Gerald Dove v. Department of the Army ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GERALD L. DOVE, DOCKET NUMBER
Appellant, PH-3443-20-0094-I-1
v.
DEPARTMENT OF THE ARMY, DATE: February 27, 2024
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Shaun Frederick Owens , Esquire, Upper Marlboro, Maryland, for the
appellant.
Michael L. Hoyle , Esquire, Aberdeen Proving Ground, Maryland, for the
agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
REMAND ORDER
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,
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
VACATE the initial decision, and REMAND the case to the Northeastern
Regional Office for further adjudication in accordance with this Remand Order.
BACKGROUND
The appellant was employed by the agency as a Supervisory Police Officer
in the Directorate of Emergency Services (DES) at a U.S. Army Installation
Command in Maryland. Initial Appeal File (IAF), Tab 1 at 20. In March 2018,
the agency announced a “window of opportunity” in which employees could
apply for Voluntary Early Retirement Authority (VERA)/Voluntary Separation
Incentive Pay (VSIP). IAF, Tab 3 at 19-36, Tab 7 at 35. On March 23, 2018, the
appellant submitted a fiscal year 2018 Buy-Out Application, stating that he was
pursuing incentive pay for optional retirement with a requested retirement date of
April 29, 2018. IAF, Tab 3 at 38, 40. The appellant provided the following
justification for the VSIP: “Currently, my position has been offered/accepted
placing me in an Over-hire Position.” Id. at 40. On March 30, 2018, the
appellant sent a memorandum to the Garrison Commander regarding his request,
stating that his “conventional retirement date” was July 2019. IAF, Tab 7 at 26.
He maintained that the agency had hired someone for his position on March 14,
2018, placing him in an over-hire position, so that there was “no conflict to
impair approval of the Buyout (VSIP) incentive.” Id.On April 20, 2018, the Director of Human Resources (HR) notified the
appellant via email that the agency had denied his request for a VSIP. Id. at 25.
The email stated that the appellant was “in an authorized position even though
DES proactively recruited to backfill [his] position prior to [his] retiring,” and
that his “position [could not] be restricted or abolished as it is critical to [the
agency’s] mission.” Id. According to the appellant, on April 24, 2018 he met
with the Director of DES and the Garrison Commander to discuss the agency’s
denial of his application. IAF, Tab 3 at 46. The appellant retired from the
agency, effective April 29, 2018. IAF, Tab 1 at 20.
3
On May 7, 2018, 8 days after the effective date of his retirement, the
appellant sent a memorandum to the Garrison Commander challenging the denial
of his VSIP. IAF, Tab 7 at 27-29. He repeated his contention regarding the
agency’s purported “illegal hire” for his position that had taken place 2 weeks
prior to his application for early retirement. Id. at 27. The appellant argued that
the hiring forced him out of his position, placed him in an over-hire position, and
“even if retirement was withdrawn gave [him] no recourse” because he would no
longer have his DES Police Captain position. Id. The appellant also asserted that
the Garrison Commander and the Director of DES stated that even if he withdrew
his early retirement there would be no Police Captain position for him at DES,
and instead he would “probably be carried as excess somewhere on APG,”
placing him in a RIF/over hire position. Id. at 28. Finally, the appellant
complained that the Garrison Commander had waited to inform him of the denial
of his VSIP request until after his retirement ceremony and that he had “assumed”
that a negative response to his application would have been “given immediately
and without delay.” Id. The appellant subsequently filed an equal employment
opportunity (EEO) complaint alleging that the agency discriminated against him
on the basis of age when it placed him in an over-hire position and then denied
his VSIP request. IAF, Tab 7 at 31-32. Although he initially requested a hearing,
he withdrew the request and requested a final agency decision (FAD) with Board
appeal rights, stating that his complaint was “most akin to a claim of constructive
retirement” and therefore a mixed-case complaint. Id. at 32. The agency issued a
FAD on November 14, 2019, finding that the appellant had not shown that he was
subjected to age-based discrimination. Id. at 31, 50.
The appellant timely filed the present appeal, alleging that his retirement
was tantamount to a constructive discharge. IAF, Tab 1 at 6-11. He alleged that
the HR Director had specifically instructed him to state on his VSIP application
that his position had been offered to and accepted by another individual, placing
him in an over-hire position. Id. at 7. The appellant further alleged that he had
4
been told by the Army Benefits Center that he qualified for optional retirement
under VSIP. Id. at 8.
In an acknowledgment order, the administrative judge characterized the
appellant’s appeal as a “denial of [his] request for VERA/VSIP” and informed
him that the Board may not have jurisdiction over his appeal. IAF, Tab 2 at 2.
