Filed: Oct. 14, 2016
Latest Update: Mar. 03, 2020
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD CHASE M. LENTZ, DOCKET NUMBER Appellant, SF-4324-15-0364-I-1 v. DEPARTMENT OF THE INTERIOR, DATE: October 14, 2016 Agency. THIS FINAL ORDER IS NONPRECEDENTIAL 1 Chase M. Lentz, Fresno, California, pro se. Kevin D. Mack, Esquire, and Christine Foley, Sacramento, 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, in whi
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD CHASE M. LENTZ, DOCKET NUMBER Appellant, SF-4324-15-0364-I-1 v. DEPARTMENT OF THE INTERIOR, DATE: October 14, 2016 Agency. THIS FINAL ORDER IS NONPRECEDENTIAL 1 Chase M. Lentz, Fresno, California, pro se. Kevin D. Mack, Esquire, and Christine Foley, Sacramento, 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, in whic..
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UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CHASE M. LENTZ, DOCKET NUMBER
Appellant, SF-4324-15-0364-I-1
v.
DEPARTMENT OF THE INTERIOR, DATE: October 14, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Chase M. Lentz, Fresno, California, pro se.
Kevin D. Mack, Esquire, and Christine Foley, Sacramento, 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, in which
the administrative judge found that the appellant failed to establish jurisdiction
over his claim that the agency constructively discharged him in violation of the
Uniformed Services Employment and Reemployment Rights Act of 1994
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
(USERRA). 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 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. 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. Except as
expressly MODIFIED by this Final Order, to clarify the basis for the
jurisdictional dismissal, we AFFIRM the initial decision. However, we
FORWARD the appellant’s USERRA claims concerning his letter of reprimand
(LOR), 14-day suspension, and alleged constructive suspension to the regional
office for docketing as a new appeal.
BACKGROUND
¶2 On May 15, 2014, the agency issued the appellant an LOR based on charges
of acting outside the scope of his authority and conduct unbecoming. Initial
Appeal File (IAF), Tab 4, Subtab 4g. On November 13, 2014, the agency again
charged him with acting outside the scope of his authority and conduct
unbecoming, and proposed a 14-day suspension. Id., Subtab 4d. According to
the appellant, he then took leave for medical reasons from November 14, 2014, to
February 13, 2015. Petition for Review (PFR) File, Tab 1 at 11; IAF, Tab 9
at 11, 50-60.
¶3 In a February 10, 2015 decision letter, the deciding official sustained both
charges underlying the proposed 14-day suspension. IAF, Tab 4, Subtab 4b. The
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suspension penalty was to be effective February 15, 2015. Id., Subtab 4c. On
February 11, 2015, the appellant notified the agency by email that he was
resigning from his position, effective February 13, 2015. Id., Subtab 4b. He
indicated in his email that his resignation was the result of a hostile work
environment. Id.
¶4 On February 25, 2015, the appellant filed an appeal in which he alleged that
the agency coerced his February 13, 2015 resignation by bringing unjustifiable
charges and creating unreasonably difficult working conditions. IAF, Tab 1. He
identified the unjustifiable charges as those set forth in the May 15, 2014 LOR,
the November 13, 2014 notice of proposed suspension, and the February 10, 2015
decision letter. Id. He further alleged that the agency violated USERRA by
discriminating against him because of his military service and status as a disabled
veteran, and retaliating against him for having exercised a right provided for
under USERRA. Id. 2
¶5 For reasons that are unclear, the regional office docketed the appellant’s
February 25, 2015 pleading as two separate appeals. In Lentz v. Department of
2
The appellant has since filed four additional Board appeals. On June 12, 2015, he
filed an individual right of action (IRA) appeal, in which he alleged that the agency
took various personnel actions—including the LOR, the proposal notice and decision
letter on the 14-day suspension, and an alleged constructive discharge—in retaliation
for protected whistleblowing activity. Lentz v. Department of the Interior, MSPB
Docket No. SF-1221-15-0688-W-1. In his May 13, 2016 initial decision, the
administrative judge found that the appellant was collaterally estopped from reasserting
his constructive discharge claim, and the remaining whistleblowing reprisal claims were
either dismissed for lack of jurisdiction or denied on the merits on the ground that the
appellant’s disclosures were not protected. The appellant has filed a petition for review
of that decision, which is currently pending before the full Board. Furthermore, another
IRA appeal is currently pending in the regional office. Lentz v. Department of the
Interior, MSPB Docket No. SF-1221-16-0681-W-1 (filed on August 7, 2016). In
addition to these IRA appeals, the appellant also has filed two other USERRA appeals,
dated January 4, 2016, and August 7, 2016, respectively, in which he alleges USERRA
violations in connection with various nonselections and other actions. Lentz v.
