant to
28 U.S.C. § 1295(a)(9).
DISCUSSION
A voluntary resignation is beyond the Board’s juris-
diction, Garcia v. Dep’t of Homeland Sec., 437 F.3d 1322,
1328-29 (Fed. Cir. 2006) (en banc), but the Board has
jurisdiction when a resignation was “involuntary and thus
tantamount to forced removal.” Shoaf v. Dep’t of Agric.,
260 F.3d 1336, 1341 (Fed. Cir. 2001). To prevail, Costa
must prove that her resignation was due to the agency’s
(1) misinformation or deception, or (2) coercion. Terban v.
Dep’t of Energy, 216 F.3d 1021, 1024 (Fed. Cir. 2000).
A resignation is involuntary if the agency made mis-
leading statements on which the employee reasonably
relied to her detriment. Scharf v. Dep’t of the Air Force,
710 F.2d 1572, 1574-75 (Fed. Cir. 1983). Costa and Neal
testified that Davis misrepresented Costa’s options as
being either resignation or home duty without pay. Davis
and Zeigler testified that Davis never stated that home
duty would be without pay. The Board found the testi-
mony of Davis and Zeigler to be more credible based on
their demeanor, their capacity to accurately remember,
the consistency of their testimony, and the improbability
of Costa’s account. See Initial Decision, at 5-7. Costa
COSTA v. MSPB 4
essentially requests that we reweigh conflicting evidence.
That is not our function. “The credibility determinations
of an administrative judge are virtually unreviewable on
appeal,” Bieber v. Dep’t of the Army, 287 F.3d 1358, 1364
(Fed. Cir. 2002), and we see no basis to set them aside
here. As such, we affirm the Board’s rejection of Costa’s
claim that she was given material misinformation relat-
ing to her resignation.
Costa next argues that her resignation was involun-
tary due to coercion by the agency. Specifically, Costa
alleges that (1) Davis threatened to fire her without
cause; (2) she was forced to make her resignation decision
under excessive time pressure; and (3) she was subjected
to intolerable working conditions. We address each claim
in turn.
A threat of adverse action is coercive if the agency
knows or should know that it cannot be substantiated.
Schultz v. U.S. Navy, 810 F.2d 1133, 1136 (Fed. Cir.
1987). Costa and Neal testified that Davis threatened to
fire Costa, without more, if he received a telephone call
from an undisclosed source. Costa apparently alleges that
this was an implication that the mere receipt of word from
the OGI investigators, without regard as to their findings
or to whether the investigation had concluded, would
result in her termination. Davis and Zeigler testified that
Davis made no such statement. The Board credited Davis
and Zeigler’s testimony. Initial Decision, at 6-7. Again,
we find no error in the Board’s credibility determinations.
Thus, we affirm the Board’s determination that Costa’s
resignation was not involuntarily caused by improper
threats of adverse action.
Costa next alleges that she was forced to resign under
undue time pressure because Davis gave her “[until] the
end of the day to make up her mind.” However, the Board
5 COSTA v. MSPB
credited Davis’s testimony that he placed no time limit on
when Costa could resign, and that he merely related that
the agency could note pending discipline on her resigna-
tion form if she waited to resign until after an adverse
action was proposed. Initial Decision, at 7. We again find
no error in the Board’s credibility determination. More-
over, merely informing Costa that it might be beneficial
for her to resign before an adverse action was proposed
did not constitute coercion, as Costa was still free to await
the outcome of the OIG investigation. “The fact remains,
plaintiff had a choice. She could stand pat and fight. She
chose not to.” Garcia, 437 F.3d at 1329 (citation omitted).
Thus, the Board did not err in concluding that Costa’s
resignation was not involuntarily caused by undue time
pressure.
Finally, the Board found that Costa’s “working condi-
tions were not so intolerable as to force a reasonable
person to resign.” Initial Decision, at 7. The Board
properly considered the facts that Costa was briefly
reassigned to the front lobby (without work) and that a
memorandum including Costa’s picture and warning of
her limited access to the FCI facility was posted in the
control room. Id. at 7-8. However, the Board gave these
factors little evidentiary weight because both actions were
corrected about two weeks before Costa’s resignation
(Costa was moved to an empty office, and her picture was
removed). Id. at 8. The Board could reasonably conclude
that the absence of these factors when Costa resigned
“diminishes the[ir] causal link” to her resignation and
“attenuates [her] claim of involuntariness.” Terban, 216
F.3d at 1024. Moreover, we agree with the Board’s find-
ing that “lack of work in and of itself is not enough to
prove intolerable working conditions.” Initial Decision, at
8. Thus, the Board did not err in rejecting Costa’s claim
COSTA v. MSPB 6
that her resignation was caused by intolerable working
conditions.
Consequently, the Board’s finding that Costa volun-
tarily resigned was supported by substantial evidence,
and the Board did not err in concluding that her appeal
was outside the Board’s jurisdiction.
AFFIRMED
COSTS
No costs.