Opinion

Denise R Johnson v. Department of the Treasury

Court: Merit Systems Protection Board
Filed: Feb 6, 2025
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 33.9%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

DENISE RUCKER JOHNSON, DOCKET NUMBER

Appellant, AT-1221-24-0118-W-1

DEPARTMENT OF THE TREASURY, DATE: February 6, 2025

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Melissa Lolotai , Esquire, Ayodele Olosunde , Esquire, and John P.

Mahoney , Esquire, Washington, D.C., for the appellant.

Andrew Greene , Esquire, and Aryeh Rosenfield , Esquire, Atlanta, Georgia,

for the agency.

BEFORE

Cathy A. Harris, Chairman*

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member**

*The Board members voted on this decision before January 20, 2025.

**Member Kerner recused himself and

did not participate in the adjudication of this appeal.

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

FINAL ORDER

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. 2

For the first time on petition for review, the appellant argues that the agency

subjected her to a hostile work environment between April 2019 and September

2022, culminating in her proposed removal on September 22, 2022, and forcing

her to retire effective February 25, 2023. 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

Because the appellant has not established jurisdiction over her appeal, we need not

reach the agency’s argument that the appellant untimely filed her appeal. Petition for

Review (PFR) File, Tab 3 at 5-6; see e.g., Rosell v. Department of Defense,

100 M.S.P.R. 594, ¶ 5 (2005) (explaining that the issue of the Board’s jurisdiction

generally should be determined before reaching the issue of timeliness), aff’d

191 F. App’x 954 (Fed. Cir. 2006).

If applicable, the appellant may file a separate appeal regarding a claim of an alleged

involuntary retirement. An involuntary retirement is tantamount to a removal and thus

is appealable to the Board. Hosozawa v. Department of Veterans Affairs, 113 M.S.P.R.

110, ¶ 5 (2010). An appellant may overcome the presumption that her retirement is

voluntary by showing that it was the result of agency misrepresentation, coercion, or

duress. Id., ¶ 5. If the employee claims that her retirement was coerced by the

agency’s creating intolerable working conditions, she must show that a reasonable

employee in her position would have found the working conditions so oppressive that

she would have felt compelled to retire. Id. The Board makes no findings here

regarding the timeliness or merits of such an appeal.

review. Therefore, we DENY the petition for review. Except as expressly

MODIFIED to find that the appellant has not nonfrivolously alleged that

she engaged in protected activity within the scope of the Board’s IRA

jurisdiction, we AFFIRM the initial decision. 4

The administrative judge did not address the appellant’s Equal Employment

Opportunity (EEO) activity below. Therefore, we modify the initial decision to

do so. As the administrative judge advised the appellant, the Board’s IRA

jurisdiction includes, as relevant here, pursuing an appeal, complaint, or

grievance seeking to remedy whistleblower reprisal. Initial Appeal File (IAF),

Tab 4 at 3; McCray v. Department of the Army, 2023 MSPB 10, ¶¶ 11-12. On

review, the appellant realleges that she filed an EEO complaint with the agency

alleging discrimination and a hostile work environment, and that the agency

retaliated against her as a result. Petition for Review (PFR) File, Tab 1 at 13-14;

IAF, Tab 7 at 8. For the first time on review, she also identifies a “harassment

claim[]” that she filed alleging that her supervisor threatened to return the

appellant to her former position. PFR File, Tab 1 at 12.

Disclosures of unlawful discrimination are not covered by 5 U.S.C.

§ 2302(b)(8). McCray, 2023 MSPB 10, ¶ 21 (stating that activity and disclosures

protected under Title VII are not protected under 5 U.S.C. § 2302(b)(8));

For the first time on review, the appellant alleges that her “calculation for retirement

[has] been based on survivor benefits rather than actual employee calculations.” PFR

File, Tab 1 at 15. She indicates she has been trying to reach the Office of Personnel

Management (OPM) but has been unsuccessful. Id. When OPM has not issued a

reconsideration decision on an appellant’s retirement benefits, the Board generally lacks

jurisdiction to hear the appeal. See Luna v. Office of Personnel Management,

89 M.S.P.R. 465, ¶ 8 (2001). The Board may assume jurisdiction over a retirement

appeal in the absence of an OPM reconsideration decision only when the appellant has

made repeated requests for such a decision and the evidence indicates that OPM does

not intend to issue a reconsideration decision. Id. There has been no such showing

here. The appellant may file a separate appeal from OPM’s calculation of her annuity.

We make no findings here as to the Board’s jurisdiction over, or the timeliness of, any

such appeal.

Edwards v. Department of Labor, 2022 MSPB 9, ¶¶ 10-22 (explaining that

5 U.S.C. § 2302(b)(8) does not include disclosures of alleged wrongdoing under

Title VII), aff’d, No. 2022-1967, 2023 WL 4398002 (Fed. Cir. July 7, 2023).

Further, an appellant’s own EEO complaint in which she does not seek to remedy

reprisal for whistleblowing is not protected activity within the Board’s IRA

jurisdiction. Edwards, 2022 MSPB 9, ¶¶ 24-25 (finding that an appellant’s

complaints and disclosures to an agency’s EEO office seeking to remedy

purported Title VII retaliation were not within the purview of sections 5 U.S.C.

§ 2302(b)(9)(A)(i) or (b)(9)(B)); see McCray, 2023 MSPB 10, ¶¶ 26-30 (finding

that an employee’s pursuit of a grievance was not a protected activity under

5 U.S.C. § 2302(b)(9)(C) because so interpreting that provision would effectively

subsume (b)(9)(A), which prohibits retaliation for the “exercise of any appeal,

complaint, or grievance right granted by any law, rule, or regulation”). The

appellant has not alleged that she sought to remedy whistleblower reprisal in her

EEO complaint. Nor does she provide any details regarding the nature of her

“harassment claim[]” against her supervisor. Therefore, she has not

nonfrivolously alleged that her EEO complaint and harassment claim are

protected activities within the scope of the Board’s IRA jurisdiction.

NOTICE OF APPEAL RIGHTS 5

The initial decision, as supplemented by this Final Order, constitutes the

Boards 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

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.

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

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.

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