Filed: Jan. 20, 2015
Latest Update: Mar. 02, 2020
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD BRENDA L. BERKLEY, DOCKET NUMBER Appellant, PH-1221-14-0539-W-1 v. DEPARTMENT OF DATE: January 20, 2015 TRANSPORTATION, Agency. THIS FINAL ORDER IS NONPRECEDENTIAL 1 Darrin W. Gibbons, Esquire, Richmond, Virginia, for the appellant. Anastasiya Sidorova, Washington, D.C., for the agency. BEFORE Susan Tsui Grundmann, Chairman Anne M. Wagner, Vice Chairman Mark A. Robbins, Member FINAL ORDER ¶1 The appellant has filed a petition for review of
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD BRENDA L. BERKLEY, DOCKET NUMBER Appellant, PH-1221-14-0539-W-1 v. DEPARTMENT OF DATE: January 20, 2015 TRANSPORTATION, Agency. THIS FINAL ORDER IS NONPRECEDENTIAL 1 Darrin W. Gibbons, Esquire, Richmond, Virginia, for the appellant. Anastasiya Sidorova, Washington, D.C., for the agency. BEFORE Susan Tsui Grundmann, Chairman Anne M. Wagner, Vice Chairman Mark A. Robbins, Member FINAL ORDER ¶1 The appellant has filed a petition for review of t..
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UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BRENDA L. BERKLEY, DOCKET NUMBER
Appellant, PH-1221-14-0539-W-1
v.
DEPARTMENT OF DATE: January 20, 2015
TRANSPORTATION,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Darrin W. Gibbons, Esquire, Richmond, Virginia, for the appellant.
Anastasiya Sidorova, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her individual right of action (IRA) appeal for lack of jurisdiction and
also dismissed her claim of an involuntary retirement for lack of jurisdiction.
Generally, we grant petitions such as this one only when: the initial decision
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
contains erroneous findings of material fact; the initial decision is based on an
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the 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, and based on the
following points and authorities, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review,
and we DENY the petition for review. The administrative judge’s initial
decision, as supplemented by this Final Order with regard to the jurisdictional
dismissal of the involuntary retirement claim, constitutes the Board’s final
decision in this matter. 5 C.F.R. § 1201.113.
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 The appellant, a former Financial Management Specialist with the Federal
Highway Administration, submitted an application for retirement effective
October 31, 2013. Initial Appeal File (IAF), Tab 1, Subtab 8. After retiring from
federal service, the appellant filed a complaint with the Office of Special Counsel
(OSC) challenging several agency actions on the basis of whistleblower reprisal.
IAF, Tab 14 at 25-34. OSC issued the appellant a close-out letter on January 15,
2014, and the appellant thereafter filed a timely IRA appeal with the Board. IAF,
Tab 1 & Subtab 5 (OSC close-out letter). After holding several status
conferences with the parties in an effort to define the issues presented, and after
issuing several jurisdictional orders explaining the appellant’s various burdens to
establish the Board’s jurisdiction over her potential claims, the administrative
judge issued an initial decision dismissing her appeal for lack of jurisdiction.
3
IAF, Tab 30, Initial Decision (ID). Specifically, the administrative judge found
that the appellant failed to nonfrivolously allege that she made a protected
disclosure under 5 U.S.C. § 2302(b)(8) and that she also failed to nonfrivolously
allege that she engaged in a protected activity under 5 U.S.C. § 2302(b)(9). ID
at 5-6. The administrative judge further concluded that the appellant failed to
exhaust her claim of reprisal based on her filing a complaint with the agency’s
Office of Inspector General (OIG), ID at 6, and he also determined that the
appellant failed to nonfrivolously allege that she was forced to retire based upon
alleged intolerable working conditions which left her no choice but to leave
federal service involuntarily, ID at 7-8.
¶3 The appellant has filed a petition for review challenging the administrative
judge’s jurisdictional dismissal of her claim of an involuntary retirement. 2
Petition for Review (PFR) File, Tab 1 at 4-6. The agency has filed a response in
opposition to the petition for review. PFR File, Tab 3.
The administrative judge properly dismissed the appellant’s IRA appeal for lack
of jurisdiction.
