Case: 19-2356   Document: 36     Page: 1   Filed: 04/16/2020




        NOTE: This disposition is nonprecedential.


   United States Court of Appeals
       for the Federal Circuit
                 ______________________

                  GARTH K. TRINKL,
                      Petitioner

                            v.

      MERIT SYSTEMS PROTECTION BOARD,
                  Respondent

           DEPARTMENT OF COMMERCE,
                     Intervenor
               ______________________

                       2019-2356
                 ______________________

    Petition for review of the Merit Systems Protection
 Board in No. DC-0752-16-0387-M-2.
                 ______________________

                 Decided: April 16, 2020
                 ______________________

    GARTH K. TRINKL, Washington, DC, pro se.

     DEANNA SCHABACKER, Office of General Counsel,
 United States Merit Systems Protection Board, Washing-
 ton, DC, for respondent. Also represented by TRISTAN
 LEAVITT, KATHERINE MICHELLE SMITH.

    TANYA KOENIG, Commercial Litigation Branch, Civil
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 2                                             TRINKL   v. MSPB



 Division, United States Department of Justice, Washing-
 ton, DC, for intervenor. Also represented by JOSEPH H.
 HUNT, STEVEN JOHN GILLINGHAM, ROBERT EDWARD
 KIRSCHMAN, JR.
                  ______________________

     Before LOURIE, REYNA, and HUGHES, Circuit Judges.
 PER CURIAM.
     Petitioner Garth K. Trinkl seeks review of the Merit
 Systems Protection Board’s post-hearing decision dismiss-
 ing his appeal for lack of jurisdiction because he had failed
 to establish an involuntary retirement. Because we con-
 clude that the Board’s decision is supported by substantial
 evidence, we affirm.
                        BACKGROUND
     Mr. Trinkl was an economist with the Department of
 Commerce in the Bureau of Economic Analysis (“BEA”)
 from 1998 until his retirement in 2015. In 2013 and 2014,
 he submitted complaints against two supervisors alleging
 that they had harassed and discriminated against him on
 the basis of age and that they had subjected him to a “near
 physical attack” during a meeting. Gov. App. 2. 1
     In August 2014, Mr. Trinkl applied for retirement, ex-
 plaining in an email to the agency’s Human Resources Di-
 vision that he no longer felt safe working with his
 supervisors.

193. After he submitted his retire-
 ment application, but before his separation, he was placed
 on a Performance Improvement Plan (“PIP”), which re-
 quired him to meet regularly with his supervisors.

197. Mr. Trinkl refused to meet with his supervisors



     1   Citations to “Gov. App.” refer to pages in the Cor-
 rected Appendix for Respondent’s Informal Brief, Dkt.
 No. 16.
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 TRINKL   v. MSPB                                            3



 and requested transfer to a different supervisor, but his re-
 quest was denied.

Mr. Trinkl retired on January
 10, 2015.

25, 2016, Mr. Trinkl filed an appeal with
 the Merit Systems Protection Board (“the Board”) alleging
 that he had involuntarily retired due to coercion and
 agency deception. The administrative judge (“AJ”) issued
 an Initial Decision granting the government’s motion to
 dismiss for lack of jurisdiction on the ground that Mr.
 Trinkl failed to state a non-frivolous allegation that his re-
 tirement was involuntary. The Board later issued a final
 order affirming dismissal. Mr. Trinkl sought review of the
 Board’s order in this court.
     In our initial review of this case, we held that the Board
 erred in considering and dismissing Mr. Trinkl’s allega-
 tions individually, rather than collectively, and in weighing
 the relative probative value of Mr. Trinkl’s allegations
 without holding a jurisdictional hearing. Trinkl v. Merit
 Sys. Prot. Bd., 727 F. App’x. 1007, 1010–11 (Fed. Cir. 2018).
 We concluded that Mr. Trinkl’s allegations, if assumed
 true, were not frivolous when considered as a series of es-
 calating events leading to his retirement.

