Martha J. Harvin v. Department of Agriculture ( 2015 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARTHA J. HARVIN, DOCKET NUMBER
Appellant, DC-0432-14-0154-I-1
v.
DEPARTMENT OF AGRICULTURE, DATE: February 5, 2015
Agency.
THIS ORDER IS NO NPRECEDENTIAL 1
Martha J. Harvin, Mount Rainier, Maryland, pro se.
Cliff Lockett, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her involuntary resignation appeal for lack of jurisdiction. For the
reasons discussed below, we GRANT the appellant’s petition for review and
1
A nonprecedential order is one that the Board has determined does not add
sign ificantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
REMAND the case to the regional office for further adjudication in accordance
with this Order.
BACKGROUND
¶2 The appellant was formerly employed as an Issues Analyst with the
agency’s Food Safety and Inspection Service, Office of Public Affairs and
Consumer Education (OPACE). Initial Appeal File (IAF), Tab 10, subtab 4b. On
September 12, 2013, the agency proposed the appellant’s removal for failure to
successfully complete a performance improvement plan and provided her with an
opportunity to respond to the proposal. IAF, Tab 10, subtab 4e. On October 24,
2013, after considering the appellant’s written response to the proposal, the
agency sustained her removal. IAF, Tab 10, subtab 4d. In lieu of being removed,
the appellant elected to resign effective October 24, 2013, via an email to the
Deputy Assistant Administrator, OPACE. IAF, Tab 10, subtab 4c. The agency
accepted and processed the appellant’s resignation. IAF, Tab 10, subtabs 4a-4b.
¶3 After resigning, the appellant filed an appeal asserting, “I am challenging
the Agency’s action. The Agency allegedly engaged in harmful procedural error
and committed a prohibited personnel practice.” IAF, Tab 1 at 4. The agency
moved to dismiss the appellant’s appeal for lack of jurisdiction, asserting that her
resignation was voluntary. IAF, Tab 10, subtab 1 at 4-6. The administrative
judge issued an order directing the appellant to file evidence and/or argument
amounting to a nonfrivolous allegation that her involuntary resignation appeal
was within the Board’s jurisdiction. IAF, Tab 12. The order provided the
appellant with information regarding how to adequately allege that a resignation
was involuntary. Id. In response, the appellant submitted an affidavit, with
various supporting attachments, in which she argued generally that she resigned
because of duress, coercion, and misrepresentation by the agency, the agency
made misleading statements on which she relied to her detriment, her working
conditions were “so difficult because of discrimination,” and the agency did not
3
allow her to withdraw her resignation on October 24, 2013, without a valid
reason. IAF, Tab 13 at 2. Specifically, the appellant argued that her resignation
was involuntary because she was not informed of the removal decision until
12:00 p.m. on October 24, 2013, she was only given until the close of business to
decide whether to resign, and the agency denied her request for an extension of
time to decide. Id. at 5.
¶4 Without holding the appellant’s requested hearing, the administrative judge
dismissed the appeal for lack of jurisdiction on the ground that the appellant
failed to nonfrivolously allege that her resignation was involuntary. IAF, Tab 15,
Initial Decision (ID) at 5-8. The administrative judge found that the agency did
not coerce the appellant to resign by denying her request for additional time to
decide whether to resign in lieu of being removed and that she did not contend
that she attempted to rescind her resignation prior to or on October 24, 2014, the
effective date of her resignation. ID at 6-7. The appellant has filed a petition for
review in which she generally reiterates her arguments below. 2 Petition for
Review (PFR) File, Tab 1. The agency filed a response in opposition to the
appellant’s petition. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
¶5 An employee-initiated action, such as a retirement or resignation, is
presumed to be voluntary and thus outside the Board’s jurisdiction. Vitale v.
Department of Veterans Affairs, 107 M.S.P.R. 501, ¶ 17 (2007). An involuntary
2
The appellant also argues for the first time on review that she relied upon misleading
and erroneous advice by the agency that she could appeal her resignation and that she
was not given an option to resign prior to the effective date of her removal on
October 24, 2013. PFR File, Tab 1 at 3-4. The Board generally will not consider an
argument raised for the first time in a petition for review absent a showing that it is
based on new and material evidence not previously availab le despite the party’s due
diligence. Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271 (1980). The
appellant has not attempted to show that her new arguments are based on new or
material evidence not previously available. PFR File, Tab 1. Accord ingly, the
appellant’s new arguments will not be considered for the first time on review.
4
resignation, however, is equivalent to a forced removal and therefore is within the
Board’s jurisdiction. Hosozawa v. Department of Veterans Affairs, 113 M.S.P.R.
