Timothy Kelly v. Department of Veterans Affairs ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TIMOTHY P. KELLY, DOCKET NUMBER
Appellant, DA-0752-18-0150-I-1
v.
DEPARTMENT OF VETERANS DATE: February 8, 2024
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Timothy P. Kelly , Metairie, Louisiana, pro se.
LaTasha C. Clark and Justin Wade Sweat , Jackson, Mississippi, 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 his constructive removal 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 based
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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. For the
reasons discussed below, we VACATE the administrative judge’s finding that the
appellant’s behavior cited in the agency’s admonishment and proposed
admonishment warranted some form of discipline, and we AFFIRM the initial
decision in all other respects. Except as expressly indicated in this Final Order,
the initial decision of the administrative judge is the Board’s final decision.
For the reasons described in the initial decision, we agree with the
administrative judge’s finding that the appellant failed to meet his burden of
raising a nonfrivolous allegation 2 of the Board’s jurisdiction over his constructive
removal appeal. Initial Appeal File (IAF), Tab 12, Initial Decision (ID) at 2 n.2,
5-9; see Edwards v. Department of the Air Force, 120 M.S.P.R. 307, ¶ 6 (2013)
(explaining that an appellant generally is entitled to a jurisdictional hearing if he
raises a nonfrivolous allegation of Board jurisdiction over the appeal); 5 C.F.R.
§ 1201.56(b)(2)(i)(A); see also Bean v. U.S. Postal Service, 120 M.S.P.R. 397,
¶¶ 7-8, 11 (2013) (observing that an employee may establish Board jurisdiction
over an alleged involuntary retirement as a constructive removal by proving,
among other things, that he lacked a meaningful choice in the matter and it was
the agency’s wrongful actions that deprived him of that choice).
2
A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
issue. 5 C.F.R. § 1201.4(s).
3
However, we vacate the administrative judge’s finding that the appellant’s
alleged behavior described in the March 20, 2015 admonishment and
December 16, 2015 proposed admonishment warranted some form of discipline.
ID at 7-8; IAF, Tab 5 at 29-30, 48-51. In Ferdon v. U.S. Postal Service,
60 M.S.P.R. 325, 329 (1994), the Board held that, in determining whether an
appellant has made a nonfrivolous allegation of jurisdiction, an administrative
judge may not weigh evidence and resolve conflicting assertions of the parties,
and the agency’s evidence may not be dispositive. Here, the appellant alleged
that the agency’s admonishments were “specious.” IAF, Tab 1 at 14. Therefore,
we find that the administrative judge improperly relied on the agency’s evidence
in making a finding on the merits of the admonishments.
In his petition for review, the appellant makes the following arguments:
the agency failed to issue a proposal before issuing the March 20, 2015
admonishment, which itself was retaliation for claiming harassment by the
Human Resources Specialist; the agency’s inaction in failing to make a decision
on the December 16, 2015 proposed admonishment created a hostile work
environment; the agency tricked him when it wrongfully failed to reassign
Personal Identity Verification (PIV) duties from his Records and Information
Management Specialist position to the newly hired Support Services Specialist
position; the agency should not be allowed to redefine positions and to assign
duties at its whim because such actions render the Office of Personnel
Management and position descriptions useless; when he joined the agency, he
specifically chose his position because it did not require Information Technology
duties; he tried for several months to have the agency reassign his PIV duties to
the Support Services Specialist position; based on the agency’s history of not
adhering to common business practices and issuing retaliatory admonishments, he
could no longer trust the agency; and the agency subjected him to a hostile work
environment after he complained of its fraudulent practices. Petition for Review
(PFR) File, Tab 1 at 3-4.
4
We find that the appellant’s arguments on review have been thoroughly
addressed in the initial decision; thus, we discern no basis for review.
Specifically, we agree with the administrative judge’s finding that, even assuming
that all of the appellant’s assertions regarding the agency’s alleged wrongful
actions are true and correct, his retirement was not involuntary. ID at 9; see
Miller v. Department of Defense, 85 M.S.P.R. 310, ¶ 32 (2000) (stating that
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). The fact that the appellant faced a
proposed admonishment does not rebut the presumed voluntariness of his ultimate
choice to retire. See Baldwin v. Department of Veterans Affairs , 109 M.S.P.R.
392, ¶ 12 (2008) (observing that the fact that an employee is faced with the
unpleasant choice of either resigning or opposing a potential adverse action does
not rebut the presumed voluntariness of his ultimate choice of resignation).
Further, instead of retiring, the appellant had the option of contesting the alleged
discrimination and harassment through the equal employment opportunity process
and appealing the March 20, 2015 admonishment through the grievance
procedure. IAF, Tab 5 at 29-30; see Axsom v. Department of Veterans Affairs,
110 M.S.P.R. 605, ¶ 17 (2009) (finding that the appellant had the option to stand
and fight the alleged discrimination, harassment, and retaliation rather than
resign). Moreover, the appellant admits on review that he “was not tricked into
retirement.” PFR File, Tab 1 at 3.
Accordingly, we affirm the dismissal of the appeal for lack of jurisdiction.
NOTICE OF APPEAL RIGHTS 3
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
3
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.
5
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).
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
6
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
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 .
7
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
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
8
competent jurisdiction. 4 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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
4
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.
9
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.