Gregory Brownfield v. Department of Homeland Security ( 2014 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GREGORY BROWNFIELD, DOCKET NUMBER
Appellant, SF-0752-13-4248-I-1
v.
DEPARTMENT OF HOMELAND DATE: August 27, 2014
SECURITY,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL *
Gregory Brownfield, Washington, D.C., pro se.
Kimberly A. Jones, Esquire, Laguna Niguel, California, 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 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
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 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 Effective February 22, 2013, the appellant resigned from his GS-12
Immigration Services Analyst position with the U.S. Citizenship and Immigration
Services (USCIS) in Laguna Niguel, California. Initial Appeal File (IAF), Tab 1,
Attachment 1. On February 8, 2013, following a conversation with his
supervisor, IAF, Tab 7 at 11-12, the appellant emailed his supervisor a
resignation letter giving 2-weeks’ notice of his resignation, IAF Tab 1,
Attachment 2 at 7. The agency selected the appellant for a GS-13 Management
and Program Analyst position with USCIS in Washington, D.C., on February 12,
2013. IAF, Tab 7 at 16. The appellant received notice of his selection for the
new position on February 14, 2013, and he accepted the offer on February 18,
2013. Id. at 17. After learning that he had a break in service because he had
resigned from his former position, the appellant requested the agency to change
the break in service to leave without pay (LWOP) with a subsequent transfer to
the new position. IAF, Tab 1 at 5, Attachment 2 at 1-4. After the agency denied
his request, id., Attachment 2 at 1, the appellant filed an initial appeal alleging
that his resignation was involuntary, id. at 1-5.
 3
¶3 The administrative judge issued an order informing the appellant that a
resignation is presumed to be voluntary and that he would be granted a hearing
only if he made a nonfrivolous allegation that his resignation was the result of
agency misrepresentation, coercion, or duress. IAF, Tab 5 at 1-2. Without
holding the requested hearing, the administrative judge issued an initial decision
that dismissed the appeal for lack for jurisdiction, finding that the appellant failed
to make a nonfrivolous allegation of jurisdiction. IAF, Tab 8, Initial Decision
at 2, 7.
¶4 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has filed a response to the appellant’s petition for
review. PFR File, Tab 3.
¶5 An employee-initiated action, such as a resignation, is presumed to be
voluntary and thus outside the Board’s jurisdiction unless the employee
establishes by preponderant evidence that the agency obtained the action through
duress or coercion or that the agency’s actions would have misled a reasonable
person. Searcy v. Department of Commerce, 114 M.S.P.R. 281, ¶ 12
(2010); 5 C.F.R. § 1201.56(a)(2)(i). The touchstone of voluntariness analysis is
whether, considering the totality of the circumstances, factors operated on the
employee’s decision-making process that deprived him of freedom of choice.
Searcy, 114 M.S.P.R. 281, ¶ 12. An appellant is entitled to a hearing on the issue
of Board jurisdiction over an appeal of an alleged involuntary resignation only if
he makes a nonfrivolous allegation casting doubt on the presumption of
voluntariness. Burgess v. Merit Systems Protection Board, 758 F.2d 641, 643
(Fed. Cir. 1985). Nonfrivolous allegations of Board jurisdiction are allegations
of fact that, if proven, could establish a prima facie case that the Board has
jurisdiction over the matter at issue. Green v. Department of Veterans
Affairs, 112 M.S.P.R. 59, ¶ 6 (2009).
¶6 In his petition for review, the appellant reasserts his argument from below
that his resignation was involuntary because it was based on the agency’s
4
misinformation and, therefore, he should not have had a break in service between
his former and current positions. PFR File, Tab 1 at 4. A decision made “with
blinders on,” based on misinformation or lack of information, cannot be binding
as a matter of fundamental fairness and due process. Baldwin v. Department of
Veterans Affairs, 111 M.S.P.R. 586, ¶ 16 (2009). Where there is a claim that an
involuntary action resulted from misinformation, an appellant must show that:
(1) the agency made misleading statements; and (2) the appellant reasonably
relied on the misinformation to his detriment. Aldridge v. Department of
Agriculture, 111 M.S.P.R. 670, ¶ 8 (2009).
¶7 Here, the appellant did not make a nonfrivolous allegation that the agency
made a misleading statement. He alleged below that his supervisor misinformed
him by instructing him to submit a resignation letter before he started a new
position within the agency. IAF, Tab 1 at 5, Tab 6 at 4. However, neither the
appellant’s supervisor nor the appellant himself knew that the appellant would be
selected for another agency position at the time the appellant submitted his
resignation letter. The appellant submitted his resignation letter on February 8,
2013, IAF, Tab 1, Attachment 2 at 7, or 4 days before the agency selected him for
the new position on February 12, 2013, IAF, Tab 7 at 16. The appellant did not
allege that his supervisor knew that the appellant was being considered for the
new position. See IAF, Tab 1 at 5, Tab 6 at 4. The appellant did not list his
supervisor’s name or contact information in his application for the new position.
