Stojanka Kessel v. Department of Commerce ( 2015 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
STOJANKA KESSEL, DOCKET NUMBER
Appellant, CH-0752-14-0070-I-1
v.
DEPARTMENT OF COMMERCE, DATE: February 27, 2015
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL 1
Sandra G. Radtke, Esquire, Milwaukee, Wisconsin, for the appellant.
Alpana K. Gupta, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her 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
1
A nonprecedential order is one that the Board has determined does not add
sign ificantly 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 Parties may cite nonprecedential orders,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
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the 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, and based on the following
points and authorities, 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 The appellant was an International Trade Specialist for the agency, covering
a geographic area in Wisconsin. E.g., Initial Appeal File (IAF), Tab 6 at 65-66
(position description), 94 (Standard Form 50), 125-26 (territory maps). Due to a
restructuring, the appellant came under a new direct supervisor, D.F., in late
2011. See IAF, Tab 4 at 4, Tab 6 at 31-32. In January 2013, she submitted a
request for voluntarily retirement “due to age and time in service.” IAF, Tab 6 at
95-96. Her retirement became effective at the end of that month. Id. at 94.
¶3 In October 2013, the appellant filed a Board appeal, alleging that her
retirement was involuntary. IAF, Tab 1 at 3. She alleged that she had no
reasonable alternative but to retire because she had been subjected to unrelenting
harassment stemming from her age, gender, and prior equal employment
opportunity (EEO) activity. Id. The appellant indicated that D.F. was the
harasser, with examples including D.F.’s accusing her of not signing a stamp log
as required; scrutinizing her reports and accusing her of lying; sending her
repeated emails; accusing her of missing deadlines and telling her to improve “or
else”; giving her an average performance rating when she deserved higher;
requiring her to provide daily reports summarizing her work activit ies; and taking
3
away some of her work to give to others. Compare IAF, Tab 4 at 4-5 (appellant’s
allegations), with IAF, Tab 6 at 31-48 (D.F. declaration).
¶4 After holding the requested hearing, where the appellant and D.F. testified,
the administrative judge dismissed the appeal for lack of jurisdiction. IAF, Tab
18, Initial Decision (ID). The administrative judge found that the appellant failed
to prove that her retirement was involuntary. ID at 1. The appellant has filed a
petition for review. Petition for Review (PFR) File, Tab 1. The agency has filed
a response. PFR File, Tab 3.
The administrative judge applied the appropriate legal standard in dismissing the
appeal for lack of jurisdiction.
¶5 In her petition for review, the appellant argues that the administrative judge
erred by “not following caselaw about hostile work environment cases” in that
she “parse[d] up the complaint into separate categories and render[ed] a finding
on each.” PFR File, Tab 1 at 5 (citing, e.g., Harris v. Forklift Systems,
Inc., 510 U.S. 17, 22 (1993); Murray v. Chicago Transit Authority, 252 F.3d 880,
889 (7th Cir. 2001); Williams v. General Motors Corp., 187 F.3d 553, 559, 562-
63 (6th Cir. 1999)). We do not find persuasive the cases the appellant cited, each
of which is a Title VII case and none of which involve a federal employee.
Moreover, we do not agree with the appellant’s characterization of the
administrative judge’s analysis.
¶6 An appellant has the burden of proving, by preponderant evidence, 2 that her
appeal is within the Board’s jurisdiction. 5 C.F.R. § 1201.56(a)(2)(i). An
employee-initiated action, such as a retirement, is presumed to be voluntary and
thus outside the Board’s jurisdiction. Staats v. U.S. Postal Service, 99 F.3d 1120,
1123-24 (Fed. Cir. 1996). An appellant may overcome the presumption by
showing show that: (1) her retirement was the product of misinformation or
2
A preponderance of the evidence is the degree of relevant evidence that a reasonable
person, considering the record as a whole, wou ld accept as sufficient to find that a
contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.56(c)(2).
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deception by the agency; or (2) her retirement was the product of coercion by the
agency. Id. at 1124.
¶7 Until an appellant establishes Board jurisdiction over an alleged involuntary
retirement, the Board lacks the authority to adjudicate discrimination claims
under Title VII standards, including hostile environment claims. Fahrenbacher v.
Department of Veterans Affairs, 89 M.S.P.R. 260, ¶ 9 (2001); see Wren v.
Department of the Army, 2 M.S.P.R. 1, 2 (1980) (prohibited personnel practices
under 5 U.S.C. § 2302(b) are not an independent source of Board
jurisdiction), aff'd, 681 F.2d 867, 871-73 (D.C. Cir. 1982). The Board will
consider any evidence of discrimination or retaliation together with all other
evidence bearing on the voluntariness of a retirement, but it does not need to
determine whether discrimination or retaliation has been established under the
standards of Title VII, unless and until it is established that the appellant was
constructively discharged. See Neice v. Department of Homeland Security, 105
M.S.P.R. 211, ¶ 8 (2007) (applying this standard to a claim of involuntary
resignation).
