Salvadore Gendusa, II v. Department of Veterans Affairs ( 2015 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SALVADORE GENDUSA, 1 DOCKET NUMBER
Appellant, DA-0752-14-0444-I-1
v.
DEPARTMENT OF VETERANS DATE: June 8, 2015
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 2
Terrence J. Johns, New Orleans, Louisiana, for the appellant.
Brandi M. Powell, New Orleans, Louisiana, for the agency.
1
The appellant died on December 29, 2014, before the initial decision was issued. The
appellant’s spouse filed a petition for review, followed by a timely motion for the
Board to accept her as a substitute party. Petition for Review (PFR ) File, Tabs 1, 4-5,
7. We grant her motion. The appellant’s interests were not extinguished by his death.
See 5 C.F.R. § 1201.35(a). Although he cannot be reinstated to employment, issues
such as back pay for the period between his resignation and his death and attorney fees
are either pending or may arise from this appeal. See Estate of Kravitz v. Department of
the Navy, 110 M.S.P.R. 97, ¶ 2 n.1 (2008). Because the appellant’s spouse has been
substituted in this matter, we refer to all assertions and arguments made by her as made
by “the appellant.”
2
A nonprecedential order is one that the Board has determined does not add
significantly 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 Parties may cite nonprecedential orders,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
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed for lack of jurisdiction the appellant’s constructive removal appeal.
Generally, we grant petitions such as this one only when: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the judge’s rulings during either the course of the
appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. See
Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, and based on the
following points and authorities, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2 The appellant filed this appeal after resigning from the agency, effective
February 15, 2013. Initial Appeal File (IAF), Tab 1. He alleged that his
resignation was involuntary and thus a constructive removal. Id. After a hearing,
the administrative judge dismissed the appeal for lack of jurisdiction. IAF,
Tab 30, Initial Decision (ID) at 1, 11.
¶3 On review, the appellant generally asserts that the administrative judge
“misrepresented the evidence and testimony.” PFR File, Tab 1 at 4. However,
the administrative judge correctly found that the appeal is not within the Board’s
3
jurisdiction. The Board’s jurisdiction is limited to matters over which it has been
given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems
Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). The Board does not have
jurisdiction over all actions that are alleged to be incorrect. Weyman v.
Department of Justice, 58 M.S.P.R. 509, 512 (1993). An appellant bears the
burden of proving by preponderant evidence that his appeal is within the Board’s
jurisdiction. 5 C.F.R. § 1201.56(a)(2)(i).
¶4 An employee-initiated action such as a resignation or retirement is
presumed to be voluntary and, as such, outside of the Board’s jurisdiction.
Putnam v. Department of Homeland Security, 121 M.S.P.R. 532, ¶ 21 (2014). A
resignation that is involuntary, however, is equivalent to a forced removal and
falls within the Board’s jurisdiction. Id. An appellant who claims that his
retirement was involuntary may rebut the presumption of voluntariness in a
variety of ways, including by showing that the retirement was the result of
intolerable working conditions. Id. Here, the appellant was a Clerk, GS-0303-03,
with the Police Service at the agency’s New Orleans Veterans Affairs Medical
Center. IAF, Tab 1 at 2, 7, Tab 10 at 46, 63. He alleged that the facility director,
J.C., met with him in the presence of his union representative on February 15,
2013. IAF, Tab 1 at 7. He alleged that she advised him that the agency no
longer needed his services and that he had no choice but to retire or resign his
position. Id. The appellant asserted that he had been harassed and discriminated
against for more than a year by management officials, including R.K., chief of the
Police Service. IAF, Tab 4 at 4. He explained that agency managers repeatedly
told him that he was too old to be working. Id. He further explained that the
union had to force management to allow him to attend treatment appointments for
his service-connected post-traumatic stress disorder (PTSD) and, on several
occasions, he was denied opportunities to see his physician. Id. The appellant
additionally asserted that he suffered a mild heart attack on September 10, 2012,
4
after receiving a September 5, 2012 decision letter informing him of his removal
for conduct unbecoming a federal employee. Id.; see IAF, Tab 10 at 60-62.
¶5 On September 19, 2012, management offered the appellant an abeyance
agreement in lieu of removal. 3 IAF, Tab 10 at 56-59. He was transferred to the
medical center’s Ambulatory Procedure Unit to work as a Medical Support
Assistant, GS-0679-03, and he agreed not to incur any validated patient
complaints within the 1-year term of the agreement. Id. at 56-57. The appellant
alleged that, on December 20, 2012, management denied his request for light duty
to accommodate knee injuries he sustained in military combat. IAF, Tab 4 at 4.
