Andrew Welhouse v. Department of Agriculture ( 2014 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANDREW WELHOUSE, DOCKET NUMBER
Appellant, CH-0752-12-0387-I-2
v.
DEPARTMENT OF AGRICULTURE, DATE: August 19, 2014
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
John Durishan, Esquire, Atlanta, Georgia, for the appellant.
Patricia Ann McNamee, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his involuntary retirement appeal for lack of jurisdiction. For the
reasons discussed below, we GRANT the appellant’s petition for review. We
VACATE the initial decision, except to the extent that we AFFIRM the
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
administrative judge’s finding that the appellant failed to nonfrivolously allege
that he was coerced into retirement because the agency discriminated against him
based on sex and age, and REMAND the case to the Central Regional Office for
further adjudication in accordance with this Order.
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 On December 15, 2009, the agency advised the appellant that he would be
permanently reassigned from his GS-11 Farm Loan Officer position in Juneau,
Wisconsin, to the same position and pay grade in Viroqua, Wisconsin, effective
January 31, 2010. Initial Appeal File, MSPB Docket No. CH-0752-12-0387-I-1
(IAF I-1), Tab 8 at 12-13. According to the appellant, Viroqua is approximately
145 miles from Juneau. IAF I-1, Tab 1 at 8. The agency advised the appellant
that he may be separated from federal service if he declined the reassignment, but
that, under those circumstances, he may be entitled to a discontinued service
retirement. IAF I-1, Tab 8 at 12. On December 17, 2009, the appellant e-mailed
agency management officials indicating that he would not be 50 years old, and
would therefore be ineligible for a discontinued service retirement, until
approximately 6 months after his reassignment. Initial Appeal File, MSPB
Docket No. CH-0752-12-0387-I-2 (IAF I-2), Tab 4 at 24. He stated that he was
“giv[ing] serious consideration to declining [the] reassignment” because it
imposed a “significant hardship,” and asked whether it would be possible to delay
the effective date of his reassignment so that he would be eligible to collect “an
immediate (reduced) annuity.” Id. Then, on January 7, 2010, the agency
cancelled the December 15, 2009 directed reassignment notice. IAF I-1, Tab 8
at 16.
¶3 On June 10, 2010, the agency issued a new letter, advising the appellant
that he would be permanently reassigned from Juneau to Viroqua, effective
August 15, 2010. 2 Id. at 17-18. The appellant failed to report for duty in Viroqua
2
The appellant reached age 50 on July 26, 2010. See IAF I-1, Tab 8 at 29 (Box 3).
3
on the date specified, so the agency charged him with being absent without leave
and thereafter proposed his removal for refusing the directed reassignment. IAF
I-1, Tab 1 at 12-13, Tab 11 at 37. On October 19, 2010, the agency approved the
appellant’s retirement, retroactive to August 15, 2010, before issuing a decision
on the proposed removal. IAF I-1, Tab 8 at 29.
¶4 The appellant subsequently filed an appeal with the Board, alleging that his
retirement was involuntary. IAF I-1, Tab 1. He requested a hearing. Id. at 2. He
did not dispute the agency’s contention that his reassignment was necessary
because the Juneau office was closed pursuant to a reorganization; however, he
asserted that the agency had no legitimate business reason to reassign him to
Viroqua and could have instead reassigned him to its office in Fond du Lac,
Wisconsin, which was within his commuting area. Id. at 8-11. He contended that
the agency’s failure to reassign him to Fond du Lac constituted discrimination
based on age and sex. Id.; IAF I-2, Tab 4 at 11.
¶5 The administrative judge dismissed the appellant’s appeal for lack of
jurisdiction, without holding the requested hearing, finding that the appellant
failed to make a nonfrivolous allegation that his retirement was involuntary. IAF
I-2, Tab 5, Initial Decision (ID). The administrative judge made no finding as to
the timeliness of the appellant’s appeal, although the agency moved to dismiss the
appeal as untimely filed. ID at 7.