¶8 To prove involuntariness based upon coercion, as was alleged here, an
appellant must show that the agency effectively imposed the terms of her
retirement; she had no realistic alternative but to retire; and the retirement was
the result of the agency’s improper acts. See Garcia v. Department of Homeland
Security, 437 F.3d 1322, 1329 (Fed. Cir. 2006). The test for involuntariness is an
objective one, requiring the appellant to show that a reasonable employee in the
same circumstances would have felt coerced into resigning or retiring. Conforto
v. Merit Systems Protection Board, 713 F.3d 1111, 1121 (Fed. Cir. 2013).
¶9 Here, the administrative judge correctly applied the above standard. See ID
at 3-4 (detailing the test for involuntariness based upon coercion and noting that
the Title VII claims were considered in terms of the voluntariness). Moreover,
despite the appellant’s suggestion to the contrary, the administrative judge
considered the totality of the circumstances surrounding her retirement. See ID at
5
4 (indicating that the totality of the circumstances was the applicable standard),
5-27 (discussing the appellant’s circumstances), 28-29 (finding that, while the
appellant found her working situation difficult, her interpretation of the situation
was not reasonable). While the administrative judge’s decision discusses
individually the incidents the appellant alleged in support of her claim, it did so
to address the credibility of each and to determine whether these incidents,
“independently or combined with other incidents,” would have caused “a
reasonable person in her circumstances to retire.” See ID at 7-29.
The appellant has shown no error in the administrative judge’s consideration of
her prior EEO complaints.
¶10 The appellant argues that the administrative judge’s decision omitted
pertinent characteristics that lend some credence to her allegations in describing
her two prior EEO complaints. PFR File, Tab 1 at 4-5. According to the
appellant, the administrative judge omitted the fact that the first, from 2004,
involved a hostile work environment complaint, and the second, from 2008,
involved a retaliation complaint. Id.; see generally IAF, Tab 16 at 1 (discussing
the timing of the EEO complaints). We disagree.
¶11 Although the initial decision may not have mirrored the language of the
appellant, it did describe the EEO activity as “discrimination complaints,”
involving her “supervisors’ alleged abusive behavior.” ID at 2, 4. In addition,
while the EEO complaints of 2004 and 2008 were of some relevance, the
appellant’s arguments as to the voluntariness of her retirement were focused on
the actions of D.F., her supervisor from late 2011 until her retirement in January
2013. See IAF, Tab 4 at 4-5 (appellant’s jurisdictional statement), Tab 12 at 4-5
(assertions of facts and summary of expected testimony), Tab 15 (appellant’s
evidentiary submissions, consisting of emails from 2012-2013 and medical
records, but containing no documentation of prior EEO activity); see also Chavez
v. Small Business Administration, 121 M.S.P.R. 168, ¶ 23 (2014) (as a general
matter, a comparison of events which are attenuated is less persuasive than a
6
comparison of those which share a close temporal nexus). Accordingly, we
discern no material distinction in the appellant’s characterization of her EEO
complaints and the descriptions in the initial decision.
The appellant has shown no error in the administrative judge’s credibility
assessments and fact findings.
¶12 The appellant has presented several arguments challenging the
administrative judge’s credibility assessments and findings of fact. PFR File, Tab
1 at 5-9. We find no merit to these arguments.
¶13 The appellant argues that the administrative judge erred in drawing an
adverse inference from her not calling other witnesses to support two of her
allegations. Id. at 5-6 (referencing ID at 7, 10). The appellant suggested that it
may have been difficult to call others as witnesses to support her claims and that
the agency could similarly be faulted for not calling additional witnesses. Id. In
both instances, she presented one version of events while D.F. presented another,
and the administrative judge found D.F.’s version more credible. See ID at 7, 10.
The administrative judge did note that, while at least one other person was
present during the two incidents at issue, the appellant failed to call them as
witnesses. ID at 7, 10. However, we are not persuaded that this notation
amounted to inappropriate adverse inferences. See generally Shustyk v. U.S.
Postal Service, 32 M.S.P.R. 611, 614-15 (discussing the limited circumstances in
which it may be appropriate to use an adverse inference for a party’s failure to
produce a witness), aff’d, 831 F.2d 305 (Fed. Cir. 1987) (Table). Rather, the
administrative judge was merely noting that the appellant had failed to provide
any support for her version of events as part of a proper credibility analysis. See
ID at 7, 10 (citing Hillen v. Department of the Army, 35 M.S.P.R. 453, 458 (1987)
(the many factors that must be considered in making a credibility determination
include any prior inconsistent statement by a witness; the contradiction of a
witness’s version of events by other evidence or its consistency with other
7
evidence; the inherent improbability of a witness’s version of events; and the
witness’s demeanor).
¶14 Moreover, even if the administrative judge did apply an inappropriate
adverse inference from the appellant’s failure to call the identified witnesses, she
has not shown that the error was material. See McIntire v. Federal Emergency
Management Agency, 55 M.S.P.R. 578, 584-85 (1992) (finding that, even if the
judge erred in drawing an adverse inference, the error did not prejudice any
substantive rights because the testimony at issue was not material); Panter v.
