Kay Battles v. Department of the Army ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KAY BATTLES, DOCKET NUMBER
Appellant, DC-0752-20-0742-I-1
v.
DEPARTMENT OF THE ARMY, DATE: July 29, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Kay Battles , Dallas, Texas, pro se.
Asmaa Abdul-Haqq , Esquire, and Mary Bradley , Esquire, Washington,
D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner recused himself and
did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her alleged involuntary resignation appeal for lack of jurisdiction.
Generally, we grant petitions such as this one only in the following
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
circumstances: 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 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 Management Analyst. Initial Appeal File
(IAF), Tab 1 at 7. On January 24, 2014, the appellant signed a Voluntary
Separation Incentive Payment (VSIP) buyout application. IAF, Tab 5 at 20. She
later received a letter dated February 18, 2014, approving her VSIP application.
IAF, Tab 1 at 8. On February 25, 2014, the appellant signed a VSIP agreement.
IAF, Tab 5 at 21. She resigned pursuant to the VSIP, effective February 28,
2014. IAF, Tab 1 at 5-7. The appellant received a lump sum payment of
$18,796.00 in exchange for her resignation. Id. at 7.
In March 2020, the appellant filed a complaint with the Office of Special
Counsel alleging various prohibited personnel practices in connection with her
resignation. IAF, Tab 6 at 4-5, 8. The appellant asserted that she competed for
positions within the agency since her separation and was not reinstated or
otherwise reemployed. Id. at 4.
3
On July 9, 2020, the appellant filed a Board appeal alleging that her
second-line supervisor and an agency Human Resources Manager misled her into
resigning. IAF, Tab 1 at 5. In particular, the appellant alleged that she “did not
apply for voluntary separation incentive or retirement and did not ask to be
separated.” Id. She claimed that her second-line supervisor and another agency
official previously informed her that she was not eligible for a VSIP. Id. She
also claimed that her second-line supervisor presented her with the February 18,
2014 letter for VSIP approval and told her to “disregard the letter in its entirety
except one sentence that reads [she] could be reemployed within or after one
year: since [she] was eligible to receive a waiver and be reemployed or
non-competitively reassigned.” Id. (punctuation as in original).
The administrative judge informed the appellant that the Board may not
have jurisdiction over the appeal, explained her burden of proof for an
involuntary resignation/retirement appeal, and ordered her to file evidence and
argument regarding jurisdiction. IAF, Tab 7. In response to the order, the
appellant repeated that agency officials misled her and “fraudulently asked [her]
to sign the application for the VSIP.” IAF, Tab 8 at 4-6. In an initial decision,
the administrative judge found that the appellant failed to nonfrivolously allege
that her resignation was involuntary. IAF, Tab 10, Initial Decision (ID) at 8-11.
Therefore, he dismissed the appeal for lack of jurisdiction without holding the
appellant’s requested hearing. IAF, Tab 1 at 2; ID at 1, 11.
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. PFR
File, Tab 3. The appellant has filed a reply to the agency’s response. PFR File,
Tab 4.
4
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge correctly determined that the appellant failed to
nonfrivolously allege that her resignation was involuntary.
The Board’s jurisdiction is limited to those matters over which it has been
given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems
Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). In an involuntary resignation
appeal such as this one, the appellant has the burden of proving the Board’s
jurisdiction by a preponderance of the evidence. Freeborn v. Department of
Justice, 119 M.S.P.R. 290, ¶ 9 (2013); 5 C.F.R. § 1201.56(b)(2)(i)(A). If an
appellant makes a nonfrivolous allegation of Board jurisdiction over an appeal,
she is entitled to a jurisdictional hearing. Yiying Liu v. Department of
Agriculture, 106 M.S.P.R. 178, ¶ 8 (2007). In assessing whether an appellant has
made nonfrivolous allegations entitling her to a hearing, an administrative judge
may consider the agency’s documentary submissions; however, to the extent the
agency’s evidence contradicts the appellant’s otherwise adequate prima facie
showing of jurisdiction, the administrative judge may not weigh evidence and
resolve conflicting assertions, and the agency’s evidence may not be dispositive.
Ferdon v. U.S. Postal Service, 60 M.S.P.R. 325, 329 (1994).
On review, the appellant reiterates her argument that she was fraudulently
misled into signing the VSIP application and resigning on the basis of a verbal
offer of reinstatement or reassignment from her second-line supervisor. PFR File,
Tab 1 at 4, 7. An employee-initiated action, such as a resignation, is presumed to
be voluntary, and thus outside the Board’s jurisdiction. Vitale v. Department of
Veterans Affairs, 107 M.S.P.R. 501, ¶ 17 (2007). An involuntary resignation,
however, is equivalent to a forced removal and therefore is within the Board’s
jurisdiction. Id. To overcome the presumption that a resignation is voluntary, the
employee must show that it was the result of the agency’s misinformation or
deception or that she was coerced by the agency to resign. Id., ¶ 19.
