David Wayne Carson v. Department of Veterans Affairs ( 2015 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DAVID WAYNE CARSON, DOCKET NUMBER
Appellant, AT-1221-11-0062-B-2
v.
DEPARTMENT OF VETERANS DATE: September 22, 2015
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL *
Mark J. Downton, Esquire, Brentwood, Tennessee, for the appellant.
Christopher Todd Dong, Esquire, 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 remand initial decision,
which denied corrective action in this individual right of action (IRA) appeal.
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
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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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 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, 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 filed an IRA appeal alleging that the agency’s retaliatory
actions forced him to retire on November 30, 2009. Carson v. Department of
Veterans Affairs, MSPB Docket No. AT-1221-11-0062-W-1, Tabs 1, 4.
Following a lengthy procedural history, the administrative judge issued a remand
initial decision denying the appellant’s request for corrective action. Refiled
Remand File (RRF), Tab 15, Remand Initial Decision (RID). Specifically, the
administrative judge found, after holding the requested hearing, that the appellant
made a protected disclosure on April 23, 2008, to his first-line supervisor and
other agency officials because he reasonably believed that the agency lacked
consent to search a computer located at the Kentucky Disabled American
Veterans office in Louisville, Kentucky, and that the agency’s search, therefore,
might have violated the Fourth Amendment to the U.S. Constitution. RID at 3-6.
¶3 The administrative judge further found, however, that the appellant did not
establish that the agency took a personnel action against him because he did not
establish that his November 30, 2009 retirement from his Criminal Investigator
position was involuntary. RID at 2, 6-15. In this regard, the administrative judge
held that the appellant did not establish that the agency made working conditions
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so difficult that a reasonable person in the appellant’s position would have felt
compelled to retire. RID at 11. The administrative judge noted that, although the
appellant’s first-level supervisor had a motive to retaliate, the agency set forth
persuasive evidence that it did not retaliate against the appellant. The
administrative judge found that the agency set forth legitimate, unrebutted,
persuasive explanations that were unrelated to the appellant’s whistleblower
activity, for its failure to approve his request for supervisory training, failure to
assist him on one occasion with his travel voucher, and decision to relieve him of
his badge, weapon, law enforcement duties, and government-owned vehicle based
upon medical documentation he had presented to the agency indicating that he
was unable to use his right hand due to an injury. RID at 11-13. Finally, the
administrative judge held that any actions by the appellant’s supervisor in
interrupting the appellant, speaking to him in elevated tones, subjecting him to
extraordinarily long case reviews, and making him re-present cases for
prosecution, were not so intolerable that a reasonable person under the
circumstances would have felt compelled to resign. RID at 14-15.
¶4 The appellant asserts on review that the administrative judge did not
address whether the totality of the claimed intolerable working conditions would
have caused a reasonable person to retire, but instead examined the agency’s
explanations for each act of alleged poor treatment. Petition for Review (PFR)
File, Tab 1 at 8-9. Moreover, the appellant contends that the administrative judge
did not consider some of the circumstances at all because she deemed the
agency’s reasons for those circumstances to be legitimate. Id. at 9-10. Similarly,
the appellant asserts that, in concluding that the agency did not take a personnel
action against the appellant, the administrative judge credited some of the
agency’s reasons for its actions and “removed those adverse actions and their
effect on Appellant or a reasonable person from her consideration” of the totality
of the circumstances, without any analysis of whether his disclosure was a
contributing factor to those personnel actions or whether the agency proved its
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legitimate reasons by clear and convincing evidence. Id. at 10-11. The appellant
describes 18 incidents that he claims made his continued employment intolerable,
asserting that the administrative judge did not weigh the effect all of those
circumstances would have had on a reasonable person in his position and failed to
mention how the agency allegedly frustrated his efforts to obtain leave to care for
his wife when she broke her leg. Id. at 12-17.
¶5 To prevail in an IRA appeal, an appellant must establish by preponderant
evidence that he made a protected disclosure and that the disclosure was a
contributing factor in a personnel action taken against him. Chambers v.
Department of the Interior, 116 M.S.P.R. 17, ¶ 12 (2011). Although a decision to
resign or retire is presumed to be voluntary, Shoaf v. Department of Agriculture,
260 F.3d 1336, 1340 (Fed. Cir. 2001), an involuntary resignation or retirement
may constitute an appealable personnel action in an IRA appeal, see Colbert v.
Department of Veterans Affairs, 121 M.S.P.R. 677, ¶ 12 n.5 (2014).
