Tracy L. Dancy v. Department of the Navy ( 2016 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TRACY L. DANCY, DOCKET NUMBER
Appellant, SF-0752-16-0006-I-1
v.
DEPARTMENT OF THE NAVY, DATE: March 22, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Tracy L. Dancy, Ridgecrest, California, pro se.
Joshua Roever, Esquire, China Lake, 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dismissed her alleged involuntary retirement appeal as withdrawn. For the
reasons discussed below, we GRANT the appellant’s petition for review,
VACATE the initial decision, and DISMISS the appeal for lack of jurisdiction.
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
BACKGROUND
¶2 The appellant retired from her position as an Information Technology
Specialist with the agency, effective April 30, 2015. Initial Appeal File (IAF),
Tab 8 at 279. Thereafter, in June 2015, she filed a formal equal employment
opportunity (EEO) complaint alleging that, in reprisal for her purported prior
EEO activity, two contractor employees with the agency, S.B. and M.L., took
various actions against her. IAF, Tab 1 at 10, Tab 8 at 102-05. During
subsequent correspondence with an EEO counselor, the appellant alleged that her
former supervisor failed to assist her when she informed him of S.B.’s and
M.L.’s actions and, as a result, she felt forced to retire. IAF, Tab 8 at 42, 162.
¶3 On July 10, 2015, the agency notified the appellant that it was dismissing
her formal EEO complaint as untimely. 2 Id. at 41-45. Thereafter, the appellant
filed a Board appeal, in which, among other things, she challenged the agency’s
dismissal of her EEO complaint, and raised allegations regarding various actions
by contractor employees. IAF, Tab 1 at 2-4. With her appeal form, the appellant
included a large volume of documentation pertaining to her EEO complaint. Id.
at 10-217.
¶4 On October 2, 2015, the administrative judge issued an acknowledgment
order, which informed the appellant that retirements generally are presumed to
be voluntary actions that are not appealable to the Board and that her appeal
would be dismissed unless she alleged that her retirement was the result of
duress, coercion, or misrepresentation by the agency. IAF, Tab 2 at 2. The
administrative judge ordered the appellant to submit evidence and argument
establishing jurisdiction over her appeal within 15 calendar days. Id.¶5 In response, on October 8, 2015, the appellant submitted a letter stating, in
pertinent part, that she had no further evidence to submit to establish jurisdiction
2
Subsequently, on August 31, 2015, the agency vacated and reissued the notice
dismissing the appellant’s formal EEO complaint on the ground that the earlier version
allegedly provided incorrect appeal rights. IAF, Tab 8 at 49-53.
3
over her Board appeal and that she wished to withdraw the appeal. IAF, Tab 5
at 1. However, the appellant also stated that she did not understand the appeal
process, was confused by the acknowledgment order, and was concerned that she
would be sanctioned for failure to timely respond to the order. Id.¶6 Although not documented elsewhere in the record, the initial decision
reflects that the administrative judge contacted the appellant by telephone and
engaged in an ex parte discussion to clarify the procedures to be followed in her
appeal. IAF, Tab 10, Initial Decision (ID) at 3. The initial decision further
reflects that, during this discussion, the administrative judge orally granted the
appellant an extension of time until October 30, 2015, to submit evidence and
argument regarding the Board’s jurisdiction over her appeal. Id.¶7 On November 2, 2015, having failed to receive any further response from
the appellant, the administrative judge issued an initial decision dismissing the
appeal as withdrawn. ID at 1, 3. That same day, after the initial decision was
issued, the regional office received a submission from the appellant, which it
returned to her. IAF, Tab 12.
¶8 The appellant has filed a petition for review of the initial decision, which
includes her submission that was previously rejected by the regional office.
Petition for Review (PFR) File, Tab 1. In this submission, the appellant asserts,
among other things, that she was forced to retire under duress and that the Board
has jurisdiction over her appeal. Id. at 18-19. She also includes numerous
documents relating to her EEO complaint, the vast majority of which were
already contained in the record below. Id. at 60-269. The agency has filed a
response in opposition to the petition for review, to which the appellant has
replied. PFR File, Tabs 3-4.
4
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge erred in dismissing the appeal as withdrawn.
¶9 On review, the appellant contends that she understood the administrative
judge’s ex parte communication granting her an extension of time to mean that
any additional submissions regarding jurisdiction needed to be postmarked, as
opposed to received, by October 30, 2015. PFR File, Tab 1 at 3-4, Tab 4 at 2-4.