110, ¶ 5 (2010). To overcome the presumption that a resignation was voluntary,
the appellant must show that it was the result of the agency’s misinformation or
deception or was coerced by the agency. See Vitale, 107 M.S.P.R. 501, ¶ 19. To
establish involuntariness on the basis of coercion, the appellant must demonstrate
that the agency imposed the terms of the resignation, the appellant had no
realistic alternative but to resign, and the resignation was the result of improper
actions by the agency. Hosozawa, 113 M.S.P.R., ¶ 5. It is well established that
the fact that an employee is faced with the unpleasant choice of either resigning
or opposing a potential adverse action does not rebut the presumed voluntariness
of her ultimate choice of resignation. Baldwin v. Department of Veterans Affairs,
109 M.S.P.R. 392, ¶ 12 (2008). However, if an appellant shows that an agency
knew that it would not prevail on a proposed adverse action, the proposed action
is coercive and the resulting resignation is involuntary. Id.
¶6 Here, as the administrative judge correctly found, the appellant did not
nonfrivolously allege that the agency knew that it could not support the charges in
the proposed removal. ID at 6. We further agree with the administrative judge
that the agency’s denial of the appellant’s request for additional time to decide
whether to resign in lieu of being removed was not coercive and did not render
the appellant’s resignation involuntary. ID at 6-7; see, e.g., Parrott v. Merit
Systems Protection Board, 519 F.3d 1328, 1335 (Fed. Cir. 2008) (finding that the
fact the appellant had a relatively short period of time to decide whether to sign a
settlement agreement and resign in lieu of receiving the notice of proposed
removal did not render his resignation involuntary); Schultz v. U.S. Navy,
810 F.2d 1133, 1136-37 (Fed. Cir. 1987) (where an 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). Moreover, the appellant’s
conclusory, vague, and unsupported statements that she resigned because of
5
duress, coercion, and misrepresentation by the agency, because the agency made
misleading statements on which she relied to her detriment, and that her working
conditions were intolerable due to discrimination are insufficient to meet the
nonfrivolous allegation standard to establish Board jurisdiction. 3 See Briscoe v.
Department of Veterans Affairs, 55 F.3d 1571, 1573-74 (Fed. Cir. 1995) (bald
allegations standing alone do not meet the nonfrivolous allegation standard); see
also Coleman v. Department of the Army, 106 M.S.P.R. 436, ¶ 9 (2007) (pro
forma allegations are insufficient to satisfy the nonfrivolous standard).
¶7 The appellant also alleges that her separation was involuntary based on the
agency’s refusal to allow her to withdraw her resignation. PFR File, Tab 1 at 6.
An employee’s resignation may be deemed involuntary, and therefore within the
Board’s jurisdiction, if the agency improperly denied her request to withdraw her
resignation before its effective date. See Levy v. Department of Homeland
Security, 109 M.S.P.R. 444, ¶ 18 (2008). In her affidavit submitted below, the
appellant indicated, “I sought to withdraw my proposed offer to resign prior to
[the] tight deadline of COB [close of business] on October 24, 2013, but the
agency did not have a valid reason for not allowing its withdrawal.” IAF, Tab 13
at 2. On review, the appellant further explains her assertion that she tried to
rescind her resignation. She asserts for the first time that on the afternoon of
October 24, 2013, she informed the Equal Employment Opportunity (EEO) office
that she wanted to rescind her resignation, however, the EEO specialist, who
indicated that she would need to check with her supervisor and call the appellant
back, failed to contact the appellant before the end of the day. PFR File, Tab 1
at 6.
¶8 Based on the record, we find that the administrative judge improperly
concluded that the appellant did not contend that she attempted to rescind her
resignation prior to it becoming effective. ID at 7. We further find that the
3
In any event, we note also that on review the appellant now asserts that she did not
resign due to her working conditions. PFR File, Tab 1 at 6.
6
appellant’s allegation that she attempted to timely withdraw her resignation is
sufficient to constitute a nonfrivolous allegation that her resignation was
involuntary. Accordingly, the appeal must be remanded for the appellant’s
requested hearing. See Garcia v. Department of Homeland Security, 437 F.3d
1322, 1344 (Fed. Cir. 2006) (en banc) (where an appellant makes a nonfrivolous
allegation of Board jurisdiction over an appeal, the appellant is entitled to a
hearing on the jurisdictional question); see also Levy, 109 M.S.P.R. 444, ¶¶ 19-20
(remanding the appeal for a jurisdictional finding where the appellant
nonfrivolously alleged that her resignation was involuntary).
¶9 On remand, the administrative judge should afford the appellant her
requested hearing and decide whether she did, in fact, communicate to the agency
her desire to withdraw her resignation prior to its effective date; whether the
agency refused, denied, or otherwise did not act upon such a request; and if so,
whether the agency had an acceptable reason for its refusal, denial, or inaction.
Cf. Glenn v. U.S. Soldier’s & Airmen’s Home, 76 M.S.P.R. 572, 576-77 (1997)
(an employee does not have a right to withdraw a resignation after its effective
date).
ORDER
For the reasons discussed above, we REMAND this case to the regional
office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.