Taleni Tialino v. Department of the Army ( 2016 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TALENI TIALINO, DOCKET NUMBER
Appellant, SF-0752-14-0513-I-2
v.
DEPARTMENT OF THE ARMY, DATE: February 23, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Pete Gonzales, Victorville, California, for the appellant.
Larry F. Estrada, Esquire, Los Angeles, California, 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 alleged involuntary resignation 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 law to 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. 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, 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 By memorandum dated January 27, 2014, the agency proposed to remove
the appellant from his position as an Engineering Equipment Operator, WG-10,
based on the charges of being on duty under the influence of alcohol to a degree
that it interfered with the proper performance of his duties, consuming alcohol
while on duty and while in a Government vehicle, using a Government vehicle for
other than official purposes, and lack of candor. Tialino v. Department of the
Army, MSPB Docket No. SF-0752-14-0513-I-1, Initial Appeal File (IAF), Tab 7
at 68. The agency’s March 27, 2014 decision letter sustained the charges, found
that the penalty of removal promoted the efficiency of the service, and set
March 28, 2014, as the effective date of the removal. 2 Id. at 50-51. During the
morning of March 28, 2014, the appellant submitted to the agency a signed
statement that stated “To Whom it May Concern, I Taleni Tialino am resigning
today 28 March 2014 to pursue a deferred retirement.” IAF, Tab 1 at 8. The
2
The administrative judge improperly referenced August 23, 2011, as the effective date
of the agency’s removal action. Tialino v. Department of the Army, MSPB Docket
No. SF-0752-14-0513-I-2, Initial Appeal File, Tab 26, Initial Decision at 1. Based on
our review of the record evidence, we construe the administrative judge’s misstatement
as a drafting error that had no bearing on the substance of her decision and did not
otherwise prejudice the appellant’s substantive rights.
3
agency effected the appellant’s resignation effective March 28, 2014, for the
reason he had provided. IAF, Tab 7 at 21. In his timely-filed Board appeal, the
appellant checked boxes indicating that the actions he was appealing were
“involuntary resignation” and “involuntary retirement.” IAF, Tab 1 at 2. He
requested a hearing. Id. at 1. The agency moved that the appeal be dismissed for
lack of jurisdiction on the basis that the appellant had voluntarily resigned his
position. IAF, Tab 7. After determining that the appellant was, at that time,
ineligible to retire, the administrative judge issued a comprehensive order setting
forth the burden of proof and applicable law concerning the jurisdictional issue
raised by the appellant’s resignation and directing him to respond. IAF, Tab 8.
The appellant argued that his resignation was involuntary because it was based on
coercion by the agency and misrepresentation regarding his options upon which
he relied, and that he resigned under duress. He also argued that the agency could
not have prevailed in the removal action. IAF, Tab 10. In a subsequent
submission, the appellant alleged that the agency discriminated against him based
on “a disease,” retaliated against him because he was a whistleblower, and that he
was forced to work in a “toxic environment.” IAF, Tab 24. The administrative
judge scheduled a jurisdictional hearing, Tialino v. Department of the Army,
MSPB Docket No. SF-0752-14-0513-I-2, Appeal File (I-2 AF), Tab 7, but
subsequently determined that the appellant had waived his right to that hearing.
She then issued a close of the record order, I-2 AF, Tab 19, to which both parties
responded, I-2 AF, Tabs 20-25.
