Paul Joseph Simanonok v. Department of the Navy ( 2015 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
PAUL JOSEPH SIMANONOK, DOCKET NUMBER
Appellant, PH-0752-14-0867-I-1
v.
DEPARTMENT OF THE NAVY, DATE: April 10, 2015
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL 1
Michael Russo, Portsmouth, New Hampshire, for the appellant.
Barbara A. Badger and Robert D. Stuart, Esquire, Portsmouth, New
Hampshire, 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 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
erroneous 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 served as a GS-11 General Engineer until April 18, 2010,
when he was promoted to GS-12, not to exceed November 7, 2014. Initial Appeal
File (IAF), Tab 20 at 5. In January 2013, his supervisor gave him a position
description with which he disagreed. On January 29, 2013, the appellant told a
manager that he was contemplating retirement. 2 Id., Tab 12 at 76. On
February 27, 2013, he was issued a Letter of Requirement based on his failure to
perform in a timely manner his direct charge work assignments. Id., Tab 11
at 86. On March 11, 2013, the appellant initiated the paperwork for his
retirement to be effective May 3, 2013. Id. at 43. He requested a reassignment
on March 20, 2013, but the agency denied his request. He was on sick leave,
beginning on April 2, 2013, based on a request from his health-care provider. Id.,Tab 23 at 15. On April 7, 2013, the agency terminated the appellant’s temporary
promotion, id., Tab 20 at 4, and he retired on May 3, 2013, id., Tab 11 at 46.
¶3 The appellant then filed an equal employment opportunity (EEO) complaint
in which he alleged that the agency discriminated against him because of his age
2
According to the appellant, he became eligible for retirement under the Civil Service
Retirement System on October 11, 2011. IAF, Tab 1 at 7.
3
(57) and retaliated against him because of prior complaints he had filed,
describing various acts of harassment which he claimed forced him to retire. On
July 23, 2014, the agency issued a Final Agency Decision finding that the
appellant did not establish his claims. Id., Tab 1 at 15-27.
¶4 On appeal, the appellant challenged the agency’s findings. Id. at 7-13. In
acknowledging the appeal, the administrative judge set forth the grounds for
establishing that a normally voluntary action such as a retirement was, in fact,
involuntary and therefore subject to the Board’s jurisdiction. Id., Tab 2. The
agency moved that the appeal be dismissed for lack of jurisdiction. Id., Tab 10.
After the parties made additional submissions, id., Tabs 11-14, 17-21, the
administrative judge issued a comprehensive jurisdictional order explaining that
the appellant’s appeal would be dismissed unless he made a nonfrivolous
allegation that he retired because of duress, coercion, or misrepresentation; that,
if he made such an allegation supported by affidavits or other evidence, he would
then be required to prove those same matters by preponderant evidence, either at
a hearing or during a further opportunity to develop the record; and that, if he did
not, his appeal would be dismissed, id., Tab 22. The appellant filed a responsive
submission. Id., Tab 23.
¶5 In an initial decision based on the written record, the administrative judge
found that the appellant failed to nonfrivolously allege that he was subjected to a
work environment that was so intolerable that a reasonable person would feel
compelled to retire. Id., Tab 24, Initial Decision (ID) at 4-6. The administrative
judge further found that the appellant failed to show that he was induced to retire
by a threat to take disciplinary action that the agency knew could not be
substantiated, that the agency took steps against him without any legitimate
purpose, or that he was induced to retire because of agency misrepresentation or
deception. The administrative judge concluded that the Board lacks jurisdiction
over the appellant’s claimed involuntary retirement. ID at 7.
4
¶6 The appellant has filed a petition for review, Petition for Review (PFR)
File, Tab 1, to which the agency has responded, id., Tab 2, and the appellant has
filed a reply thereto, id., Tab 3.
¶7 Where, as here, an employee claims that his retirement was coerced by the
agency’s having created intolerable working conditions, he must show that a
reasonable employee in his position would have found the working conditions so
oppressive that he would have felt compelled to retire. See Hosozawa v.
Department of Veterans Affairs, 113 M.S.P.R. 110, ¶ 5 (2010). The
administrative judge considered the appellant’s claims that one of his
subordinates who had previously been a supervisor bullied him and discredited
his work; that his position description excluded certain duties (although when he
complained, management revised it); that his supervisor issued him a Letter of
Requirement setting arbitrary quotas for his performance which he described as a
“secret” performance improvement plan; that his supervisors ignored his request
that they “cease and desist” their behavior which he considered to be harassing;
that they denied his request for a transfer (submitted after he had already filed his
retirement papers); and that they terminated his temporary promotion less than a
month before he retired. ID at 5-6. The administrative judge found, however,
that, to the extent the appellant may have faced an unpleasant and personally
distasteful work environment, his relating of such facts, even if proven, did not
constitute coercion and did not render his retirement involuntary. ID at 7.
¶8 We have considered the appellant’s challenges to these findings on review,
PFR File, Tab 1 at 5-7, but discern no reason to reweigh the evidence or
substitute our assessment of the record evidence for that of the administrative
judge, 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 he considered the
evidence as a whole, drew appropriate inferences, and made reasoned
conclusions). Facts without support do not establish that a claim is nonfrivolous.