With her petition for review, the appellant submits a U.S. Postal Service receipt
and tracking document, which reflect that her submission was placed in the mail
on October 30, 2015, and a copy of an envelope addressed to the administrative
judge with a postmark date of October 30, 2015. PFR File, Tab 1 at 7-8, 272.
¶10 Administrative judges are not prohibited from engaging in ex parte
conversations regarding procedural matters, such as extensions of time. See
Vidal v. Department of Justice, 113 M.S.P.R. 254, ¶ 6 (2010) (finding that ex
parte communications regarding procedural matters, such as whether a party
plans to file a response, are not prohibited); 5 C.F.R. § 1201.102 (prohibiting ex
parte communications regarding the merits, as opposed to procedural aspects, of
matters before the Board). However, where, as here, an administrative judge
grants a party an extension of time during an ex parte communication, the better
practice is to subsequently issue a written order documenting the extension to
avoid any potential confusion regarding its terms. The administrative judge did
not do so here, and the initial decision merely reflects that he granted the
appellant until October 30, 2015, “to submit” any additional evidence and
argument, which does not resolve the issue of whether the submission needed to
be postmarked or received by that date. ID at 3.
¶11 The Board’s regulations provide that the date of filing by mail is
determined by the postmark date. 5 C.F.R. § 1201.4(l). In light of this
regulation, and the absence of any evidence that the administrative judge
instructed the appellant to the contrary, it was reasonable for the appellant, who
was not a registered e-filer, to assume that any additional submissions needed to
5
be postmarked, rather than received, by October 30, 2015. Accordingly, because
the appellant has submitted evidence on review indicating that her submission
was postmarked on October 30, 2015, we find that the administrative judge erred
in dismissing her appeal as withdrawn. See Lincoln v. U.S. Postal
Service, 113 M.S.P.R. 486, ¶ 7 (2010) (finding that the voluntary withdrawal of
an appeal must be clear, decisive, and unequivocal); see also Phillips v.
Department of the Air Force, 104 M.S.P.R. 229, ¶ 4 (2006) (finding that it was
error for an administrative judge to issue an initial decision prior to the
expiration date allowed for a party’s response); Hoke v. U.S. Postal Service, 51
M.S.P.R. 362, 364 (1991) (finding that an appellant’s written withdrawal of her
appeal was not effective where she took timely and effective action to cancel or
rescind the withdrawal). Therefore, we vacate the initial decision dismissing the
appeal as withdrawn.
The appellant failed to raise a nonfrivolous allegation of jurisdiction over her
appeal.
¶12 Although the administrative judge erred in dismissing the appeal as
withdrawn, we find that a remand is unnecessary because, having reviewed the
appellant’s October 30, 2015 submission, her filings below, and the voluminous
documentation relating to her EEO complaint, we find that the appellant failed
raise a nonfrivolous allegation of jurisdiction over her appeal. See
Phillips, 104 M.S.P.R. 229, ¶¶ 4-6 (finding that an administrative judge’s failure
to consider an appellant’s filing regarding jurisdiction did not affect the
appellant’s substantive rights where the filing failed to raise a nonfrivolous
allegation of jurisdiction over the appeal); see also Bambl v. Department of the
Treasury, 113 M.S.P.R. 55, ¶ 7 (2010) (finding that the Board need not address
whether a withdrawn appeal should be reopened and reinstated where the Board
lacked jurisdiction over the appeal).
¶13 The Board’s jurisdiction is limited to those matters over which it has been
given jurisdiction by law, rule or regulation. Maddox v. Merit Systems
6
Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). Regarding the appellant’s
claim that the agency erred in dismissing her formal EEO complaint as untimely,
IAF, Tab 1 at 2-4, the proper forum to challenge the agency’s timeliness
determination is the Equal Employment Opportunity Commission (EEOC), not
the Board. Nabors v. U.S. Postal Service, 31 M.S.P.R. 656, 659–60 (1986)
(holding that, if an agency dismisses an employee’s EEO complaint as untimely,
the employee has the right to appeal to the EEOC, but not to the Board),
aff’d, 824 F.2d 978 (Fed. Cir. 1987); see Moore v. U.S. Postal Service, 91
M.S.P.R. 277, ¶ 6 (2002) (finding that an employee dissatisfied with a final
agency decision dismissing a formal complaint of discrimination as untimely
may appeal the dismissal to the EEOC); 29 C.F.R. § 1614.401(a) (stating that a
complainant may appeal the agency’s dismissal of an EEO complaint to the
EEOC). 3 Furthermore, the record reflects that the appellant did appeal the
agency’s dismissal of her complaint to the EEOC’s Office of Federal Operations
(OFO), IAF, Tab 1 at 171, and, on December 10, 2015, after the initial decision
in her Board appeal was issued, the OFO found that her EEO complaint was
timely filed, 4 PFR File, Tab 5 at 7-13.
