Brenda Bryant v. Department of Agriculture ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BRENDA FAYE BRYANT, DOCKET NUMBER
Appellant, AT-0752-18-0475-I-1
v.
DEPARTMENT OF AGRICULTURE, DATE: December 28, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Brenda Faye Bryant , Deland, Florida, pro se.
Valerie Portwood , Saint Louis, Missouri, for the agency.
David Organes , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
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 in the following circumstances: the
initial decision contains erroneous findings of material fact; the initial decision is
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
based on an erroneous 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. 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
The appellant was a GS-12 Loan Specialist working with the agency in
Florida. Initial Appeal File (IAF), Tab 6 at 19. In or about January 2018, the
agency’s State Director issued a directive that, effective April 2, 2018, all GS-12
Loan Specialists would have to be present in the office 4 days per week for
training and outreach. Id. at 24, 34. Until this time, the appellant teleworked
4 days per week and was only present in the office 1 day per week. Id. at 34.
On January 24, 2018, the appellant requested that she be allowed to
continue teleworking 4 days per week as a reasonable accommodation of her
disability. Id. She asserted that prolonged travel in a car caused her pain in her
back, hip, and legs, and that the 65-mile commute between her home and the
office was such that she could only tolerate it once per week with the help of pain
medication. Id. She indicated that she could not increase her pain medication in
order to come into the office more often because doing so would adversely affect
her overall health. Id.3
After receiving corroborating medical documentation from the appellant,
the agency determined that she had a disability. Id. at 26. On March 26, 2018,
the State Director denied the appellant’s request, indicating that the appellant
could not meet the requirements of her position without appearing at the office
4 days per week. IAF, Tab 7 at 24. Instead, the State Director offered the
appellant the following accommodations: (1) liberal leave; (2) an adjustable
standing desk; (3) telework on days when the appellant had a doctor’s
appointment; and (4) two 15-minute paid health breaks each day. Id. The
appellant was informed that she could request the State Director to reconsider her
decision, or request that the agency’s Disability Employment Program Manager
reconsider the State Director’s decision. Id. at 25. The appellant was also
informed about the possibility of filing an equal employment opportunity (EEO)
complaint, a union grievance, a Board appeal, or of utilizing the agency’s
alternative dispute resolution process. Id.On March 28, 2018, the appellant submitted a request to retire effective
April 2, 2018. IAF, Tab 6 at 17. Her separation was processed as a voluntary
retirement. Id. at 16, 19. The appellant then filed this appeal and requested a
hearing. IAF, Tab 1. In a subsequent filing, she argued that her retirement was
involuntary because she could not commute to work 4 days a week and her
request to telework as an accommodation was denied. IAF, Tab 3 at 4.
The administrative judge set forth the applicable burdens of proof and
ordered the appellant to make a nonfrivolous allegation of Board jurisdiction over
her appeal. IAF, Tab 4. The parties responded to the administrative judge’s
order. IAF, Tabs 7-8. In an initial decision, the administrative judge found that
because, among other things, the appellant could have sought review of the State
Director’s decision, she had failed to nonfrivolously allege that her retirement
was involuntary. IAF, Tab 9, Initial Decision (ID) at 5-6. He therefore dismissed
her appeal for lack of jurisdiction without holding a hearing. ID at 6.
4
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has filed a response. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
An employee’s retirement is presumed to be a voluntary action and, as
such, is not within the Board’s jurisdiction. Salazar v. Department of the Army,
115 M.S.P.R. 296, ¶ 9 (2010). An involuntary retirement, however, is tantamount
to a removal, and, accordingly, is appealable to the Board. Id. The presumption
that a retirement is voluntary can be rebutted by evidence showing that the
retirement was the result of agency misrepresentation, coercion, or duress. 2 Id.The appellant bears the burden of proving by preponderant evidence that
the matter she is appealing is within the Board’s authority to review. Brown v.
