Paul F. Henley v. Department of Agriculture ( 2016 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
PAUL F. HENLEY, DOCKET NUMBER
Appellant, AT-0752-15-0087-I-1
v.
DEPARTMENT OF AGRICULTURE, DATE: April 11, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Paul F. Henley, Birch Run, Michigan, pro se.
Elizabeth N. Moran, Esquire, and Kevin Owen, Esquire, Silver Spring,
Maryland, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The agency has filed a petition for review of the initial decision, which
dismissed his involuntary resignation 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A nonprecedential order is one that the Board has determined does not add
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 Parties may cite nonprecedential orders,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
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).
BACKGROUND
¶2 The appellant was employed by the agency as a teacher. Initial Appeal File
(IAF), Tab 7 at 185. He resigned from his position effective May 24, 2011. Id.
In June 2011, he filed a formal equal employment opportunity (EEO) complaint
in which he alleged that he experienced harassment, discrimination on the bases
of age and disability, and retaliation for prior EEO activity until his resignation.
IAF, Tab 6 at 86-87. The agency issued a final agency decision in
September 2014, finding that the appellant was not subjected to discrimination or
harassment. Id. at 26-48.
¶3 The appellant filed the instant Board appeal in which he alleged that his
resignation was involuntary. IAF, Tab 1. He did not request a hearing. Id. In
response to a jurisdictional order from the administrative judge, the appellant
alleged that his resignation was the result of discrimination and harassment based
upon age, disability, and retaliation for prior EEO activity. IAF, Tab 4. The
agency moved to dismiss the appeal for lack of jurisdiction. IAF, Tab 6 at 6-18.
3
The appellant submitted additional evidence and argument in support of his
appeal. IAF, Tabs 10-13. 2
¶4 The administrative judge issued an initial decision dismissing the appeal for
lack of jurisdiction. IAF, Tab 17, Initial Decision (ID). Specifically, she found
that, even accepting the appellant’s allegations as true, he failed to nonfrivolously
allege that he met his obligation to act reasonably, not assume the worst, and not
jump to conclusions too quickly and thus he failed to nonfrivolously allege that
the agency effectively imposed the terms of his resignation, he had no realistic
alternative but to resign, and his resignation was the result of improper acts by
the agency. ID at 8. Therefore, she concluded that the appellant did not establish
that he was entitled to a jurisdictional hearing and that he failed to establish that
his resignation was tantamount to a constructive removal within the Board’s
jurisdiction. ID at 8. The appellant filed a timely petition for review in which he
argues that he was discriminated against based upon age and disability, retaliated
against, and that the agency created a hostile work environment. Petition for
Review (PFR) File, Tab 1 at 5-7. He also alleges that the agency discriminated
against him under the Fair Housing Act. Id. at 7. The appellant additionally
alleges that the administrative judge erred in failing to consider that he was
effectively a whistleblower and that the agency retaliated against him on this
basis. Id. at 11. The agency has responded in opposition to the appellant’s
petition for review. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
¶5 A decision to resign or retire is presumed to be a voluntary act outside the
Board’s jurisdiction unless the appellant shows by a preponderance of the
2
The appellant also submitted two pleadings under the title “Appellant Response to
Agency Motion to Dismiss.” IAF, Tabs 8-9. However, he later requested that these
documents not be considered. IAF, Tab 14. The administrative judge granted that
request. Id. We have not considered those two pleadings in reaching this decision.
4
evidence 3 that his resignation was involuntary and therefore tantamount to a
forced removal. Freeborn v. Department of Justice, 119 M.S.P.R. 290, ¶ 9
(2013). The appellant may overcome the presumption of voluntariness by
showing that: (1) the resignation or retirement was the product of misinformation
or deception by the agency; or (2) the resignation or retirement was the product of
coercion by the agency. Vitale v. Department of Veterans Affairs, 107 M.S.P.R.
501, ¶ 19 (2007). To establish involuntariness on the basis of coercion, the
appellant must show that: (1) the agency effectively imposed the terms of his
resignation or retirement; (2) he had no realistic alternative but to resign or retire;
and (3) his resignation or retirement was the result of improper acts by the
agency. Id. In cases such as this one, where the appellant alleges that the agency
took actions that made working conditions so intolerable that he was driven to an
involuntary resignation or retirement, the Board will find an action involuntary
only if he demonstrates that the agency engaged in a course of action that made
working conditions so difficult or unpleasant that a reasonable person in his
position would have felt compelled to resign or retire. Id., ¶ 20. The issue of the
Board’s jurisdiction in an involuntary resignation or retirement case is
inextricably intertwined with the merits of the appeal—where the appellant
establishes the Board’s jurisdiction over the appeal by showing that his
resignation or retirement was involuntary, he also has established the merits of
his appeal. Shoaf v. Department of Agriculture, 260 F.3d 1336, 1341 (Fed.
Cir. 2001).
¶6 When discrimination or retaliation is alleged in connection with a
determination of involuntariness, these allegations may be addressed only insofar
as they relate to the issue of voluntariness, and not whether the evidence would
3
A preponderance of the evidence is that degree of relevant evidence that a reasonable
person, considering the record as a whole, would accept as sufficient to find that a
contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).
