Donatus U. Unara v. Department of Veterans Affairs ( 2015 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DONATUS U. UNARA, DOCKET NUMBER
Appellant, CH-3443-15-0404-I-1
v.
DEPARTMENT OF VETERANS DATE: November 4, 2015
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Donatus U. Unara, Ypsilanti, Michigan, pro se.
Michael E. Anfang, Esquire, Kansas City, Missouri, 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 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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, a GS-9 Medical Technologist, resigned from his position
effective November 17, 2014. Initial Appeal File (IAF), Tab 7 at 30-31. On or
about January 12, 2015, he contacted the agency’s Office of Resolution
Management (ORM) to add a claim of forced resignation to his pending equal
employment opportunity (EEO) complaint. Id. at 34-36. In a March 13, 2015
notice, ORM advised the appellant that it had determined that the forced
resignation claim was “like or related to” the existing claims of harassment and
hostile work environment and that it had accepted the claim for investigation as
an independently actionable claim. Id. The notice further advised that, as a
result of the amendment of his complaint to include his forced resignation claim,
the appellant’s complaint was now a mixed case, which required the agency to
complete the investigation and issue a final agency decision (FAD) within
120 calendar days of the amendment. Id. at 37. The notice set forth the
appellant’s mixed-case appeal rights, explaining that he could file a Board appeal
within 30 days of receiving the FAD or, if he did not receive a FAD within
3
120 days of his last amendment, he could file a Board appeal immediately without
waiting for the FAD. Id. On April 14, 2015, ORM advised the appellant that it
had completed the investigation and provided him a copy of the investigative file.
Id. at 40. The notice accompanying the investigative file explained that the
appellant had 30 days from receipt of the notice to either request a FAD from the
agency or to file an appeal directly with the Equal Employment Opportunity
Commission. 2 Id.¶3 On April 20, 2015, the appellant filed the instant appeal with the Board and
requested a hearing. IAF, Tab 1. On the appeal form, he indicated that he was
appealing a removal, an involuntary resignation, and unlawful discrimination and
retaliation, and indicated that the effective date of the challenged agency decision
was April 14, 2015. 3 Id. at 2. The administrative judge issued an
acknowledgment order, explaining, in part, that the Board generally lacks
jurisdiction over voluntary actions, such as resignations, and advised the
appellant that his appeal would be dismissed unless he amended it to allege that
his resignation was the result of duress, coercion, or misrepresentation by the
agency. IAF, Tab 2 at 2. The administrative judge also issued an order on
timeliness, explaining that, although the appeal appeared to be untimely filed
more than 30 days after the effective date of the alleged forced resignation, an
2
The April 14, 2015 notice set forth the post-investigation procedures applicable to a
nonmixed-case complaint rather than a mixed-case complaint. IAF, Tab 7 at 40-41; see
29 C.F.R. §§ 1614.108(f), 1614.302(d)(2). Where, as here, an employee has filed a
mixed-case complaint, the post-investigation notice should advise that a final decision
will be issued within 45 days without a hearing. 29 C.F.R. § 1614.302(d)(2). We find,
however, that this procedural error did not prejudice the appellant because ORM’s
March 13, 2015 notice correctly set forth the post-investigation procedures and appeal
rights applicable to a mixed-case appeal, and, in any event, the appellant filed a Board
appeal several days after receiving the post-investigation notice. IAF, Tab 1, Tab 7
at 37.
3
It appears that the appellant construed the April 14, 2015 post-investigation notice as
a final decision on his EEO complaint. See IAF, Tab 1 at 2; see also IAF, Tab 7
at 40-41.
4
exception to the 30-day filing deadline applies where an appellant, who was
subject to an action that is appealable to the Board, has timely filed a formal
discrimination complaint with the agency. IAF, Tab 3 at 2. The order explained
that, in such cases, an appellant may file a Board appeal either: (1) within
30 days after receipt of the agency resolution or final decision on the complaint;
or (2) if the agency has not resolved the matter or issued a final decision on the
formal complaint within 120 days, the appellant may appeal the matter directly to
the Board at any time after the expiration of 120 calendar days. Id.; see 5 C.F.R.
§ 1201.154(b).