U.S. Postal Service, 115 M.S.P.R. 609, ¶ 11, aff’d, 469 F. App’x 852 (Fed. Cir.
2011). If the appellant makes a nonfrivolous allegation that the matter is within
the Board’s jurisdiction, she is entitled to a hearing at which she must prove
jurisdiction. Id. A nonfrivolous allegation is an assertion that, if proven, could
establish the matter at issue. 5 C.F.R. § 1201.4(s). An allegation generally will
be considered nonfrivolous when, under oath or penalty of perjury, an individual
makes an allegation that is more than conclusory, is plausible on its face, and is
material to the legal issues in the appeal. Id.Here, the appellant indicates that her retirement was the result of coercion
rather than misrepresentation. PFR File, Tab 1 at 4. Accordingly, she is only
entitled to a hearing if she makes an allegation of fact that, if proven, could
establish that the agency coerced her retirement. See Brown, 115 M.S.P.R. 609,
¶ 11. For the following reasons, we find that the appellant failed to make a
2
The terms coercion and duress have been used interchangeably by the Board. See
Soler-Minardo v. Department of Defense, 92 M.S.P.R. 100, ¶ 6 (2002); Heining v.
General Services Administration, 68 M.S.P.R. 513, 519-21 (1995); Collins v. Defense
Logistics Agency, 55 M.S.P.R. 185, 188 (1992), modified on other grounds by Ferdon v.
U.S. Postal Service, 60 M.S.P.R. 325 (1994).
5
nonfrivolous allegation that her retirement is an action within the Board’s
jurisdiction.
To establish coercion, “an employee must show that the agency effectively
imposed the terms of the employee’s resignation or retirement, that the employee
had no realistic alternative but to resign or retire, and that the employee’s
resignation or retirement was the result of improper acts by the agency.” Staats
v. U.S. Postal Service, 99 F.3d 1120, 1124 (Fed. Cir. 1996). In determining
whether an employee was coerced into resignation or retirement, the Board will
consider allegations of discrimination and reprisal only insofar as those
allegations relate to the issue of voluntariness and not whether they would
establish discrimination or reprisal as an affirmative defense. Brown,
115 M.S.P.R. 609, ¶ 10.
It is well settled that an appellant may show that her retirement was
involuntary due to an agency’s failure to provide a reasonable accommodation for
her disability. E.g., Williams v. Department of Agriculture, 106 M.S.P.R. 677,
¶ 13 (2007). However, if an employee has a choice between contesting the
validity of an agency action and retiring, the employee’s decision to retire is
voluntary. See Axsom v. Department of Veterans Affairs, 110 M.S.P.R. 605,
¶¶ 17-18 (2009).
Here, the appellant indicates that it would have been futile to ask the State
Director to reconsider her decision denying the request for an accommodation
because the State Director had made it clear that she would not change her mind.
PFR File, Tab 1 at 4. However, the appellant was informed that she also had the
options of requesting that the Disability Employment Program Manager
reconsider the State Director’s decision and of seeking redress through various
administrative processes. IAF, Tab 7 at 25.
The Board has held that an appellant’s failure to exhaustively challenge
alleged discriminatory actions through the EEO process, when she did not prove
that doing so would be futile or that the agency was handling her EEO complaints
6
inequitably, undermined an involuntary resignation claim. Axsom, 110 M.S.P.R.
605, ¶¶ 17-18; see Baker v. U.S. Postal Service, 84 M.S.P.R. 119, ¶¶ 21-23 (1999)
(finding that an employee failed to establish that his ignored accommodations
request rendered his resignation involuntary because he could have contacted
other management officials or filed a grievance—his feeling that such actions
would prove unsuccessful did not excuse his failure to act); see also Garcia v.