Three patient complaints were filed against the appellant, and, though he
contended that they lacked merit, management validated them. Id.; see IAF, Tab
10 at 48-49, 52-55. Accordingly, the agency found that he had breached the
agreement and placed him on paid administrative leave effective January 23,
2013. IAF, Tab 10 at 48-51. During this time, the agency’s Office of Inspector
General investigated threats that the appellant allegedly made on R.K.’s life.
IAF, Tab 4 at 4; see IAF, Tab 16, Subtabs C8, C22.
¶6 The appellant alleged that he met with J.C. on February 15, 2013,
accompanied by a union representative. IAF, Tab 4 at 4. He averred that J.C.
“seemed to indicate that she didn’t have enough evidence to substantiate any of
the charges levied against [him],” but that neither she nor R.K. wanted him back,
“so he would have no choice but to resign his position.” Id. He asserted that he
accompanied his union representative to Human Resources, where a Supervisory
Human Resources Specialist, D.R., prepared his resignation letter. Id.; see IAF,
3
The agreement provided, in part, that the agency would hold the September 5, 2012
removal decision in abeyance for 1 year from the date it was executed. IAF, Tab 10
at 56-57. The appellant agreed that any validated patient complaint received during the
1-year period following execution of the agreement would be considered a breach of the
agreement that would effectuate his removal. Id. at 57. He also agreed to waive his
right to appeal the September 5, 2012 removal decision. Id.5
Tab 10 at 47. He asserted that he believed at the time that he had to sign the
letter but later learned that his resignation was unnecessary. IAF, Tab 4 at 4.
¶7 On May 14, 2013, the appellant filed an equal employment opportunity
(EEO) complaint alleging that his resignation was involuntary and claiming
several bases for discrimination. 4 IAF, Tab 1 at 7, Tab 10 at 40-44, Tab 16,
Subtab A4. This appeal arose from the mixed-case elements of his complaint.
See IAF, Tab 10 at 43-45, Tab 16. The Report of Investigation includes
interrogatories and documentary evidence showing that the agency was unaware
that the appellant had requested any accommodation. 5 See IAF, Tab 16, Subtabs
B2 at 6, B4 at 3, B5 at 4, C17 at 1, 4-5.
¶8 Although the appellant proffered D.R. as a witness to “speak to whether
[he] was forced” to resign, see IAF, Tab 23, she testified that she did not prepare
the resignation letter and that he did not sign it in front of her. Hearing Compact
Disc. Instead, she testified that A.F., the appellant’s union representative, told
her that she would prepare the letter and witness his signature. Id. D.R. testified
that she received the signed letter by email from A.F. Id. D.R. also testified that
J.C. asked her to assist the appellant with preparing his retirement application.
Id. In the process, she discovered that he was not yet eligible to retire. Id. She
testified that she told A.F. and the appellant that he was not yet eligible to retire
and researched whether his military service could be considered in determining
his eligibility. Id.4
The appellant claimed discrimination based on age (70), race (Caucasian), color
(olive), national origin (Sicilian and German), mental disability (PTSD), physical
disability (a heart condition and injuries sustained during the Korean War). IAF,
Tab 16, Subtab A4. He claimed that: (1) he was subjected to ongoing harassment and
ridicule regarding his age; (2) he resigned involuntarily after falsely being accused of
misconduct; and (3) the agency failed to accommodate his physical condition when it
required him to transport patients weighing up to 300 pounds. Id.5
The appellant also did not file a medical release that would have allowed his medical
information to be used in the EEO proceeding. See IAF, Tab 16, Subtab C19 at 2.
6
¶9 An appellant may prove a claim of involuntary resignation by showing that
his working conditions were made so difficult by the agency that a reasonable
person in his position would have felt compelled to resign, and his resignation
was the result of improper acts by the agency. Axsom v. Department of Veterans
Affairs, 110 M.S.P.R. 605, ¶ 12 (2009); see also Miller v. Department of Defense,
85 M.S.P.R. 310 (2000). As the U.S. Court of Appeals for the Federal Circuit has
observed, “The doctrine of coercive involuntariness is a narrow one, requiring
that the employee satisfy a demanding legal standard.” Conforto v. Merit Systems
Protection Board, 713 F.3d 1111, 1121 (Fed. Cir. 2013). In Conforto, the court
further stated, “An employee’s dissatisfaction with the options that an agency has
made available to him is not sufficient to render his decision to resign or retire
involuntary.” Id. Accordingly, the court explained, “coerced involuntariness
does not apply if the employee resigns or retires because he does not like agency
decisions such as ‘a new assignment, a transfer, or other measures that the agency
is authorized to adopt, even if those measures make continuation in the job so
unpleasant . . . that he feels he has no realistic option but to leave.’” Id. at
1121-22 (quoting Staats v. U.S. Postal Service, 99 F.3d 1120, 1124 (Fed. Cir.
