Garth K. Trinkl v. Department of Commerce ( 2016 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GARTH K. TRINKL, DOCKET NUMBER
Appellant, DC-0752-16-0387-I-1
v.
DEPARTMENT OF COMMERCE, DATE: October 19, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Garth K. Trinkl, Washington, D.C., pro se.
Kardesha N. Bradley, Esquire, Washington, D.C., 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. 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
1
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
the facts of the case; the administrative 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. 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, 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. Except as expressly
MODIFIED by this Final Order to more fully address the appellant’s claim that
his retirement was involuntary due to intolerable working conditions and to
consider his discrimination claims to the extent they relate to the issue of
voluntariness, we AFFIRM the initial decision.
BACKGROUND
¶2 The appellant was formerly employed by the agency as an Economist until
he retired, effective January 10, 2015. Initial Appeal File (IAF), Tab 1 at 1, 4,
Tab 7 at 13, 17. On February 25, 2016, he filed a Board appeal alleging that he
had involuntarily retired because he had been discriminated against and subjected
to a hostile and dangerous work environment. 2 IAF, Tab 1 at 2, 4. He alleged
that his supervisors had threatened him and subjected him to a “near physical
attack” and that the agency had denied his request to be reassigned to a new and
safe work environment. Id. at 2. He also attached a copy of a final agency
decision concerning his equal employment opportunity (EEO) discrimination
2
The appellant also alleged that the agency engaged in harmful procedural error and
committed prohibited personnel practices of unlawful discrimination and retaliation for
whistleblowing activity. IAF, Tab 1 at 2. Because nothing in the record suggests that
the appellant raised a whistleblower reprisal claim before the Office of Special Counsel
(OSC), the administrative judge informed him that if he was attempting to file an
individual right of action appeal pursuant to 5 U.S.C. § 1221, he could file a separate
appeal after exhausting his administrative remedy with OSC. IAF, Tab 9 at 3 n.1.
3
complaint in which he alleged that the agency had discriminated against him
based on his age and in retaliation for his prior protected activity by subjecting
him to the near physical attack, failing to contact him to discuss an October 31,
2014 form he submitted regarding his involuntary separation, issuing him a
performance improvement plan (PIP) on November 21, 2014, and following the
PIP, attempting to force him to meet with his supervisors in person. Id. at 7-82.
¶3 The agency filed a motion to dismiss, arguing that the appellant failed to
nonfrivolously allege that his retirement was due to misrepresentation or
coercion. IAF, Tab 7 at 7-12. Without holding the appellant’s requested hearing,
the administrative judge issued an initial decision dismissing the appeal for lack
of jurisdiction. IAF, Tab 9, Initial Decision (ID). The administrative judge found
that the appellant failed to nonfrivolously allege that he was coerced into
retirement or that he was forced to retire due to agency deception or
misrepresentation. ID at 7-9. The administrative judge further found that, absent
an otherwise appealable action, the Board lacks jurisdiction over the appellant’s
discrimination claims. ID at 9-10.
¶4 The appellant has filed a petition for review in which he contends that his
retirement was involuntary due to intolerable working conditions. Petition for
Review (PFR) File, Tab 1 at 5. The agency has opposed the appellant’s petition. 3
PFR File, Tab 3. The appellant has filed a reply. PFR File, Tab 4.
DISCUSSION OF ARGUMENTS ON REVIEW
¶5 Generally, the Board lacks jurisdiction to review an employee’s decision to
retire, which is presumed to be a voluntary act. Brown v. U.S. Postal Service,
115 M.S.P.R. 609, ¶ 9, aff’d, 469 F. App’x 852 (Fed. Cir. 2011). However, an
appellant may overcome the presumption of voluntariness by showing that his
3
The agency’s response was due on or before July 3, 2016. PFR File, Tab 2. However,
because July 3, 2016, was a Sunday, and July 4, 2016, was a Federal holiday, the
deadline is extended until the following workday. See 5 C.F.R. § 1201.23.
Accordingly, the agency’s July 5, 2016 response was timely filed.
4
retirement was the product of misinformation or deception by the agency, or of
coercive acts by the agency, such as intolerable working conditions or the
unjustified threat of an adverse action. See SanSoucie v. Department of
Agriculture, 116 M.S.P.R. 149, ¶ 14 (2011).