Department of Homeland Security, 437 F.3d 1322, 1329 (Fed. Cir. 2006) (en
banc) (finding that a resignation was not involuntary if the employee had a choice
whether to resign or contest the validity of the agency action). Here, the
appellant has failed to nonfrivolously allege that seeking reconsideration with the
Disability Employment Program Manager, or redress through other administrative
processes, would have been futile. 3
Instead, the appellant indicates that in order to seek such review she would
have had to use up all her leave, which would have then allegedly decreased her
retirement annuity. 4 PFR File, Tab 1 at 5-6. Additionally, in response to the
administrative judge’s suggestion that she alternatively could have relocated her
home to somewhere closer to the office, ID at 6 n.2, the appellant asserted that
such a move was unfathomable, 5 PFR File, Tab 1 at 5, 7.
However, the appellant has failed to state the basis for her belief that her
only option, other than retirement, would have been to use up her leave pending
reconsideration or administrative redress. IAF, Tab 7 at 7-9; PFR File, Tab 1
3
Indeed, on May 16, 2018, after she retired and filed this appeal, the appellant also
filed a formal EEO complaint regarding her request for a reasonable accommodation.
IAF, Tab 6 at 14.
4
The appellant has failed to allege by what amount her retirement annuity would have
been decreased if she was required to use all her leave prior to retiring. Based on the
way unused sick leave is used in calculating retirement annuities, it is unlikely that the
appellant’s use of leave would significantly reduce her retirement annuity.
5
In light of our other findings that the appellant failed to show that her decision to
retire was involuntary, we need not determine whether the administrative judge’s
suggestion that the appellant should relocate or use leave was improper or constituted
reasonable accommodations.
7
at 5-7. The appellant did state that “[t]he only two options the State Director
provided to [her] were to either begin driving back and forth [4] days a week or
use up all [her] accrued leave time while [she] waited for review of her decision.”
IAF, Tab 7 at 9. However, the appellant does not indicate whether this was
merely her interpretation of the State Director’s decision, or whether the State
Director or another individual explicitly informed her that these were her only
options. Id. The State Director’s decision does not state that the appellant would
be required to either come into the office or use her leave while she waited for a
review of her decision. Id. at 24-25. Accordingly, the appellant’s assertion that
she would have been required to use her leave pending further review of the State
Director’s decision does not constitute a nonfrivolous allegation that her
retirement was involuntary. See Luecht v. Department of the Navy, 87 M.S.P.R.
297, ¶ 5 (2000) (finding that conclusory, vague, or unsupported allegations are
insufficient to meet the nonfrivolous allegation standard).
Significant to the Board’s involuntariness analysis is the existence of undue
time pressure to make a decision regarding whether to retire. Jones v.
Department of the Treasury, 107 M.S.P.R. 466, ¶ 10 (2007). It is true that the
State Director denied the appellant’s request to continue teleworking 4 days per
week on March 26, 2018, and that the State Director had previously directed that
employees such as the appellant would be limited to teleworking 1 day per week
beginning on April 2, 2018. IAF, Tab 6 at 24. However, as indicated above, the
appellant has not alleged that she sought any clarification about her options after
receiving the State Director’s decision, such as whether she could continue
teleworking 4 days per week while seeking review of the decision or whether she
would face discipline if she did not report to work 4 days a week. Assuming
arguendo that the appellant was apprehensive about the agency taking disciplinary
action against her for not reporting to work as directed, she had the option of
contesting such discipline if and when it was brought. See Brown, 115 M.S.P.R.
609, ¶ 15. We therefore find that the appellant failed to nonfrivolously allege that
8
the agency used time to pressure her into making a decision regarding whether to
retire. See id. For the foregoing reasons, we find that the appellant failed to
nonfrivolously allege that her retirement was involuntary and dismiss her appeal
for lack of jurisdiction.
NOTICE OF APPEAL RIGHTS 6
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the
U.S. Court of Appeals for the Federal Circuit, which must be received by the
court within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
6
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
9
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit 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, 10, 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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
10
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
11
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction. 7 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit 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, 10, 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
7
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
12
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.