5
establish discrimination or retaliation under the standards used to prove
discrimination. Wright v. Department of Veterans Affairs, 85 M.S.P.R. 358, ¶ 25
(2000). The Board also does not have jurisdiction to consider claims of
whistleblower retaliation unless the appellant establishes jurisdiction over his
involuntary resignation appeal. Comito v. Department of the Army, 90 M.S.P.R.
58, ¶ 13 (2001).
¶7 If an appellant makes nonfrivolous allegations of fact that, if proven, could
establish jurisdiction over his constructive removal appeal and he has requested a
hearing, then he is entitled to a jurisdictional hearing. Vitale, 107 M.S.P.R. 501,
¶ 18. Where, as here, an appellant has not requested a hearing, the threshold
question is not whether he has raised a nonfrivolous allegation of jurisdiction, but
whether he has established by preponderant evidence that the Board has
jurisdiction over his appeal. Id.
¶8 We find that, in this case, the appellant has failed to establish by
preponderant evidence that his resignation was involuntary. First, we consider
the appellant’s assertions regarding the agency’s actions from September 2008
until December 2010. The appellant asserted, inter alia, that: (1) in
September 2008, the Center Director made it known that he was upset that the
appellant raised workplace safety issues; (2) the Center Director was upset in
November 2008 when he had not “bumped fists” with him and made it clear that
his job was in jeopardy; (3) the Center Director announced at a staff meeting that
he was going to fix the bad attitudes of certain employees; and (4) upper
management did not respond to his complaints. IAF, Tab 4 at 5-7. The appellant
also asserted that the agency changed the deadline by which he was required to
submit his teaching certificate, 4 required him to perform additional duties,
4
According to an email submitted by the appellant, the agency required proof of his
certification on an earlier date for the certificate to be processed prior to his 1-year
work anniversary. IAF, Tab 10 at 35.
6
threatened him by saying that other people wanted his job, and denied his
participation in the agency’s wellness program. Id. at 7-9.
¶9 In further support of his claim of involuntariness, the appellant asserted
that: (1) he was issued a derogatory letter about his work performance in
September 2009 5 and a rating of only fully successful; (2) the Center Director
dismissed his request to transfer to another team due to work tensions and refused
his request to transfer to a different room in government quarters; (3) in
March 2010, the agency did not select him for two supervisory teacher positions; 6
(4) the Center Director denied his request for participation in the student loan
repayment program; 7 (5) he received a performance rating of only fully successful
for the period from October 2009 to September 2010, and when he refused to sign
his evaluation, his first-line supervisor threatened retaliation; and (6) in
December 2010, the Center Director denied his second request to participate in
the agency’s wellness program. IAF, Tab 4 at 9-15.
¶10 These facts, even if true, do not support a finding that the appellant’s
resignation was involuntary. First, we find that these allegedly coercive acts
are not particularly probative of the involuntariness of the appellant’s resignation
because of the long time period between many of the alleged acts and the
appellant’s resignation. See Terban v. Department of Energy, 216 F.3d 1021,
1024 (Fed. Cir. 2000). Furthermore, the U.S. Court of Appeals for the Federal
Circuit has held that the doctrine of coerced involuntariness does not apply if the
5
The Center Director subsequently rescinded this letter and a performance
improvement plan in November 2009. IAF, Tab 11 at 7.
6
On review, the appellant asserts that the agency’s denial of these promotions
“deceived or willfully obstructed” him in order to, inter alia, deny him his veterans’
preference. PFR File, Tab 1 at 19. He does not indicate that he intends to raise a
separate claim under the Veterans Employment Opportunities Act of 1998.
7
The Center Director stated that he would not approve participation in the student loan
program for any staff. IAF, Tab 11 at 16. The appellant contended that this statement
was pretextual and that the Center Director made this decision to discriminate and
retaliate against him. IAF, Tab 4 at 13.
7
employee resigns or retires because he 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
he feels that he has no realistic option but to leave.” Staats v. U.S. Postal
Service, 99 F.3d 1120, 1124 (Fed. Cir. 1996). Thus, even if the appellant
disagreed with many of the agency’s decisions, such as the denial of his
participation in the wellness program and the student loan repayment program, his
performance ratings, a change in duties, failure to transfer him, and refusal to
promote him, the decisions did not render his resignation involuntary.
Furthermore, the appellant’s previously described dissatisfaction with his
interactions with management does not prove that his resignation was
involuntary. See Miller v. Department of Defense, 85 M.S.P.R. 310, ¶ 32 (2000)
(“An 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 resign.”).
¶11 We next consider the appellant’s allegations regarding agency actions
between March and May 2011. The appellant asserted that: (1) in March 2011,
the Center Director did not follow through with several recommendations that he
made on incident reports when he was the acting academic director; (2) also in
March 2011, his first-line supervisor spoke to him harshly and made inappropriate
comments, which led to a physical struggle between the two; (3) the agency
placed him on a different shift outside of his normal job duties after requesting to
be separated from his first-line supervisor, as opposed to reassigning the
supervisor; (4) despite his opposition, the agency placed him on administrative
leave after discussions with his union steward that had mentioned administrative
leave; and (5) although the agency told him that he would be placed on
administrative leave until an investigation was completed, the agency required
8
him to return to work in April 2011, prior to the completion of an investigation.