We
 thus remanded to the Board for a jurisdictional hearing.
     On remand, the AJ allowed the parties to engage in ju-
 risdictional discovery. The AJ then held a two-day hearing
 and Mr. Trinkl and the government presented witnesses
 and other evidence. Based on the full record of the proceed-
 ing, the AJ issued another Initial Decision, once again dis-
 missing the appeal for lack of jurisdiction because Mr.
 Trinkl failed to prove by a preponderance of the evidence
 that his retirement was involuntary.
     In his decision, the AJ first considered whether Mr.
 Trinkl had established that his retirement was coerced by
 evaluating three elements: (1) whether the agency effec-
 tively imposed the terms of his retirement; (2) whether Mr.
 Trinkl had no realistic alternative but to retire; and (3)
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 4                                             TRINKL   v. MSPB



 whether the decision to retire was the result of coercive or
 improper acts by the agency. Gov. App. 6. The AJ found
 that the evidence did not support the first element because
 Mr. Trinkl’s supervisors were unaware of his pending re-
 tirement until after his departure.

The AJ also
 found that the totality of Mr. Trinkl’s allegations—that he
 had witnessed a physical altercation between his co-worker
 and supervisor in 2007; that he was passed over for promo-
 tion and job-assignment opportunities; that he was sub-
 jected to a “near physical attack” by his supervisors during
 a meeting in 2013; that he was placed on a PIP shortly be-
 fore his decision to retire; and that he witnessed other in-
 cidents of harassment based on age—either did not occur
 as described or were insufficient under the circumstances
 to objectively “give rise to an environment which is so un-
 pleasant for an employee that he would have no option but
 to leave.”

The AJ then considered whether Mr.
 Trinkl had established that his retirement was the result
 of deception and concluded that the evidence did not sup-
 port any material misrepresentations by the agency.

     Neither party petitioned for full-Board review of the
 decision, and it became the Board’s final decision. Mr.
 Trinkl timely appealed. We have jurisdiction pursuant to
 5 U.S.C. § 7703(b)(1)(A) and 28 U.S.C. § 1295(a)(9).
                         DISCUSSION
      We review the legal question of whether the Board has
 jurisdiction over an appeal de novo and its underlying fac-
 tual findings for substantial evidence. Parrott v. Merit Sys.
 Prot. Bd., 

, 1334 (Fed. Cir. 2008); Forest v.
 Merit Sys. Prot. Bd., 

, 410 (Fed. Cir. 1995). The
 Board’s determination will only be overturned if it is found
 to be (1) arbitrary, capricious, an abuse of discretion, or
 otherwise not in accordance with law; (2) obtained without
 procedures required by law, rule or regulation having been
 followed; or (3) unsupported by substantial evidence.
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 TRINKL   v. MSPB                                            5



 Covington v. Dep’t of Health and Human Servs., 

, 941 (Fed. Cir. 1984).
     When an employee retires from government employ-
 ment, the Board has jurisdiction to review the circum-
 stances of the employee’s departure only if the employee
 proves by a preponderance of the evidence that the retire-
 ment was involuntary, and thus “tantamount to forced re-
 moval.” Shoaf v. Dep’t of Agric., 

, 1341 (Fed.
 Cir. 2001). While a decision to retire is presumed volun-
 tary, 

, the presumption can be
 overcome by establishing that the decision was the result
 of coercion or deception, among other circumstances that
 undermine the employee’s ability to exercise free choice.
 Scharf v. Dep’t of the Air Force, 

, 1575 (Fed.
 Cir. 1983).
     To establish that a retirement was involuntary due to
 coercion, the employee must generally prove that (1) the
 agency effectively imposed the terms of the employee’s res-
 ignation, (2) the employee had no realistic alternative but
 to resign or retire, and (3) the employee’s resignation or re-
 tirement was the result of improper acts by the agency.
 