IAF, Tab 7 at 22. Therefore, the agency did not contact his supervisor about the
new position before the appellant submitted his resignation letter. See id.
at 19-20. Additionally, the appellant did not allege that he told his supervisor
that he was resigning to take a different position within the agency or the federal
government. See IAF, Tab 1 at 5, Tab 6 at 4. According to the appellant’s
supervisor, the appellant denied seeking employment elsewhere within the agency
and stated his desire to visit Texas with his family and to pursue job opportunities
outside the agency as reasons for his resignation. IAF, Tab 7 at 11, 19-20. The
5
supervisor responded to the appellant’s stated desire to leave the agency by
obtaining his resignation letter to start the resignation process. Id. at 11-12.
Therefore, we agree with the administrative judge that the appellant failed to
make a nonfrivolous allegation that the agency misinformed the appellant about
his resignation.
¶8 Further, the appellant restates his claims of agency discrimination and
retaliation. PFR File, Tab 1 at 4. Where the appellant raises claims of
discrimination and retaliation in connection with a determination of
voluntariness, evidence of discrimination or retaliation may only be addressed
insofar as it relates to the issue of voluntariness and not to whether the evidence
would establish discrimination or retaliation as an affirmative defense. Pickens v.
Social Security Administration, 88 M.S.P.R. 525, ¶ 6 (2001). In cases where
intolerable working conditions are alleged, the Board will find an action
involuntary only if the employee demonstrates that the employer or agency
engaged in an improper course of action that made working conditions so difficult
or unpleasant that a reasonable person in that employee’s position would have felt
compelled to resign. Heining v. General Services Administration, 68 M.S.P.R.
513, 522 (1995); see Bean v. U.S. Postal Service, 120 M.S.P.R. 397, ¶ 11 (2013).
¶9 The appellant cited below, as examples of the agency’s alleged hostile or
coercive actions, the denial of his request for a position classification review, his
repeated nonselection for positions and promotional opportunities, an
investigation into his conduct, and becoming a target of his supervisor. IAF,
Tab 6 at 4-28. 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. Miller v. Department of
Defense, 85 M.S.P.R. 310, ¶ 32 (2000). Although the appellant’s work
environment may have caused him stress, his cited examples do not show that a
reasonable person would have resigned under the same circumstances. His
decision to resign appears to have been self-initiated and nothing in the record
6
suggests that the agency was constructively forcing him to resign. Therefore, the
appellant has not made a nonfrivolous allegation that his work environment was
so intolerable that a reasonable person in his position would have felt compelled
to resign.
¶10 The appellant, moreover, challenges the agency’s decision to deny his
request to retroactively withdraw his resignation and change his break in service
to LWOP with a subsequent transfer. PFR File, Tab 1 at 4. An employee has a
right to withdraw a resignation at any time before it is effective unless the agency
has a valid reason for refusing to permit the withdrawal. Levy v. Department of
Homeland Security, 109 M.S.P.R. 444, ¶ 18 (2008); 5 C.F.R. § 715.202(b). An
employee’s resignation may be deemed involuntary, and therefore within the
Board’s jurisdiction, if the agency improperly denied his request to withdraw his
resignation before its effective date. See Levy, 109 M.S.P.R. 444, ¶ 18. There is
no provision for waiving the requirement that the request for rescission be made
prior to the time the resignation becomes effective. Glenn v. U.S. Soldiers’ &
Airmen’s Home, 76 M.S.P.R. 572, 577 (1997). The appellant did not allege that
he attempted to withdraw his resignation before its effective date of February 22,
2013. See IAF, Tab 1 at 5, Tab 6 at 4. Thus, to the extent that the appellant
claims involuntary resignation based upon the agency’s alleged failure to let him
retroactively withdraw his resignation, his claim fails as a matter of law. See
Glenn, 76 M.S.P.R. at 577 (an employee does not have a right to withdraw a
resignation after its effective date).
¶11 Thus, after a thorough review of the record evidence and the arguments
raised on review, we conclude that the appellant failed to make a nonfrivolous
allegation that his resignation was involuntary and the administrative judge
properly dismissed the appeal for lack of jurisdiction.
7
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
Merit Systems Protection Board appellants before the court. The Merit Systems
8
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.