She did not provide jurisdictional notice regarding alleged constructive actions
such as an involuntary retirement. Id. at 2-3. Instead, the administrative judge
informed the appellant of four possible bases of jurisdiction over a denial of
VERA/VSIP, including as a personnel action taken in retaliation for making a
protected disclosure or engaging in protected activity, discrimination based on
uniformed service, or a denial in violation of veterans’ preference rights. Id. In
response to the acknowledgment order, the appellant argued that his appeal
concerned two issues: (1) the denial of his VSIP application, and (2) whether the
information that agency officials provided to him during his application process
was knowingly inaccurate, provided with intent to induce him to retire, and led to
his constructive retirement. IAF, Tab 3 at 4-5. The appellant argued that he had
made nonfrivolous claims of constructive retirement because of the statements
made regarding his eligibility for VSIP from the Director of HR and benefits
center employees. Id. at 7-8.
Without holding the requested hearing, the administrative judge issued an
initial decision dismissing the appeal for lack of jurisdiction. IAF, Tab 1 at 2,
Tab 8, Initial Decision (ID) at 1, 5. The administrative judge found that the
appellant failed to make nonfrivolous allegations that his retirement was
involuntary. ID at 3-5. She found that the appellant had failed to nonfrivolously
allege that he had been misled by the agency and that he had reasonably relied on
the misinformation to his detriment. ID at 5. Finally, the administrative judge
found that the appellant’s age discrimination claim was not an independent source
of Board jurisdiction. Id.5
The appellant has filed a petition for review, and the agency has filed a
response. Petition for Review (PFR) File, Tabs 1, 3.
DISCUSSION OF ARGUMENTS ON REVIEW
On petition for review, the appellant argues that the administrative judge
erred in finding that he failed to raise nonfrivolous allegations that his retirement
was involuntary. PFR File, Tab 1 at 9-15. He maintains that, due to the
statements of agency officials, he reasonably believed that the agency’s
promotion of another individual to take his position “divested him of a job” and
placed him in an over-hire position, such that he would be unable to return to his
position if he withdrew his retirement application and could be subject to
relocation or reduction in grade. Id. at 5, 13-14; IAF, Tab 3 at 7-8. The appellant
also repeats his allegations that the Director of HR provided to him the “specific
language” to use in his VSIP application regarding the over-hire position and that
benefits center employees informed him that he qualified for optional retirement
under VSIP. PFR File, Tab 1 at 6, 13; IAF, Tab 1 at 7, Tab 3 at 7. He argues that
the administrative judge erroneously determined that the Director of HR was
unlikely to have made the statement regarding the VSIP application, in large part
due to the language in her email later denying the request. PFR File, Tab 1 at 10.
Finally, the appellant challenges the administrative judge’s finding that his two
prior applications and denials for VSIP demonstrated his understanding of the
voluntary nature of his retirement. Id.Retirements and resignations are presumed to be voluntary, but the Board
has jurisdiction over an appeal filed by an employee who has retired if his
retirement was involuntary and tantamount to a forced removal. See Parrott v.
Merit Systems Protection Board, 519 F.3d 1328, 1332 (Fed. Cir. 2008) (internal
citations omitted). The presumption that a retirement is voluntary can be rebutted
by evidence showing that the retirement was the result of agency
misrepresentation. Salazar v. Department of the Army, 115 M.S.P.R. 296, ¶ 9
6
(2010). Where such a claim is made, an appellant must show the following:
(1) the agency made misleading statements; and (2) he reasonably relied on the
misinformation to his detriment. Id. The touchstone of the analysis of whether a
retirement is involuntary is whether the employee made an informed choice.
Baldwin v. Department of Veterans Affairs, 111 M.S.P.R. 586, ¶ 16 (2009). A
decision made “with blinders on,” based on misinformation or lack of
information, cannot be binding as a matter of fundamental fairness and due
process.” Id. (quoting Covington v. Department of Health and Human Services ,
750 F.2d 937, 943 (Fed. Cir. 1984)). An agency must provide information that is
not only correct in nature but adequate in scope to allow an employee to make an
informed decision. Baldwin, 111 M.S.P.R. 586, ¶ 16. This includes an obligation
to correct any erroneous information on which it has reason to know an employee
is relying. Id.An appellant bears the burden of proving Board jurisdiction by
preponderant evidence. 2 5 C.F.R. § 1201.56(b)(2)(i)(A). An appellant is entitled
to a jurisdictional hearing if he presents nonfrivolous allegations 3 of Board
jurisdiction. See Ferdon v. U.S. Postal Service, 60 M.S.P.R. 325, 329 (1994). In
determining whether the appellant has made a nonfrivolous allegation of
jurisdiction entitling him to a hearing, the administrative judge may consider the
agency’s documentary submissions; however, to the extent that the agency’s
evidence constitutes mere factual contradiction of the appellant’s otherwise
adequate prima facie showing of jurisdiction, the administrative judge may not
weigh evidence and resolve conflicting assertions of the parties and the agency’s
evidence may not be dispositive. Id. Although the administrative judge failed to
provide the appellant with proper jurisdictional notice regarding constructive
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).