¶6 In cases such as this one, when the employee alleges that the agency took
actions that made working conditions so intolerable that the employee was driven
to an involuntary retirement, the Board will find an action involuntary only if the
employee demonstrates that the agency engaged in a course of action that made
working conditions so difficult or unpleasant that a reasonable person in that
employee’s position would have felt compelled to retire. Vitale v. Department of
Veterans Affairs, 107 M.S.P.R. 501, ¶ 20 (2007). The Board addresses
allegations of discrimination and reprisal in connection with an alleged
involuntary retirement only insofar as those allegations relate to the issue of
voluntariness and not whether they would establish discrimination or reprisal as
an affirmative defense. See, e.g., Pickens v. Social Security Administration,
88 M.S.P.R. 525, ¶ 6 (2001). If an appellant makes nonfrivolous allegations of
jurisdiction, i.e., allegations that, if proven, could establish the Board’s
jurisdiction, he is entitled to a hearing at which he must prove jurisdiction by a
preponderance of the evidence. Vitale, 107 M.S.P.R. 501, ¶¶ 17-18.
¶7 For the reasons discussed below, we agree with the administrative judge
that, even considering the appellant’s assertions as true, he failed to
nonfrivolously allege that his retirement was involuntary. To the extent the
administrative judge failed to consider the appellant’s claims of discrimination in
connection with the issue of voluntariness, any such error did not affect the
appellant’s substantive rights because, considering such allegations now, we find
that the appellant has not nonfrivolously alleged that his working conditions were
rendered so intolerable that a reasonable person in his position would have felt
compelled to retire. See Panter v. Department of the Air Force, 22 M.S.P.R. 281,
5
282 (1984) (stating that an adjudicatory error that is not prejudicial to a party’s
substantive rights provides no basis for reversal of an initial decision).
¶8 The appellant contends that he retired because he no longer felt safe as a
result of supervisory threats and violence. IAF, Tab 1 at 2, Tab 8 at 29, 31; PFR
File, Tab 1 at 5. He contends that he suffers from Post-Traumatic Stress Disorder
(PTSD), which was “compounded by agency violence in 2007 and 2013.”
PFR File, Tab 1 at 5. According to the appellant, in 2007, he witnessed his
second-level supervisor push another employee against a wall in a hallway. Id.
at 9.
¶9 Concerning the 2013 incident, he alleges that his first- and second-level
supervisors subjected him to a “near physical attack” during a meeting. IAF,
Tab 1 at 2; PFR File, Tab 1 at 5-6. The appellant describes this incident as
follows: he stood up to protest false allegations concerning his performance
deficiencies and was yelled at to sit down. IAF, Tab 1 at 13. He then announced
that he was leaving, assembled his papers, and moved toward the door, but his
second-level supervisor yelled to his first-level supervisor to stop him. Id. His
first-level supervisor quickly rose and came within inches and microseconds of
grabbing and restraining the appellant from opening the door and his second-level
supervisor came around the table and was on the verge of positioning himself to
assist his first-level supervisor. Id. The appellant responded by yelling at them
not to touch him and to get away, stating again that he was leaving the room, and
leaving. Id.¶10 Based on the record, it is not clear exactly when this second incident
occurred because, at various points, the appellant references it as having
transpired on dates ranging from autumn or late autumn of 2013, November 2013,
the end of 2013, April 9 or 10, 2014, and winter 2014. IAF, Tab 1 at 4, 12, 81,
Tab 5 at 1-3, 8; PFR File, Tab 1 at 4, 8, 10. The administrative judge found that
it occurred in the fall of 2013, based on an April 14, 2014 email from the
appellant referencing this incident as having occurred the previous fall. ID
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at 2, 8. The appellant does not dispute this finding on review, but rather asserts
that it occurred in autumn 2013 and/or November 2013. PFR File, Tab 1 at 4,
7-9, 10.
