Ricardo Garza v. Department of the Air Force ( 2016 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RICARDO GARZA, DOCKET NUMBER
Appellant, AT-0752-15-0522-I-1
v.
DEPARTMENT OF THE AIR FORCE, DATE: November 10, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL *
Neil C. Bonney, Esquire, Virginia Beach, Virginia, for the appellant.
Daniel J. Watson and James R. Haslup, Eglin Air Force Base, Florida, for
the agency.
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 his involuntary retirement appeal for lack of jurisdiction. For the
reasons discussed below, we GRANT the appellant’s petition for review,
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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REVERSE the initial decision, and ORDER the agency to reinstate the appellant
to his former position.
¶2 On January 23, 2015, the agency proposed the appellant’s removal based on
alleged misconduct. Initial Appeal File (IAF), Tab 7 at 28-36. Thereafter, he met
with an Employee Relations Specialist to discuss his options should he eventually
be removed, including the effect of any retirement on various hypothetical
scenarios. IAF, Tab 5 at 5-6. On March 26, 2015, the appellant received notice
that he would be removed from his positon effective that same day. Id. at 16-17.
He immediately submitted his retirement application and retired effective
March 25, 2016. Id. at 18-19.
¶3 The appellant then appealed the retirement and contended that it was
involuntary because it was based on misinformation provided by the Employee
Relations Specialist. IAF, Tabs 1, 5. The chief administrative judge found that
the appellant made a nonfrivolous allegation of Board jurisdiction and he
convened a hearing. Ultimately, however, he determined that the appellant failed
to prove that his retirement was involuntary and he dismissed the appeal for lack
of jurisdiction. Initial Decision (ID) at 1, 17. The appellant petitions for review.
Petition for Review (PFR) File, Tab 1.
¶4 An employee-initiated action, such as a retirement, is presumed to be
voluntary unless the appellant presents sufficient evidence to establish that the
action was obtained through duress or coercion or shows that a reasonable person
would have been misled by the agency. Miller v. Department of Homeland
Security, 111 M.S.P.R. 325, ¶ 8 (2009), aff’d, 361 F. App’x 134 (Fed. Cir. 2010).
A retirement action is involuntary if the agency made misleading statements upon
which the employee reasonably relied to his detriment. Id. (citing Scharf v.
Department of the Air Force, 710 F.2d 1572, 1574‑75 (Fed. Cir. 1983)). The
touchstone of the analysis of whether a retirement is voluntary is whether the
employee made an informed choice. Covington v. Department of Health &
Human Services, 750 F.2d 937, 942 (Fed. Cir. 1984). A decision made “with
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blinders on,” based on misinformation or a lack of information, cannot be binding
as a matter of fundamental fairness and due process. Miller, 111 M.S.P.R. 325,
¶ 8 (citing Middleton v. Department of Defense, 185 F.3d 1374, 1382 (Fed. Cir.
1999)). An agency is required to provide information that is not only correct in
nature, but adequate in scope to allow an employee to make an informed decision.
Miller, 111 M.S.P.R. 325, ¶ 8. This includes an obligation to correct any
erroneous information that it has reason to know an employee is relying on.
Baldwin v. Department of Veterans Affairs, 111 M.S.P.R. 586, ¶ 16 (2009).
¶5 At the hearing, the appellant testified that a major concern in weighing the
decision to retire was how it would affect his ability to obtain future employment.
Hearing Transcript (HT) at 27, 34. He stated that his retirement annuity would
not be enough to support his family so it was critical that he retire with a clean
record. HT at 26-27. To that end, he specifically asked the Employee Relations
Specialist whether he could retire with a clean record if the retirement was
effective before any removal, and he testified that she told him that his retirement
under those circumstances would be processed as a normal, voluntary retirement
and his permanent records would be clean. HT at 28. When the appellant signed
the Standard Form (SF) 52 documenting his retirement, it contained no
derogatory information and did not refer to any alleged misconduct or any
pending adverse action. HT at 37-38; Hearing Exhibit 1. The SF-50, however,
stated that the appellant retired after receiving a written notice of removal for
misconduct. HT at 31; IAF, Tab 5 at 11.
