Opinion

Adam Hughes v. Department of Veterans Affairs

Court: Merit Systems Protection Board
Filed: Sep 9, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.6%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ADAM S. HUGHES, DOCKET NUMBER

Appellant, DA-0752-21-0115-I-1

DEPARTMENT OF VETERANS DATE: September 9, 2024

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Adam S. Hughes , Edinburg, Texas, pro se.

Maria Lerma and Arthur M. Whitman , Esquire, Houston, Texas, for the

agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member*

*Member Kerner recused himself and

did not participate in the adjudication of this appeal.

FINAL ORDER

The appellant has filed a petition for review of the initial decision, which

dismissed his involuntary resignation appeal for lack of jurisdiction. Generally,

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

we grant petitions such as this one only in the following circumstances: 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 and AFFIRM the initial decision, which is now the Board’s final

decision. 5 C.F.R. § 1201.113(b).

BACKGROUND

The appellant was employed as a Medical Support Assistant. Initial Appeal

File (IAF), Tab 1 at 1, 18, 26. On June 21, 2019, the agency proposed to remove

the appellant under 38 U.S.C. § 714 based on his failure to perform successfully

under two critical performance elements. Id. at 5-7. His removal was

subsequently put on hold under 38 U.S.C. § 714(e). IAF, Tab 8 at 16. On

December 28, 2020, the agency issued its removal decision sustaining both

charges and the penalty of removal. IAF, Tab 1 at 39-42. The decision was to be

effective 5 calendar days from its receipt. Id. at 39, 42. The appellant resigned,

effective December 31, 2020, prior to the effective date of the removal decision.

IAF, Tab 8 at 10-11.

He subsequently filed a Board appeal seemingly challenging the agency’s

removal action. IAF, Tab 1 at 4. Noting that he resigned prior to the effective

date of the removal, the administrative judge treated the appeal as a coerced or

involuntary resignation appeal, she informed the appellant of how to establish

jurisdiction, and she changed the docket number to better reflect the nature of the

appeal. IAF, Tab 10 at 1, Tab 11 at 1-3, Tab 13. After the parties responded to

the jurisdictional order, IAF, Tabs 12, 14, the administrative judge issued an

initial decision dismissing the appeal for lack of jurisdiction, IAF, Tab 15, Initial

Decision (ID) at 1-2.

The administrative judge found that the appellant failed to nonfrivolously

allege that his resignation was involuntary either by coercion or misleading

statements from the agency. ID at 5-8. Specifically, the administrative judge

found that the appellant could have challenged the agency’s adverse action rather

than resign. ID at 6. She further found that the appellant failed to allege that his

working conditions were so intolerable that a reasonable person in his position

would have felt compelled to resign. ID at 7. Finally, she found that the

appellant failed to identify any specific misleading statements made by any

agency official that he relied on to his detriment. ID at 7-8. She ultimately

concluded that he failed to allege facts which, if proven, would show that the

agency deprived him of the freedom to choose between continuing his

employment with the agency and resigning. ID at 8.

The appellant has filed a petition for review. Petition for Review (PFR)

File, Tab 1. The agency has responded, and the appellant has replied to its

response. PFR File, Tabs 3, 5.

DISCUSSION OF ARGUMENTS ON REVIEW

On review, the appellant argues that the agency coerced his resignation by,

among other things, making misleading statements, engaging in retaliatory

actions, and subjecting him to a difficult and hostile work environment. PFR

File, Tab 1 at 3-6, Tab 5 at 3-4. He also asserts various procedural errors and

other factors that the administrative judge failed to address. PFR File, Tab 1

at 3-6, Tab 5 at 3-4. For the first time in his reply brief, he contends that his

resignation was the result of the agency’s denial of his request for an

accommodation. PFR File, Tab 5 at 3. He also includes in his reply brief

numerous documents. Id. at 5-20.

