Opinion

Linda F Weathers v. Department of Agriculture

Court: Merit Systems Protection Board
Filed: Dec 19, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 33.4%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

LINDA F. WEATHERS, DOCKET NUMBER

Appellant, SF-0752-20-0364-I-1

DEPARTMENT OF AGRICULTURE, DATE: December 19, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Linda F. Weathers , Richmond, California, pro se.

Stephanye Snowden and Joshua Rose , Washington, D.C., 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 involuntary retirement appeal for lack of jurisdiction. On petition

for review, the appellant reiterates her argument that she was forced to retire

because of a hostile work environment. 2 She also claims that the former agency

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

representative treated her unprofessionally. 3 Generally, 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. Except as expressly

MODIFIED to find that the appellant did not establish jurisdiction over her appeal

by preponderant evidence, we AFFIRM the initial decision.

Contrary to what the administrative judge observed, the appellant did not

request a hearing during the proceedings below. Initial Appeal File (IAF),

The record reflects that the appellant sought a retirement annuity estimate in

March 2018, and completed a retirement application in August 2018, in which she

indicated that she would retire in January 2019. Initial Appeal File, Tab 4 at 8-10, Tab

17 at 5. Thus, this is not a situation in which the appellant did not have time to reflect

on her decision. Cf. Soler-Minardo v. Department of Defense, 92 M.S.P.R. 100, ¶ 7

(2002) (observing that a retirement decision may be considered involuntary when the

appellant did not have sufficient time to reflect about her alternative course of action).

Further, the appellant concedes on review that at the time she retired, at least two of the

managers she claimed were responsible for the hostile work environment resulting in

her retirement—if not all three—were no longer in her supervisory chain. Petition for

Review (PFR) File, Tab 1 at 4-5, 12. The appellant could have withdrawn her decision

to retire any time before its effective date. Finally, we have fully considered the events

that the appellant alleges occurred as far back as 2017 as part of the totality of the

circumstances but find that the appellant did not prove by preponderant evidence that

her retirement was involuntary.

The appellant provides no details concerning this allegation in her petition for review,

PFR File, Tab 1 at 6, and the record does not reflect that she raised her concerns with

the administrative judge below.

Tab 19, Initial Decision at 1. When an appellant has not requested a hearing, the

threshold question is not whether she has raised a nonfrivolous allegation of

jurisdiction, but whether she has established by preponderant evidence that the

Board has jurisdiction over her appeal. Vitale v. Department of Veterans Affairs,

107 M.S.P.R. 501, ¶ 18 (2007). The administrative judge informed the appellant

of the appropriate burden of proof and the deadline by which she was to file

evidence and argument satisfying it. IAF, Tab 2 at 4, Tab 9 at 2. Because we

agree with the administrative judge that the appellant did not nonfrivolously

allege in that evidence and argument that her retirement was coerced, we find that

the appellant necessarily did not establish that her retirement was coerced under

the higher preponderant evidence standard. The administrative judge’s

application of the incorrect nonfrivolous allegation standard in the initial decision

was thus harmless. See Panter v. Department of the Air Force, 22 M.S.P.R. 281,

282 (1984) (stating that an adjudicatory error that is not prejudicial to a party’s

substantive rights provides no basis for reversal of an initial decision). 4

NOTICE OF APPEAL RIGHTS 5

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

Because the appellant raised a claim of discrimination in this constructive adverse

action appeal, and the Board has now issued a Final Order dismissing the appeal for

lack of jurisdiction, the agency is required, under Equal Employment Opportunity

Commission (EEOC) regulations, to reissue a notice under 29 C.F.R. § 1614.108(f)

giving the appellant the right to elect between a hearing before an EEOC administrative

judge and an immediate final decision. See 29 C.F.R. § 1614.302(b).

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.

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).

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

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

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 following