Department of the Air Force, 22 M.S.P.R. 281, 282 (1984) (an adjudicatory error
that is not prejudicial to a party’s substantive rights provides no basis for reversal
of an initial decision). As previously discussed, the appellant bore the burden of
proof, yet she provided little in terms of evidentiary support for any of her
allegations, other than her own testimony. The administrative judge found her
interpretation of her circumstances unreasonable. See ID at 29. We find no
reason to conclude otherwise. See Broughton v. Department of Health & Human
Services, 33 M.S.P.R. 357, 359 (1987) (there is no reason to disturb the
administrative judge’s conclusions when the initial decision reflects that the
administrative judge considered the evidence as a whole, drew appropriate
inferences, and made reasoned conclusions).
¶15 The appellant also asserts that the administrative judge erred in discrediting
some testimony which she characterizes as “unrefuted” or “uncontradicted.” PFR
File, Tab 1 at 5-9. We first note that the appellant’s characterization is
misleading. For example, she presented evidence and testimony regarding what
she believed to be excessive oversight by D.F. on October 31, 2012. See ID at
17-19; IAF, Tab 15, Subtab B. In her petition, the appellant calls it unrefuted that
the contact and oversight documented on October 31, 2012, was typical of every
day. PFR File, Tab 1 at 7. However, as noted in the initial decision, October 31,
2012, was a day in which the appellant and D.F. worked closely together on a
specific project, and D.F. suggested that such projects required more frequent
8
contact. See ID at 19 (finding that the appellant had not shown that the contact
on October 31, 2012, was either typical or improper). We note that the
administrative judge made an appropriate determination that D.F.’s account of the
events on the day in question was more credible than the appellant’s. ID at 19.
¶16 In another example, the appellant claimed that she had problems with her
agency-mandated Client Tracking System (CTS) reports because they could be
accessed or altered by anyone and were oftentimes deleted entirely. PFR File,
Tab 1 at 6 (referencing ID at 8-9); see IAF, Tab 11 at 32 of 185 (agency policy
requiring CTS reports). According to the appellant, her allegation should have
been credited because “[n]o one from the agency indicated there was not a
problem with [the CTS] system and deleting entries.” PFR File, Tab 1 at 6.
However, again, the administrative judge made a credibility determination,
discrediting the appellant’s claims based upon their inherent probability and the
lack of supportive evidence. See ID at 8-9; see also Hillen, 35 M.S.P.R. at 458.
Accordingly, we see no reason to disturb the administrative judge’s well-reasoned
findings on these issues.
¶17 The remainder of the appellant’s arguments can be summarized as
allegations that the administrative judge misconstrued, confused, or ignored much
of her testimony. PFR File, Tab 1 at 6-9. As an initial matter, we note that the
appellant’s arguments on this point are, at least in part, vague or contrary to the
record. For example, while she claims that the administrative judge “confuses
two separate reports in finding appellant not credible,” she failed to shed any
light on the purported confusion. See id. at 7. In addition, while the appellant
argues that the administrative judge “ignored” some pertinent pieces of her
testimony, the decision reveals otherwise. Compare PFR File, Tab 1 at 6
(assertion that the administrative judge ignored testimony about D.F. standing
over her, beet red, yelling, and pointing his finger), with ID at 9 (discussing
testimony about D.F. purportedly turning beet red, yelling, and pointing his
finger). Nevertheless, having reviewed the record, we do not find that any of the
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appellant’s arguments provide reason to disturb the findings of the administrative
judge, who was in the best position to weigh the evidence. See Haebe v.
Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002) (the administrative
judge, as the hearing officer, is in the best position to make factual findings and
detailed credibility assessments).
¶18 The Federal Circuit has observed that “[t]he doctrine of coercive
involuntariness ‘is a narrow one,’ requiring that the employee ‘satisfy a
demanding legal standard.’” Conforto, 713 F.3d at 1121. “An employee’s
dissatisfaction with the options that an agency has made available to [her] is not
sufficient to render [her] decision to resign or retire involuntary.” Id. “[T]he
doctrine of coerced involuntariness does not apply if the employee resigns or
retires because [she] does not like agency decisions such as ‘a new assignment, a
transfer, or other measures that the agency is authorized to adopt, even if those
measures make continuation in the job so unpleasant . . . that [she] feels [she] has
no realistic option but to leave.’” Id. at 1121-22.
¶19 As the administrative judge documented throughout the initial decision, the
appellant was subject to some legitimate, albeit stressful, changes. ID at 28-29.
These changes included a new supervisor, new telework reporting requirements,
and a reduction in the geographic reach of her assigned territory. See ID at 3, 6,
14, 23. However, the record does not support allegations that she was also
subject to abusive treatment from her supervisor, D.F., or any other such
impropriety. See ID at 28-29. Instead, the administrative judge found that the
appellant unreasonably interpreted almost every interaction with him as a
personal attack. ID at 29. The appellant has presented no basis to disturb that
conclusion. Accordingly, she failed to meet her jurisdictional burden of proving
that the agency effectively imposed the terms of her retirement; she had no
realistic alternative but to retire; and the retirement was the result of the agency’s
improper acts. See Garcia, 437 F.3d at 1329.
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NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States 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 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 your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
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Merit Systems Protection Board appellants before the court. 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.