¶11 As the administrative judge correctly found, given the lapse in time between
these incidents in 2007 and 2013 and the appellant’s January 10, 2015 retirement,
they are not particularly probative evidence of involuntariness of the appellant’s
retirement. See Searcy v. Department of Commerce, 114 M.S.P.R. 281, ¶ 13
(2010) (finding that a 5-month lapse between the alleged coercion and an
employee’s subsequent resignation undercut the appellant’s assertion that
intolerable working conditions caused him to resign). Additionally, the lack of
clarity in the record regarding when the “near physical attack” occurred further
reduces its probative value. However, regardless of the timeframe, we find that
the appellant’s allegation that his work environment was dangerous or unsafe
because he perceived his supervisors’ behavior to be threatening based on these
incidents fails to raise a nonfrivolous allegation that his working conditions were
so intolerable that a reasonable person in his position would have felt compelled
to retire. See, e.g., Terban v. Department of Energy, 216 F.3d 1021, 1025 (Fed.
Cir. 2000) (finding that an alleged verbal confrontation between an employee and
his supervisor did not overcome the presumption that the employee’s retirement
was voluntary).
¶12 The appellant also asserts that the agency denied his request for a “new and
safe work environment” and/or reassignment away from his supervisors who had
come close to physically assaulting him. IAF, Tab 1 at 2, Tab 5 at 11-12. He
also contends that, following the “near physical attack,” his PTSD would not
mentally allow him to meet with his supervisors alone, but that they attempted to
require him to do so anyway. IAF, Tab 5 at 2.
¶13 While a retirement may be an involuntary action within the Board’s
jurisdiction if an agency improperly denied an employee’s request for a
reasonable accommodation of a medical condition, see, e.g., Hosozawa v.
7
Department of Veterans Affairs, 113 M.S.P.R. 110, ¶ 7 (2010), as the
administrative judge properly found, nothing in the record suggests that the
appellant ever requested a reasonable accommodation based on his PTSD, ID
at 7-8. Rather, the record reflects that the appellant requested reassignment due
to the investigation of his discrimination and harassment complaints and due to
his reported fear for his physical security, without any mention of his PTSD.
IAF, Tab 5 at 54. Nor did the appellant allege disability discrimination in his
July 1, 2015 EEO complaint based on the agency’s denial of his request for a
reassignment. IAF, Tab 1 at 7-8. Thus, we find that the appellant’s arguments
regarding reassignment are not nonfrivolous allegations of intolerable
working conditions.
¶14 Even if the appellant genuinely felt that he had no alternative but to retire,
in part due to his PTSD, he has failed to make a sufficient allegation of a coercive
or improper act on the agency’s part that could have left a reasonable person in
his position with no other choice but to retire. See Brown, 115 M.S.P.R. 609,
¶ 17 (finding that, even if the appellant’s medical condition left her no alternative
but to retire, she failed to tie her circumstances to an improper agency act that
could have left a reasonable person in her position with no choice but to resign),
aff’d, 469 F. App’x 852 (Fed. Cir. 2011); Vitale, 107 M.S.P.R. 501, ¶ 26 (finding
that, although an agency official may have caused the appellant apprehension and
exacerbation of his medical ailments, he failed to establish that his working
conditions were so intolerable that a reasonable person in his position would have
felt compelled to retire).
¶15 Finally, we find that the appellant failed to nonfrivolously allege that his
working conditions were rendered intolerable as a result of his allegations that he
was placed on a PIP and the agency’s failure to contact him after he informed it
of his involuntary retirement. See, e.g., Miller v. Department of Defense,
85 M.S.P.R. 310, ¶ 32 (2000) (explaining that an employee is not guaranteed a
working environment free of stress and that dissatisfaction with work
8
assignments, a feeling of being unfairly criticized, or difficult or unpleasant
working conditions generally are not so intolerable as to compel a reasonable
person to resign).
¶16 Accordingly, we affirm the initial decision dismissing the appeal for lack
of jurisdiction. 4
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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:
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
4
To the extent that the appellant is attempting to raise affirmative defenses of harmful
error or whistleblower reprisal, IAF, Tab 1 at 2, absent an otherwise appealable action,
the Board lacks jurisdiction to adjudicate such claims, see, e.g., Penna v. U.S. Postal
Service, 118 M.S.P.R. 355, ¶ 13 (2012) (finding that, in the absence of an otherwise
appealable action, the Board lacks jurisdiction over claims of harmful error, prohibited
personnel practices, and the agency’s alleged failure to comply with regulations).
9
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
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.