¶6 Allegations of reprisal for whistleblowing, when made in an IRA appeal in
support of an assertion that an agency coerced an appellant’s resignation or
retirement, should be considered for the limited purpose of determining whether
they support a finding of coercion. Heining v. General Services Administration,
61 M.S.P.R. 539, 551 (1994); Burke v. Department of the Treasury, 53 M.S.P.R.
434, 439 (1992). Thus, to establish that a retirement was coerced, an appellant
must show that his working conditions were made so intolerable by the alleged
reprisal that he was forced into an involuntary retirement. Heining, 61 M.S.P.R.
at 551. If an appellant makes this showing, then there was a constructive
discharge, because he was left with no alternative but to leave his place of
employment through retirement. See id. In other words, an appellant must show
that his working conditions were made so difficult or unpleasant that a reasonable
person in his circumstances would have felt compelled to retire. See id. To
objectively determine whether a reasonable person in the employee’s position
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would have felt compelled to retire, the Board must consider the totality of the
circumstances. See Shoaf, 260 F.3d at 1342.
¶7 We find that the administrative judge considered the totality of the
circumstances in finding that the appellant did not show that his retirement was
involuntary. See RID at 6-15. In particular, the administrative judge accepted as
true many of the appellant’s allegations, but found that such circumstances
were not so difficult that a reasonable person would have felt compelled to resign.
RID at 13-15. In making her determination, the administrative judge also
properly considered whether the agency engaged in improper acts. RID at 13 n.4;
see Pariseau v. Department of the Air Force, 113 M.S.P.R. 370, ¶ 12 (2010)
(determining that the essence of all claims of involuntary retirement is that the
employee had a choice between retiring or continuing to work, but was forced to
choose retirement by improper acts of the agency); Vitale v. Department of
Veterans Affairs, 107 M.S.P.R. 501, ¶ 24 (2007) (finding that the Board may find
retirements to be involuntary based on coercion when the employee shows that
the agency has taken steps against the employee, not for any legitimate purpose,
but simply to force the employee to quit). The administrative judge found that
the appellant did not prove that the agency engaged in improper acts that
purportedly led to his retirement; instead, the administrative judge found that,
even considering a motive to retaliate by the appellant’s first-level supervisor, the
agency set forth persuasive evidence of legitimate reasons, unrelated to the
appellant’s whistleblowing activity, for those acts. See RID at 12-13.
¶8 By focusing on whether the appellant proved that his retirement was
involuntary, and thus a personnel action within the Board’s jurisdiction, without
making a determination as to whether the appellant met the standard for proving
that his disclosure was a contributing factor in such a personnel action and
whether the agency met its burden of proving by clear and convincing evidence
that it would have taken the same action in the absence of the disclosure, the
administrative judge’s analysis was consistent with holdings of the court and the
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Board in similar cases. See Mintzmyer v. Department of the Interior, 84 F.3d
419, 423 (Fed. Cir. 1996) (holding that the ultimate issue in both a constructive
discharge claim based on whistleblowing reprisal and a constructive discharge
claim based on discrimination is whether the employee retired under such
intolerable working conditions that her retirement constituted a constructive
discharge); Shoaf v. Department of Agriculture, 97 M.S.P.R. 68, ¶¶ 15-18 (2004);
cf. Pickens v. Social Security Administration, 88 M.S.P.R. 525, ¶ 6 (2001)
(finding that when allegations of discrimination and reprisal are alleged in
connection with a determination of voluntariness, such evidence of discrimination
or retaliation may only be addressed insofar as it relates to the issue of
voluntariness and not whether the evidence would establish discrimination or
reprisal as an affirmative defense); Markon v. Department of State, 71 M.S.P.R.
574, 578 (1996) (concluding that evidence of discrimination may be considered
only in terms of the standard for voluntariness in a particular situation – not
whether such evidence meets the test for proof of discrimination or reprisal
established under Title VII).
¶9 Despite the appellant’s assertion that the administrative judge failed to
mention how the agency allegedly frustrated his efforts to obtain leave to care for
his wife when she broke her leg, the administrative judge addressed this matter
when she found that the appellant described serious medical conditions of his
wife, mother, and brother, which caused him to take leave, and that the record
indicated that the agency never denied his leave requests. RID at 9. The
administrative judge considered this fact in finding that the appellant did not
establish that the agency made working conditions so difficult that a reasonable
person would have felt compelled to resign. RID at 11. In any event, the record
reflects that any problems the appellant encountered resulted from the fact that,
due to his wife’s injury, he needed to request leave from home without his office
computer and access to the agency’s electronic time and attendance system; this
created apparent confusion and issues over how the request would be entered into
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the system and approved. See Hearing Transcript at 165-66, 298-99, 447-48,
549-50, 554-57, 635, 652-53, 700-02. We find that there is no indication that the
agency engaged in any improper acts in this regard.