Department of the Interior, MSPB Docket No. SF-4324-16-0198-I-1; Lentz v.
Department of the Interior, MSPB Docket No. SF-4324-16-0680-I-1. Those appeals are
currently pending in the regional office.
4
the Interior, MSPB Docket No. SF-0752-15-0363-I-1 (Lentz I), the administrative
judge considered the appellant’s pleading as a claim that his resignation was
involuntary and thus tantamount to an appealable removal action under 5 U.S.C.
chapter 75. In the instant appeal, the administrative judge considered the
pleading as a complaint under USERRA, concerning the same alleged involuntary
resignation. IAF, Tabs 2, 8.
¶6 On July 10, 2015, the administrative judge dismissed Lentz I for lack of
Board jurisdiction, finding that the appellant’s resignation was not involuntary
because a reasonable person in the appellant’s position would not have felt
compelled to resign. Lentz I, Initial Decision (July 10, 2015). The appellant filed
a petition for review, and the Board affirmed the initial decision. Lentz I, Final
Order (Jan. 11, 2016).
¶7 Meanwhile, in the instant appeal, the administrative judge issued an order
advising the appellant of the requirements for establishing jurisdiction under the
discrimination and retaliation provisions of USERRA, 38 U.S.C. § 4311(a)-(b).
IAF, Tab 8. The administrative judge further informed the appellant that a
resignation is presumed to be voluntary and that, unless he made a nonfrivolous
allegation that his resignation was the result of duress, coercion, or
misrepresentation by the agency resulting from USERRA discrimination or
reprisal, his appeal would be dismissed. Id. at 4-5. Confusingly, the
administrative judge further indicated that he would not consider the involuntary
resignation claim in any event, because that claim was the subject of Lentz I. Id.
at 4 n.1.
¶8 Both parties responded to the order. IAF, Tabs 9, 11. In his response, the
appellant again alleged that he had resigned involuntarily due in part to the LOR
and 14-day suspension, and further alleged that the LOR and the proposal notice
and decision letter on the 14-day suspension were themselves in violation of
5
USERRA. IAF, Tab 9 at 7. The appellant further argued that his medical leave
amounted to a constructive suspension. Id. at 9-11. 3
¶9 Based on the parties’ written submissions, the administrative judge
dismissed the appeal for lack of jurisdiction. IAF, Tab 12, Initial Decision (ID).
In doing so, the administrative judge first found that the appellant was
collaterally estopped from relitigating the “overall” issue of whether his
resignation was involuntary, because that issue already had been decided in
Lentz I. ID at 6. The administrative judge proceeded to find that the appellant
failed to nonfrivolously allege that he was subjected to a USERRA discriminatory
or retaliatory hostile work environment so coercive in nature that he had no
choice but to resign. ID at 7-8. In reaching that conclusion, the administrative
judge noted that the LOR made reference to a letter from the Department of
Veterans Affairs concerning treatment of the appellant, and that the February 10,
2015 decision letter on the 14-day suspension referred to the appellant’s veterans’
status. ID at 9; see IAF, Tab 4, Subtabs 4c, 4g. The administrative judge found
that these matters were mentioned only as possible mitigating circumstances. ID
at 9. However, the administrative judge did not make a finding as to whether the
Board had jurisdiction over the appellant’s claims that the agency violated
USERRA in connection with the LOR, 14-day suspension, or alleged
constructive suspension.
¶10 On review, the appellant argues that the administrative judge erred by
dismissing his USERRA claim for lack of jurisdiction and in applying the
doctrine of collateral estoppel. PFR File, Tab 1 at 4-5, 8-15. He further objects
3
In arguing that he was constructively suspended, the appellant contended that the
agency had denied him reasonable accommodation in violation of USERRA. IAF,
Tab 9 at 11. The latter claim was fully adjudicated in Lentz v. Department of the
Interior, MSPB Docket No. SF-4324-15-0225-I-1, Initial Decision (Apr. 21, 2015);
Final Order (Sept. 21, 2015), and the agency prevailed on the merits in that appeal.
