Hawkins v. Merit Systems Protection Board

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
TASHIEK TERESSA HAWKINS,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
__________________________
2011-3013
__________________________
Petition for review of the Merit Systems Protection
Board in case no. DC0752100663-I-1.
_________________________
Decided: May 11, 2011
_________________________
TASHIEK TERESSA HAWKINS, of Bristow, Virginia, pro
se.
KATHERINE M. SMITH, Attorney, Office of the General
Counsel, Merit Systems Protection Board, of Washington,
DC, for respondent. With her on the brief were JAMES M.
EISENMANN, General Counsel, and KEISHA DAWN BELL,
Deputy General Counsel.
__________________________
HAWKINS v. MSPB 2
Before LOURIE, GAJARSA, and O’MALLEY, Circuit Judges.
PER CURIAM.
Tashiek Teressa Hawkins, pro se, petitions for review
of the final decision of the Merit Systems Protection
Board (“Board”) dismissing her appeal for lack of jurisdic-
tion. Because we find that the adverse actions Hawkins
alleges do not fall within the Board’s jurisdiction, we
affirm.
BACKGROUND
The sparse record in this case consists only of the fol-
lowing. On June 12, 2010, Hawkins resigned from her
position as Unit Secretary with the Bureau of Prisons.
On June 29, 2010, she appealed to the Board alleging that
her resignation was involuntary, submitting the following
statement in support of her appeal:
First, the agency was wrong on the decision of dis-
crimination due to the facts of condoning an
ACTING Supervisor to harass me constantly and
place me on [absence without leave (“AWOL”)]
several times after being in an ACTING capacity
for ONLY a couple of weeks. Based on my belief,
knowledge, and the investigative report, it is obvi-
ous that I was being targeted, harassed and
treated disparately from all other employees by an
ACTING Supervisor who apparently had preju-
dice [sic] feelings and issues with me as an indi-
vidual, not an employee. Prior to his ACTING
capacity, I was an Exceedingly/Outstanding em-
ployee and did not have any other issues with
anyone (staff or inmate) regarding job responsi-
bilities or attendance.
3 HAWKINS v. MSPB
Second, the agency was wrong in the decision of
retaliation because I was constructively forced to
resign. Based on my belief, knowledge, and the
investigative report, it is obvious I was trying to
maintain employment by exhausting every avenue
possible before submitting a letter of resignation
i.e., LWOP, FMLA, Transfer, etc. In addition, all
of my requests to maintain employment were de-
nied even though I expressed to many managerial
officials that due to being placed on AWOL status
(and other factors of the initial EEO complaint)
and not being paid for those days I was unable to
stay afloat of my financial obligations in [North
Carolina] and that the only option I had was to
move in with my family who all live in the Wash-
ington, DC metropolitan area until I could rein-
state my financial stability. I was also given false
hope that a transfer would be probably which led
to the progression of my relocating.
Respondent’s Appendix (“RA”) 39. Hawkins also re-
quested a hearing before an administrative judge.
Two days later, on July 1, 2010, the Board issued an
Acknowledgement Order noting that the Board may lack
jurisdiction over Hawkins’s appeal because resignation
and retirement actions are presumed to be voluntary and,
thus, are not appealable. The order stated that “your
appeal will be dismissed unless you amend your petition
to allege that your resignation or retirement was the
result of duress, coercion, or misrepresentation by the
agency,” and notified Hawkins that she had fifteen days
to file evidence and argument establishing the Board’s
jurisdiction. RA 18. On the same day, the Board issued
an Order to Show Cause detailing the law and the rele-
vant jurisdictional standards and tests. This order reiter-
ated that Hawkins must submit evidence within fifteen
HAWKINS v. MSPB 4
days.