¶10 The appellant further contends that the administrative judge should have
analyzed whether the appellant’s disclosure was a contributing factor in the
agency’s creation of intolerable working conditions, as well as whether the
agency proved by clear and convincing evidence that it would have taken the
same action in the absence of his protected disclosure. PFR File, Tab 1 at 19-25.
We disagree. With certain limitations not applicable here, an administrative
judge may resolve certain issues in an IRA appeal, such as whether the appellant
established by preponderant evidence that he made a protected disclosure and
whether such a disclosure was a contributing factor in a personnel action, in any
order he or she deems most efficient. See Massie v. Department of
Transportation, 118 M.S.P.R. 308, 312 n.2 (2012). Thus, the appellant has shown
no error in the administrative judge’s determination to first resolve the issue of
whether the agency had taken a personnel action.
¶11 The appellant asserts that the administrative judge made erroneous findings
of material fact in support of the agency’s justifications for some of the alleged
intolerable working conditions. PFR File, Tab 1 at 25. For example, the
appellant contends that the administrative judge incorrectly ascribed his
temporary loss of his firearm, badge, and government-owned vehicle to medical
documentation the appellant produced of an injury, given that a contemporaneous
writing from the agency indicated that it was because of safety concerns. Id.
at 26. The appellant presented medical documentation indicating that, from
May 29, 2009, through June 30, 2009, he could engage in “[n]o physical activity
with right hand due to fracture and tendon injury.” RRF, Tab 8, Attachment 16
at 6 of 9. The agency thereafter notified the appellant that, as a result of the
medical documentation, there were certain conditions that “must be imposed for
your safety,” including a restriction on his performance of law enforcement duties
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in the field and the surrender of his firearm and government-owned vehicle, given
that agents were authorized to use government-owned vehicles for home-to-work
commuting “so that they can perform field work and respond to emergencies at
any hour of the day.” Id. at 7 of 9. The appellant has shown no inconsistency
between the administrative judge’s determination that it was undisputed that the
appellant presented medical documentation that he was unable to use his right
hand due to an injury, RID at 12, and evidence in the record showing that the
agency imposed certain conditions on his employment for his safety.
¶12 The appellant also contends that the administrative judge incorrectly found
that he submitted medical documentation of his injury 1 month later than his
submission of a U.S. Department of Labor Form CA-1 on May 5, 2009, failed to
analyze disparate treatment between the appellant and another agent who injured
his hand, and waited too long to issue the initial decision. Id. at 26-29. The
administrative judge, however, correctly noted that, although the appellant’s
injury occurred at the end of April or beginning of May 2009, the appellant
did not supply the doctor’s note increasing the restriction to no use of his right
hand until shortly before June 2009. RID at 10; see RRF, Tab 8, Attachment 16
at 6 of 9. Moreover, the appellant has shown no error in the administrative
judge’s determination that the appellant and a coworker who injured his finger
were not similarly situated because the coworker had no work restrictions and
did not request an accommodation. See RID at 11-12.
¶13 Although the appellant contends that the administrative judge waited more
than 15 months after the hearing to issue an initial decision, and that it was
“clear” that the administrative judge’s memory had faded by the time of the initial
decision, the appellant acknowledged the complexity of this case, which involved
a hearing that occurred over 3 days with multiple witnesses. PFR File, Tab 1
at 28. In any event, the appellant’s speculation that the administrative judge’s
memory had faded is not reflected in the detailed, well-reasoned initial decision,
and the appellant has otherwise shown no prejudice to his substantive rights.
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See Fouquet v. Department of Agriculture, 82 M.S.P.R. 548, ¶¶ 7-9 (1999);
Paclibare v. Veterans Administration, 22 M.S.P.R. 320, 323 (1984), aff’d,
785 F.2d 322 (Fed. Cir. 1985) (Table).
¶14 Accordingly, we deny the appellant’s petition for review and affirm the
initial decision.
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.
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 want to request review of the Board’s decision concerning your
claims of prohibited personnel practices under 5 U.S.C. § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request review of this final decision by the United States Court of Appeals
for the Federal Circuit or any court of appeals of competent jurisdiction. The
court of appeals must receive your petition for review within 60 days after the
date of this order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If
you choose to file, be very careful to file on time. You may choose to request
review of the Board’s decision in the United States Court of Appeals for the
Federal Circuit or any other court of appeals of competent jurisdiction, but not
both. Once you choose to seek review in one court of appeals, you may be
precluded from seeking review in any other court.
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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 about the United States 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, and 11.
Additional information about other courts of appeals can be found at their
respective websites, which can be accessed through
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
If you are interested in securing pro bono representation for an appeal to the
United States 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.