¶4 The Board has jurisdiction over an IRA appeal if the appellant exhausts her
administrative remedies with OSC and makes nonfrivolous allegations that:
(1) she made a disclosure under 5 U.S.C. § 2302(b)(8), or engaged in a protected
activity under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the disclosure
or protected activity was a contributing factor in the agency’s decision to take or
fail to take a personnel action as defined by 5 U.S.C. § 2302(a). See 5 U.S.C.
§§ 1214(a)(3), 1221(e)(1); see also Yunus v. Department of Veterans
Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001). A nonfrivolous allegation is an
allegation of fact that, if proven, could establish a prima facie case that the Board
has jurisdiction over the appeal. Carney v. Department of Veterans
2
The appellant has not specifically challenged any of the administrative judge’s
findings as to the jurisdictional dismissal of her IRA appeal on review. See PFR File,
Tab 1 at 4-6. As explained below, we have reviewed the initial decision and concur
with the dismissal of the IRA appeal for lack of jurisdiction.
4
Affairs, 121 M.S.P.R. 446, ¶ 11 (2014). In determining whether the appellant has
made a nonfrivolous allegation of jurisdiction entitling her to a hearing, the
administrative judge may not weigh evidence or resolve conflicting assertions of
the parties. Id.
¶5 In response to the administrative judge’s jurisdictional orders concerning
her IRA appeal, the appellant alleged that she contacted an agency equal
employment opportunity (EEO) counselor in April 2013, to file a complaint of
discrimination in which she disclosed retaliation and harassment based on, inter
alia, the agency’s overburdening her with work and placing her on a performance
improvement plan (PIP). IAF, Tab 14. After considering the appellant’s
allegations, the administrative judge gave the parties an additional opportunity to
brief the issue of whether a complaint of discrimination could serve as a protected
disclosure under section 2302(b)(8). IAF, Tab 20. In response, the appellant
argued that her IRA appeal “is not based upon a discrimination complaint, but
rather [] is based upon reprisal related to the filing of a previous discrimination
complaint.” IAF, Tab 21.
¶6 We agree with the administrative judge that the appellant failed to
nonfrivolously allege facts which could establish the Board’s jurisdiction over her
IRA appeal. The Board has found that allegations that are limited to EEO matters
covered under 5 U.S.C. § 2302(b)(1) and (b)(9) are excluded from coverage under
section 2302(b)(8). See Applewhite v. Equal Employment Opportunity
Commission, 94 M.S.P.R. 300, ¶ 23 (2003). Thus, to the extent that the appellant
sought to predicate her IRA appeal on her disclosure of EEO matters, the
administrative judge properly found that a complaint of discrimination is not a
protected disclosure under 2302(b)(8). 3 See Parikh v. Department of Veterans
Affairs, 110 M.S.P.R. 295, ¶ 24 (2008).
3
We agree with the administrative judge that the changes enacted by the Whistleblower
Protection Enhancement Act of 2012 (WPEA) do not change this result. ID at 5.
5
¶7 We further concur with the administrative judge that the appellant’s
allegation of reprisal under section 2302(b)(9) based on her filing a prior EEO
complaint of discrimination does not establish the Board’s jurisdiction in an IRA
appeal. See ID at 5. Pursuant to the WPEA, an employee may now seek
corrective action in an IRA appeal for any personnel action taken as a result of a
prohibited personnel practice described in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C),
or (D). See Colbert v. Department of Veterans Affairs, 121 M.S.P.R. 677, ¶ 6
(2014); see also 5 U.S.C. § 1221(a). Reprisal for filing a prior EEO complaint,
however, is not included among this listing of prohibited personnel practices
which can form the basis of an IRA appeal; rather, this prohibition is contained
within 5 U.S.C. § 2302(b)(9)(A)(ii), and it does not provide a basis for
establishing the Board’s jurisdiction over an IRA appeal. See Mudd v.
Department of Veterans Affairs, 120 M.S.P.R. 365, ¶ 7 (2013). The administrative
judge properly found that the appellant’s allegations of EEO reprisal fail to
nonfrivolously establish the Board’s jurisdiction over an IRA appeal. Id.
¶8 Finally, we find no reason to differ with the administrative judge’s
conclusion that the appellant failed to exhaust her alleged protected disclosure
made to the OIG. ID at 6. The Board has consistently held that it may only
consider the specific allegations of reprisal which have been presented to OSC,
and the appellant has presented no evidence that she exhausted this claim with
OSC. 4 See Coufal v. Department of Justice, 98 M.S.P.R. 31, 37 (2004). We
accordingly AFFIRM the jurisdictional dismissal of the appellant’s IRA appeal.