¶3 In her initial decision, the administrative judge dismissed the appeal for
lack of jurisdiction. I-2 AF, Tab 26, Initial Decision (I-2 ID) at 1, 29. She first
found that, as of the date of the appellant’s resignation, and notwithstanding his
more than 36 years of service, he was not eligible to retire under the Federal
Employees’ Retirement System because, at 54 years, 7 months, and 13 days old,
he was 1 year, 4 months, and 18 days shy of 56, the minimum retirement age for
individuals born in 1959. See 5 U.S.C. § 8412(h)(1)(C); I-2 ID at 7-8. She then
4
addressed the appellant’s claims of agency misinformation, beginning with his
claim that he was told that if he appealed and lost, he would lose his retirement
benefits, but, after considering the documentary evidence, she concluded that the
statement upon which the appellant relied was never made. I-2 ID at 10-13. The
administrative judge then addressed the appellant’s allegation that he was misled
about his options, specifically, his eligibility for an immediate retirement, but she
found that he did not prove that claim. Id. at 19-22. The administrative judge
considered the appellant’s allegation that his resignation was coerced because he
was not given sufficient time to consider his options, but she found that he was,
in fact, afforded ample time. Id. at 23-24. She further found that, contrary to the
appellant’s claim, the agency had reasonable grounds for removing him and that
he did not show that the agency knew it would not prevail. Id. at 24-25. Finally,
the administrative judge considered, but found unsupported, the appellant’s
claims that his resignation was rendered involuntary because he was subjected to
a hostile work environment based on the fact that the agency was undergoing a
furlough, that he was a whistleblower, and that he was disabled (post-traumatic
syndrome). Id. at 26-29.
¶4 The appellant has filed a petition for review, to which the agency has
responded in opposition, and the appellant has filed a reply thereto. Petition for
Review (PFR) File, Tabs 3, 5, 9. To the extent the appellant’s reply raises new
allegations of error in the initial decision, we have not considered them. 3 See
5 C.F.R. § 1201.114(a)(4). The union president, Local 777, has submitted a
request to file an amicus curiae brief on behalf of the union, PFR File, Tab 8, and
the agency has noted its objection, PFR File Tab 10. We deny the request
because we find that the union president does not have a legitimate interest in the
proceedings and that his participation will not contribute materially to the proper
disposition of this appeal. See 5 C.F.R. § 1201.34(e)(3).
3
We therefore deny the agency’s request for leave to respond to the appellant’s reply to
its response to his petition for review. PFR File, Tab 11.
5
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge properly informed the appellant of his jurisdictional
burden of proof.
¶5 The appellant has the burden of proving the Board’s jurisdiction by a
preponderance of the evidence. 5 C.F.R. § 1201.56(b)(2)(i)(A). An
employee-initiated action, such as a retirement or a resignation, is presumed to be
voluntary, and thus outside the Board’s jurisdiction. See Vitale v. Department of
Veterans Affairs, 107 M.S.P.R. 501, ¶ 17 (2007). An involuntary resignation,
however, is equivalent to a forced removal and therefore is within the Board’s
jurisdiction. See id; see also Garcia v. Department of Homeland Security,
437 F.3d 1322, 1328 (Fed. Cir. 2006) (en banc). To overcome the presumption
that a resignation is voluntary, the employee 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. Once the appellant presents nonfrivolous
allegations of Board jurisdiction—allegations of fact that, if proven, would
establish the Board’s jurisdiction—he is entitled to a hearing at which he must
prove jurisdiction by a preponderance of the evidence. Parrott v. Merit Systems
Protection Board, 519 F.3d 1328, 1332 (Fed. Cir. 2008) (citing Garcia, 437 F.3d
at 1344).
¶6 On review, the appellant argues that the administrative judge misinformed
him that jurisdiction had been established and never suggested that it was not
until she issued the initial decision. PFR File, Tab 3 at 3-4. Contrary to the
appellant’s claim, the administrative judge properly explained that, if the
appellant raised nonfrivolous allegations supporting the Board’s jurisdiction, the
hearing he requested would be a jurisdictional hearing at which he would bear the
burden of proving his claim of involuntariness. 4 IAF, Tab 8. After reviewing the
4
The administrative judge further advised the appellant that, if he met his burden of
proving the Board’s jurisdiction over his alleged involuntary resignation appeal, the
agency then would bear the burden of proving its charges by a preponderance of the
evidence. IAF, Tab 8 at 2. In fact, though, if the appellant had proven that his
6
parties’ submissions, the administrative judge found that, based on the appellant’s
assertion that he was given misinformation that led to his decision to resign his
employment rather than be removed, a jurisdictional hearing was required. She
found that he made a nonfrivolous allegation that his resignation was involuntary
by claiming that he was told that, should he exercise his Board appeal rights but
not prevail, he would lose his retirement benefits, but that he did not raise a
nonfrivolous allegation of Board jurisdiction based on his claim that he was
retiring, not resigning, because he was not, in fact, eligible to retire. The
administrative judge, noting that she had made no finding on jurisdiction, issued
an initial decision dismissing the appeal without prejudice to refiling, affording
the parties an opportunity to prepare for the hearing. IAF, Tab 35, Initial
Decision at 2-3.
