Anthony Haasz v. Department of Veterans Affairs

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANTHONY HAASZ, DOCKET NUMBER
Appellant, NY-0752-15-0313-I-1
v.
DEPARTMENT OF VETERANS DATE: August 17, 2016
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL *
Alan E. Wolin, Jericho, New York, for the appellant.
Christopher P. Richins, Brooklyn, New York, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed this involuntary retirement appeal for lack of jurisdiction. Generally,
we grant petitions such as this one only when: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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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. See
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
¶2 The appellant retired, effective October 4, 2014, after over 33 years of
service, most recently as a WS-09 Maintenance Mechanic Supervisor at the
agency’s East Orange campus of the Veterans Affairs New Jersey Healthcare
System. Initial Appeal File (IAF), Tab 1, Tab 10 at 12. In this appeal, the
appellant alleged that he involuntarily retired because his supervisor repeatedly
failed to select him for promotions, lateral assignments, and details. IAF, Tab 1
at 6. He also asserted that his supervisor “perpetrated a continuing hostile work
environment” by, for example, refusing to upgrade the appellant’s WS-09
position, failing to assign him to temporary supervisory details, and
micro‑managing the performance of his subordinates. Id. The appellant also
claimed that his supervisor spoke down to him, disregarded the medical staff’s
assessment of his performance, and failed to properly reward or recognize his
performance. Id. Because he believed that the discrimination and hostile work
environment that his supervisor allegedly perpetrated would not change and that
his career was therefore at a “dead end,” he decided to retire. Id. at 6-7.
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¶3 Without holding the requested hearing, the administrative judge dismissed
the appeal for lack of jurisdiction, finding that the appellant failed to
nonfrivolously allege that his working conditions were so intolerable that the
agency left him no choice but to retire. IAF, Tab 18, Initial Decision (ID). The
administrative judge also found nothing in the record to indicate that the agency
coerced the appellant’s retirement under duress and further observed that his
nonselection for several positions “did not strip the appellant of his free choice”
to either remain in the agency’s employ or to retire. ID at 6.
¶4 In his petition for review, the appellant argues that the administrative judge
made conclusions more appropriate for a decision on the merits rather than a
decision on jurisdiction, specifically challenging the findings that he could have
either chosen to stay on the job to await another opportunity for promotion or
requested a transfer to a different supervisor. Petition for Review (PFR) File,
Tab 1 at 5-6. He also claims that the administrative judge improperly denied him
a hearing at which he would have disproved those findings and established that a
reasonable person would have had no choice but to retire under these
circumstances. Id. at 6-7. The agency responded in opposition to the appellant’s
petition for review and the appellant replied to the agency’s response. PFR File,
Tabs 3-4.
DISCUSSION OF ARGUMENTS ON REVIEW
¶5 An employee-initiated action, such as a retirement, is presumed to be
voluntary unless the appellant presents sufficient evidence to establish that the
action was obtained through duress, coercion, or misinformation, or if the
appellant demonstrates that the employer engaged in a course of action that made
working conditions so difficult or unpleasant that a reasonable person in his
position would have felt compelled to retire. Vaughan v. Department of
Agriculture, 116 M.S.P.R. 493, ¶ 11 (2011); see Miller v. Department of
Homeland Security, 111 M.S.P.R. 258, ¶ 8 (2009), aff’d, 361 F. App’x 134
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(Fed. Cir. 2010). The reasonable person test is an objective test and does not
depend on the appellant’s subjective characterization of the agency’s actions.
E.g., Markon v. Department of State, 71 M.S.P.R. 574, 577-78 (1996).
¶6 The U.S. Court of Appeals for the Federal Circuit has consistently
maintained that “[t]he doctrine of coercive involuntariness is a narrow one,
requiring that the employee satisfy a demanding legal standard.” E.g.,
Conforto v. Merit Systems Protection Board, 713 F.3d 1111, 1121 (Fed. Cir.
2013); Garcia v. Department of Homeland Security, 437 F.3d 1322, 1329
(Fed. Cir. 2006) (en banc). In Conforto, the court further stated, “An employee’s
dissatisfaction with the options that an agency has made available to him is not
sufficient to render his decision to resign or retire involuntary.” Conforto,
713 F.3d at 1121. Accordingly, the court explained, “coerced involuntariness
does not apply if the employee resigns or retires because he does not like agency
decisions such as ‘a new assignment, a transfer, or other measures that the agency
is authorized to adopt, even if those measures make continuation in the job so
unpleasant . . . that he feels he has no realistic option but to leave.’” Id.
at 1121‑22 (quoting Staats v. U.S. Postal Service, 99 F.3d 1120, 1124 (Fed. Cir.