1996)). Moreover, the coercion must arise from improper acts by the agency. Id.
at 1122.
¶10 It is undisputed that the appellant was serving under an abeyance agreement
in lieu of removal for an earlier disciplinary action. See IAF, Tab 10 at 56-59. It
is also undisputed that he was notified that he was in breach of the agreement and
that he subsequently signed a resignation letter. Id. at 47-51. Based in part on
her assessments of witness credibility, see Hillen v. Department of the Army,
35 M.S.P.R. 453, 458-62 (1987) (factors to be considered in assessing a witness’s
credibility), the administrative judge found D.R.’s testimony regarding the
circumstances of his resignation to be more credible than that of the appellant
himself. ID at 9-10. Notably, the appellant withdrew his request for A.F. to
testify at his hearing. IAF, Tab 21 at 2. The administrative judge thus properly
7
credited D.R.’s version of events. ID at 10. The administrative judge also
credited the testimony of R.K. and K.R., a Captain in the Police Service,
regarding harassment that the appellant allegedly experienced while assigned to
the Police Service. See id.. The administrative judge found it undisputed that the
appellant did not have contact with these witnesses after October 2012 and they
were not immediately involved in the events leading to his resignation. Id.; see
IAF, Tab 16, Subtabs B3 at 4-11, B5 at 4-13. The administrative judge thus
properly found that, although the appellant experienced difficulties, he did not
show that his working conditions were made so difficult by the agency that a
reasonable person in his position would have been compelled to resign. ID at 11.
Likewise, the record does not suggest that the agency acted improperly.
¶11 An employee is not guaranteed a working environment free of stress.
Dissatisfaction with work assignments, a feeling of being unfairly criticized, or
difficult and unpleasant working conditions are generally not so intolerable as to
compel a reasonable person to resign or retire. Miller, 85 M.S.P.R. 310, ¶ 32.
Although the appellant may have learned that he had incurred validated patient
complaints and thus breached the abeyance agreement, credible testimony showed
that his decision to resign was made with his union representative. Although he
may have been under investigation for allegedly making threatening statements, it
is well-settled that the fact that an employee is confronted with the unpleasant
choice of resigning or facing disciplinary action does not affect the voluntariness
of his ultimate choice to resign or retire. See Schultz v. United States Navy,
810 F.2d 1133, 1136 (Fed. Cir. 1987). The administrative judge considered the
evidence as a whole, drew appropriate inferences, and made reasoned
conclusions, dismissing the appeal for lack of jurisdiction. Broughton v.
Department of Health & Human Services, 33 M.S.P.R. 357, 359 (1987). Because
the appeal was dismissed for lack of primary jurisdiction, the administrative
judge properly declined to consider the appellant’s mixed-case claims of
8
discrimination. See ID at 11; see also Wren v. Department of the Army,
2 M.S.P.R. 1, 2 (1980), aff’d, 681 F.2d 867, 871-73 (D.C. Cir. 1982).
¶12 Finally, the appellant argues that the administrative judge did not allow the
appellant to call J.C. as a witness. PFR File, Tab 1 at 3. The agency
representative indicated in the prehearing discussion that J.C. had left the service
but that the agency was considering issuing a subpoena for her testimony. Id.;
see IAF, Tab 21 at 2. The agency ultimately declined to do so. The appellant
alleges that the administrative judge “rudely” told the appellant’s representative
that he could pay to subpoena J.C., but “acted . . . as though it was too
expensive.” PFR File, Tab 1 at 3. The appellant has not shown, however, that
the administrative judge denied the request to issue a subpoena for J.C.’s
testimony. Accordingly, we find that the appellant’s argument is unavailing.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
9
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information is available at the court’s website,
www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se
Petitioners and Appellants,” which is contained within the court’s Rules of
Practice, and Forms 5, 6, and 11.
If you are interested in securing pro bono representation for your appeal to
the Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Merit Systems Protection Board neither endorses the services provided by any
attorney nor warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.