The administrative judge properly dismissed the appellant’s involuntary
retirement claim for lack of jurisdiction.
¶9 Upon reviewing the appellant’s responses to his jurisdictional orders, the
administrative judge found that the appellant also was alleging that she was
forced to retire, and he issued a separate jurisdictional order outlining the
4
The appellant conceded below that she did not present this disclosure to OSC and that
it was unexhausted. ID at 6.
6
appellant’s burden of establishing the Board’s jurisdiction over an involuntary
retirement. 5 IAF, Tab 28. In response, the appellant alleged that she was
subjected to harassment, including disparaging comments, verbal altercations
with coworkers and supervisors, and threatened disciplinary actions, and that she
was subsequently placed on a 90-day PIP (which triggered the cancellation of her
eligibility to telework), at the end of which the agency proposed her removal for
unacceptable performance under chapter 43. IAF, Tab 29. In support of these
allegations, the appellant submitted an affidavit statement and an email exchange
between several supervisory-level employees. Id. at 6-10. The administrative
judge found that the appellant failed to nonfrivolously allege that, based on these
working conditions, she had no choice but to retire. ID at 7-8. We have carefully
reviewed the administrative judge’s initial decision and the appellant’s arguments
presented below, and, for the reasons that follow, we too conclude that the
appellant has failed to establish that the agency coerced her into retiring “by
creating working conditions so intolerable for the employee that he or she is
driven to involuntarily resign or retire.” See Shoaf v. Department of
Agriculture,
260 F.3d 1336, 1341 (Fed. Cir. 2001). The administrative judge’s
5
The appellant’s involuntary retirement was among the personnel actions the appellant
sought to challenge in her IRA appeal. See IAF, Tab 14 at 30, 34. The Board has held
that an appellant can challenge a constructive adverse action in an IRA appeal. See
Colbert, 121 M.S.P.R. 677, ¶ 12. Generally, an employee can only elect to pursue a
remedy for a prohibited personnel practice through one of the following mechanisms: a
direct appeal to the Board under 5 U.S.C. § 7701; a grievance under the provisions of a
negotiated grievance procedure; or a complaint seeking corrective action from OSC.
See Edwards v. Department of the Air Force, 120 M.S.P.R. 307, ¶ 12 (2013).
Whichever remedy is sought first by an aggrieved employee is deemed an election of
that procedure and precludes pursing the matter in either of the other two forums.
Id.
Here, the appellant filed a complaint with OSC prior to filing her Board appeal; it
appears, however, that the agency did not give the appellant notice of her procedural
options for electing a remedy under 5 U.S.C. § 7121(g). Under these circumstances, the
Board has found that an employee’s election is not knowing and informed and thus not
binding.
Id. (citing Agoranos v. Department of Justice, 119 M.S.P.R. 498, ¶¶ 14, 17
(2013)). We find that the appellant’s filing of a complaint with OSC did not preclude
the administrative judge from considering whether the appellant could separately
establish jurisdiction over her alleged involuntary retirement under chapter 75.
7
initial decision dismissing the appellant’s claim of an involuntary retirement, as
supplemented by the following analysis, is AFFIRMED.
¶10 An employee-initiated action, such as a retirement, is presumed to be
voluntary, and thus outside of the Board’s jurisdiction, unless the employee
presents sufficient evidence to establish that the action was obtained through
duress or coercion or show that a reasonable person would have been misled by
the agency. Searcy v. Department of Commerce, 114 M.S.P.R. 281, ¶ 12 (2010).
To establish the involuntary nature of an action based on coercion, an appellant
must show that: (1) the agency effectively imposed the terms of the employee’s
resignation or retirement; (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. Shoaf, 260 F.3d at 1341. The Federal Circuit has
held that “[t]he doctrine of involuntariness is a narrow one, requiring that the
employee satisfy a demanding legal standard.” Conforto v. Merit Systems
Protection Board, 713 F.3d 1111, 1121 (Fed. Cir. 2013). The test for
demonstrating involuntariness is objective, i.e., whether a reasonable employee
confronted with the same circumstances would feel coerced into resigning or
retiring. Id.; see Carey v. Department of Health & Human Services, 112 M.S.P.R.