Hawkins did not respond to the Board’s orders and
failed to submit any evidence in support of her allega-
tions. Accordingly, on July 29, 2010, the Board issued an
Initial Decision dismissing Hawkins’s appeal for lack of
jurisdiction. Hawkins v. Dep’t of Justice, MSPB Docket
No. DC-0752-10-0663-I-1 (Initial Decision July 29, 2010)
(“Initial Decision”). The Board found that Hawkins failed
to submit evidence to demonstrate that her working
conditions were so intolerable that a reasonable person in
her position would have felt compelled to resign. Id. at 5.
As to Hawkins’s assertions about being placed on AWOL
status, the Board found that these charges were insuffi-
cient to “support a conclusion that the employee was
effectively deprived of free choice in the matter such that
the employee had no alternative but to resign or retire.”
Id. at 4 (citations omitted). Finally, the Board found that
Hawkins was not entitled to a hearing on jurisdiction
because she failed to make a non-frivolous allegation that
her resignation was involuntary. Id. at 5-6.
Hawkins did not petition for review of the Board’s Ini-
tial Decision, and it became final on September 2, 2010.
Hawkins appealed to this court, arguing that the Board
“did not take into account any facts,” but she did not
identify any facts or evidence in particular. She also
contends that the Board should have considered relief on
the grounds of discrimination or retaliation. We construe
these arguments as challenging the Board’s ruling that it
lacked jurisdiction.
STANDARD OF REVIEW
The Board’s determination that it lacked jurisdiction
is a question of law that we review de novo. Forest v.
Merit Sys. Prot. Bd., 47 F.3d 409, 410 (Fed. Cir. 1995).
Because the Board dismissed Hawkins’s appeal without
5 HAWKINS v. MSPB
affording her a jurisdictional hearing, we review the
record de novo to determine whether Hawkins raised a
non-frivolous allegation of jurisdiction. Coradeschi v.
Dep't of Homeland Sec., 439 F.3d 1329, 1332 (Fed. Cir.
2006). “Non-frivolous allegations cannot be supported by
unsubstantiated speculation in a pleading submitted by
petitioner.” Kahn v. Dep't of Justice, 528 F.3d 1336, 1341
(Fed. Cir. 2008) (quoting Dorrall v. Dep't of the Army, 301
F.3d 1375, 1380 (Fed. Cir. 2002), overruled on other
grounds by Garcia v. Dep’t of Homeland Security, 437
F.3d 1322, 1328 (Fed. Cir. 2006) (en banc)).
DISCUSSION
The appellant bears the burden of proof to establish
by a preponderance of evidence that the alleged action is
within the Board’s jurisdiction. 5 C.F.R. § 1201.56(a)(2)(i).
The Board has limited jurisdiction to hear appeals only
from specific adverse actions enumerated by statute, such
as removal, a suspension for more than fourteen days, a
reduction in grade or pay, or a furlough of thirty days or
less. See 5 U.S.C. §§ 7701(a), 7512. The Board does not
have jurisdiction to hear appeals from voluntary acts. See
Garcia, 437 F.3d at 1328. “Resignations are presumed
voluntary, and the burden of showing that the resignation
was involuntary is on the petitioner.” Terban v. Dep’t of
Energy, 216 F.3d 1021, 1024 (Fed. Cir. 2000).
We have adopted a three-part test for establishing in-
voluntary coercion by an agency, which requires that an
employee show the following: “(1) the agency effectively
imposed the terms of the employee’s resignation or re-
tirement; (2) the employee had no realistic alternative but
to resign or retire; and (3) the employee’s resignation or
retirement was the result of improper acts by the agency.”
Garcia, 437 F.3d at 1329. The test is an objective one
under the totality of the circumstances, requiring a show-
HAWKINS v. MSPB 6
ing that “a reasonable employee confronted with the same
circumstance would feel coerced into resigning.” Id.(citations omitted). Our case law demonstrates that “the
doctrine of coercive involuntariness is a narrow one.” Id.(citing Staats v. United States Postal Serv., 99 F.3d 1120,
1124 (Fed. Cir. 1996)).
Applying these standards, we affirm the Board’s con-
clusion that it lacked jurisdiction over Hawkins’s appeal.