5
The appellant does not argue that she was coerced into resigning. Rather,
she argues that her resignation resulted from misinformation or deception. PFR
File, Tab 1; IAF, Tab 1 at 5, Tab 8 at 4-5. A resignation is involuntary if the
agency made misleading statements upon which the employee reasonably relied to
her detriment. Paige v. U.S. Postal Service, 106 M.S.P.R. 299, ¶ 9 (2007). The
administrative judge found that the appellant failed to nonfrivolously allege that
her resignation was involuntary. 2 ID at 8-10. We agree.
The appellant first reasserts that her second-line supervisor and another
agency official informed her that she was not eligible for a VSIP. PFR File,
Tab 1 at 5. The gist of this argument is that she could not have applied for a
VSIP once the agency made that determination, and thus her election of a VSIP
was invalid. Id.; IAF, Tab 1 at 5, Tab 4 at 15. We are not persuaded.
The administrative judge found this claim to be inconsistent with the
appellant’s other claims regarding the VSIP, such as her claims that she was
processed for a VSIP “in lieu of family leave or a permanent inter-governmental
transfer.” ID at 10; IAF, Tab 4 at 17. The record reflects that the appellant
signed a VSIP application on January 24, 2014, received a VSIP approval letter
dated February 18, 2014, and signed a VSIP payment agreement on February 25,
2014. IAF, Tab 1 at 8, Tab 5 at 20-21. Further, the appellant acknowledged she
received a VSIP payment upon her resignation. IAF, Tab 1 at 7, Tab 4 at 15, 18,
2
The administrative judge found that the “unrefuted record demonstrates that . . . the
appellant expressly certified in writing that she was voluntarily resigning” based on
evidence submitted by the agency. ID at 8; IAF, Tab 5 at 21. The administrative
judge’s conclusion, without more, was error because an administrative judge may not
weigh evidence or resolve conflicting assertions regarding disputed facts material to the
question of jurisdiction without affording the appellant the opportunity for a hearing.
Ferdon, 60 M.S.P.R. at 329. However, we find this error harmless because, as
discussed below, even taking her allegations as true, we agree with the administrative
judge’s conclusion that the appellant failed to make a nonfrivolous allegation of Board
jurisdiction over her appeal. See 5 C.F.R. § 1201.4(s) (defining a nonfrivolous
allegation as an assertion that, if proven, could establish the matter at issue). Therefore,
the administrative judge’s error did not affect the appellant’s substantive rights and
does not constitute reversible error. See Panter v. Department of Air Force,
22 M.S.P.R. 281, 282 (1984).
6
Tab 8 at 5. We agree with the administrative judge to the extent he found that no
reasonable person who believed she was not eligible for a VSIP would sign the
VSIP application and payment agreement and also accept payment.
The appellant also alleges that, during the course of the VSIP process, her
second-line supervisor orally offered her return rights under 5 C.F.R.
§ 352.806(c)(2)(3). 3 PFR File, Tab 1 at 4, 7. The appellant asserts that she
agreed to resign based on her second-line supervisor’s offer that she would be
returned to her position or be non-competitively reassigned within and/or after
one year “[i]n compliance with the letter from the Assistant to the Secretary of
the Army the paragraph that states ‘on a case by case basis [she] could be
approved for reemployment within or after one year.’” PFR File, Tab 1 at 4; IAF,
Tab 1 at 5, Tab 8 at 4-5. In construing the terms of a written agreement, the
words of the agreement itself are of paramount importance, and parol evidence
will be considered only if the written agreement is ambiguous. De Luna v.
Department of the Navy, 58 M.S.P.R. 526, 529-30 (1993). The fact that an
agreement is silent as to a term does not mean it is ambiguous. Id. When a
contract is silent as to a term, the issue covered by that term is in effect removed
from the Board’s jurisdiction, and the Board lacks the authority to unilaterally
modify the material terms in a settlement agreement. Id., (citing Harrison v. VA,
44 MSPR 594, 599 (1990)).
The administrative judge found no information in the record to suggest that
the appellant was entitled to reinstatement or reemployment following her
separation. ID at 9. We agree. The agreement here does not include any
documents referencing return rights under 5 C.F.R. § 352.806(c)(2)(3) or a
non-competitive reassignment. Rather, the VSIP agreement she signed in
February 2014 provides, in relevant part, that:
3
Section 352.806 provides reinstatement rights under the Taiwan Relations Act. The
appellant does not allege, and there is no evidence in the record to show, that this
regulation applies to either the appellant or her prior employment with the agency.