¶6 The appellant has filed a petition for review, again alleging that the
agency’s decision to reassign him was motivated by age and sex discrimination
and was not based on bona fide management considerations. Petition for Review
File, MSPB Docket No. CH-0752-12-0387-I-2 (PFR File), Tab 1.
The appellant has not shown that he was coerced into retirement because the
agency allegedly engaged in discriminatory conduct.
¶7 At the jurisdictional stage, the Board may only consider allegations of
discrimination under Title VII in connection with an involuntary retirement
appeal, insofar as they relate to the issue of voluntariness. Markon v. Department
4
of State, 71 M.S.P.R. 574, 578-80 (1996). That is, the Board may consider
evidence of discrimination to the extent that it demonstrates that an agency’s
discriminatory conduct created working conditions which were so difficult that
any reasonable employee would have felt coerced to resign or retire. Id. For the
reasons discussed below, we find the appellant’s discrimination argument wholly
insufficient to constitute a nonfrivolous allegation that his retirement was
involuntary because he was coerced to retire.
¶8 In support of his argument, the appellant notes that a younger female
employee was assigned to the Farm Loan Officer position in Fond du Lac,
although he repeatedly expressed interest in, and was qualified for, the position.
PFR File, Tab 1 at 13. The appellant also states that Viroqua is within the other
employee’s commuting area 3 and that Fond du Lac is outside her commuting area,
suggesting that the agency’s choice to reassign both of them outside of their
respective local commuting areas was illogical and, therefore, a pretext for
discrimination. Id. at 9; IAF I-1, Tab 5 at 12. Like the appellant, the employee
was reassigned to a position outside her commuting area when the agency closed
the office where her duty station was located. IAF I-2, Tab 4 at 45. The fact that
a younger female was treated similarly to the appellant negates his discrimination
claim. See Russell v. Department of Justice, EEOC App. No. 0120064049,
2006 WL 3697905 at *1 (Dec. 5, 2006) (affirming a finding of no discrimination
where the individual the complainant cited as a comparator was not similarly-
situated to her and the record contained evidence that individuals outside of the
complainant’s protected class were treated similarly under like circumstances). 4
3
This appears to be in dispute. The younger female employee states that Viroqua is
“approximately 90 to 120 minutes” away from her former duty station. IAF I-2, Tab 4
at 46. For the purpose of this decision, we assume, without deciding, that the appellant
is correct.
4
In addressing the appellant’s discrimination claim, we have cited to EEOC decisions.
This is proper because the Board may defer to the EEOC concerning issues of
5
¶9 The appellant also argues that the agency’s explanation for his reassignment
to Viroqua—that the Fond du Lac office was better suited for the aforementioned
younger female employee, who had fewer years of experience than the appellant,
because it had a strong on-site management team—is a pretext for age and sex
discrimination because the agency initially “informally offered” the position to an
employee with 25 years of experience. PFR File, Tab 1 at 14. This employee is a
male and is approximately 10 years older than the appellant. IAF I-2, Tab 4
at 35. Thus, the appellant’s reliance on him also negates his discrimination claim
because if, as the appellant contends, the agency offered the Farm Loan Officer
position in Fond du Lac to an older male, this would suggest the absence of any
discriminatory animus towards older and/or male employees. See McCreary v.
Defense Logistics Agency, EEOC App. No. 0120070257, 2008 WL 1847390 at *4
(Apr. 14, 2008) (complainant’s citing to an individual within his protected class
who received more favorable treatment than he did created an inference that his
protected class did not play a role in the agency action he alleged was
discriminatory). We also note that the appellant has not disputed evidence in the
record indicating that the agency (1) reassigned a Program Technician who was
approximately 55 years old to the Fond du Lac office, which was within her local
commuting area, and (2) reassigned two additional employees who were
significantly younger than the appellant, one of whom was female, outside of
their commuting areas, all of which further negates the appellant’s discrimination
claims. IAF I-2, Tab 4 at 20, 36; see McCreary, 2008 WL 1847390 at *4.