An employee-initiated action, such as a resignation, is presumed to be

voluntary, and thus, outside the Board’s jurisdiction. Searcy v. Department of

Commerce, 114 M.S.P.R. 281, ¶ 12 (2010). However, an employee may establish

Board jurisdiction over an involuntary resignation by proving that he lacked a

meaningful choice in the matter and the agency’s wrongful actions deprived him

of that choice. Bean v. U.S. Postal Service, 120 M.S.P.R. 397, ¶¶ 8, 11 (2013).

Among the ways that an employee can establish involuntariness is by proving that

the agency obtained the action through duress or coercion. Searcy, 114 M.S.P.R.

281, ¶ 12. The touchstone of a voluntariness analysis is whether, considering the

totality of the circumstances, factors operated on the employee’s decision-making

process that deprived him of freedom of choice. Id. Intolerable working

conditions may render an action involuntary if the employee demonstrates that the

employer or agency engaged in a course of action that made working conditions

so difficult or unpleasant that a reasonable person in that employee’s position

would have felt compelled to resign. Id. If the appellant presents a nonfrivolous

allegation of Board jurisdiction in this regard, 2 he is entitled to a hearing at which

he must prove jurisdiction by a preponderance of the evidence. Hosozawa v.

Department of Veterans Affairs, 113 M.S.P.R. 110, ¶ 5 (2010).

A nonfrivolous allegation is an assertion that, if proven, could establish the matter at

issue. 5 C.F.R. § 1201.4(s). An allegation will generally be considered nonfrivolous

when, under oath or penalty of perjury, an individual makes an allegation that is more

than conclusory, plausible on its face, and material to the legal issues in the appeal. Id.

The administrative judge correctly found that the appellant failed to

nonfrivolously allege that the agency coerced his resignation. 3

We have considered the appellant’s arguments on review that his

resignation was coerced. For example, the appellant argues that he worked for

18 months between the agency’s proposed removal and its removal decision,

during which it was uncertain how long he would have a job. PFR File, Tab 5

at 3. He also appears to allege that the removal action was taken in retaliation for

whistleblowing. PFR File, Tab 1 at 4, Tab 5 at 3. He also asserts that the agency

knew its removal action could not be substantiated. PFR File, Tab 1 at 4. He

additionally argues that he was subject to a hostile work environment and

bullying. PFR File, Tab 1 at 5, Tab 5 at 3. The appellant also alleges that he

resigned under duress due to his heavy workload, his assignment to a temporary

position where he had to work alone for 2½ days, and the laws to limit

protections for “Schedule F” employees, which created more “instability” in his

job. PFR File, Tab 5 at 3. These arguments are not persuasive.

The fact that an employee is faced with the unpleasant choice of either

resigning or opposing an adverse action does not rebut the presumed

voluntariness of his ultimate choice of resignation. Green v. Department of

Veterans Affairs, 112 M.S.P.R. 59, ¶ 8 (2009). Moreover, the appellant could

have challenged the removal action, rather than resign. See Axsom v. Department

of Veterans Affairs, 110 M.S.P.R. 605, ¶ 17 (2009) (noting that the Board

generally will not find an action involuntary when the appellant had the option to

stand and fight the alleged retaliation rather than resign). Indeed, as the

administrative judge noted, the appellant could have challenged any allegedly

retaliatory action before the Board. 4 ID at 8 n.3. However, in an involuntary

The appellant alleged that his resignation resulted from misleading statements from

the agency. IAF, Tab 12 at 3. The administrative judge considered this argument but

found it unpersuasive. ID at 7-8. The appellant does not challenge this finding on

review, and we discern no reason to disturb it.

On review, the appellant appears to contend that the administrative judge did not

consider his letter to the Director, which addressed “mismanagement issues.” PFR File,

resignation appeal, evidence of retaliation may only be addressed only insofar as

it relates to the issue of voluntariness and not whether the evidence would

establish reprisal as an affirmative defense. Pickens v. Social Security

Administration, 88 M.S.P.R. 525, ¶ 6 (2001). We have considered his claim of

retaliation, but we are not persuaded that such allegations deprived him of a

meaningful choice in the matter. Moreover, the appellant has not nonfrivolously

alleged that the agency knew its removal action could not be substantiated.