¶4 The appellant responded, in relevant part, that his appeal was timely filed
because more than 120 days had elapsed since he filed his EEO complaint and the
agency had not issued a FAD or otherwise resolved the matter. IAF, Tab 4 at 3.
He further argued that the agency forced him to resign by harassing him and
subjecting him to a hostile work environment between July 2013, and
September 2014, as set forth in his discrimination complaint. Id. at 3-4, 26-27.
In particular, he alleged that the agency did not select him for a GS-10 Medical
Technologist position, issued him a letter of counseling, scrutinized his request
for compensation, assigned him to do the duties of two positions over the course
of 3 days, failed to take action when the employee assigned to assist him failed to
help with assigned duties, and denied him training on several occasions. Id.
at 26-27. He further alleged that his supervisor falsely accused him of not
responding to her on two occasions, falsely stated that she had received
complaints about him from other staff members, scheduled two mandatory
meetings while he was scheduled to be off work, made several rude or hostile
comments, and, while he was in the hospital recovering from a stroke, repeatedly
called him to tell him to return to work and threatened him with absence without
leave (AWOL). See id. at 4, 26-27.
¶5 The agency countered that the appeal was prematurely filed because the
appellant had not yet requested a FAD and because 120 days had not elapsed
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since his last amendment. IAF, Tab 7 at 7-8. The agency further argued that,
even if the appeal was ripe, the Board still would lack jurisdiction over it because
the appellant had failed to show that his resignation was involuntary. Id. at 8-10.
¶6 Without holding the requested hearing, the administrative judge dismissed
the appeal for lack of jurisdiction, finding that the appeal was timely filed but that
the appellant failed to nonfrivolously allege that the agency’s action rendered his
resignation involuntary. IAF, Tab 13, Initial Decision (ID). 4 The administrative
judge also found that, absent an otherwise appealable action, the Board lacked
jurisdiction to address the appellant’s discrimination claims. ID at 9.
DISCUSSION OF ARGUMENTS ON REVIEW
¶7 The appellant has filed a petition for review of the initial decision, the
agency has responded in opposition to the petition for review, and the appellant
has replied to the agency’s opposition. Petition for Review (PFR) File, Tabs 1, 4,
8. 5 In the petition for review, the appellant argues only that “the Board was not
4
In finding that the appeal was timely filed, the administrative judge explained that, at
the time of the June 30, 2015 initial decision, more than 120 days had elapsed since the
agency accepted the appellant’s mixed-case amendment on March 13, 2015, and that the
agency had not issued a FAD or resolved the discrimination complaint in the interim.
ID at 2 n.1. The relevant date for calculating the 120-day period, however, is the date
the appellant filed the mixed-case complaint, not the date the agency accepted the
complaint for investigation. See 5 C.F.R. § 1201.154(b); see also 29 C.F.R.
§ 1614.302(d)(1)(i). Here, the 120-day period began to run on or about January 12,
2015, the date the appellant amended his pending EEO complaint to include the alleged
forced resignation. See IAF, Tab 7 at 34. As such, the 120-day period ended on
approximately May 13, 2015, several weeks after the appellant initiated this appeal on
April 22, 2015. Although the appeal was premature when the appellant filed it, it had
ripened by the time both parties had responded to the order on timeliness. As such, any
error by the administrative judge in calculating the 120-day period did not prejudice the
appellant’s rights.
5
The agency mailed the appellant, who is not an e-filer, a copy of its response to his
petition for review to his address of record on August 25, 2015. PFR File, Tab 4 at 7-8.
On September 14, 2015, the appellant filed a change of address notice with service to
the agency by fax. PFR File, Tab 5. That same day, the agency’s response was
returned to the agency as undeliverable. PFR File, Tab 6 at 4. On September 15, 2015,
the agency mailed a copy of its response to the appellant’s new address, id. at 5, and, on
6
exhaustive as to the underlying[] controlling issues in the original complaint” and
requests that the Board “exercise fairness and justice in responding to this request
for review.” PFR File, Tab 1 at 1. The agency responds that the administrative
judge correctly dismissed the appeal for lack of jurisdiction because the appellant
failed to show that his resignation was involuntary. PFR File, Tab 4. In his
reply, the appellant again challenges the selection process for the GS-10 Medical
Technologist position and argues that the agency forced him to cover two
positions on four dates in August and September 2014, which made his working
conditions intolerable. 6 See PFR File, Tab 8 at 2-4. The appellant further argues
that the administrative judge failed to rule on his motion to compel discovery. 7
Id. at 2-3.
