Gabriel P. Garcia v. Department of Homeland Security

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GABRIEL P. GARCIA, DOCKET NUMBER
Appellant, SF-0752-16-0491-I-1
v.
DEPARTMENT OF HOMELAND DATE: September 23, 2016
SECURITY,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL *
Henry E. Leinen, Pacific Grove, California, for the appellant.
Elio Gonzalez, Long Beach, California, 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 for lack of jurisdiction his appeal of an allegedly involuntary demotion.
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
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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. 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).
¶2 The appellant occupied a GS-12 Customs and Border Patrol (CBP) Officer
position subject to a Training/Employment Agreement. Initial Appeal File (IAF),
Tab 10 at 66. Pursuant to that agreement, the appellant was required to attend
and complete 18 weeks of training at the Federal Law Enforcement Training
Center (FLETC) in Glynco, Georgia. Id. at 75. Failure to successfully complete
training was grounds for removal. Id. The appellant attended FLETC and, while
he was there, he attended a Student Appreciation Day and consumed alcoholic
beverages provided by FLETC as part of the event’s refreshments. After
consuming alcohol, the appellant created an incident that took security personnel
more than an hour to break up. FLETC conducted an investigation and decided to
expel the appellant, but it later mitigated the expulsion to a “removal,” which
meant that he was not precluded from returning to FLETC to complete his
training in the future. Id. at 60, 62-64.
¶3 The agency denied the appellant’s request to return to FLETC to complete
his training, and it denied his request to be reinstated to the Border Patrol Officer
position he held prior to his reassignment to the CBP Officer
position. Id. at 44-45, 55-59. The agency instead offered the appellant a GS-
3
0303-07, step 10 Mission Support Assistant position and informed him that he
had 8 days to consider the offer. Id. at 41-42. The agency informed the appellant
that, if he declined the offer, the agency could begin proceedings to separate him
from the Federal service. Id. The appellant accepted the position, id. at 42, and
the demotion was effective May 15, 2016, id. at 37.
¶4 Thereafter, he appealed the demotion, but primarily contested the agency’s
decision not to allow him to return to complete the training. IAF, Tab 1. The
administrative judge informed the appellant that he appeared to be appealing a
voluntary action outside the Board’s jurisdiction and she ordered him to submit
evidence and argument showing that his demotion was involuntary. IAF, Tab 3.
After considering the parties’ evidence and argument, the administrative judge
found that the appellant failed to make a nonfrivolous allegation of jurisdiction
warranting a jurisdictional hearing. Initial Decision (ID) at 5-9. She therefore
dismissed the appeal for lack of jurisdiction. ID at 1, 9. The appellant petitions
for review of the initial decision. Petition for Review (PFR) File, Tab 1.
¶5 The appellant’s primary argument is that his removal from the training
program at FLETC was an appealable adverse action undertaken without
affording him due process. Id. at 4; IAF, Tab 9 at 5-6. He further contends that
he does not bear sole responsibility for his actions on Student Appreciation Night
because FLETC was negligent in providing alcohol and supervising its
consumption. PFR File, Tab 1 at 4; IAF, Tab 9 at 5. An appealable adverse
action is either a removal from Federal service, a suspension for more than
14 days, a reduction in grade and/or pay, or a furlough of 30 days or
less. 5 U.S.C. § 7512. Congress did not see fit to include the ejection from a
training program on the list of actions that are appealable to the Board.
¶6 While demotions might be within the Board’s jurisdiction, a reduction in
grade that an employee accepts voluntarily is not. Harris v. Department of
Veterans Affairs, 114 M.S.P.R. 239, ¶ 8 (2010); McAlexander v. Department of
Defense, 105 M.S.P.R. 384, ¶ 8 (2007). However, an appellant may establish that
4
his acceptance of a reduction in grade was involuntary, and thus within the
Board’s jurisdiction, by presenting sufficient evidence that it was the result of
duress or coercion brought on by the agency, or his reasonable reliance on
misleading statements by the agency. Harris, 114 M.S.P.R. 239, ¶ 8; Reed v. U.S.
Postal Service, 99 M.S.P.R. 453, ¶ 12 (2005), aff’d, 198 F. App’x 966 (Fed. Cir.
2006). If the appellant can establish that he accepted a reduction in pay or grade
to avoid a threatened removal, and if he can further show that the agency knew or
should have known that the action could not be substantiated, then the decision to
accept the demotion in lieu of removal may be considered coerced and therefore
involuntary. Harris, 114 M.S.P.R. 239, ¶ 8; McAlexander, 105 M.S.P.R. 384,
¶ 8; Huyler v. Department of the Army, 101 M.S.P.R. 570, ¶ 5 (2006);
Soler-Minardo v. Department of Defense, 92 M.S.P.R. 100, ¶ 6; O’Connell v. U.S.
Postal Service, 69 M.S.P.R. 438, 443 (1996).
¶7 The appellant’s only claim of involuntariness is one of coercion. He
contended that whenever an employee accepts a lower-graded position in the face
of a proposed or threatened adverse action, the resulting demotion is coerced.
IAF, Tab 12 at 4. This argument reflects a misunderstanding of the law.
¶8 The Board’s jurisdiction and the merits of an alleged involuntary separation
are inextricably intertwined. Schultz v. U.S. Navy, 810 F.2d 1133, 1136 (Fed. Cir.
1987); Dumas v. Merit Systems Protection Board, 789 F.2d 892, 894 (Fed. Cir.
1986); Barthel v. Department of the Army, 38 M.S.P.R. 245, 251 (1988). The fact
that an employee is faced with unpleasant alternative choices does not rebut the
presumed voluntariness of the ultimate choice of accepting a downgrade. Schultz,
810 F.2d at 1136; Christie v. United States, 518 F.2d 584, 587-88 (Cl. Ct. 1975);
Barthel, 38 M.S.P.R. at 251. Inherent in that proposition, however, is that the
agency “has reasonable grounds for threatening to take” a proposed action. “If an
employee can show that the agency knew that the reason for the threatened
removal could not be substantiated, the threatened action by the agency is purely
coercive.” Schultz, 810 F.2d at 1136; Barthel, 38 M.S.P.R. at 251.
5
¶9 At the time the appellant accepted the Mission Support Assistant position,
the agency had not proposed any adverse action against him, although it had
warned him that it might do so if he declined the agency’s offer. In other words,
the agency did not know whether it would eventually propose removal or some
lesser action, and it had a number of possible charges it could bring, but had not
yet decided what those charges might be. Because we do not know what the
potential future charges might be, there is no way to evaluate whether the agency
knew or should have known that the charges could not be substantiated.
Moreover, we agree with the administrative judge’s conclusions that the appellant
had meaningful choices available to him, that the appellant failed to show that the
agency committed wrongful actions that deprived him of his freedom of choice,
and that the agency had not provided any misinformation that the appellant relied
on to his detriment. ID at 5-8. Therefore, even giving the appellant the benefit of
the doubt, he has not made a nonfrivolous allegation that his acceptance of the
downgrade was involuntary, and so we find that the administrative judge correctly
dismissed 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
6
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
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.