¶7 The appeal was refiled in accordance with the initial decision, I-2 AF,
Tab 1, and a jurisdictional hearing was scheduled, I-2 AF, Tab 7. The appellant
then sought to “withdraw hearing on jurisdiction while preserving right to request
hearing on merits,” arguing that he already had established the Board’s
jurisdiction and that a date should be established for a hearing on the merits. I-2
AF Tab 11. The administrative judge again explained that: (1) while the
appellant had made a nonfrivolous allegation of Board jurisdiction, she had not
yet determined whether he had established Board jurisdiction; (2) the issue of
jurisdiction would be decided at the hearing; (3) if he waived his right to a
hearing, she would decide the issue of Board jurisdiction based on the written
record; and (4) if she found that the Board lacked jurisdiction, she would dismiss
resignation was involuntary, the action would have been reversed as a matter of law,
although the appellant’s relief would have been adjusted to account for his removal.
See Jones v. Department of Agriculture, 117 M.S.P.R. 276, ¶ 15 (2012); Baldwin v.
Department of Veterans Affairs, 111 M.S.P.R. 586, ¶¶ 46-47 (2009). However, because
we agree with the administrative judge that the appellant did not prove that his
resignation was involuntary, the administrative judge’s misstatement did not prejudice
the appellant’s substantive rights and provides no basis for reversal of the initial
decision. See Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984).
7
the appeal for lack of jurisdiction, but if she found that the Board did have
jurisdiction, she would schedule a hearing on the merits. I-2 AF, Tab 12. The
appellant continued to maintain that he had established Board jurisdiction and
requested a decision so stating. I-2 AF, Tab 14. Following a conference call with
the parties’ representatives, the administrative judge found that the appellant had
knowingly and voluntarily, and without duress or misinformation, waived his
right to a jurisdictional hearing, and she issued a close of the record order. I-2
AF, Tab 19. The parties both responded. I-2 AF, Tabs 20-25.
¶8 Based on our review, we find that the appellant has not shown either that
the administrative judge misinformed him that jurisdiction was established, or
that she did not notify him, prior to issuance of the initial decision, that it was
not. Rather, she advised him throughout the proceedings, before and after the
dismissal without prejudice, of his burden to establish a nonfrivolous allegation
of Board jurisdiction based on the written record, which he did, and of his further
burden to establish Board jurisdiction based on evidence produced at a hearing,
which he knowingly declined, and that, based on a supplemented written record,
and as set forth below, he failed to establish the Board’s jurisdiction by
demonstrating that his resignation was involuntary.
The appellant failed to establish by preponderant evidence that his resignation
was involuntary.
¶9 The appellant argues on review, as he did below, that his resignation was
rendered involuntary by the agency’s providing him misinformation, specifically,
that if he appealed an adverse action and lost, he would lose his retirement
benefits. PFR File, Tab 3 at 7. The presumption that a resignation is voluntary
can be rebutted by evidence showing that a resignation was the result of agency
misrepresentation. Salazar v. Department of the Army, 115 M.S.P.R. 296, ¶ 9
(2010). Where such a claim is made, an appellant must show that: (1) the agency
made misleading statements; and (2) he reasonably relied on the misinformation
to his detriment. Id.; Aldridge v. Department of Agriculture, 111 M.S.P.R. 670,
8
¶ 8 (2009). The administrative judge considered the evidence the appellant
submitted in support of his claim, in particular, the statement of his witness that
the appellant was told that, if he exercised his appeal rights but lost his appeal, he
would lose his retirement benefits. The administrative judge found that the
witness’s scant recollection of an “indication” by an unnamed agency official to
that effect was inadequate to constitute preponderant evidence that the statement
was even made, let alone that the appellant relied upon it. I-2 ID at 11-12, 19.
