Opinion

Tiffany Watkins v. Department of Veterans Affairs

Court: Merit Systems Protection Board
Filed: Nov 1, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 32.3%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

TIFFANY P. WATKINS, DOCKET NUMBER

Appellant, DE-0752-21-0157-I-1

DEPARTMENT OF VETERANS DATE: November 1, 2024

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Jeff T. Schrameck , Esquire, Canton, Michigan, for the appellant.

Bradley M. Shaughnessy , Esquire, Fayetteville, Arkansas, for the agency.

Tijuana D. Griffin , North Little Rock, Arkansas, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member

FINAL ORDER

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

dismissed her alleged involuntary resignation appeal for lack of jurisdiction.

Generally, we grant petitions such as this one only in the following

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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. Except as expressly MODIFIED to the extent that the

administrative judge incorrectly suggested that the appellant was required to

allege that the agency affirmatively provided misinformation in order to state an

involuntary resignation claim, we AFFIRM the initial decision.

BACKGROUND

The appellant was the Assistant Chief of Prosthetic Services at the

Department of Veterans Affairs’ Eastern Colorado Healthcare System. Initial

Appeal File (IAF), Tab 6 at 10. The agency proposed to remove her for conduct

unbecoming a supervisory employee. Id. at 10-11. The appellant met with the

deciding official and an agency Employee and Labor Relations Specialist to

respond to the proposed notice. IAF, Tab 6 at 12-13, 17, Tab 9 at 14. According

to the appellant, at that meeting, she stated that she had “numerous offers for

other positions” within the agency and “requested that [she] be able to resign and

have the matter of the proposed removal closed.” IAF, Tab 9 at 14. The agency

rejected her request despite these job offers. Id.

Eleven days later, the Employee and Labor Relations Specialist and another

agency official met with the appellant and notified her that she would be removed

effective that same day. IAF, Tab 6 at 17-19, Tab 9 at 14-15. According to the

appellant, a few minutes after this meeting concluded, the Employee and Labor

Relations Specialist called the appellant and informed her “that the agency would

still accept [her] resignation,” but he did not say the Standard Form 50 (SF-50)

documenting her resignation would reflect that it was in lieu of the removal

action. IAF, Tab 6 at 21, Tab 9 at 15. The appellant resigned that day. IAF,

Tab 6 at 15. The SF-50 documenting her resignation reflected that she resigned

after receiving notice of the decision to remove her for conduct unbecoming a

supervisory employee. Id. at 21.

The appellant filed the instant appeal alleging her resignation was

involuntary and requesting a hearing. IAF, Tab 1 at 2-3, 5. The agency moved to

dismiss the appeal for lack of jurisdiction. IAF, Tab 6 at 4-6. The administrative

judge advised the appellant of her burden to establish jurisdiction. IAF, Tab 7.

She explained that, to be entitled to a hearing on the jurisdictional issue, the

appellant must make a nonfrivolous allegation that, as relevant here, the agency

made misleading statements on which she relied to her detriment. Id. at 2. The

appellant responded that her resignation was involuntary because the agency

effectively misled her when it failed to inform her that the SF -50 processing her

resignation would make note of the removal action. IAF, Tab 9 at 8-10.

Without holding the appellant’s requested hearing, the administrative judge

issued an initial decision dismissing the appeal for lack of jurisdiction. IAF,

Tab 1 at 2, Tab 11, Initial Decision (ID) at 2, 6-7. The administrative judge

reasoned that the appellant’s choice between resigning and challenging her

removal did not rebut the presumption that her resignation was voluntary. ID

at 5-6. The administrative judge also concluded that the appellant did not

nonfrivolously allege that her resignation was the result of agency

misrepresentation. Id. The appellant has filed a petition for review of the initial

decision, and the agency has responded. Petition for Review (PFR) File,

Tabs 3, 5.

DISCUSSION OF ARGUMENTS ON REVIEW

The sole issue on review is whether the appellant is entitled to a

jurisdictional hearing because she made a nonfrivolous allegation the agency had

reason to know she resigned because she erroneously believed that doing so

would allow her to have a clean record. The Board’s jurisdiction is limited to

those matters over which it has been given jurisdiction by law, rule, or regulation.

Maddox v. Merit Systems Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). The

appellant has the burden of proof on the issue of jurisdiction, and if she makes a

nonfrivolous allegation that the Board has jurisdiction over an appeal, she is

entitled to a hearing on the jurisdictional question. Liu v. Department of

Agriculture, 106 M.S.P.R. 178, ¶ 8 (2007); 5 C.F.R. § 1201.56(b)(2)(i)(A). 2 We

agree with the administrative judge that the appellant did not make a nonfrivolous

allegation of Board jurisdiction over the instant appeal.

We modify the initial decision to find that the appellant did not nonfrivolously

allege that she resigned because she believed doing so would result in a clean

record.