September 18, 2015, the appellant mailed his reply to the agency’s response, PFR File,
Tab 8. Under the unique circumstances present here, we have considered the
appellant’s reply to the agency’s response to his petition for review.
6
The appellant also has submitted evidence with his reply concerning the selection
process for the GS-10 Medical Technologist position and work schedules for August
and September 2014, some of which appears to have been submitted for the first time
on review. PFR File, Tab 8 at 4, 6-18. Under 5 C.F.R. § 1201.115, however, the Board
generally will not consider evidence submitted for the first time with the petition for
review absent a showing that it was unavailable before the record was closed despite the
party’s due diligence. Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980).
Although the appellant has not done so here, we have considered his submissions and
find that they do not change the outcome of this appeal.
7
The administrative judge did not rule on the appellant’s June 22, 2015 motion to
compel. IAF, Tab 10. However, because the appellant’s motion to compel did not
comply with the requirements of our regulations, the administrative judge’s failure to
rule on the motion was not prejudicial to the appellant’s rights. See Johnson v.
Department of Justice, 104 M.S.P.R. 624, ¶ 30 (2007). Specifically, the appellant
did not file the motion to compel within 10 days after the agency’s time to respond to
discovery expired, he failed to provide either an affidavit or sworn statement in support
of his claim that he did not receive any discovery responses from the agency or a
statement indicating that he attempted in good faith to resolve this discovery dispute
with the agency, and he did not state how the information contained in the discovery
sought was relevant and material. See IAF, Tab 10; 5 C.F.R. § 1201.73(c)(1)(ii)-(iii),
(c)(2), (d)(3). Thus, the administrative judge’s failure to rule on the motion to compel
provides no basis to reverse the initial decision. See Panter v. Department of the
Air Force, 22 M.S.P.R. 281, 282 (1984).
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¶8 Generally, the Board lacks the authority to review an employee’s decision
to resign or retire, which is presumed to be a voluntary act. Brown v. U.S. Postal
Service, 115 M.S.P.R. 609, ¶ 9, aff’d, 469 F. App’x 852 (Fed Cir. 2011), cert.
denied, 133 S. Ct. 414 (2012). However, if an agency essentially coerced the
employee’s decision in a manner that deprived him freedom of choice, the Board
will take jurisdiction over the matter as a constructive removal. Id. “The
doctrine of coercive involuntariness ‘is a narrow one’ requiring that the employee
‘satisfy a demanding legal standard.’ An employee’s dissatisfaction with the
options that an agency has made available to him is not sufficient to render his
decision to resign or retire involuntary.” Conforto v. Merit Systems Protection
Board, 713 F.3d 1111, 1121 (Fed. Cir. 2013) (quoting Staats v. U.S. Postal
Service, 99 F.3d 1120, 1124 (Fed. Cir. 1996)). Where, as here, the appellant
claims that the agency coerced his resignation by creating intolerable working
conditions, the issue is whether, considering the totality of the circumstances, his
working conditions were made so difficult that a reasonable person in his position
would have felt compelled to resign or retire. Vitale v. Department of Veterans
Affairs, 107 M.S.P.R. 501, ¶¶ 19-20 (2007). In making this determination, the
Board will consider allegations of discrimination and reprisal only insofar as they
relate to the issue of voluntariness and not whether they would establish
discrimination or reprisal as an affirmative defense. Id., ¶ 20.
¶9 The appellant bears the burden of proving by preponderant evidence that the
matter he is appealing is within the Board’s authority to review. Brown,
115 M.S.P.R. 609, ¶ 11; 5 C.F.R. § 1201.56(b)(2)(i)(A). If the appellant makes a
nonfrivolous allegation that the matter is within the Board’s jurisdiction, he is
entitled to a hearing at which he must prove jurisdiction. Brown, 115 M.S.P.R.