Based upon the administrative judge’s review of the entire record, she concluded
that the witness was not reliable and that, in fact, the statement in question was
never made. Id. at 12, 19-22. While the appellant disputes the administrative
judge’s findings of fact and credibility determinations, he has not shown that she
erred in weighing the evidence as a whole and in making reasoned conclusions.
See Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 105-06 (1997) (finding no
reason to disturb the administrative judge’s findings where she considered the
evidence as a whole, drew appropriate inferences, and made reasoned
conclusions).
¶10 On review, the appellant disputes the administrative judge’s finding that the
appellant failed to show that his resignation was rendered involuntary because the
agency knew that it could not prevail in the removal action. PFR File, Tab 3
at 12. Specifically, the appellant argues that the agency never tested him for
alcohol and that there was no evidence that he drank a particular brand of beer
that was photographed in or near his assigned vehicle. Id. at 11-12. The fact that
an employee is faced with unpleasant alternatives of resigning or being subject to
removal for cause does not rebut the presumed voluntariness of the ultimate
choice of resignation. See, e.g., Schultz v. United States Navy, 810 F.2d 1133,
1136 (Fed. Cir. 1987). However, “[i]f an employee can show that the agency
knew that the reason for the threatened removal could not be substantiated, the
threatened action by the agency is purely coercive.” Id.9
¶11 In finding that the appellant did not make the required showing, the
administrative judge considered the evidence in support of the agency’s charges
and the evidence submitted by the appellant. I-2 ID at 25. She found that the
appellant failed to show that the agency pursued charges it knew it could not
sustain in an effort to coerce his resignation. Id. The appellant’s arguments on
review, even if true, are not sufficient to render unsubstantiated the agency’s
decision to pursue his removal, particularly given the substantial evidence
submitted by the agency in support of the action as well as the appellant’s own
admissions of wrongdoing when confronted the day after the misconduct and his
failure to deny the charges during his oral reply.
¶12 The appellant also argues on review that his resignation was involuntary
because he was subject to a hostile work environment, in part because the agency
was undergoing a furlough, which caused him concern. PFR File, Tab 3 at 11.
He has not, however, disputed the administrative judge’s findings that he (the
appellant) was excepted from the furlough during the period of the
Government-wide shut down when the misconduct occurred and that there was no
threat of a furlough 5 months later when he resigned. I-2 ID at 27. The appellant
also has not shown that, based on the furlough, his working conditions were
rendered so difficult that a reasonable person in his position would have felt
compelled to resign. See Hosozawa v. Department of Veterans Affairs,
113 M.S.P.R. 110, ¶ 5 (2010) (stating that, to establish that a resignation was
coerced by the agency’s creating intolerable working conditions, an appellant
must show that a reasonable employee in his position would have found the
working conditions so oppressive that he would have felt compelled to resign).
Nor has he shown that his resignation was coerced because he was stressed due to
the furlough. See Brown v. U.S. Postal Service, 115 M.S.P.R. 609, ¶ 15 (2011)
(stating that a Federal employee is not guaranteed a stress-free working
environment), aff’d sub nom. Brown v. Merit Systems Protection Board, 469 F.
App’x 852 (Fed. Cir. 2012).
10
¶13 The appellant argues, moreover, that his medical condition was not taken
into consideration. PFR File, Tab 3 at 10. When an appellant raises an allegation
of discrimination in connection with a claim of involuntariness, the allegation
may be addressed only insofar as it relates to the issue of voluntariness. Axsom v.
Department of Veterans Affairs, 110 M.S.P.R. 605, ¶ 12 (2009). In
acknowledging the appellant’s allegation that he suffered from post-traumatic
syndrome, the administrative judge properly considered whether, based on his
claims regarding his condition, his work situation was rendered so difficult that a
reasonable person in his position would have felt compelled to resign. I-2 ID
at 26; see Markon v. Department of State, 71 M.S.P.R. 574, 578 (1996) (stating
that when allegations of discrimination and reprisal are alleged in connection with
a claim of involuntariness, such allegations only may be addressed insofar as they
relate to the issue of voluntariness). The administrative judge found, however,
that the appellant had not submitted evidence showing that the agency was aware
of his impairment at any time prior to taking the action. I-2 ID at 28. The
appellant has not challenged this finding on review and thus has not shown that
the administrative judge erred in the manner in which she considered his claim.