The administrative judge found that the appellant did not allege that the

agency induced her retirement by affirmatively misrepresenting that it would not

make note of her removal decision on her SF-50. 3 ID at 6. An employee-initiated

action, such as resignation or retirement, is presumed to be voluntary and thus

We recognize that the agency issued the removal action at issue here under the

Department of Veterans Affairs Accountability and Whistleblower Protection Act of

2017 (codified as amended at 38 U.S.C. § 714). IAF, Tab 6 at 17-19. Thus, to prove

jurisdiction, the appellant must establish that she is a “covered individual” and that her

resignation is tantamount to a constructive removal. 38 U.S.C. § 714(a), (c)(4); see

Stroud v. Department of Veterans Affairs, 2022 MSPB 43, ¶¶ 7, 10-13 (discussing these

statutory requirements in the context of an election of forum under 5 U.S.C. § 7121(e)).

It appears from the record that the appellant, as an individual appointed under 38 U.S.C.

§ 7401(3), has established that she is a covered employee. IAF, Tab 6 at 8, 21; see

38 U.S.C. § 714(h)(1). In any event, we need not decide this issue in light of our

determination that the appellant did not suffer a covered personnel action under

38 U.S.C. § 714.

The parties do not dispute the administrative judge’s finding that, in essence, the

appellant did not nonfrivolously allege that her retirement was the result of duress or

coercion. ID at 3-6. We discern no basis to disturb that finding.

outside the Board’s jurisdiction. Vitale v. Department of Veterans Affairs,

107 M.S.P.R. 501, ¶ 17 (2007). An involuntary resignation is tantamount to a

removal, however, and is therefore subject to the Board’s jurisdiction. Id. A

resignation action is involuntary if, as relevant here, the agency made misleading

statements upon which the employee reasonably relied to her detriment . Scharf v.

Department of the Air Force, 710 F.2d 1572, 1574-75 (Fed. Cir. 1983).

The administrative judge found that the appellant did not claim that the

agency made an affirmative misrepresentation as to how her resignation would be

documented. ID at 5-6. The parties do not dispute this finding on review, and we

discern no basis to disturb it. The appellant admits that the agency never

specified the terms under which it would accept her resignation. PFR, Tab 3

at 12. She concedes that the agency rejected her initial request to resign without

addressing her request to close out the removal matter. IAF, Tab 9 at 6; PFR File,

Tab 3 at 11-12. Therefore, the Board does not have jurisdiction over her

resignation based on any affirmative agency misrepresentation.

On review, the appellant argues that the administrative judge erred in not

following Wills v. Department of the Navy, 37 M.S.P.R. 137, 141 (1988), which

reflects that a retirement is involuntary if the agency fails to correct any

erroneous information on which it has reason to know the employee is relying.

PFR File, Tab 3 at 6, 13. In Wills, 37 M.S.P.R. at 138-39, 141, the appellant

alleged that he thought he could preserve his clean record if he retired, but

instead the SF-50 effectuating his retirement noted that he retired after receiving

a notice of removal. The Board concluded that he made a nonfrivolous allegation

of jurisdiction when he claimed that, because of lack of information, he

erroneously thought he could preserve a clean record. Id. at 140-41.

The administrative judge did not address this argument, which the appellant

raised below. IAF, Tab 9 at 7-10; ID. Therefore, we do so here, still finding that

the appellant did not make a nonfrivolous allegation of an involuntary

resignation. An appellant must nonfrivolously allege that she relied on her

erroneous belief to her detriment in order to receive a jurisdictional hearing. See

Morrison v. Department of the Navy, 122 M.S.P.R. 205, ¶¶ 7-10 (2015) (finding

that an appellant was entitled to a jurisdictional hearing when he nonfrivolously

alleged that his retirement was involuntary because he materially relied on agency

misinformation); Salazar v. Department of the Army, 115 M.S.P.R. 296, ¶ 9

(2010) (explaining that to prove that an alleged involuntary action resulted from

misinformation, an appellant must show, as relevant here, that he reasonably

relied on the misinformation to his detriment).

Here, we find that the appellant did not nonfrivolously allege that she

relied on her mistaken belief that her resignation would result in a clean record.

The appellant’s attorney has alleged that the appellant resigned in reliance on her

reasonable belief that she would receive a clean resignation. IAF, Tab 9 at 6-7, 9;

PFR File, Tab 3 at 7-8, 13-14. However, a representative’s statements in a

pleading, such as those here, are not evidence, particularly when an affidavit

completed by the appellant does not support those statements. Rose v.

Department of Defense, 118 M.S.P.R. 302, ¶ 10 (2012). To support his

statements, the appellant’s attorney cites to a declaration completed by the

appellant, which is in the record below. IAF, Tab 9 at 9; PFR File, Tab 3 at 7-8.

The appellant identified in her declaration the information that she believed the

agency should have provided. Specifically, she stated that the Employee and

Labor Relations Specialist “never stated [her] resignation would be in lieu of

removal.” IAF, Tab 9 at 15. However, missing from her declaration is any claim

that she believed that she would receive a clean resignation or that she relied on

such a belief in resigning. Id. at 13-15. Accordingly, we affirm the initial

decision, as modified above, still finding that the Board lacks jurisdiction over

this appeal.

NOTICE OF APPEAL RIGHTS 4

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 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.

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).

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.

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. 5 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).

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