See Riojas v. U.S. Postal Service, 88 M.S.P.R. 230, ¶ 3 (2001). Moreover, an
5
employee is not guaranteed a working environment free of stress. Dissatisfaction
with work assignments, a feeling of being unfairly criticized, or difficult or
unpleasant working conditions are generally not so intolerable as to compel a
reasonable person to retire. See Miller v. Department of Defense, 85 M.S.P.R.
310, ¶ 32 (2000). Although the appellant argues on review that the initial
decision misstated certain facts, 3 we find that he has not identified any factual
error or omission of sufficient weight to change the outcome of the initial
decision. See Neice v. Department of Homeland Security, 105 M.S.P.R. 211, ¶ 10
(2007).
¶9 We conclude, therefore, that the appellant has not shown error in the
administrative judge’s finding that he failed to nonfrivolously allege that the
agency coerced his retirement by subjecting him to a work environment that was
so intolerable that a reasonable person would have felt compelled to retire, a test
that is gauged by an objective standard rather than by an employee’s subjective
evaluation. 4 See Koury v. Department of Defense, 84 M.S.P.R. 219, ¶ 10 (1999).
¶10 We note the appellant’s argument on review that the initial decision is based
on “Agency hearsay testimonies” and a “heavily Agency biased Investigative
File.” PFR File, Tab 1 at 4. In this regard, he apparently refers to the
investigative file prepared by the agency in connection with his EEO complaint.
He argues that he requested that the agency provide the file in electronic format
3
For example, the appellant disputes the precise date of his temporary promotion and
the date he requested a transfer. PFR File, Tab 1 at 8, 5. He also challenges the
administrative judge’s statement that “His supervisors never discussed retirement
among themselves.” Id. at 6; ID at 7. The administrative judge was not referring to the
appellant’s situation, however. Rather, he attributed that statement to the court’s
opinion in Arroyo v. United States, 229 Ct. Cl. 647 (1981), upon which he relied.
4
To the extent that the appellant argues that he was m isled by information his union
representative provided to him that, if he put in his retirement papers, he would have a
better chance of getting a transfer, the administrative judge correctly found that such a
claim does not implicate the agency and therefore does not constitute a nonfrivolous
allegation of involuntariness based on agency misrepresentation. ID at 7 n.5; see Green
v. Department of Veterans Affairs, 112 M.S.P.R. 59, ¶ 9 (2009).
6
but that it did not submit the file in any format and that therefore the
administrative judge did not consider it in reaching his decision. Id. In this
regard, we first note that the agency did submit into the record a number of
declarations from the EEO proceeding, including those from the appellant’s
first-line supervisor, IAF, Tab 14 at 38-47; his second-line supervisor, id.
at 48-55; his third-level supervisor, id. at 56-60; a Human Resources Specialist
who had first-hand knowledge of some of the appellant’s claims, id. at 61-63; and
a supervisory Human Resources Specialist with more limited knowledge of the
appellant’s claims, id. at 65-67. The agency also submitted the appellant’s own
declaration, id., Tab 18 at 4-18, as well as various other documents that appear to
be part of the investigative file, 5 see, e.g., IAF, Tabs 11-14. As the appellant was
advised, id., Tabs 2, 22, he bears the burden to establish the Board’s jurisdiction
over his appeal, see Garcia v. Department of Homeland Security, 437 F.3d 1322,
1344 (Fed. Cir. 2006). To the extent that he believes that there were other
documents in the investigative file which would have supported his allegation of
involuntariness so as to render it nonfrivolous, it was his obligation to submit
those documents, and he cannot now be heard to complain that they were not a
part of the official record. His failure to submit such documents does not provide
a basis for Board review. 6
5
Granted, these documents were not submitted in well-organ ized fashion.
6
The appellant also challenges on review the admin istrative judge’s finding that the
termination of his temporary promotion is not an appealable action. PFR File, Tab 1
at 8; ID at 8. While technically true, the significance of the agency’s action to the
appellant’s appeal is the extent to which it may support the claim of involuntariness.
The appellant has not nonfrivolously alleged that he was coerced to retire because the
agency terminated his temporary promotion less than a month before his actual
retirement but a month after he submitted his retirement paperwork. The administrative
judge further stated that, in the absence of an appealable action, the Board lacks
jurisdiction over the appellant’s allegations of discrimination and/or prohibited
personnel practice. ID at 9. Again, while technically true, the significance of these
claims in this type of appeal is similarly the extent to which they may support the
appellant’s claim of involuntariness. See Hosozawa, 113 M.S.P.R. 110, ¶ 5. The
appellant has not nonfrivolously alleged that agency actions which, in his view,
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NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS 7
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
evidenced discrim ination based on age or retaliation for protected EEO activity had any
bearing on the voluntariness of his retirement. To the extent that the administrative
judge erred analytically in addressing these claims, any such error was not prejudicial
to 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 administrative judge afforded the appellant m ixed-case review rights. ID
at 13-14. However, in the absence of Board jurisdiction, this is not a mixed case. We
have here provided the appellant the proper review rights. See, e.g., Axsom v.
Department of Veterans Affairs, 110 M.S.P.R. 605 (2009).
8
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
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.