¶14 The appellant further argues on review that the administrative judge erred in
failing to consider his claim that the agency retaliated against him for protected
disclosures he made regarding “forced alcohol abuse and hazing.” PFR File,
Tab 3 at 10-11. During the proceeding below, the appellant alleged only that he
was retaliated against for disclosing “gross waste of mismanagement,” I-2 AF,
Tab 22 at 2, and he never further explained his claim. As she did with the
appellant’s claim regarding his disability, the administrative judge considered
whether any evidence of retaliation for protected whistleblowing rendered the
appellant’s working conditions so difficult that a reasonable person in his position
would have felt compelled to resign. I-2 ID at 26. This was the correct approach.
See Markon, 71 M.S.P.R. at 578. She found, however, that the allegation was too
sparse to support any such inference. I-2 ID at 27. Although the appellant
11
attempts on review to add specificity to his claim, he has not shown why he failed
to do so below, and, in any case, he has not shown that retaliation on the part of
the agency for any disclosures he may have made rendered his working conditions
so difficult that a reasonable person in his position would have felt compelled to
resign. 5
The appellant’s other claims of adjudicatory error do not establish a basis to
disturb the initial decision.
¶15 On review, the appellant makes numerous other claims of adjudicatory
error. For example, he complains that the administrative judge erred in allowing
the agency to submit its response to his appeal almost 3 months late, “without
reasonable explanation.” PFR File, Tab 3 at 1. To the contrary, the record
reflects that the agency representative requested an enlargement of time to submit
its response because its previously-designated initial contact person, to whom the
Board acknowledged the appeal, had retired, thereby causing delays in the
assigned representative’s ability to timely respond. IAF, Tab 5A. In requesting
the extension, the agency representative indicated that the appellant’s
representative had consented to it. Id. The administrative judge granted the
agency’s request, although to a lesser extent than what it sought. IAF, Tab 6; see
I-2 ID at 2 n.1. The appellant has not challenged the agency’s explanation and
has not argued that he was harmed in any way by the administrative judge’s
granting the agency’s request. As such, the appellant has not shown that the
administrative judge abused her discretion in this regard. See 5 C.F.R.
§ 1201.41(b)(5)(ii), (8).
¶16 The appellant suggests on review that the administrative judge may have
issued the initial decision prematurely and that, if additional clarification,
evidence, or information was necessary, “it should have been obtained.” PFR
5
There is no indication that the appellant brought a claim of reprisal for whistleblowing
to the Office of Special Counsel (OSC). If he believes he was retaliated against on that
basis, then he may contact OSC.
12
File, Tab 3 at 1. The administrative judge repeatedly advised the appellant that it
was his burden to establish the Board’s jurisdiction over his appeal and what was
necessary for him to establish jurisdiction. After the record closed, the appellant
filed a pleading in which he advised the administrative judge that he could
provide additional affidavits or clarification “if the court deems that such
information is necessary to clarify jurisdiction.” I-2 AF, Tab 24 at 6. The
administrative judge found that the appellant had had ample opportunity to
address the jurisdictional issue and that no further clarification was needed. I-2
ID at 4 n.3. We agree. The appellant has failed to assert on review what further
information he would, or could, have provided or how it would affect the
jurisdictional disposition of this appeal. We therefore find that he did not show
that the administrative judge abused her discretion in this matter. See 5 C.F.R.
§ 1201.41(b)(5)(ii), (iii).