Regarding his claim of intolerable working conditions, the appellant must

show that a reasonable employee in his position would have found the working

conditions so oppressive that he would have felt compelled to resign. See Carey

v. Department of Health and Human Services, 112 M.S.P.R. 106, ¶ 5 (2009).

However, an employee is not guaranteed a work environment free of stress.

Miller v. Department of Defense, 85 M.S.P.R. 310, ¶ 32 (2000). Indeed, a heavy

workload and temporary placement in an isolated position is generally not so

intolerable as to compel a reasonable person to resign. See id. (noting that

dissatisfaction with work assignments and difficult working conditions are

generally not so intolerable as to compel a reasonable person to resign).

Moreover, he has not outlined any specific allegations of “workplace

bullying.” PFR File, Tab 1 at 5, Tab 5 at 3, 5-8. The appellant also has not

alleged how his uncertain future at the agency created such intolerable working

conditions that a reasonable person would have felt compelled to resign.

See Barnett v. U.S. Postal Service, 59 M.S.P.R. 125, 128 (1993) (finding that an

Tab 1 at 4. It is unclear whether the appellant sought corrective action from the Office

of Special Counsel (OSC). The record reflects that the agency’s removal decision was

put on hold, pursuant to 38 U.S.C. § 714(e), to allow for an investigation of

whistleblower retaliation allegations. IAF, Tab 8 at 16. Additionally, the appellant

asserted below that he filed with OSC, IAF, Tab 12 at 3, but there is no evidence in the

record of a complaint or an OSC final decision. Accordingly, we do not construe this

involuntary resignation appeal as an individual right of action (IRA) appeal. Should the

appellant wish to file an IRA appeal, he should do so with the appropriate regional

office. The Board makes no finding regarding timeliness or jurisdiction regarding such

an appeal.

appellant’s uncertain future did not render his retirement decision involuntary

when he could have waited for a determination as to which position he would

have been assigned and whether that assignment could have resulted in a

reduction of pay or grade, which he could have appealed). Likewise, the

appellant does not explain how any potential loss of stability or employment

protections to “Schedule F” employees deprived him of a meaningful choice in

the matter. See, e.g., Allen v. Office of Personnel Management, 77 M.S.P.R. 212,

220 n.4 (1998) (observing that the uncertainty accompanying a restructuring or

reorganization did not render the appellant’s decision involuntary). Accordingly,

we find that these allegations do not evince working conditions so intolerable that

a reasonable person in the appellant’s position would have felt compelled to

resign. See Miller, 85 M.S.P.R. 310, ¶ 32. We also agree with the administrative

judge that the appellant has failed to nonfrivolously allege that these allegedly

unpleasant working conditions or other allegations of coercion deprived him of a

meaningful choice in the matter. ID at 6-8.

For the first time in his reply brief, the appellant alleges that his resignation

was the result of the agency’s denial of his request for reasonable

accommodation, and he attaches his February 20, 2019 request. PFR File, Tab 5

at 3, 18-20. The Board generally will not consider evidence or argument raised

for the first time in a petition for review absent a showing that it is based on new

and material evidence not previously available despite the party’s due diligence.

Clay v. Department of the Army, 123 M.S.P.R. 245, ¶ 6 (2016); Avansino v. U.S.

Postal Service, 3 M.S.P.R. 211, 213-14 (1980). Indeed, the Board has held that it

need not consider an appellant’s new theory of involuntary resignation on review

when both the evidence and argument were available before the record closed, but

the party failed to submit it. Baldwin v. Department of Veterans Affairs,

109 M.S.P.R. 392, ¶ 7 (2008). The appellant’s request for an accommodation

occurred before his resignation, and he has not shown why he was unable to raise

this issue or present this evidence to the administrative judge or in his petition for

review. Given that the evidence and argument was available before the

administrative judge and the appellant did not raise the issue until his reply brief,

we have not considered it. Similarly, we do not consider the appellant’s other

evidence in his reply brief, including a pamphlet for an agency class entitled

“Verbal Defense in Healthcare,” various online articles, correspondence between

the appellant and his supervisor, and correspondence from the Office of the

Inspector General regarding a complaint that he filed. PFR File, Tab 5 at 5-17.