7
[A]n employee who receives a buyout, and accepts employment with
the Government of the United States . . . within 5 years after the date
of separation on which payment of the buyout is based, shall be
required to repay the entire amount of the buyout (before taxes and
deductions) to the Federal agency that paid the buyout. . . . [A] DoD
employee who receives a buyout is prohibited from registering in the
DoD Priority Placement Program and may not be reemployed by the
Department of Defense in any capacity for a 12-month period.
IAF, Tab 5 at 21.
The appellant signed the agreement indicating that her VSIP application
was voluntary, she was counseled, and she freely agreed to and fully understood
the conditions and terms of the VSIP. Id. Because the parties’ written agreement
is not ambiguous and does not refer to return rights or non-competitive
reassignment, the appellant cannot now attempt to unilaterally insert such terms
into the agreement. Therefore, we find that the appellant failed to nonfrivolously
allege that the agency made misleading statements upon which she reasonably
relied to her detriment.
To the extent that the appellant argues that her second-line supervisor’s
offer of reemployment is consistent with the February 18, 2014 letter from the
agency approving the application for a VSIP, we find her argument unavailing.
PFR File, Tab 1 at 4-5. While the letter allowed for case-by-case exceptions, it
informed the appellant that she could not be reemployed by the Federal
Government for 5 years from the date of her separation unless she repaid the
entire amount of her VSIP payment and could not be reemployed by the
Department of Defense in any capacity for a 12-month period from the date of her
separation. IAF, Tab 1 at 8. Therefore, we agree with the administrative judge
that the appellant failed to nonfrivolously allege that her resignation was
involuntary.
The appellant also alleges that the agency improperly offered the VSIP
without providing “options for family leave or any realistic alternatives.” PFR
File, Tab 1 at 5, 7. A resignation decision made “with blinders on,” based on
8
misinformation or lack of information, cannot be binding as a matter of
fundamental fairness and due process. Freeborn, 119 M.S.P.R. 290, ¶ 10. To the
extent that the appellant is alleging that her resignation was involuntary because
she did not have enough information about family leave to make an informed
decision, there is nothing alleged by the appellant or present in the record to
indicate that the agency knew or should have known the appellant needed
clarification on family leave options or that the agency supplied the appellant
misinformation regarding family leave options. See Holser v. Department of the
Army, 77 M.S.P.R. 92, 95 (1997) (finding an employee’s incorrect belief that he
had to retire to be eligible for disability benefits did not make retirement
involuntary because he did not establish that he received inadequate information
from the agency). Therefore, the appellant has not raised a nonfrivolous
allegation of involuntariness on the basis of inadequate information.
Further, the appellant argues that the agency obstructed her applications for
Federal employment following her resignation. PFR File, Tab 1 at 6; IAF, Tab 1
at 6. To the extent the appellant argues that the Board has jurisdiction over her
nonselections, it is well settled that the Board lacks direct jurisdiction under
5 U.S.C. § 7512 over an employee’s nonselection for a position. See Gryder v.
Department of Transportation, 100 M.S.P.R. 564, ¶ 9 (2005).
The administrative judge properly determined that absent an otherwise
appealable action the Board lacks jurisdiction over claims that the agency
committed some prohibited personnel practices and/or harmful procedural errors
in the context of her decision to resign. 4 ID at 10; see Penna v. U.S. Postal
Service, 118 M.S.P.R. 355, ¶ 13 (2012) (finding that, in the absence of an
otherwise appealable action, the Board lacks jurisdiction over claims of harmful
error and prohibited personnel practices); Wren v. Department of the Army,
2 M.S.P.R. 1, 2 (1980), aff’d, 681 F.2d 867, 871-73 (D.C. Cir. 1982) (explaining
4
The appellant did not allege that her resignation was related to any disclosures of
information or protected activity over which the Board might have jurisdiction as an
individual right of action appeal. IAF, Tab 1 at 4, Tab 6 at 4-5, 8.
9
that prohibited personnel practices under 5 U.S.C. § 2302(b) are not an
independent source of Board jurisdiction).
Accordingly, because the appellant’s arguments on review fail to constitute
a nonfrivolous allegation that her resignation was involuntary, we affirm the
dismissal of her involuntary resignation appeal for lack of jurisdiction. 5
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.
5
Since the Board lacks jurisdiction to review this case, we need not reach the
appellant’s arguments on review regarding the timeliness of her appeal. PFR File,
Tab 1 at 4-5.
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.
10
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).
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,
11
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
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
12
(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
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.
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.
13
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.
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: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.