¶17 Next, the appellant claims that the administrative judge erred by
disregarding the “non-interested, non-biased witnesses,” that is, the appellant’s
witnesses. PFR File, Tab 3 at 1, 5, 9. He also challenges the administrative
judge’s credibility determinations. Id. at 10. The administrative judge carefully
considered the documentary evidence submitted by both parties, including
statements, sworn and unsworn, by agency officials and by the appellant and
other individuals who supported his version of events. I-2 ID at 8-20. She
applied the Board’s decisions in Borninkhof v. Department of Justice,
5 M.S.P.R. 77, 83-87 (1981) (explaining that the assessment of the probative
value of hearsay evidence necessarily depends on the circumstances of each case)
and Hillen v. Department of the Army, 35 M.S.P.R. 453, 458 (1987) (holding that
to resolve credibility issues, an administrative judge must identify the factual
questions in dispute, summarize the evidence on each disputed question, state
which version he believes, and explain in detail why he found the chosen version
more credible), I-2 ID at 6-7, in concluding that the appellant failed to establish
13
that his resignation was involuntary. 6 Based on the appellant’s arguments on
review, we discern no reason to reweigh the evidence or substitute our assessment
of the record evidence for that of the administrative judge. See Crosby,
71 M.S.P.R. at 105-06. We find, therefore, that the appellant has failed to show
that the administrative judge disregarded his witnesses or that she otherwise
abused her discretion in weighing the evidence.
¶18 The appellant also asserts on review that the agency failed to follow the
labor-management agreement by not notifying him of how he could improve his
performance and seek help for a medical condition. PFR File, Tab 3 at 9. To the
extent that provisions of the labor-management agreement address an employee’s
opportunity to improve his performance before the agency takes action against
him, such provisions would bear, if at all, on the merits of the agency’s removal
action and not the dispositive jurisdictional issue in this appeal, which is the
voluntariness of the appellant’s resignation.
¶19 The appellant further argues on review that the administrative judge
exhibited bias in favor of the agency. Id., at 4. Specifically, the appellant
contends that the administrative judge yelled at him and his representative
without allowing them to speak “in numerous hearings.” According to the
appellant, the administrative judge was upset that he had asked her to recuse
herself from the case because of bias and other unspecified misconduct. Id. The
appellant also alludes to a prior relationship between the administrative judge and
agency counsel. Id. at 7.
¶20 An administrative judge’s conduct during the course of a Board proceeding
warrants a new adjudication only if the administrative judge’s comments or
actions evidence deep-seated favoritism or antagonism that would make fair
6
The Board has approved adapting the principles for resolving credibility issues to
cases where no testimony occurred and the appeal was decided solely on the basis of the
parties’ written submissions. Goode v. Defense Logistics Agency, 45 M.S.P.R. 671, 674
n.2 (1990).
14
judgment impossible. Young v. U.S. Postal Service, 115 M.S.P.R. 424, ¶ 19
(2010). Further, an allegation of bias by an administrative judge must be raised
as soon as practicable after a party has reasonable cause to believe that grounds
for disqualification exist, and must be supported by an affidavit. Simmons v.
Small Business Administration, 115 M.S.P.R. 647, ¶ 10 (2011). Although the
appellant asserts that he requested a new administrative judge during the
proceedings below, PFR File, Tab 3 at 7, he has submitted no evidence to show
that he did so. Therefore, he has not met these basic requirements and has failed
as well to overcome the presumption of honesty and integrity that accompanies
administrative adjudicators. 7 See Oliver v. Department of Transportation,
1 M.S.P.R. 382, 386 (1980).
¶21 On review, the appellant also argues that his removal was actually effective
on Thursday, March 27, 2014, and not Friday, March 28, 2014, as the agency
alleged and the administrative judge found, because Friday was not a regular
work day for him and that, therefore, he was removed before he resigned. PFR
File, Tab 3 at 8, 12-13. 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 available despite the party’s due diligence.
Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271 (1980). The appellant
has made no such showing. Moreover, he has offered no support for his theory
and we are aware of none. 8 Separations, other than resignations, are effective on
7
The appellant also argues on review that the administrative judge had ex parte
communications during conference calls on unidentified merits issues in the absence of
the appellant or his representative. PFR File, Tab 3 at 3. Because the appellant did not
raise this argument below, we need not consider it. See Banks v. Department of the Air
Force, 4 M.S.P.R. 268, 271 (1980) (stating that the Board 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 available despite the party’s due diligence).