Finally, the appellant asserts that the dismissal information packet he

received from the agency lacked the requisite Government form numbers. PFR

File, Tab 1 at 4-5. Without deciding whether this action amounts to improper

conduct by the agency, we find that the appellant has failed to explain how this

action deprived him of a meaningful choice in the matter.

In conclusion, the appellant has not made a nonfrivolous allegation that he

lacked a meaningful choice in the matter and/or that the agency’s wrongful

actions deprived him of that choice. Therefore, we affirm the administrative

judge’s dismissal of the appeal for lack of jurisdiction.

The appellant’s remaining arguments on review are unpersuasive.

The appellant alleges that there were procedural errors and that the

administrative judge failed to address other factors. For example, he argues that

the timeline of his appeal was changed twice, which altered his ability to properly

present his case. PFR File, Tab 1 at 3. Specifically, he asserts that the initial

phone interview was “moved up 2-3 days” and that, despite a deadline being set

for prehearing submissions, the administrative judge’s subsequent jurisdictional

order required him to respond earlier than that original deadline. Id. It does

appear that the administrative judge originally directed the appellant to file his

prehearing submission by February 22, 2021. IAF, Tab 6 at 1. During a

conference call with the parties, it appears that the issue of a coerced resignation

arose, which resulted in discussions regarding the Board’s jurisdiction. IAF,

Tab 10 at 1. The administrative judge therefore issued a jurisdictional order,

which apprised the appellant of his jurisdictional burden and ordered him to make

nonfrivolous allegations of jurisdiction by February 5, 2021. IAF, Tab 11 at 3.

The appellant appears to admit that he did not object to any of these deadlines,

and he did not request an extension of time to respond to any order. PFR File,

Tab 1 at 3. Thus, we find that the appellant is precluded from raising this issue

on review. See Pettye v. Office of Personnel Management, 83 M.S.P.R. 260, ¶ 4

n.1 (1999).

The appellant additionally asserts that the initial decision failed to

acknowledge the COVID-19 pandemic and its effect on the healthcare industry.

PFR File, Tab 1 at 5. He also appears to suggest that the Board should apply a

different standard to cases arising in the healthcare industry, particularly with a

focus on ensuring job security in healthcare. Id. at 6. These arguments do not

warrant a different outcome.

NOTICE OF APPEAL RIGHTS 5

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By

statute, the nature of your claims determines the time limit for seeking such

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).

Although we offer the following summary of available appeal rights, the Merit

Systems Protection Board does not provide legal advice on which option is most

appropriate for your situation and the rights described below do not represent a

statement of how courts will rule regarding which cases fall within their

jurisdiction. If you wish to seek review of this final decision, you should

immediately review the law applicable to your claims and carefully follow all

filing time limits and requirements. Failure to file within the applicable time

limit may result in the dismissal of your case by your chosen forum.

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general . As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. 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, 10, 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

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination . This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims —by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on

race, color, religion, sex, national origin, or a disabling condition, you may be

entitled to representation by a court-appointed lawyer and to waiver of any

requirement of prepayment of fees, costs, or other security. See 42 U.S.C.

§ 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012 . This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in section

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),

(B), (C), or (D),” then you may file a petition for judicial review either with the

U.S. Court of Appeals for the Federal Circuit or any court of appeals of

competent jurisdiction. 6 The court of appeals must receive your petition for

review within 60 days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(B).

The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expired on

December 27, 2017. The All Circuit Review Act, signed into law by the President on

July 7, 2018, permanently allows appellants to file petitions for judicial review of

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,

132 Stat. 1510.

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the