IAF, Tab 4 at 15-18.
¶12 The appellant was recalled to work on April 14, 2011, and, on April 15,
2011, he was given a “virtual assignment” that he could complete remotely.
Id. at 18. On April 18, 2011, he sent the Center Director an email stating that he
would complete the assignment off-site because the internet in his government
quarters in Bristol, Tennessee, was not working, IAF, Tab 12 at 33, but he alleged
that he never received a response, IAF, Tab 4 at 19. On April 27, 2011, he sent
another email to the Center Director seeking clarification of the assignment and
requesting to telework from his home in Michigan, where he would have better
internet access, IAF, Tab 12 at 34-35, but he alleges that he did not receive an
immediate response, IAF, Tab 4 at 19-20.
¶13 The appellant received a call from his first-line supervisor and the Center
Director on May 2, 2011, in which they stated that his virtual assignment was due
on May 6, 2011. IAF, Tab 4 at 20, Tab 12 at 34. On May 3, 2011 the Center
Director told him to bring in his computer equipment for examination by a
technician, at which point he told the Center Director that this was impossible
because he was in Michigan. IAF, Tab 4 at 21, Tab 7 at 168-69. The Center
Director informed the appellant that he was absent without leave (AWOL) and
ordered him to return to work on May 4, 2011. IAF, Tab 7 at 173-74. The
appellant did not return to work until May 9, 2011. IAF, Tab 4 at 22.
¶14 The appellant argued that his virtual assignment was outside of his job
description and that the agency improperly placed him on AWOL. Id. at 23-24;
IAF, Tab 13 at 9. He asserted that the Center Director assigned him to a building
to illegally monitor him. IAF, Tab 4 at 23. The appellant alleged that he
contacted upper management, but felt that they had abandoned him. Id. at 24. He
argued that he therefore had no choice but to resign. IAF, Tab 4 at 24-25, Tab 7
at 179-80.
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¶15 We find that these assertions, even if true, do not establish that the
appellant’s resignation was involuntary. Although the appellant was dissatisfied
with a number of actions that the agency took, including, inter alia, placing him
on administrative leave, reassigning him, placing him on AWOL, and assigning
him to a building where he could be monitored, these actions do not support a
finding that his resignation was involuntary. See Comito, 90 M.S.P.R. 58,
¶¶ 12-13 (finding that, although it was undisputed that the agency took a number
of actions against the appellant, including the denial of her within-grade increase,
placing her on AWOL, significantly changing her duties, and proposing her
termination, such actions did not render her resignation involuntary).
Furthermore, although the appellant engaged in a physical struggle with his
first-line supervisor, the agency addressed this situation by placing the appellant
on administrative leave, conducting an investigation, and reassigning him. IAF,
Tab 6 at 90, Tab 7 at 137-45. The appellant’s disagreement with the agency’s
response also does not render his resignation involuntary. See Conforto v. Merit
Systems Protection Board, 713 F.3d 1111, 1121-22 (Fed. Cir. 2013) (holding that
the doctrine of coerced involuntariness does not apply if the employee resigns or
retires because he does not like agency decisions that the agency is authorized to
adopt). Additionally, to the extent that the appellant alleged that he resigned
because he feared that the agency would remove him, he has not presented
evidence to rebut the presumed voluntariness of his resignation. See Baldwin v.
Department of Veterans Affairs, 109 M.S.P.R. 392, ¶ 12 (2008) (holding that the
fact that an employee is faced with the unpleasant choice of either resigning or
opposing a potential adverse action does not rebut the presumed voluntariness of
his ultimate choice of resignation unless he shows that an agency knew that it
would not prevail on a proposed adverse action).
¶16 We have considered the appellant’s arguments on review that the
administrative judge did not properly consider his claims of harassment, age and
disability discrimination, retaliation for prior EEO activity, and whistleblower
10
retaliation. PFR File, Tab 1 at 5-7, 11. However, because the Board otherwise
does not have jurisdiction over this appeal, the administrative judge properly
considered these arguments only in the context of the voluntariness of the
appellant’s resignation. See Comito, 90 M.S.P.R. 58, ¶ 13; see also Wright,
85 M.S.P.R. 358, ¶ 25. Regarding the appellant’s allegation of discrimination
under the Fair Housing Act, because we do not have jurisdiction over the
appellant’s involuntary resignation appeal and because we find no independent
basis for exercising jurisdiction over such a claim, we do not consider this
allegation. Maddox v. Merit Systems Protection Board, 759 F.2d 9, 10 (Fed.
Cir. 1985) (explaining that the Board’s jurisdiction is limited to those matters
over which it has been given jurisdiction by law, rule, or regulation).
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,
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.
11
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 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: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.