John Montgomery v. Department of Energy ( 2016 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOHN MONTGOMERY, DOCKET NUMBER
Appellant, DC-0752-16-0641-I-1
v.
DEPARTMENT OF ENERGY, DATE: December 28, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
John Montgomery, Midland, Michigan, pro se.
Jocelyn Richards and Michele A. Forte, Washington, D.C., 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 in the following
circumstances: the initial decision contains erroneou s findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 petitioner’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 and AFFIRM the initial decision, which is now the Board’s
final decision. 5 C.F.R. § 1201.113(b).
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 Prior to the alleged involuntary retirement at issue in this appeal, the agency
employed the appellant as a GS-15 Management Analyst. Initial Appeal File
(IAF), Tab 4 at 20. On August 11, 2015, the appellant and the agency entered
into a settlement agreement resolving his equal employment opportunity (EEO)
complaint. Id. at 21-24. In relevant part, the appellant agreed to withdraw his
claims against the agency and to resign no later than April 30, 2016, and the
agency agreed to reassign him to a new position, place him in a limited‑term
100% regular telework status, and to pay him a lump sum payment of $40,000.
Id. at 21‑22. The appellant also agreed that, if he failed to resign by April 30,
2016, he would be required to return the $40,000 lump sum payment, his telework
agreement would expire, and he would be required to report for duty at his
regular duty station on May 2, 2016. Id. at 22. The appellant retired effective
April 30, 2016. 2 Id. at 20, 41-42.
2
On several occasions prior to his retirement, the appellant contacted the agency
alleging breach of the settlement agreement. IAF, Tab 4 at 26, 31, 35. In three final
agency decisions (FADs), the agency determined that it had not breached the settlement
3
¶3 On June 7, 2016, the appellant appealed his alleged involuntary retirement
to the Board and requested a hearing. IAF, Tab 1 at 1-2. The appellant alleged
that: he was forced to retire “due to harassment, discrimination, hostile working
conditions and retaliation”; “[t]he action voluntarily taken by the agency against
me was a product of misinformation or deception”; and “[s]uch action was a
product of Agency’s coercive actions that made working conditions so difficult or
unpleasant that a reasonable person in my position would have felt compelled to
resign, retire, or take demotion.” Id. at 5. The administrative judge issued a
jurisdictional order informing the appellant that the Board lacks jurisdiction over
voluntary actions, such as resignations and retirements, and ordered him to
submit evidence and argument amounting to a nonfrivolous allegation that his
retirement was involuntary because of duress, coercion, or misrepresentation by
the agency. IAF, Tab 2 at 2-4. The agency moved to dismiss the appeal for lack
of jurisdiction and as untimely filed. IAF, Tab 4 at 5-9. Without holding the
requested hearing, the administrative judge issued an initial decision finding that
the appellant failed to make a nonfrivolous allegation that his retirement was
involuntary and dismissing the appeal for lack of jurisdiction. IAF, Tab 11,
Initial Decision (ID) at 8-11. 3
agreement as alleged by the appellant. Id. at 25, 30, 35. The appellant appealed the
FADs to the Equal Employment Opportunity Commission’s Office of Federal
Operations (OFO), which affirmed each of the FADs. Id. at 25-28, 30-33, 35-38. In
each of its decisions, OFO found that the settlement agreement was “valid and binding
on both parties.” Id. at 27, 32, 37.
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The administrative judge also found that the Board was collaterally estopped from
reviewing the validity of the settlement agreement because the identical issue was
determined by OFO in the prior EEO actions; the validity determination was necessary
to the resulting OFO decisions; and the appellant was fully represented in the prior EEO
actions. ID at 8; IAF, Tab 4 at 25-28, 30-33, 35-38. Accordingly, the administrative
judge adopted OFO’s finding that the settlement agreement was “valid and binding on
both parties.” ID at 8. The appellant does not challenge this finding on review, PFR
File, Tabs 1, 4, and we discern no basis to disturb it.
4
¶4 The appellant has filed a petition for review of the initial decision, the
agency has responded in opposition, and he has replied to the agency’s
opposition. Petition for Review (PFR) File, Tabs 1, 3‑4.
¶5 Generally, the Board lacks the authority to review an employee’s decision
to retire, which is presumed to be a voluntary act. Brown v. U.S. Postal Service,
115 M.S.P.R. 609, ¶ 9, aff’d, 469 F. App’x 852 (Fed. Cir. 2011). However, an
appellant may overcome the presumption of voluntariness by showing that his
retirement was the product of misinformation or deception by the agency, or of
coercive acts by the agency, such as intolerable working conditions or the
unjustified threat of an adverse action. SanSoucie v. Department of Agriculture,
116 M.S.P.R. 149, ¶ 14 (2011). An appellant is only entitled to a jurisdictional
hearing over an alleged involuntary retirement if he makes a nonfrivolous
allegation casting doubt on the presumption of voluntariness. Id., ¶ 16.
Nonfrivolous allegations of Board jurisdiction are allegations of fact that, if
proven, could show Board jurisdiction over the matter at issue. Id.
¶6 The doctrine of coerced involuntariness is “a narrow one.” Staats v. U.S.