3
A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
issue. 5 C.F.R. § 1201.4(s).
7
actions, the parties briefed this issue in their responses to the acknowledgment
order and the initial decision set forth the proper jurisdictional standard. IAF,
Tab 2 at 2-3, Tab 3 at 6-8, Tab 7 at 6-9; see Mapstone v. Department of the
Interior, 106 M.S.P.R. 691, ¶ 9 (2007) (stating that an administrative judge’s
failure to provide an appellant with proper jurisdictional notice can be cured if
the initial decision puts the appellant on notice of what he must do to establish
jurisdiction).
The agency argues in its response to the petition for review that the
“appellant alone asserts that he was given misinformation by the Director of
Human Resources” (emphasis in original) and that the assertion is not supported
by the evidentiary record. PFR File, Tab 3 at 7. However, the administrative
judge erred to the extent that she weighed the evidence at the jurisdictional stage
of the appeal in finding that “it appear[ed] unlikely that [the Director of HR] told
the appellant to claim that he was in an over-hire situation” in his VSIP
application based on her email denying the request as set forth in the agency’s
evidence file. ID at 4; IAF Tab 7 at 25; see Ferdon, 60 M.S.P.R. at 329; see also
Dumas v. Merit Systems Protection Board, 789 F.2d 892, 894 (Fed. Cir. 1986)
(stating if the alleged facts are sufficient to support a prima facie case of
involuntariness, the issue cannot be summarily determined adversely; the
petitioner is entitled to an evidentiary hearing on the issue). In addition, although
the administrative judge dismissed the appellant’s arguments regarding his
detrimental reliance on the misinformation regarding his retirement qualification
status because he “did not attempt to withdraw his request for optional
retirement” in the 9 days between the agency’s notification of the VSIP denial
and his retirement date, she failed to address the appellant’s claims regarding the
agency’s misinformation and his reliance thereon that he would be unable to
return to his Police Captain position if he withdrew his retirement request and
could be subject to reductions in force and other employment uncertainty. ID
at 4; IAF, Tab 1 at 7-9, Tab 3 at 7-8.
8
The record evidence demonstrates that the appellant has made the same
allegations regarding the misinformation about his qualification for VSIP and the
implications of the agency’s hiring of another individual for his position on his
job status since he applied for the VSIP. In his EEO complaint, he made the same
allegations as in his jurisdictional response regarding the Director of HR’s
instructions regarding his VSIP application as well as his belief that the hiring of
the other individual for his position placed him in an over-hire position and that
the Garrison Commander and the Director of DES told him there would be no
place for him at DES if he withdrew his early retirement. IAF, Tab 1 at 7-9,
24-25, 28-29, Tab 3 at 6-8. Moreover, the record suggests that the agency had
reason to know that the appellant was relying on mistaken information that he
qualified for optional retirement under the VSIP due to being in an over-hire
position from his statements both in his application and his March 30, 2018
“Garrison Employee Canvas Response Buyout (VISP) FY 2018” memorandum to
the Garrison Commander. IAF, Tab 1 at 15-16; see Baldwin, 111 M.S.P.R. 586, ¶
16. Further, the appellant alleged that the agency did nothing to correct the
appellant’s erroneous belief in his VSIP qualification or over-hire status until
after his retirement ceremony. IAF, Tab 1 at 8-10, 18. He also asserted that the
Garrison Commander and the Director of DES told him during their
post-ceremony meeting (but prior to the effective date of his retirement) that
“even if [he] withdrew [his] early retirement there would be no Police Captain
position for [him] at DES” and that he “would probably be carried as excess.” Id.
at 18. If true, the appellant would have reasonably relied on the statements that
he was in an over-hire position, eligible for VSIP, and not able to return to his
existing position if he withdrew his request for early retirement from the relevant
agency officials in HR, the benefits center, and his chain of command.
Therefore, we find that the appellant has made a nonfrivolous allegation
that his retirement was involuntary because he materially relied on agency
misinformation regarding his retirement. See Morrison v. Department of the
9
Navy, 122 M.S.P.R. 205, ¶¶ 8-10 (2015) (finding that the appellant’s allegation
that an agency official improperly told him that he would lose his retirement
benefits if he were removed, in addition to record evidence demonstrating that the
agency has reason to know that appellant was relying on the misinformation,
constituted a nonfrivolous allegation that he was subjected to a constructive
removal); Aldridge v. Department of Agriculture, 110 M.S.P.R. 21, ¶¶ 11-12
(2008). Because the appellant has presented nonfrivolous allegations of Board
jurisdiction, he is entitled to a jurisdictional hearing. See Ferdon, 60 M.S.P.R.
at 329.
ORDER
For the reasons discussed above, we remand this case to the Northeastern
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.