As an initial matter, we note that the record is devoid of
sufficient information to find that Hawkins has made a
non-frivolous allegation of jurisdiction largely because
Hawkins did not respond to the Board’s orders to supple-
ment the record. Although Hawkins is proceeding pro se,
the Board’s orders were clear and unambiguous in stating
that it would dismiss Hawkins’s appeal unless she sub-
mitted additional argument or evidence. See Mendoza v.
Merit Sys. Prot. Bd., 966 F.2d 650, 653-54 (Fed. Cir. 1992)
(“The court does not expect a pro se litigant to be made to
jump through a confusing array of procedural hoops,” but
“there was nothing mysterious or incomprehensible in the
Show Cause Order”). The burden is on Hawkins to estab-
lish jurisdiction, and her failure to respond in the face of
such an order, given the paucity of her original submis-
sion, substantially impairs her ability to satisfy that
burden.
The only evidence and argument we have from Haw-
kins is her initial submission in support of her appeal to
the Board, in which she makes two assertions. First, she
contends that she was the subject of discrimination when
her acting supervisor targeted and harassed her, placing
her on AWOL several times. The Board correctly con-
cluded that a charge of AWOL, by itself, is not an appeal-
able adverse action, as it does not fall under any of the
types of adverse actions covered in 5 U.S.C. § 7512. In
certain circumstances, personnel actions that remove an
7 HAWKINS v. MSPB
employee’s duties and cause a loss in pay can be “con-
structive suspensions” that fall within the Board’s juris-
diction. Perez v. Merit Syst. Prot. Bd., 931 F.2d 853, 855
(Fed. Cir. 1991) (citing Pittman v. Merit Sys. Prot. Bd.,
832 F.2d 598 (Fed. Cir. 1987)). In this case, because
Hawkins did not respond to the Board’s Order to Show
Cause and Acknowledgement Order, we have no informa-
tion relating to the circumstances surrounding Hawkins’s
AWOL placements, including the reasons, terms, or
duration of the placements. Accordingly, we cannot
conclude that the AWOL placements in this case
amounted to a “constructive suspension.”
With respect to Hawkins’s claims of discrimination
and disparate treatment, in the absence of an appealable
adverse action, the Board has no jurisdiction to adjudicate
discrimination claims. Garcia, 437 F.3d at 1342-43.
Contrary to Hawkins’s contentions to this court, more-
over, the Board gave her claims proper attention, noting
that “[d]iscrimination allegations in an appeal of an
alleged involuntary action are considered by the Board for
the limited purpose of determining whether they support
a finding of duress or coercion.” Initial Decision at 3
(citations omitted). Because Hawkins did not provide any
specific evidence or argument to demonstrate that her
working conditions were so intolerable that a “reasonable
employee confronted with the same circumstance would
feel coerced into resigning,” Garcia, 437 F.3d at 1329, the
Board correctly concluded that there was insufficient
evidence to support such a finding.
Hawkins’s second argument appears to be that being
placed on AWOL status resulted in a financial hardship
that left her no choice but to resign. Again, we lack any
evidence or information surrounding her AWOL status to
make any determinations based on that claim. It is also
well established that “the fact that an employee is faced
HAWKINS v. MSPB 8
with an unpleasant situation or that his choice is limited
to two unattractive options does not make the employee’s
decision any less voluntary.” Staats, 99 F.3d at 1124.
Hawkins bears the burden of establishing that her allega-
tions fall within the Board’s jurisdiction, and she has
failed to meet that burden here. For the same reasons,
the Board also correctly concluded that Hawkins was not
entitled to a hearing on jurisdiction, as she did to present
a non-frivolous allegation that her claim falls within the
Board’s jurisdiction.
CONCLUSION
For the reasons stated above, the decision of the
Board dismissing Hawkins’s appeal for lack of jurisdiction
is affirmed.
COSTS
Each party shall bear its own costs.
AFFIRMED