Postal Service, 99 F.3d 1120, 1124 (Fed. Cir. 1996). To establish involuntariness
on the basis of coercion, an employee must show that: the agency effectively
imposed the terms of his retirement; he had no realistic alternative but to retire;
and his retirement was the result of improper acts by the agency. Id. “[T]he fact
than an employee is faced with an unpleasant situation or that his choice is
limited to two unattractive options does not make [his] decision any less
voluntary.” Staats, 99 F.3d at 1124. The Board must determine whether,
considering the totality of the circumstances, the employee’s working conditions
were made so difficult that a reasonable person in the employee ’s position would
have felt compelled to retire. Brown, 115 M.S.P.R. 609, ¶ 10.
¶7 Here, the appellant alleged that the agency made his working conditions
intolerable and coerced his retirement by, among other things, refusing to “meet
or speak to [him]”; denying him contact with other employees needed to complete
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his duties; harassing him by “sending him demanding emails”; threatening him by
stating “you know what is going to happen to you if you do not resign”; refusing
his request for medical leave; refusing to allow him to “fully work in the job
description assigned to [him]”; giving him an impossible performance plan;
placing him on a performance improvement plan; denying him union
representation; reassigning him to work for one of his past subordinate
employees; attempting to force him to commit a crime; attempting to cover up
sexual harassment; and using the settlement agreement to “justify … hostile
working conditions.” IAF, Tab 5 at 4-5. The administrative judge found,
however, that these allegations were insufficient to constitute a nonfrivolous
allegation that his retirement was involuntary. ID at 9-11.
¶8 On review, the appellant argues that the administrative judge erred in
finding his retirement voluntary and reiterates that the agency subjected him to
intolerable working conditions by failing to remove the supervisor he accused of
sexually harassing two females, attempting to have the appellant commit a crime,
and generally treating the appellant in a “horrible,” “extraordinary,” and
“egregious” manner. PFR File, Tab 1 at 4-7, Tab 4 at 4-6. He also asserts, as he
did below, that, “[h]is supervisor sent [him] a threating [sic] email stating ‘if you
do not resign you know what is going to happen to you[.]’” Id. at 4. According
to the appellant, this threat placed him “under duress and coercion.” Id.
¶9 The alleged threat by the appellant’s supervisor regarding what would
happen if the appellant did not resign or retire clearly refers to the terms of the
settlement agreement, which provided that, if the appellant did not resign by
April 30, 2016, he would be obligated to return the lump sum payment and re port
to his duty station on May 2, 2016. IAF, Tab 4 at 22. As stated above, the fact
that an employee must choose between two unpleasant options does not render his
ultimate choice involuntary. Staats, 99 F.3d at 1124. Thus, the fact that the
appellant had to choose between retiring and repaying the lump sum payment and
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returning to his prior duty station pursuant to the settlement agreement does not
make his choice to retire involuntary.
¶10 While the appellant’s allegations regarding sexual harassment and the
agency’s alleged attempt to have him “commit a crime” could be coercive, the
appellant failed to provide any details or evidence in support of these bare
contentions. Id. Accordingly, we find that his vague and generalized allegations,
unsupported by any specific factual allegations, fail to raise a nonfrivolous
allegation of jurisdiction over this appeal. See Marcino v. U.S. Postal Service,
344 F.3d 1199, 1204 (Fed. Cir. 2003) (finding that mere conclusory allegations,
unsupported by evidence or argument, do not constitute nonfrivolous allegations).
¶11 We have considered the appellant’s other arguments regarding the alleged
intolerable working conditions created by the agency, but agree with the
administrative judge that the incidents alleged do not evince the type of
intolerable working conditions that would compel a reasonable person in the
appellant’s position to retire. ID at 9-10; see, e.g., Searcy v. Department of
Commerce, 114 M.S.P.R. 281, ¶ 13 (2010) (finding that the employee’s
allegations that his supervisor denied his request for advanced leave, spoke to him
in a disrespectful way, and did not provide him any assistance with his work
assignments did not evince intolerable working conditions).
¶12 The appellant further argues on review that the administrative judge erred in
finding that, in the settlement agreement, he agreed to retire because “[t]he
settlement agreement never mentions the word retirement and clearly did not state
what would happen to the appellant if he did not retire.” PFR File, Tab 1 at 4-5
(emphasis in original). The appellant is correct that the settlement agreement
states that he agreed to “resign,” rather than “retire.” IAF, Tab 4 at 22.
However, the wording of the settlement agreement and the appellant’s intentions
when he entered into the settlement agreement have no relevance to the
voluntariness of his ultimate decision to retire. See Staats, 99 F.3d at 1124.
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¶13 The appellant also argues that the administrative judge was biased against
him because she: informed the appellant that “these types of cases are hard to
prove”; “did not give the appellant an opportunity to compel the agency t o
produce documents”; and “gave discretion to the agency assuming they [sic] told
the truth and that the settlement agreement allowed the agency to not be
accountable for a constructive discharge of Appellant.” PFR File, Tab 1 at 4. In
making a claim of bias or prejudice against an administrative judge, a party must
overcome the presumption of honesty and integrity that accompanies
administrative adjudicators. Oliver v. Department of Transportation, 1 M.S.P.R.
382, 386 (1980). Furthermore, 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 evince “a deep-seated favoritism or
antagonism that would make fair judgment impossible.” Bieber v. Department of
the Army, 287 F.3d 1358, 1362-63 (Fed. Cir. 2002) (quoting Liteky v.
United States, 510 U.S. 540, 555 (1994)). Here, the appellant has not pointed to
any evidence that the administrative judge was biased or prejudiced against him,
or that she displayed favoritism or antagonism in the proceedings below.
Accordingly, we find no merit to the appellant’s complaints of bias.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
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,
8
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 and other sections o f 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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.