8
The appellant may be misinterpreting the principle that an employee’s probationary
period ends on his last day in a duty status. See Honea v. Department of Homeland
Security, 118 M.S.P.R. 282, ¶ 6 (2012) (stating that, to terminate an individual while
still in a probationary status, the separation action must be effected prior to the end of
15
the date set by the agency. Office of Personnel Management Guide for
Processing Personnel Actions, chapter 31, 5c. While such separations are usually
effective on midnight of the effective date set in the decision notice, here the
decision notice stated that the removal would be effective at the close of business
on March 28, 2014. IAF, Tab 7 at 51; Toyens v. Department of Justice,
58 M.S.P.R. 634, 636 (1993). The appellant, however, submitted his resignation
during the morning of March 28, 2014. IAF, Tab 1 at 8. Thus, the effective time
of the appellant’s resignation preceeded the effective time of the appellant’s
removal, and therefore the removal did not nullify the resignation. See Anderson
v. Department of Commerce, 4 F. App’x 784, at *2 (Fed. Cir. 2001). 9
¶22 The appellant alleges that the “testimony” of a coworker who was not
available earlier is a critical part of the jurisdictional case and “can be expanded”
on remand. PFR File, Tab 4 at 11. Beyond his mere assertion, the appellant has
not shown that any evidence from the coworker was, in fact, unavailable before
the record closed despite the appellant’s due diligence. Thus, we need not
consider it. See Sachs v. Office of Personnel Management, 99 M.S.P.R. 521, ¶ 7
(2005) (stating that the Board will not consider evidence submitted for the first
time with the petition for review absent a showing that it was unavailable before
the record was closed despite the party’s due diligence); Avansino v. U.S. Postal
Service, 3 M.S.P.R. 211, 214 (1980) (finding that under 5 C.F.R. § 1201.115, the
Board will not consider evidence submitted for the first time with the petition for
review absent a showing that it was unavailable before the record was closed
despite the party’s due diligence). Moreover, the appellant has not submitted the
evidence on review or otherwise shown that it is of sufficient weight to warrant
the individual’s tour of duty on the last day of probation, which is the day before the
anniversary date of his appointment), aff’d, 524 F. App’x 623 (Fed. Cir. 2013). That
principle has no application to the facts of this appeal.
9
The Board may rely on unpublished decisions of the U.S. Court of Appeals for the
Federal Circuit if it finds the court’s reasoning persuasive. Mauldin v. U.S. Postal
Service, 115 M.S.P.R. 513, ¶ 12 (2011).
16
an outcome different from that of the initial decision. See Russo v. Veterans
Administration, 3 M.S.P.R. 345, 349 (1980) (stating that the Board will not grant
a petition for review based on new evidence absent a showing that it is of
sufficient weight to warrant an outcome different from that of the initial
decision). Accordingly, the Board will not consider any such evidence.
¶23 The appellant also has submitted with his petition his own sworn statement
and another from one of his witnesses. PFR File, Tab 3 at 15-16. Although both
statements are dated after the close of the record below, the appellant has not
shown that the information contained in the statements was unavailable before the
record closed below, despite his due diligence. Thus, we need not consider it.
See Sachs, 99 M.S.P.R. 521, ¶ 7 (stating that, to constitute new evidence, the
information contained in the documents, not just the documents themselves, must
have been unavailable despite due diligence when the record closed).
¶24 Finally, the appellant has submitted an article from the March 2015 issue of
the Federal Times entitled “Resign, retire, or be fired?” PFR File, Tab 3 at 17.
Although this evidence is new, it has no bearing on the dispositive jurisdictional
issue in this case, which is the voluntariness of the appellant’s resignation, and
therefore is not material. See Russo, 3 M.S.P.R. at 349. Accordingly, the Board
will not consider this evidence.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS 10
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:
10
In the initial decision, the administrative judge provided the appellant with
mixed-case appeal rights. I-2 ID at 33-34. Because we have found that the
administrative judge properly dismissed the case for lack of jurisdiction, nonmixed-case
appeal rights are appropriate. Caros v. Department of Homeland Security,
122 M.S.P.R. 231, ¶ 22 (2015). We have provided the appellant the correct review
rights in this Final Order.
17
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 U.S. 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 U.S. Code, at our
website. 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
18
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.