3
We recognize that in the revised notice dismissing the appellant’s formal EEO
complaint as untimely, the agency erroneously informed the appellant that she had the
right to appeal the dismissal to the Board. IAF, Tab 8 at 51-53. However, the agency’s
erroneous advice to the appellant concerning her appeal rights does not confer
jurisdiction on the Board. Barrand v. Department of Veterans Affairs,
112 M.S.P.R. 210, ¶ 13 (2009) (finding that the Board’s jurisdiction cannot be
expanded by an agency’s erroneous notice of appeal rights), aff’d, 370 F. App’x 85
(Fed. Cir. 2009) (Table); Nabors, 31 M.S.P.R. at 660 (same).
4
After finding that the EEO complaint was timely filed, the OFO directed the agency to
process the appellant’s claims. PFR File, Tab 5 at 10. On review, the agency has filed
a motion requesting that the Board “decline jurisdiction” over the appeal or, in the
alternative, stay further proceedings, pending the agency’s processing of the appellant’s
EEO claims. Id. at 4-5. In light of our ruling in this appeal, we decline to rule on the
agency’s motion. In any event, the appellant may appeal her alleged involuntary
retirement to the Board because the agency failed to issue a final decision on the
appellant’s EEO complaint, which the OFO found to be timely, within 120 days of the
date that she filed the complaint with the agency. See 5 C.F.R. § 1201.154(b).
7
¶14 Regarding the appellant’s claim that her retirement was involuntary, an
employee-initiated action, such as a retirement, is presumed to be voluntary, and
thus outside the Board’s jurisdiction, unless the employee 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. Green v.
Department of Veterans Affairs, 112 M.S.P.R. 59, ¶ 8 (2009). An appellant must
raise a nonfrivolous allegation of jurisdiction to be entitled to a hearing, at which
point she would be required to prove her claim by a preponderance of the
evidence. Putnam v. Department of Homeland Security, 121 M.S.P.R. 532, ¶ 21
(2014). In this context, a nonfrivolous allegation is an allegation of fact that, if
proven, could establish a prima facie case that the Board has jurisdiction over the
appeal. O’Brien v. Department of Agriculture, 91 M.S.P.R. 139, ¶ 5 (2002).
¶15 Where, as here, the appellant claims that her retirement was coerced by
intolerable working conditions created by the agency, the issue is whether,
considering the totality of the circumstances, her working conditions were made
so difficult that a reasonable person in her position would have felt compelled to
resign or retire. Vitale v. Department of Veterans Affairs, 107 M.S.P.R. 501,
¶ 20 (2007). Although the administrative judge’s acknowledgment order was not
particularly detailed, the order, in combination with the agency’s motion to
dismiss, provided the appellant with sufficient notice of what was required to
raise a nonfrivolous allegation of jurisdiction over her involuntary retirement
claim. IAF, Tab 2 at 2, Tab 9 at 11-12, 16, 19-20; see Burgess v. Merit Systems
Protection Board, 758 F.2d 641, 643–44 (Fed. Cir. 1985) (finding that an
appellant must receive explicit information on what is required to establish an
appealable jurisdictional issue); Mapstone v. Department of the
Interior, 106 M.S.P.R. 691, ¶ 9 (2007) (finding that an administrative judge’s
Furthermore, we decline to stay this appeal for the up to 150 days that OFO afforded
the agency to provide the appellant with a copy of the investigative file. See PFR File,
Tab 5 at 10.
8
failure to provide an appellant with proper Burgess notice can be cured if the
agency’s pleadings contain the notice that was lacking in the acknowledgment
order).