¶6 When asked whether she told the appellant that his personnel records would
contain no derogatory information if he retired before any removal became
effective, the Employee Relations Specialist testified, “If he retired, I told him it
would be—the legal authority would be a retirement. . . . [A]nd that’s the action
that would go in the system.” HT at 65. She did not provide a responsive answer
to a direct question about whether the appellant’s SF-52 contained information
about the removal action (although it clearly did not), HT at 77-78, but she
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testified that she knew that, in compliance with guidance from the Office of
Personnel Management, the appellant’s SF-50 was going to state that he retired
after receiving notice that he would be removed for misconduct, HT at 78. She
also testified that she did not tell the appellant that this information would be
included on the SF-50. HT at 78-79, 81.
¶7 The chief administrative judge found that the appellant made the decision to
retire well before the day he signed the SF-52 and therefore did not rely to his
detriment on the fact that the SF-52 did not contain any derogatory information.
ID at 16. We find that the appellant made his decision to retire soon after
receiving the notice of proposed removal but he did so based on the belief that he
could retire with a clean record and that his future employment prospects would
not be jeopardized. His belief was based on the Employee Relations Specialist’s
statements that a retirement before any removal took effect would be processed as
a normal retirement and on her failure to mention that even if the appellant
retired, his records would show that he retired after receiving a notice of removal.
We find that the Employee Relations Specialist’s failure to provide that
information even though the appellant made it clear to her that a clean record was
of great importance to him, was a material omission of fact that deprived the
appellant of the opportunity to make an informed choice between retiring and
facing removal. See Baldwin, 111 M.S.P.R. 586, ¶ 44 (noting that the SF-52
erroneously stated that the appellant retired when the agency processed his
separation as a resignation); Miller, 111 M.S.P.R. 325, ¶ 19 (finding a lack of
information concerning the appellant’s reduction-in-force appeal rights if he
decided to accept a downgrade rather than retire); Wills v. Department of the
Navy, 37 M.S.P.R. 137, 141 (1988) (noting a lack of information concerning
whether the appellant would have a clean record if he retired). Therefore, we
conclude that the appellant’s decision to retire was the product of misinformation
and was involuntary.
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¶8 When the Board finds that an appellant’s retirement was involuntary, the
Board not only has jurisdiction over the appeal, but the appellant wins on the
merits and is entitled to reinstatement. Baldwin, 111 M.S.P.R. 586, ¶ 46 (citing
Schultz v. U.S. Navy, 810 F.2d 1133, 1136 (Fed. Cir. 1987)). The appellant raised
other theories of involuntariness that the administrative judge considered and
rejected, and which the appellant pursues on review. In light of our disposition of
this petition for review, however, we need not reach these other arguments.
ORDER
¶9 We ORDER the agency to cancel the appellant’s involuntary retirement and
reinstate him to his GS-12 Security Specialist position as of March 25, 2015. See
Kerr v. National Endowment for the Arts, 726 F.2d 730 (Fed. Cir. 1984). The
agency must complete this action no later than 20 days after the date of this
decision.
¶10 We also ORDER the agency to pay the appellant the correct amount of back
pay, interest on back pay, and other benefits under the Office of Personnel
Management’s regulations, no later than 60 calendar days after the date of this
decision. We ORDER the appellant to cooperate in good faith in the agency’s
efforts to calculate the amount of back pay, interest, and benefits due, and to
provide all necessary information the agency requests to help it carry out the
Board’s Order. If there is a dispute about the amount of back pay, interest due,
and/or other benefits, we ORDER the agency to pay the appellant the undisputed
amount no later than 60 calendar days after the date of this decision.
¶11 We further ORDER the agency to tell the appellant promptly in writing
when it believes it has fully carried out the Board’s Order and of the actions it
took to carry out the Board’s Order. The appellant, if not notified, should ask the
agency about its progress. See 5 C.F.R. § 1201.181(b).
