Pamela Adams v. Department of Veterans Affairs ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
PAMELA N. ADAMS, DOCKET NUMBER
Appellant, DC-0752-23-0426-I-1
v.
DEPARTMENT OF VETERANS DATE: January 19, 2024
AFFAIRS,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Amanda Stevens , Richmond, Virginia, for the appellant.
Michael J.A. Klein , Esquire, Baltimore, Maryland, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her alleged involuntary resignation appeal for lack of Board
jurisdiction. For the reasons discussed below, we GRANT the appellant’s petition
for review, VACATE the initial decision, and REMAND the case to the
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
Washington Regional Office for further adjudication in accordance with this
Remand Order.
BACKGROUND
¶2 On April 20, 2023, the appellant, a former GS-11 Respiratory Therapist,
filed an initial appeal with the Board, indicating that she was appealing her
involuntary resignation and demotion from Lead Respiratory Therapist. Initial
Appeal File (IAF), Tab 1 at 4. She filed her appeal via facsimile and, at that
time, her designated representative did not register to be an e-filer. Id. at 7.
¶3 The administrative judge issued an order to show cause, notifying the
appellant of her burden of proof to establish jurisdiction over her constructive
resignation claim; however, the order did not notify her of her burden to establish
a constructive demotion. IAF, Tab 3 at 1-3. According to the certificate of
service, the appellant was served a copy of the order via U.S. Mail and her
representative was served via electronic mail. Id. at 5. Neither party responded
to the order to show cause. Without holding the appellant’s requested hearing,
the administrative judge issued an initial decision dismissing the appeal for lack
of jurisdiction. IAF, Tab 1 at 2, Tab 5, Initial Decision (ID) at 1, 7.
¶4 The appellant has filed a petition for review of the initial decision. 2 Petition
for Review (PFR) File, Tab 1. On review, the appellant’s representative alleges
that neither she nor the appellant received the administrative judge’s order to
show cause because they were not registered as e-filers. Id. at 6; PFR File, Tab 4
at 5. She also submits information and documentation regarding the merits of the
appellant’s involuntary resignation and constructive demotion claims. PFR File,
Tab 4 at 6-7. The agency has responded to the petition for review and the
appellant has replied. PFR File, Tabs 3-4.
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On review, the appellant filed a new appeal via e-Appeal Online and registered as an
e-filer. PFR File, Tab 1 at 2.
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DISCUSSION OF ARGUMENTS ON REVIEW
¶5 On review, the appellant alleges that neither she nor her representative
received the administrative judge’s order to show cause because her
representative was improperly served via e-Appeal, despite not being registered
as an e-filer. PFR File, Tab 1 at 6, Tab 4 at 5. Electronic service of the Board’s
issuances is only appropriate for properly registered e-filers who affirmatively
consent to electronic service. See 5 C.F.R. § 1201.14(e)(1)-(2) (noting that
registration as an e-filer constitutes consent to accept electronic service and that
the exclusive means for registering as an e-filer is to do so through e-Appeal
Online), (j)(1) (identifying that paper copies of Board issuances are not ordinarily
served on registered e-filers), (j)(3) (noting that registered e -filers are responsible
for monitoring case activity in the e-Appeal Online Repository to ensure that they
have received all case-related documents). The record below does not contain the
representative’s affirmative consent to accept electronic service; therefore, the
administrative judge’s order to show cause was improperly served on the
appellant’s representative electronically. IAF, Tab 1 at 7, Tab 3 at 5.
Accordingly, because the issue of jurisdiction is always before the Board and may
be raised at any time during a Board proceeding, we will consider the appellant’s
newly raised evidence and arguments on review. Poole v. Department of the
Army, 117 M.S.P.R. 516, ¶ 9 (2012) (finding that the issue of jurisdiction is
always before the Board and may be raised at any time during a Board
proceeding).
The appellant has alleged facts that, if true, could establish that she was subjected
to a constructive demotion.
¶6 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). An appellant is entitled to a
jurisdictional hearing only if she makes a nonfrivolous allegation of Board
jurisdiction. Francis v. Department of the Air Force, 120 M.S.P.R. 138, ¶ 14
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(2013). A nonfrivolous allegation of Board jurisdiction is an allegation of fact
that, if proven, could establish that the Board has jurisdiction over the matter at
issue. Id.; 5 C.F.R. § 1201.4(s).