106, ¶ 5 (2009). In making this determination, the Board must consider the
totality of the circumstances surrounding the employee’s decision, including
“events not immediately preceding the leave of employ” which may provide
“context for an analysis of the events temporally close to the employee’s
retirement.” Shoaf, 260 F.3d at 1342; see Searcy, 114 M.S.P.R. 281, ¶ 12 (the
touchstone of voluntariness is whether, considering the totality of the
circumstances, the employee was deprived of freedom of choice).
¶11 We have reviewed the appellant’s arguments concerning the alleged
intolerable working conditions which caused her to retire, and we concur with the
administrative judge that a reasonable person in the appellant’s position would
not have felt compelled to retire under these circumstances. ID at 6-7. At the
8
outset, we note that the appellant’s retirement followed both her placement on a
90-day PIP and the agency’s issuing her a notice of proposed removal based upon
her unacceptable performance under chapter 43. 6 See IAF, Tab 1. Because these
events are temporally closest to the appellant’s decision to retire, we find that
they are the most probative in determining whether the agency forced her to
retire. See Shoaf, 260 F.3d at 1342 (the most probative evidence of
involuntariness is usually that which is closest to the challenged action). In
response to the administrative judge’s jurisdictional order, however, the appellant
offered no argument explaining why a reasonable person faced with these
circumstances would have felt compelled to leave federal service; instead, the
appellant only alleged that her work had never been subjected to a high level of
scrutiny in the past and that she was harassed about the quality of each work item
submitted. IAF, Tab 29 at 5. In order to sustain a performance-based action
under chapter 43, however, an agency must demonstrate by substantial evidence
that, at a minimum, it provided the appellant with the information needed for her
to perform at the level needed to avoid a performance-based action. See
Henderson v. National Aeronautics & Space Administration, 116 M.S.P.R. 96,
¶ 22 (2011) (an agency must inform an employee of what is needed to avoid
performance-based action before taking an action under chapter 43). The
employee’s opportunity to improve her performance based on this feedback is a
substantive right under 5 U.S.C. chapter 43. See Betters v. Federal Emergency
Management Agency, 57 M.S.P.R. 405, 408 (1993). We find no basis in the
record to conclude that the agency’s compliance with the substantive
requirements needed to sustain a performance-based action under chapter 43
coerced the appellant to retire.
¶12 An appellant’s placement on a PIP and the issuance of a notice of proposed
removal, under certain circumstances, could separately constitute “improper acts
6
The appellant retired prior to the agency issuing a final decision on her proposed
removal.
9
by the agency” which coerced an appellant into retirement. Conforto, 713 F.3d
at 1122; Barthel v. Department of the Army, 38 M.S.P.R. 245, 251 (1988) (if an
employee can show that the reasons for a proposed adverse action cannot be
substantiated, the proposed action would be coercive). The administrative judge,
however, specifically apprised the appellant of this possibility in his jurisdictional
order, and the appellant offered no argument in response which could demonstrate
that the agency knew or should have known that it could not sustain its proposed
removal under chapter 43. See IAF, Tabs 28 (jurisdictional order), 29
(appellant’s response); see also Harris v. Department of Veterans
Affairs, 114 M.S.P.R. 239, ¶ 10 (2010) (the granting of a within-grade increase
could demonstrate that the appellant’s performance was acceptable, and it entitled
the appellant to a jurisdictional hearing on whether the agency knew or should
have known that it could not substantiate a proposed chapter 43 removal covering
the same period of time). We find, moreover, that the appellant failed to
nonfrivolously allege that the agency wrongly placed her on a PIP, and we are not
persuaded by her argument that her work product was subjected to a high level of
scrutiny thus demonstrating intolerable working conditions which forced her to
retire. See IAF, Tab 29 at 5. We therefore find that the appellant failed to
nonfrivolously allege either that the agency’s actions immediately prior to her
retirement were so intolerable that a reasonable person in her position would have
felt compelled to resign or that the agency knew it could not substantiate its
proposed removal under chapter 43.