¶16 The appellant generally contends that the agency forced her to retire by
subjecting her to a hostile work environment and “sexual and non-sexual
harassment.” PFR File, Tab 1 at 18-19; see IAF, Tab 1 at 3-4. In particular, in
her filings and associated attachments, 5 the appellant alleges that, at various
points between 2011 and 2015: (1) M.L. refused to speak with the appellant and
sneered at her; (2) M.L. held up her hand when the appellant attempted to speak
to her about a work-related matter; (3) M.L. stopped speaking to others when the
appellant entered a cubicle and abruptly walked away; (4) M.L. criticized the
appellant’s grammatical wording in written technical procedures and insisted that
she make changes; (5) S.B. would no longer allow a team to implement a
practice that the appellant had initiated; (6) S.B. refused to take action to correct
unspecified problems that M.L. caused; (7) M.L. spoke to S.B. in a flirtatious
voice and manner; (8) the appellant’s supervisors failed to take action to remedy
S.B.’s and M.L.’s behavior; and (9) the appellant overheard personnel in a
nearby cubicle making statements of a sexual nature, but her team’s location was
moved in the summer of 2014, after someone raised the issue with Human
5
We have not limited our consideration of the appellant’s allegations solely to those
claims identified in the agency’s notice of dismissal of her formal EEO complaint, IAF,
Tab 8 at 41-42, 50-51, because the permissible scope of the Board’s review of an
appellant’s EEO reprisal claims may extend to any reprisal similar or related to the
substance of the allegations in the claim and which reasonably can be expected to grow
out of the investigation triggered by the claim. See Williams v. Department of
Agriculture, 106 M.S.P.R. 677, ¶ 12 (2007) (finding that the permissible scope of the
Board’s review of an appellant’s discrimination claims was not confined solely to the
specific allegations accepted by the agency for investigation; rather, it may extend to
any discrimination like or related to the substance of the allegations in the claim and
which reasonably can be expected to grow out of the investigation triggered by the
claim.).
9
Resources, and the problem ceased. 6 IAF, Tab 1 at 3-4, Tab 8 at 103-04, 129-31,
162, 208-11.
¶17 It is well settled, however, that an employee is not guaranteed a stress-free
work environment and dissatisfaction with work 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. Miller v.
Department of Defense, 85 M.S.P.R. 310, ¶ 32 (2000). While the purported acts
of S.B., M.L., and various other agency personnel may have been stressful for
the appellant, and that stress may have exacerbated her migraines, IAF, Tab 1 at
38, and made for an unpleasant and difficult work environment, she has failed to
raise a nonfrivolous allegation that she was subjected to working conditions so
intolerable that a reasonable person in her position would have felt compelled to
retire. See, e.g., Vitale, 107 M.S.P.R. 501, ¶ 26 (finding that, although an agency
official may have caused an 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).
¶18 Further, the appellant could have chosen to contest the alleged actions of
S.B., M.L. and her supervisors, rather than retiring. See Garcia v. Department of
Homeland Security, 437 F.3d 1322, 1329 (Fed. Cir. 2006) (explaining that a
resignation is not involuntary if the employee had a choice of whether to resign
or contest the validity of the agency action). However, she did not contact the
agency’s EEO office until approximately 1½ months after she submitted her
6
The appellant also alleges that on her last day of work: (1) M.L. initially refused to
say goodbye to her and then did so rudely, IAF, Tab 8 at 103; and (2) contractor
personnel questioned her about her informal EEO complaint in an accusatory and
confrontational manner, IAF, Tab 1 at 3. However, these alleged actions could not have
caused the appellant to feel compelled to retire because they occurred on her final day
of work and she had already made the decision to retire months before they occurred.
See IAF, Tab 8 at 107-09, 305-18.
10
retirement application, IAF, Tab 8 at 43, 102, 107-09, 305-18, and retired while
the EEO counseling process was ongoing, approximately 1 month before she was
notified of her right to file a formal complaint, IAF, Tab 8 at 200. See Brown v.
U.S. Postal Service, 115 M.S.P.R. 609, ¶ 15 (2011) (finding that an appellant
failed to raise a nonfrivolous allegation that her retirement was involuntary,
where, among other things, she was pursuing discrimination complaints through
the EEO process at the time that she retired), aff’d, 469 F. App’x 852 (Fed. Cir.
2011). In sum, considering the totality of the circumstances, we find that the
appellant has failed to raise a nonfrivolous allegation that the agency denied her
any realistic choice but to retire.
¶19 Accordingly, for the reasons discussed above, we dismiss the appeal for
lack of jurisdiction.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
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).
11
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 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.