¶12 No later than 30 days after the agency tells the appellant that it has fully
carried out the Board’s Order, the appellant may file a petition for enforcement
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with the office that issued the initial decision on this appeal if the appellant
believes that the agency did not fully carry out the Board’s Order. The petition
should contain specific reasons why the appellant believes that the agency has not
fully carried out the Board’s Order, and should include the dates and results of
any communications with the agency. 5 C.F.R. § 1201.182(a).
¶13 For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Board decision
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to process payments and adjustments resulting from the
Board’s decision in accordance with the attached lists so that payment can be
made within the 60-day period set forth above.
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set out at title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You
must file your attorney fees motion with the office that issued the initial decision
on your appeal.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the U.S.
Court of Appeals for the Federal Circuit. You must submit your request to the
court at the following address:
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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
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 an appeal to
the U.S. 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
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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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.
DFAS CHECKLIST
INFORMATION REQUIRED BY DFAS IN
ORDER TO PROCESS PAYMENTS AGREED
UPON IN SETTLEMENT CASES OR AS
ORDERED BY THE MERIT SYSTEMS
PROTECTION BOARD
AS CHECKLIST: INFORMATION REQUIRED BY IN ORDER TO PROCESS PAYMENTS AGREED UPON IN SETTLEMENT
CASES
CIVILIAN PERSONNEL OFFICE MUST NOTIFY CIVILIAN PAYROLL
OFFICE VIA COMMAND LETTER WITH THE FOLLOWING:
1. Statement if Unemployment Benefits are to be deducted, with dollar amount, address
and POC to send.
2. Statement that employee was counseled concerning Health Benefits and TSP and the
election forms if necessary.
3. Statement concerning entitlement to overtime, night differential, shift premium,
Sunday Premium, etc, with number of hours and dates for each entitlement.
4. If Back Pay Settlement was prior to conversion to DCPS (Defense Civilian Pay
System), a statement certifying any lump sum payment with number of hours and
amount paid and/or any severance pay that was paid with dollar amount.
5. Statement if interest is payable with beginning date of accrual.
6. Corrected Time and Attendance if applicable.
ATTACHMENTS TO THE LETTER SHOULD BE AS FOLLOWS:
1. Copy of Settlement Agreement and/or the MSPB Order.
2. Corrected or cancelled SF 50's.
3. Election forms for Health Benefits and/or TSP if applicable.
4. Statement certified to be accurate by the employee which includes:
a. Outside earnings with copies of W2's or statement from employer.
b. Statement that employee was ready, willing and able to work during the period.
c. Statement of erroneous payments employee received such as; lump sum leave, severance
pay, VERA/VSIP, retirement annuity payments (if applicable) and if employee withdrew
Retirement Funds.
5. If employee was unable to work during any or part of the period involved, certification of the
type of leave to be charged and number of hours.
NATIONAL FINANCE CENTER CHECKLIST FOR BACK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as
ordered by the Merit Systems Protection Board, EEOC, and courts.
1. Initiate and submit AD-343 (Payroll/Action Request) with clear and concise
information describing what to do in accordance with decision.
2. The following information must be included on AD-343 for Restoration:
a. Employee name and social security number.
b. Detailed explanation of request.
c. Valid agency accounting.
d. Authorized signature (Table 63)
e. If interest is to be included.
f. Check mailing address.
g. Indicate if case is prior to conversion. Computations must be attached.
h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to
be collected. (if applicable)
Attachments to AD-343
1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday
Premium, etc. with number of hours and dates for each entitlement. (if applicable)
2. Copies of SF-50's (Personnel Actions) or list of salary adjustments/changes and
amounts.
3. Outside earnings documentation statement from agency.
4. If employee received retirement annuity or unemployment, provide amount and address
to return monies.
5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)
6. If employee was unable to work during any or part of the period involved, certification of
the type of leave to be charged and number of hours.
7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual
Leave to be paid.
NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay
Period and required data in 1-7 above.
The following information must be included on AD-343 for Settlement Cases: (Lump
Sum Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.)
a. Must provide same data as in 2, a-g above.
b. Prior to conversion computation must be provided.
c. Lump Sum amount of Settlement, and if taxable or non-taxable.
If you have any questions or require clarification on the above, please contact NFC’s
Payroll/Personnel Operations at 504-255-4630.