. Alternatively, to establish that a
 retirement was involuntary based on deception or misrep-
 resentation, the employee must establish that the agency
 provided misleading information on which the employee
 reasonably relied to his detriment in deciding to retire.
 

; 

. Un-
 der both theories, the voluntariness inquiry is objective,
 and the Board must consider the totality of the circum-
 stances in determining whether a reasonable person in the
 employee’s position would have felt compelled to resign or
 would have been materially misled to his detriment.
 

; 

.
     Mr. Trinkl makes two principal arguments in challeng-
 ing the Board’s dismissal of his appeal. First, he contends
 that in concluding that his retirement was voluntary, the
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 6                                              TRINKL   v. MSPB



 AJ evaluated his allegations of coercion and deception in
 isolation rather than as a whole under the totality of the
 circumstances. In particular, Mr. Trinkl argues that the
 AJ failed to consider the alleged events in light of Mr.
 Trinkl’s alleged symptoms of post-traumatic stress disor-
 der (“PTSD”) as well as other specific allegations in the rec-
 ord. Second, Mr. Trinkl contends that he should have been
 given access to an incident report allegedly generated by a
 security officer regarding the “near physical attack” during
 Mr. Trinkl’s meeting with his supervisors. We consider
 these allegations in turn.
                               I
     Mr. Trinkl contends that in considering the voluntari-
 ness of his retirement, the AJ improperly considered and
 analyzed his allegations “piecemeal” and failed to revisit
 the combined effects of the alleged events as a whole. Ap-
 pellant Br. 21–27. We disagree.
      In concluding that Mr. Trinkl failed to meet his burden
 of establishing that any conduct by the agency rendered his
 retirement involuntary, the AJ found that Mr. Trinkl had
 proved the following facts between 2007 and his retirement
 in January 2015:
     the appellant witnessed a confrontation between
     [one of Mr. Trinkl’s supervisors] and Mr. Pomsou-
     van; was not selected for promotion; was told by his
     supervisors to “sit down” during a meeting; en-
     gaged in heated conversations with his supervi-
     sors; witnessed his supervisors “hyperventilate” or
     get frustrated; and was placed on a PIP.
 Gov. App. 16–17. The AJ found that “even if these acts did
 occur,” Mr. Trinkl had failed to show by a preponderance of
 the evidence that “he was subjected to an environment suf-
 ficiently hostile as to lead to involuntary resignation.”

This was in light of testimony by his supervisors,
 which the AJ found credible, that they had not threatened
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 TRINKL   v. MSPB                                           7



 Mr. Trinkl, had not physically blocked his exit from the
 room during their meeting, and had not witnessed any in-
 cidence of violence at the office.

no error in this analysis by the AJ under the
 totality of the circumstances standard. Contrary to Mr.
 Trinkl’s argument, the mere fact that the AJ preceded this
 discussion with a detailed assessment of the evidence re-
 garding each incident does not render the ALJ’s reasoning
 “piecemeal.” Appellant Br. 22–24. Rather, a thorough and
 impartial evaluation of the totality of the circumstances
 must often begin with a detailed and methodical assess-
 ment of the evidence concerning each contested fact at is-
 sue. In order to fully evaluate whether a reasonable person
 in the employee’s position would have felt compelled to re-
 sign or would have been materially misled to his detriment,
 

; 

, the AJ
 must first engage in fact finding to determine what the rel-
 evant circumstances are.
      Mr. Trinkl also contends that the AJ should have con-
 sidered the alleged incidents in light of his symptoms of
 PTSD, which he traces to stressful circumstances he en-
 countered while traveling abroad on and immediately after
 September 11, 2001. Appellant Br. 23, 32–33. The AJ’s
 decision, however, expressly addressed Mr. Trinkl’s allega-
 tions of PTSD and concluded that regardless of any effect
 the condition might have had on Mr. Trinkl’s perception of
 the alleged events leading to his retirement, the totality of
 the circumstances did not render his departure involuntary
 under an objective standard. Gov. App. 17. This is con-
 sistent with our precedent, which generally evaluates vol-
 untariness from the perspective of a reasonable person.
 See 

. Here, Mr. Trinkl did not al-
 lege or present any evidence that his PTSD symptoms ren-
 dered him mentally incapable of exercising free choice or
 constituted a disability under the Americans with Disabil-
 ities Act for which he had requested reasonable accommo-
 dations. Cf. 

