Jackie Delonais-Olson v. Department of the Interior ( 2015 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JACKIE DELONAIS-OLSON, DOCKET NUMBER
Appellant, DE-0752-15-0210-I-1
v.
DEPARTMENT OF THE INTERIOR, DATE: November 16, 2015
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Dennis Maloney, Esquire, Aberdeen, South Dakota, for the appellant.
Teresa M. Garrity, Esquire, Bloomington, Minnesota, 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 her involuntary retirement 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
interpretation of statute or regulation or the erroneous application of the law to
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 as an Information Technology Specialist.
Initial Appeal File (IAF), Tab 5 at 7. In April 2013, she accepted a Voluntary
Early Retirement Authority offer and retired from Federal service later that
month. Id. at 4, 7. In November 2013, she filed a timely formal equal
employment opportunity (EEO) complaint of discrimination alleging
discrimination in the form of disparate treatment, a hostile work environment, and
a constructive discharge based upon her age, race, national original, religion, sex,
and disability. IAF, Tab 8, Subtab A-1. In January 2015, the agency issued a
final agency decision finding that the appellant was not subjected to unlawful
employment discrimination. IAF, Tab 9, Subtab E-1.
¶3 The appellant timely filed this Board appeal in February 2015, in which she
asserted that her retirement was involuntary because she was continually
harassed, discriminated against, and subjected to a hostile work environment.
IAF, Tab 1. She requested a hearing. Id. The administrative judge issued an
acknowledgment order notifying the appellant that the Board may not have
jurisdiction over her appeal, advising her of the applicable law and burdens of
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proof, and directing her to submit evidence and argument establishing Board
jurisdiction. IAF, Tab 2. The appellant did not respond to the acknowledgment
order. The agency moved to dismiss the appeal for lack of jurisdiction. IAF,
Tab 5. The administrative judge issued an order to show cause why the appeal
should not be dismissed, IAF, Tab 6, to which both parties responded, IAF,
Tabs 11-12. Without holding the requested hearing, the administrative judge
granted the agency’s motion and dismissed the appeal for lack of jurisdiction,
finding that the appellant failed to nonfrivolously allege that a reasonable
employee in her position would have found her working conditions so oppressive
that she would have felt compelled to retire. IAF, Tab 13, Initial Decision at 7.
¶4 The appellant has timely petitioned for review. Petition for Review File,
Tab 1. She argues that the administrative judge: (1) made erroneous findings of
fact regarding whether her decision to retire was voluntary; (2) ignored the fact
that, if she had not accepted retirement, she would have continued to be subjected
to abusive and demeaning treatment; and (3) misapplied the law, followed
improper procedures, and abused his discretion in a way that affected the outcome
of the case. Id. at 2-3. The agency has not responded to the petition for review.
DISCUSSION OF ARGUMENTS ON REVIEW
¶5 We agree with the administrative judge that the appellant has failed to raise
nonfrivolous factual allegations that, if proven, would establish the Board’s
jurisdiction. An employee-initiated action, such as a retirement, is presumed to
be voluntary, and thus outside the Board’s jurisdiction, unless the employee
presents sufficient evidence to establish that the action was obtained through
duress or coercion or shows that a reasonable person would have been misled by
the agency. Green v. Department of Veterans Affairs, 112 M.S.P.R. 59, ¶ 8
(2009). “‘[T]he doctrine of coercive involuntariness is a narrow one’ requiring
that the employee ‘satisfy a demanding legal standard.’” Garcia v. Department of
Homeland Security, 437 F.3d 1322, 1329 (Fed. Cir. 2006) (quoting Staats v. U.S.
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Postal Service, 99 F.3d 1120, 1124 (Fed. Cir. 1996)). An employee’s
dissatisfaction with the options that an agency has made available to her is not
sufficient to render her decision to resign or retire involuntary. Conforto v. Merit
Systems Protection Board, 713 F.3d 1111, 1121 (Fed. Cir. 2013). Where, as here,
the appellant claims that her retirement was coerced by intolerable working
conditions created by the agency, the issue is whether, considering the totality of
the circumstances, her working conditions were made so difficult that a
reasonable person in her position would have felt compelled to resign or retire.
Vitale v. Department of Veterans Affairs, 107 M.S.P.R. 501, ¶ 20 (2007). In
making this determination, the Board addresses allegations of discrimination and
reprisal in connection with an alleged involuntary resignation or retirement only
insofar as those allegations relate to the issue of voluntariness. Id.¶6 The appellant bears the burden of proving by preponderant evidence that the
matter she is appealing is within the Board’s authority to review. 2 Brown v. U.S.
Postal Service, 115 M.S.P.R. 609, ¶ 11 aff’d, 469 F. App’x 852 (Fed. Cir.
2011); 5 C.F.R. § 1201.56(b)(2)(i)(A). If an appellant makes nonfrivolous
allegations of jurisdiction, i.e., allegations that, if proven, would establish the
Board’s jurisdiction, she is entitled to a hearing at which she must prove
jurisdiction by a preponderance of the evidence. Mims v. Social Security
Administration, 120 M.S.P.R. 213, ¶ 16 (2013).
¶7 According to the agency’s characterizations of the appellant’s formal EEO
complaint, she asserted that she was subjected to a hostile work environment and
discriminated against by her supervisors and a coworker. IAF, Tab 9, Subtab E-1.