¶7 On review, the appellant alleges for the first time that she was subjected to a
constructive demotion because the agency reassigned her to a “lesser position,”
and then the agency converted her former position to a higher grade. PFR File,
Tab 4 at 6-7. As mentioned above, although the appellant generally alleged
below that she was demoted and required to work in a higher-graded position
without compensation, the administrative judge did not give the appellant notice
of the standard for establishing jurisdiction over a constructive demotion claim,
nor did he address a constructive demotion claim in his initial decision. IAF,
Tab 1 at 4; ID at 5. Therefore, we consider the appellant’s evidence and
arguments and find that the appellant has nonfrivolously alleged facts that, if
proven, could establish that the Board has jurisdiction over her constructive
demotion claim.
¶8 In support of her involuntary resignation and constructive demotion claim,
the appellant, through her representative, certifies the following on review. In
March 2021, her agency underwent a reorganization. PFR File, Tab 4 at 6. Prior
to the reorganization, she was a GS-9 Lead Respiratory Therapist and alleges that
“typically non-lead Respiratory Therapists [were] at the GS-8 level.” Id. On
March 14, 2021, the agency “initiated a national promotion event that was
supposed to convert all the Respiratory Therapists to the GS[-]11 level, and all
Lead Respiratory Therapists to the GS-12 level.” PFR File, Tab 4 at 6. From
March 14, 2021, through February 8, 2023, she claims she was “reassigned” to a
GS-11 Respiratory Therapist position because she was “coded” as a GS-11
Respiratory Therapist, instead of a GS-12, even though she continued to perform
the duties of a Lead Respiratory Therapist. Id. at 6-7. On May 31, 2022, the
Chief of Service told the appellant that “the Leads . . . positions have to be
re-announced” and “those who are already in these positions will have to
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re-apply.” Id. at 7, 9. The appellant further alleges that on unspecified dates she
reapplied for the Lead Respiratory Therapist position, was not selected, suffered a
loss in pay and a hostile work environment, and eventually resigned. Id. at 7;
IAF, Tab 1 at 4, 6.
¶9 A reassignment without loss of grade or pay is not appealable to the Board.
Marcheggiani v. Department of Defense, 90 M.S.P.R. 212, ¶ 7 (2001). A narrow
exception exists when an employee is deemed to have suffered a constructive
demotion and she is assigned from a position which, due to issuance of a new
classification standard or correction of a classification error, was worth a higher
grade, the employee met the legal and qualification requirements for promotion to
the higher grade, and she was permanently reassigned to a position classified at a
grade level lower than the grade level to which she would otherwise have been
promoted. Russell v. Department of the Navy, 6 M.S.P.R. 698, 711 (1981). In
Russell, the appellant was reassigned from the position of GS-11, Supervisory
Employee Development Specialist to a GS-11, Employee Development Specialist.
Russell, 6 M.S.P.R. 698, 700. Five months later, the agency established a GS-12
Supervisor Employee Development Specialist position, for which the appellant
was not selected. Id. at 701. The appellant alleged that the GS-11, Supervisory
Employee Development Specialist he held prior to his reassignment and the
GS-12 position were identical and that he was constructively reduced in grade
because the original GS-11 position he held should have been classified at GS-12.
Id. Similarly, here the appellant has nonfrivolously alleged that her Lead position
was reclassified upward to a GS-12, she is entitled to a noncompetitive promotion
to the higher-graded GS-12 Lead position because she successfully performed
Lead duties and allegedly continued to perform Lead duties even after the
reorganization, and she was reassigned to the GS-11 position at a grade level
lower than the GS-12 grade level to which she would otherwise have been
promoted. Thus, we find that the Board may exercise jurisdiction over her
constructive demotion claim. See Marcheggiani, 90 M.S.P.R. 212, ¶¶ 8-9 (stating
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that the Board may exercise its jurisdiction in a constructive demotion appeal
only when a position actually has been reclassified upward and the employee
claims entitlement to a noncompetitive promotion to the higher-graded position);
Burrell v. Environmental Protection Agency , 81 M.S.P.R. 427, ¶ 17 (1999)
(finding that an employee raised a nonfrivolous allegation of constructive
demotion when he asserted that his GM-13 position was upgraded to GS-14,
without a significant change in duties or responsibilities, at the time he was
reassigned to another position).
We decline to disturb the administrative judge’s finding that the appellant failed
to nonfrivolously allege jurisdiction over her involuntary resignation claim.