¶10 Based on the foregoing, we AFFIRM the administrative judge’s finding that
the appellant’s argument that his retirement was involuntary because he was
coerced to retire due to age and sex discrimination does not constitute a
nonfrivolous allegation of Board jurisdiction. See ID at 6.
substantive discrimination law. See, e.g., Wingate v. U.S. Postal Service,
118 M.S.P.R. 566, ¶ 7 (2012).
6
The appellant has nonfrivolously alleged that his reassignment outside of his
commuting area was not based on bona fide management considerations.
¶11 When a retirement involves a directed reassignment, the Board has held that
the involuntariness of the retirement may be established by showing that the
reassignment had no solid or substantial basis in personnel practice or principle.
Caveney v. Office of Administration, 57 M.S.P.R. 667, 670 (1993). A
reassignment must be “properly ordered due to bona fide management
considerations in the interest of promoting the efficiency of the service.” Miller
v. Department of the Interior, 120 M.S.P.R. 426, ¶ 11 (2013). Although an
agency may exercise its management discretion to reassign its employees as
necessary for the efficiency of the service, it may not use its discretionary
reassignment authority as a veil to improperly pressure an employee to retire or
resign. Caveney, 57 M.S.P.R. at 670; see McClelland v. Andrus, 606 F.2d 1278,
1291 (D.C. Cir. 1979) (an agency must establish that a reassignment promotes the
efficiency of the service, and the fact that an agency articulates a rational basis
for a reassignment “does not eliminate the possibility that the transfer was a sham
way of achieving a predetermined result”).
¶12 The appellant alleges that his reassignment to Viroqua was not based on
bona fide management considerations, but rather, on agency management’s desire
to make his reassignment as “difficult as possible.” PFR File, Tab 1 at 15. He
contends that the agency “intentionally inconvenienced and badgered [him] by
reassigning him to an office outside of his commuting area to coerce him into
retirement.” Id. at 16. In support of this claim, he references the affidavit 5 of his
5
Although the former second-level supervisor affirms that the information contained in
his affidavit is “true and complete,” it is not made under penalty of perjury. IAF I-1,
Tab 11 at 38. However, we have considered it as documentary evidence which supports
the appellant’s allegation of Board jurisdiction. See Alford v. Department of the Army,
47 M.S.P.R. 271, 274 (1991) (the appellant submitted documentary evidence to support
her allegation of Board jurisdiction and the Board thus found that the administrative
judge erred in making factual findings concerning the weight of the evidence submitted
by both parties because such determinations should not have been made until after a
hearing).
7
former second-level supervisor, who was “present at meetings where relocations
were discussed.” IAF I-1, Tab 11 at 35-36. The former second-level supervisor
states his belief that agency officials “did not transfer the [appellant] to the Fond
du Lac office because they wanted to make [his] transfer as difficult as possible”
and that the appellant “could have been transferred within his local commuting
area if [agency officials] wanted to work with him.” Id. at 36-37. He further
states that the Farm Loan Manager in Fond du Lac, “had a personality conflict
with” the appellant, noting that this should not constitute “an adequate
justification to force the [appellant] to retire.” Id. at 38.
¶13 We find that the foregoing constitutes a nonfrivolous allegation of Board
jurisdiction over the appellant’s involuntary retirement appeal and that the
appellant is therefore entitled to a jurisdictional hearing if his appeal was timely
filed. See Coufal v. Department of Justice, 98 M.S.P.R. 31, ¶ 23 (2004). We
therefore remand this appeal for further adjudication.
ORDER
For the reasons discussed above, we REMAND this case to the Central
Regional Office for a jurisdictional hearing, and further adjudication if
appropriate, in accordance with this Remand Order. On remand, the
administrative judge should address the agency’s motion to dismiss the
appellant’s appeal as untimely filed. See IAF I-1, Tab 8 at 10-11.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.