Christine Anderson v. Department of Defense ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CHRISTINE ANDERSON, DOCKET NUMBER
Appellant, DC-0752-17-0044-I-1
v.
DEPARTMENT OF DEFENSE, DATE: January 18, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Bradley R. Marshall, Charleston, South Carolina, for the appellant.
Jason Myers, APO, AE, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her alleged involuntary retirement appeal for lack of jurisdiction.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the 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 petitio ner’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 clarify that we have considered the appellant’s discrimination
and retaliation claims to the extent they relate to the voluntariness issue , we
AFFIRM the initial decision.
BACKGROUND
¶2 The appellant, who was employed as a Teacher by the Department of
Defense Dependent Schools, filed an appeal on October 11, 2016, in which she
alleged that her August 31, 2016 retirement was involuntary. Initial Appeal File
(IAF), Tab 1 at 4. The appellant alleged that the agency subjected her to
discrimination based on age and sex and that she was subjected to reprisal for
prior protected equal employment opportunity (EEO) activity. Id. She included a
copy of a formal complaint she filed with the Equal Employment Opportunity
Commission (EEOC) on February 10, 2015. Id. at 8-33. Because it appeared that
the Board may not have jurisdiction over her appeal, the administrative judge
ordered the appellant to submit evidence and argument establishing a
nonfrivolous allegation of jurisdiction. IAF, Tab 3. The appellant did not file a
response. The agency subsequently filed a pleading requesting that the appeal be
dismissed for lack of jurisdiction. IAF, Tab 5.
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¶3 Thereafter, the administrative judge issued an initial decision, finding that
the appellant failed to make a nonfrivolous allegation of jurisdiction over her
involuntary retirement claim. IAF, Tab 6, Initial Decision (ID) at 3-5. He also
found that the Board lacks jurisdiction over the appellant’s claim that the
agency’s action was the result of discrimination based on age and sex and
retaliation for EEO activity. ID at 6. He therefore dismissed the appeal for lack
of jurisdiction without holding the requested hearing. ID at 1, 6. Because the
administrative judge found that the Board lacks jurisdiction over the appeal, he
did not address the timeliness of the appeal. ID at 1 n.1.
¶4 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 3. The agency has filed a response. PFR File, Tab 5.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant has failed to make a nonfrivolous allegation that her re tirement was
involuntary.
¶5 Retirements are presumed to be voluntary, and the appellant bears the
burden of proving otherwise. Axsom v. Department of Veterans Affairs,
110 M.S.P.R. 605, ¶ 12 (2009). To overcome the presumption that a retirement
was voluntary, the employee must show that the retirement was the result of the
agency’s misinformation or deception, or that the retirement was coerced by the
agency. Id. To establish involuntariness on the basis of coercion, an employee
must show that the agency effectively imposed the terms of the employee’s
retirement, the employee had no realistic alternative but to retire, and the
employee’s retirement was the result of improper acts by the agency. Id. The
touchstone of the “voluntariness” analysis is whether, considering the totality of
the circumstances, factors operated on the employee’s decision-making process
that deprived her of freedom of choice. Id. If an employee claims that her
retirement was coerced by the agency creating intolerable working conditions, the
employee must show a reasonable employee in her position would have found the
working conditions so difficult or unpleasant that they would have felt compelled
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to retire. Id. 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. Id.¶6 Here, the appellant appears to reassert on review that her retirement was the
result of discrimination and retaliation for her EEO-related activity. PFR File,
Tab 3; IAF, Tab 1 at 8-33. The administrative judge found that the Board lacks
the authority to review these claims absent an otherwise appealable action. ID
at 6. However, we have examined these claims insofar as they relate to the
involuntariness of her decision to retire and conclude that they fail to raise a
nonfrivolous allegation of involuntariness. See Axsom, 110 M.S.P.R. 605, ¶¶ 12,
17. Specifically, while the appellant’s formal EEO complaint describes her
interactions with school administrators, the last interaction described occurred in
November 2014. IAF, Tab 1 at 28-29. However, she did not complete her
retirement application until May 15, 2016, and she specified that her retirement
was to be effective on August 31, 2016. IAF, Tab 5 at 9-11. Because the
appellant made the choice to continue to work for at least a year and a half after
the last described incident, she did not allege facts that could show that the
agency engaged in a course of action that made working conditions so difficult or
unpleasant that a reasonable person in her position would have felt compelled to
retire. See Axsom, 110 M.S.P.R. 605, ¶ 12.
¶7 On review, the appellant has submitted sworn declarations that were
submitted as evidence in her discrimination complaint filed with the EEOC. PFR
File, Tab 3 at 31-82. The declarations, as well as the assertions in her petition for
review, expand on the factual allegations she made below that she was forced to
retire due to intolerable working conditions. Id. Although these declarations may
raise new arguments by describing additional interactions with school
administrators, parents, and students, these allegations are based on facts that
were known to the appellant while her appeal was pending before the
administrative judge. Id. Generally, the Board will not consider an argument
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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 here has not attempted to make her required showing, and we thus
have not relied on her new arguments on review. Nevertheless, even if we were
to consider them, they do not affect the outcome of the case.
¶8 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. See
Axsom, 110 M.S.P.R. 605, ¶ 9. The appellant’s new arguments, even if she were
able to prove them, would not show that her retirement was involuntary. For
example, the newly submitted declarations allege that the appellant had additional
negative or uncomfortable interactions involving school administrators, parents,
and students in 2015 and 2016 prior to her retirement, and she sets forth her
version of these interactions. PFR File, Tab 3 at 31-82. Although the appellant
has alleged unpleasant working conditions, she has not alleged facts to show that
her working conditions were so intolerable such that a reasonable person in her
position would have felt compelled to retire or resign. See Miller v. Department
of Defense, 85 M.S.P.R. 310, ¶ 32 (2000) (explaining that 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). We find, therefore, that the administrative judge correctly
dismissed this appeal for lack of jurisdiction. Because the Board does not have
jurisdiction over this appeal, we have not addressed the issue of whether this
appeal was timely filed.
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NOTICE OF APPEAL RIGHTS 2
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 may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation an d
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
2
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
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If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit 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, 10, 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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination. This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims—by filing a civil action with an appropriate U.S. district court (not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decis ion before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
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discrimination based on race, color, religion, sex, national origin, or a disa bling
condition, you may be entitled to representation by a court-appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
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other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in s ection
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction. 3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit 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, 10, 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
3
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law b y the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of c ompetent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
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Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.