(citing Manzi v.
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 8                                              TRINKL   v. MSPB



 United States, 

, 492 (1972) (recognizing that
 a retirement is involuntary where an employee fails to un-
 derstand the situation due to mental incompetence)); Be-
 navidez v. Dep’t of Navy, 

, 1375 (Fed. Cir.
 2001) (noting that a claim of involuntary disability retire-
 ment requires a showing that there was an accommodation
 available on the date of his separation that would have al-
 lowed him to continue his employment, and that the agency
 did not provide him that accommodation). Thus, the AJ did
 not err in declining to consider how Mr. Trinkl’s alleged
 PTSD may have affected his subjective perception of
 events.
     Mr. Trinkl also argues that the AJ erred in failing to
 consider “misinformation” provided by his supervisors
 when they required him to meet with them in person for
 his PIP reviews even though such meetings were not a “re-
 quirement in the CFR [Code of Federal Regulations].” Ap-
 pellant Br. 26–27. We disagree. The AJ considered the PIP
 in assessing the voluntariness of Mr. Trinkl’s retirement
 and found that the PIP was imposed after Mr. Trinkl sub-
 mitted his application for retirement, undermining his ar-
 gument that the conditions of the PIP caused his
 departure. Gov. App. 13. Moreover, the mere fact that an
 in-person meeting requirement is absent from the Code of
 Federal Regulations does not render his supervisors’ deci-
 sion to impose such a requirement an improper act of “mis-
 information.” As the AJ appropriately found, Mr. Trinkl’s
 supervisors could legitimately impose such a requirement
 in the exercise of their discretion. Gov. App. 13–14.
      Finally, we reject Mr. Trinkl’s arguments that the AJ
 should have given more weight to Mr. Trinkl’s history of
 favorable performance, his allegations of past “employee
 abuse” by his supervisors, or specific inconsistencies in wit-
 ness statements. Appellant Br. 19, 25–26, 27–29, 29–31.
 It is not our role to second guess the AJ’s weighing of the
 evidence and credibility determinations. See Bieber v.
 Dep’t of the Army, 

, 1364 (Fed. Cir. 2002).
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 TRINKL   v. MSPB                                            9



 Based on the record and the reasoning provided in the AJ’s
 opinion, we conclude that the Board’s decision was sup-
 ported by substantial evidence.
                               II
      Mr. Trinkl also requests a new hearing on the grounds
 that he should have been given access to an “internal secu-
 rity office investigation” report allegedly prepared by a sen-
 ior physical security officer concerning the “near-physical
 attack” incident. Appellant Br. 33–34. However, Mr.
 Trinkl does not explain how he was prejudiced by the ab-
 sence of such a report in the record other than bare specu-
 lation that the alleged report “may well establish beyond a
 reasonable doubt that Mr. Trinkl involuntarily separated
 from the Agency under coercion and duress.”

Nor
 does the record disclose that this discovery issue was raised
 before the AJ or otherwise preserved below. Based on the
 current record, given that Mr. Trinkl was given the oppor-
 tunity at the hearing to present his own direct account of
 the incident at issue and to question both the security of-
 ficer who prepared the alleged report and the two supervi-
 sors directly involved, we are not persuaded that Mr.
 Trinkl was materially prejudiced at the hearing by not hav-
 ing access to the alleged report.
                         CONCLUSION
     We have considered the remaining arguments pre-
 sented by Mr. Trinkl and find them either unpersuasive or
 waived because they were not raised in his opening brief.
 For the reasons set forth above, we affirm the decision of
 the Board.
                         AFFIRMED
                            COSTS
     No costs.