1996)). Moreover, the coercion must arise from improper acts by the agency. Id.
at 1122.
¶7 The touchstone of the voluntariness analysis is whether, after considering
the totality of the circumstances, factors operated on the employee’s
decision-making process that deprived him of freedom of choice. E.g., Searcy v.
Department of Commerce, 114 M.S.P.R. 281, ¶ 12 (2010). Factors the Board will
consider include undue time pressure on retirement decisions and agency bad
faith in encouraging retirement, as well as unreasonably difficult working
conditions caused by the agency. Jones v. Department of the Treasury,
107 M.S.P.R. 466, ¶ 10 (2007). To establish entitlement to a hearing on
jurisdiction, an appellant need not allege facts that, if proven, definitely would
establish that the retirement was involuntary; he need only allege facts that, if
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proven, could establish such a claim. Frison v. Department of the Army,
94 M.S.P.R. 431, ¶ 4 (2003).
¶8 We agree with the administrative judge that the appellant failed to
nonfrivolously allege facts that, if proven, could rebut the presumption of
voluntariness and entitle him to a hearing at which he could prove that his
retirement was involuntary. ID at 4-7; Burgess v. Merit Systems Protection
Board, 758 F.2d 641, 643 (Fed. Cir. 1985) (finding that an appellant is entitled to
a hearing on the issue of jurisdiction over an appeal of an allegedly involuntary
retirement only if he makes a nonfrivolous allegation casting doubt on the
presumption of voluntariness). Thus, the administrative judge properly dismissed
the appeal without holding a hearing. Id. As the administrative judge correctly
observed, despite all of the issues the appellant raised in his appeal, he could have
simply remained in his position. See Schultz v. U.S. Navy, 810 F.2d 1133,
1136‑37 (Fed. Cir. 1987) (finding that the fact that an employee is faced with the
unpleasant choice of either resigning or opposing a potential removal action does
not rebut the presumed voluntariness of her ultimate choice of resignation). The
frustrations the appellant describes do not change that fact and we find that a
reasonable person under these circumstances would not have felt compelled to
resign. Although the appellant contends on review that there would be no more
opportunities for promotion, we agree with the administrative judge that he
identified no evidence that this was the case, ID at 5-6, and we find the same is
true for the appellant’s assertions that he could not be reassigned to a position
with a different supervisor, PFR File, Tab 1 at 6-7; see 5 C.F.R. § 1201.4(s)
(stating, in pertinent part, that a nonfrivolous allegation is one that is more
than conclusory).
¶9 We also agree that the appellant failed to substantiate his claim that the
agency discriminated against him on the basis of his age or that it retaliated
against him for his prior equal employment opportunity activity. ID at 6‑7.
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When an appellant raises claims of discrimination and retaliation in connection
with a determination of voluntariness, evidence of discrimination or retaliation
may be addressed only insofar as it relates to the issue of voluntariness and not to
whether the evidence would establish discrimination or retaliation as an
affirmative defense. Pickens v. Social Security Administration, 88 M.S.P.R. 525,
¶ 6 (2001). Here, nothing that the appellant claims as either discriminatory or
retaliatory, even if true, changes the basic fact that he could have continued to
stay and perform in his position. We conclude, as stated above, that the
appellant’s working conditions and the choices he had to face were not so
intolerable that a reasonable person in his position would have chosen to retire.
Consequently, we affirm the administrative judge’s determination to dismiss the
appeal for lack of jurisdiction.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the U.S.
Court of Appeals for the Federal Circuit. You must submit your request to the
court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar days
after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27,
2012). If you choose to file, be very careful to file on time. The court has held
that normally it does not have the authority to waive this statutory deadline and
that filings that do not comply with the deadline must be dismissed. See Pinat v.
Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
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title 5 of the U.S. Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. Dec. 27,
2012). You may read this law as well as other sections of the U.S. Code, at our
website, http://www.mspb.gov/appeals/uscode.htm. Additional information 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, 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
Merit Systems Protection Board neither endorses the services provided by any
attorney nor warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.