¶13 We also have considered the other evidence cited by the appellant in her
response to the jurisdictional order and we find that it fails to demonstrate that
the agency subjected her to intolerable working conditions which left her no
choice but to retire. See IAF, Tab 29 at 4. Specifically, the appellant argued that
several colleagues made inappropriate comments about her weight loss due to her
medical condition. Id. From the evidence submitted, however, it appears these
comments were isolated and that they occurred more than 6 months prior to the
10
appellant’s decision to retire. Id. (citing a February 2013 email which
summarized the appellant’s complaints about prior comments; the appellant
retired in October 2013). Furthermore, the appellant did not allege that any other
rude or intolerant comments or behavior were directed toward her after
February 2013, and we accord this evidence of intolerant behavior less probative
weight in determining that the appellant failed to nonfrivolously allege that she
had no other choice but to retire in October 2013. 7 See Shoaf, 260 F.3d at 1343
(the Board has the discretion to determine the evidentiary weight of events
temporally further from the employee’s resignation); see also IAF, Tab 29 at 4.
¶14 Lastly, we have considered the appellant’s assertion that a supervisory
official instructed her that she “can’t threaten [her] [immediate] supervisor with
filing an EEO complaint” and that this same official shortly thereafter “followed
through on his stated intention to take action against the appellant if she ever
filed an EEO complaint.” Id. at 4-5. We find the manner in which the appellant’s
representative has presented this excerpt materially misleads the reader. The full
statement, which is taken from the same February 2013 email discussed above, is
as follows:
I explained to her [the appellant] that you can’t threaten
your supervisor with filing an EEO complaint, or say
that “I’m not your slave, those days are over” and not
expect her to do her duty and give you the information
so you can pursue an EEO if that’s your decision.
Id. at 9 (emphasis added). Thus, contrary to the appellant’s insinuation, the
supervisor did not instruct the appellant to refrain from exercising her EEO rights
but rather explained that, if the appellant threatened to file an EEO complaint,
7
We emphasize that the February 2013 email only summarized past comments—they
were not directed toward the appellant at this time—and it is not clear from the record
when these comments were actually made, thus further reducing their probative value.
See Searcy, 114 M.S.P.R. 281, ¶ 13 (finding a 5-month lapse between comments and an
employee’s subsequent resignation undercut the assertion of intolerable working
conditions which caused the employee to resign).
11
then it would be reasonable for the supervisor to provide the appellant with notice
of how to file such a complaint. 8 Id. We find this statement fails to
nonfrivolously allege that the appellant was subjected to such intolerable working
conditions that she was left with no choice but to retire.
¶15 For the aforementioned reasons, the administrative judge’s jurisdictional
dismissal of the involuntary retirement claim, as supplemented by this Final
Order, is AFFIRMED, and the appellant’s petition for review is DENIED.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit.
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 want to request review of the Board’s decision concerning your
claims of prohibited personnel practices under 5 U.S.C. § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
8
In a separate paragraph, the same supervisor suggested that if the appellant were to
threaten her immediate supervisor “again with an EEO complaint, that we look at it as
misconduct and take appropriate action to that end.” IAF, Tab 29 at 9. There is no
evidence in the record that this statement was conveyed to the appellant prior to her
decision to retire, and we have no reason to find that it could have forced the appellant
to conclude that she had no choice but to retire in October 2013. This statement,
moreover, was made in February 2013, and the agency did not propose the appellant’s
removal until late-September 2013, over 7 months later. This lapse in time also
undermines the probative value of the statement, and we accord it less weight. See
Searcy, 114 M.S.P.R. 281, ¶ 13.
12
may request review of this final decision by the United States Court of Appeals
for the Federal Circuit or any court of appeals of competent jurisdiction. The
court of appeals must receive your petition for review within 60 days after the
date of this order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If
you choose to file, be very careful to file on time. You may choose to request
review of the Board’s decision in the United States Court of Appeals for the
Federal Circuit or any other court of appeals of competent jurisdiction, but not
both. Once you choose to seek review in one court of appeals, you may be
precluded from seeking review in any other court.
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 United States 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 United
States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information about the United States 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, and 11.
Additional information about other courts of appeals can be found at their
respective websites, which can be accessed
through http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
If you are interested in securing pro bono representation for an appeal to the
United States Court of Appeals for the Federal Circuit, you may visit our website
at http://www.mspb.gov/probono for a list of attorneys who have expressed
interest in providing pro bono representation for Merit Systems Protection Board
appellants before the Federal Circuit. The Merit Systems Protection Board
13
neither endorses the services provided by any attorney nor warrants that any
attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.