¶10 On review, the appellant generally challenges the administrative judge’s
finding that the appellant failed to establish jurisdiction over her involuntary
resignation claim. PFR File, Tab 1 at 5; ID at 5-7. As mentioned above, she
claims that she did not receive the administrative judge’s order to show cause,
which gave her notice of her jurisdictional burden with respect to her involuntary
resignation claim. PFR File, Tab 1 at 6. However, the appellant received the
administrative judge’s initial decision, which also contained this notice. ID
at 3-5; see Parker v. Department of Housing and Urban Development ,
106 M.S.P.R. 329, ¶¶ 7-8 (2007) (stating that an administrative judge’s failure to
provide an appellant with specific notice of his jurisdictional burden can be cured
if the agency’s pleadings or the initial decision contain the required notice). Even
after considering the appellant’s submissions on review, we discern no basis to
disturb the administrative judge’s finding that the appellant failed to establish
jurisdiction over her involuntary resignation claim.
¶11 A resignation 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. Searcy v. Department of Commerce,
114 M.S.P.R. 281, ¶ 12 (2010). An appellant claiming that her resignation is
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involuntary is entitled to a hearing on jurisdiction only if she makes nonfrivolous
allegations casting doubt on the presumption of voluntariness. Id., ¶ 10. The
touchstone of the voluntariness analysis is whether, considering the totality of the
circumstances, factors operated on the employee’s decision-making process that
deprived her of freedom of choice. Id. Intolerable working conditions may
render an action involuntary if the employee demonstrates that the employer or
agency engaged in a course of action that made working conditions so difficult or
unpleasant that a reasonable person in the employee’s position would have felt
compelled to resign. Searcy, 114 M.S.P.R. 281, ¶ 12; see Middleton v.
Department of Defense, 185 F.3d 1374, 1379 (Fed. Cir. 1999) (explaining that a
determination as to whether an employee’s resignation was coerced is based on an
objective test). The Board will consider claims of discrimination and harassment
only insofar as those allegations relate to the issue of voluntariness. Brown v.
U.S. Postal Service, 115 M.S.P.R. 609, ¶ 10, aff’d per curiam, 469 F. App’x 852(Fed. Cir. 2011).
¶12 Other than alleging that the agency constructively demoted her and
subjected her to a “hostile” environment, the appellant does not allege facts that
would show that her work conditions were so intolerable that she had no choice
but to resign. PFR File, Tab 1 at 17. Even if we accept as true the appellant’s
allegations that she was improperly reassigned to a GS-11 position and that the
agency continued to “have [her] working at a higher graded duty without
compensation,” such an allegation is insufficient to establish that her resignation
was involuntary. Dissatisfaction with work assignments, a feeling of being
unfairly criticized, or difficult or unpleasant working conditions are generally not
so intolerable as to compel a reasonable person to resign. Miller v. Department of
Defense, 85 M.S.P.R. 310, 322 (2000). Moreover, though the appellant alleges
that she served in her reassignment for almost 2 years, she did not allege that she
attempted to exhaust any remedial avenues prior to resigning. Because she could
have remained in her position and contested the validity of the agency’s actions
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but chose not to, we agree with the administrative judge that she has failed to
nonfrivolously allege that her resignation was involuntary. See Brown, 115
M.S.P.R. 609, ¶ 15; cf. Heining v. General Services Administration, 68 M.S.P.R.
513, 523 (1995) (finding an involuntary resignation after the appellant offered
overwhelming evidence supporting an intolerable working environment and did
not resign until she pursued many grievances and two complaints, receiving an
adverse decision on her grievances just prior to her resignation). Thus, we
decline to disturb the administrative judge’s finding that the appellant failed to
establish jurisdiction over her involuntary resignation claim.
ORDER
¶13 For the reasons discussed above, we remand this case to the Washington
Regional Office for further adjudication in accordance with this Remand Order.
On remand, the administrative judge shall permit the parties to conduct discovery
and submit additional evidence and argument and shall afford the appellant a
jurisdictional hearing on the appellant’s claim of a constructive demotion. If the
administrative judge finds that the Board has jurisdiction over that claim, he shall
adjudicate the merits of that claim. In his remand initial decision, the
administrative judge may adopt his prior finding that the appellant failed to
establish jurisdiction over her involuntary resignation claim.
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.