However, it is unclear to what extent the appellant’s constructive suspension claim rests
on the allegedly improper denial of reasonable accommodation.
6
that the administrative judge failed to consider his USERRA claims concerning
the LOR, 14-day suspension, and alleged constructive suspension. Id. at 5-7.
The agency has responded to the petition for review. PFR File, Tab 3.
ANALYSIS
¶11 In the instant appeal, the appellant alleges that the agency both
discriminated against him based on his military service and retaliated against him
for protected USERRA activity. IAF, Tab 1. Both types of claims are cognizable
under USERRA. 38 U.S.C. § 4311(a)-(b).
¶12 To establish jurisdiction over a USERRA discrimination appeal arising
under 38 U.S.C. § 4311(a), an appellant must make nonfrivolous allegations that:
(1) he performed duty or has an obligation to perform duty in an uniformed
service of the United States; (2) the agency denied him initial employment,
reemployment, retention, promotion, or any benefit of employment; and (3) the
denial was due to the performance of duty or obligation to perform duty in the
uniformed service. Kitlinski v. Department of Justice, 123 M.S.P.R. 41, ¶ 7
(2015); see 5 C.F.R. §§ 1201.57(b), 1208.2(a). In the case of a USERRA
retaliation claim under 38 U.S.C. § 4311(b), the jurisdictional test differs in that
the appellant need not have performed service in the uniformed services. Lee v.
Department of Justice, 99 M.S.P.R. 256, ¶ 9 n.5 (2005). In addition, jurisdiction
under 38 U.S.C. § 4311(b) is limited to claims that an employer discriminated in
employment or took an adverse employment action because of protected
USERRA activity. Kitlinski, 123 M.S.P.R. 41, ¶¶ 22-23. A claim under
USERRA should be construed broadly and liberally in determining whether it is
nonfrivolous. Lubert v. U.S. Postal Service, 110 M.S.P.R. 430, ¶ 11 (2009).
¶13 As the administrative judge correctly found, the appellant is collaterally
estopped from arguing that his resignation amounted to a constructive discharge.
Collateral estoppel, or issue preclusion, is appropriate when: (1) the issue is
7
identical to that involved in the prior action; 4 (2) the issue was actually litigated
in the prior action; (3) the determination of the issue in the prior action was
necessary to the resulting judgment; and (4) the party against whom issue
preclusion is sought had a full and fair opportunity to litigate the issue in the
prior action, either as a party to the earlier action or as one whose interests were
otherwise fully represented in that action. Hau v. Department of Homeland
Security, 2016 MSPB 33, ¶ 12. Here, the identical issue of whether the
appellant’s resignation was voluntary previously was litigated in Lentz I. Further,
the administrative judge’s jurisdictional finding in Lentz I was necessary for the
dismissal on that basis, the appellant was a party, and he had a full and fair
opportunity to litigate his claims. The appellant thus is precluded from
relitigating the issue of whether his resignation was involuntary.
¶14 Because the appellant is barred from arguing that his resignation was
involuntary, he cannot make even a nonfrivolous allegation that the agency
constructively removed him based on his military service or protected USERRA
activity. See Hau, 2016 MSPB 33, ¶ 14. The administrative judge was therefore
correct in dismissing the appellant’s USERRA claims concerning the alleged
constructive discharge for lack of jurisdiction. Id.
¶15 However, the Board has yet to adjudicate or determine its jurisdiction over
the appellant’s claims that the agency violated USERRA in connection with the
LOR, 14-day suspension, or alleged constructive suspension. Accordingly, we
forward these claims to the regional office.
4
The appellant correctly observes that Lentz I and the instant appeal were based on the
same February 25, 2015 pleading, and we do not necessarily endorse the administrative
judge’s decision to docket that pleading as two separate appeals. Nonetheless, we find
that Lentz I is a “prior action” for collateral estoppel purposes because the Board issued
its final decision in Lentz I before the administrative judge issued the initial decision in
the instant appeal.
8
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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
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 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
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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.