Specifically, according to the agency, she alleged that: (1) she was forced to take
the option of early retirement to avoid further stress and irreparable health issues
caused by her first-line supervisor; (2) she was directed to keep her door open at
2
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).
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all times; (3) her first-line supervisor had a mirror installed in the work area,
which the appellant asserts was an attempt to monitor her activities; (4) her
first-line supervisor pointed a finger in her face and yelled at her in the presence
of coworkers; and (5) during a staff meeting, her first-line supervisor yelled at
her. Id. In the attachment to her formal complaint of discrimination, the
appellant made several additional allegations. IAF, Tab 8, Subtab A-1.
¶8 The appellant asserted, inter alia, that her first-line supervisor improperly
denied her credit time while allowing others credit time and told her to do a better
job organizing her time, that her supervisors did not complete certain personnel
paperwork in a timely manner, and that her hours were incorrectly marked on her
time sheet. Id. Additionally, she asserted that her first-line supervisor did not
tell others when the appellant was out on leave. Id. The appellant also alleged
various forms of disrespect and difficulty when doing her work, including that her
first-line supervisor reacted badly to her disagreement with another employee
during a meeting, she was assigned work tickets to complete with time limits that
would expire while she was on leave, her first-line supervisor sent her emails
criticizing her spelling and grammar and questioning her about the status of her
work tickets and other work tasks, and her first-line supervisor cancelled a
meeting that she had set up because she said it was not necessary. Id.Additionally, her first-line supervisor called her into her office and told her not to
work with certain employees or reassign service tickets to them and took her off a
project. Id. The appellant further alleged that her first-line supervisor
“disrespected” her by saying that her aches and pains were the result of aging and
by hanging up on her when they were on the telephone. Id.¶9 Moreover, the appellant alleged that her first-line supervisor and her
coworker negatively contributed to her work environment because “[the
appellant] would correct things and make sure they were working before [she] left
from work . . . and when [she] would return the next day things would be changed
or missing” after these individuals stayed late at work and, after the coworker saw
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her enter her first-line supervisor’s office while the supervisor was gone, she
received an email from her first-line supervisor telling her not to go into the
office. IAF, Tab 8, Subtab A-1. The appellant also asserted that the coworker
and the supervisor moved her files from her cabinet, that the supervisor favored
the coworker, and that the coworker bought the supervisor a gift. Id.¶10 The appellant further alleged that her working environment affected her
health. She asserted that, after her first-line supervisor stated that she was going
to deny her leave request, she broke out in hives. Id. Likewise, she also asserted
that, in response to her working conditions, she became depressed and had issues
with confusion, concentration problems, and a rash break out that required
treatment from a doctor. Id. In support of her claim, she submitted a letter
showing that she was treated for anxiety related to stress at work. IAF, Tab 8,
Subtab F-27.
¶11 It is well settled that an employee is not guaranteed a stress-free working
environment; dissatisfaction with work assignments, a feeling of being unfairly
criticized, or difficult or unpleasant working conditions generally are not so
intolerable as to compel a reasonable person to retire. Miller v. Department of
Defense, 85 M.S.P.R. 310, ¶ 32 (2000). Here, the appellant has described an
unpleasant working environment wherein she felt she was unfairly treated. But,
the doctrine of coerced involuntariness does not apply, where, as here, the
employee retires because she does not like agency decisions “that the agency is
authorized to adopt, even if those measures make continuation in the job so
unpleasant . . . that [s]he feels that [s]he has no realistic option but to leave.”
Conforto, 713 F.3d at 1121-22 (quoting Staats, 99 F.3d at 1124). Instead, the
appellant must demonstrate that the coercion is “the result of improper acts by the
agency.” Id. Although the appellant disagrees with many of her first-line
supervisor’s decisions and instructions, she has not alleged that these managerial
actions were outside of the agency’s authority. Thus, considering the totality of
the circumstances, we find that the appellant has failed to nonfrivolously allege
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that her working conditions were so intolerable that a reasonable person in her
position would be compelled to retire. See Searcy v. Department of
Commerce, 114 M.S.P.R. 281, ¶ 13 (2010) (finding that the appellant’s claims
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, and that a higher-level official refused to grant him an education
waiver that would have allowed him to apply for certain vacancies did not evince
working conditions so intolerable that a reasonable person would have felt
compelled to resign).
¶12 The appellant also asserted that she was suspended for 5 days, that she was
escorted out of the building in front of her coworkers immediately prior to the
suspension, and that the agency considered certain information that it should not
have considered in imposing the suspension. IAF, Tab 8, Subtabs A-1, F-3. The
record reflects, however, that the appellant was able to respond to the proposal to
suspend her prior to the imposition of the suspension. IAF, Tab 9, Attachment
(Att.) 2b. The evidence also does not reflect that the suspension, which was
based upon a single charge of improper personal conduct with nine detailed
specifications, was the result of improper acts. See IAF, Tab 9, Subtab B-1,
Att. 2; see also Conforto, 713 F.3d at 1122. Finally, we find that a 5-day
suspension does not rise to the level of coercion that would render the appellant’s
retirement involuntary. See Putnam v. Department of Homeland
Security, 121 M.S.P.R. 532, ¶ 23 (2014) (finding that the agency’s decision to
suspend the appellant’s security clearance did not constitute coercion).
¶13 Based on the foregoing, we affirm the administrative judge’s decision to
dismiss the involuntary retirement appeal for lack of jurisdiction without holding
a hearing.
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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 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
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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.