609, ¶ 11. A nonfrivolous allegation in this context is an allegation of fact that, if
proven, could establish that the agency coerced the appellant’s resignation. Id.¶10 We have reviewed the initial decision and agree with the administrative
judge that the appellant failed to nonfrivolously allege that his resignation was
8
involuntary because of intolerable working conditions. The appellant argued
below that the alleged incidents of harassment and discrimination between
July 2013, and September 2014, rendered his working conditions so intolerable
that he was forced to resign. See IAF, Tab 4. As discussed above, the specific
incidents the appellant raised include several purportedly rude and/or false
remarks by his supervisor, denials of training opportunities, mandatory meetings
scheduled when the appellant was off duty, unfair scrutiny of his request for
compensation, an assistant’s failure to help with assigned duties for several
months, and 3 or 4 days where the appellant was responsible for the duties of two
positions. See IAF, Tab 4 at 4, 26-27; see also PFR File, Tab 8 at 2-4, 8-9. It is
well settled, however, that an employee is not guaranteed a stress-free working
environment and 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 resign. Miller v. Department of
Defense, 85 M.S.P.R. 310, ¶ 32 (2000). None of the alleged agency actions, even
if true, would compel a reasonable person to resign. Rather, the appellant has
merely described an unpleasant and inconvenient working environment.
¶11 The appellant also asserted that his supervisor threatened him with AWOL
if he did not return to work several days after suffering from a stroke. IAF, Tab 4
at 4, 27. There is no evidence that the appellant was ever charged with AWOL
and, even if he was, he clearly had the choice of contesting the AWOL charge
rather than resigning. As such, even if unwarranted, the supervisor’s threat of
charging the appellant with being AWOL did not render the appellant’s
resignation involuntary. See Garcia v. Department of Homeland Security,
437 F.3d 1322, 1329 (Fed. Cir. 2006) (en banc) (explaining that a resignation
is not involuntary if the employee had a choice of whether to resign or contest the
validity of the agency action) (quoting Christie v. United States, 518 F.2d 584,
587 (Cl. Ct. 1975)). Similarly, the appellant challenged below the agency’s
decision to issue him a letter of counseling. IAF, Tab 4 at 27. Even if
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unjustified, however, the letter of counseling was not coercive and did not render
his resignation involuntary because the appellant could have chosen to contest it
through the proper channels rather than resigning. See Garcia, 437 F.3d at 1329.
¶12 Lastly, the appellant alleged that the agency’s decision not to select him for
the GS-10 Medical Technologist position contributed to the hostile work
environment. IAF, Tab 4 at 27; see PFR File, Tab 8 at 2-3. However, the
doctrine of coerced involuntariness does not apply where the employee resigns
because he does not like agency decisions “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.” Conforto, 713 F.3d at 1121-22
(quoting Staats, 99 F.3d at 1124). Rather, the appellant must demonstrate that the
coercion is “the result of improper acts by the agency.” Id. Here, the agency’s
decision not to select the appellant for the GS-10 Medical Technologist position
was well within its authority, and the appellant has not nonfrivolously alleged
that his nonselection resulted from improper acts by the agency. See Staats,
99 F.3d at 1124. Further, he has not shown how a nonselection for a promotion
rendered his working conditions so intolerable that a reasonable person in his
position would be compelled to resign.
¶13 Considering the totality of the circumstances, we agree with the
administrative judge that the appellant has failed to nonfrivolously allege that the
agency created working conditions so intolerable that a reasonable person in his
position would have felt compelled to resign. Even assuming some or all of the
agency’s actions were wrong, unfair, or unlawful, as the appellant claims, he
has not alleged circumstances that could have effectively denied him a
meaningful choice to resign, which is a requisite element of a forced resignation
within the Board’s adverse action jurisdiction under 5 U.S.C. chapter 75. See
Bean v. U.S. Postal Service, 120 M.S.P.R. 397, ¶ 8 (2013). Accordingly, we find
that the appellant has failed to nonfrivolously allege that his resignation was
10
involuntary, and the administrative judge properly dismissed the appeal for lack
of jurisdiction without holding a hearing.
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
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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.