The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CHRISTOPHER S. BARRY, DOCKET NUMBER
Appellant, DC-0752-14-0040-I-1
v.
DEPARTMENT OF THE INTERIOR, DATE: September 5, 2014
Agency.
THIS ORDER IS NONPRECEDENTIAL *
Christopher S. Barry, Huntingtown, Maryland, pro se.
Mel S. Hutson, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed this involuntary resignation appeal for lack of jurisdiction. For the
reasons discussed below, we GRANT the appellant’s petition for review,
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
VACATE the initial decision, and REMAND the case to the regional office for
further adjudication in accordance with this Order.
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 The appellant filed an appeal in which he alleged that he involuntarily
resigned from his position as the Director of the agency’s National Offshore
Training and Learning Center because of a hostile work environment and
discrimination based upon his sex, sexual orientation, and equal employment
opportunity (EEO) activity. Initial Appeal File (IAF), Tab 1. The administrative
judge subsequently informed the appellant of the elements and burdens of
establishing jurisdiction over an involuntary resignation. IAF, Tab 2 at 2-3.
Based solely on the appellant’s initial appeal submission, which included the final
agency decision (FAD) on the appellant’s EEO complaint, IAF, Tab 1 at 10-28,
the administrative judge determined that the appellant failed to establish
jurisdiction over his appeal, IAF, Tab 10, Initial Decision (ID). In his petition for
review, the appellant reiterates that he had no choice but to resign, asserts that he
complained of a hostile work environment months before any complaints were
lodged about his own behavior, and further asserts that he was forced to work for
the same individual against whom he had made a complaint. Petition for Review
File, Tab 1 at 3. The agency did not respond.
¶3 The Board’s jurisdiction is not plenary; it 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 bears
the burden of proving, by a preponderance of the evidence, that the Board has
jurisdiction over his appeal. 5 C.F.R. § 1201.56(a)(2)(i). An employee-initiated
action, like the appellant’s retirement here, is presumed to be voluntary, and thus
outside the Board’s jurisdiction, unless he presents sufficient evidence to
establish that the action was obtained through duress or coercion or shows that a
reasonable person would have been misled by the agency. See Staats v. U.S.
3
Postal Service, 99 F.3d 1120, 1123-24 (Fed. Cir. 1996); Levy v. Department of
Homeland Security, 109 M.S.P.R. 444, ¶ 13 (2008). The appropriate test for
determining the voluntariness of actions like the one at issue here, i.e., a
resignation initiated by an employee in a situation where there has been no threat
of an adverse action, is whether, under all of the circumstances, working
conditions were made so difficult by the agency that a reasonable person in the
appellant’s position would have felt compelled to resign or retire. See, e.g.,
Markon v. Department of State, 71 M.S.P.R. 574, 577 (1996). The touchstone of
the “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. Levy, 109 M.S.P.R. 444, ¶ 13.
¶4 An appellant is entitled to a hearing on the issue of Board jurisdiction over
an appeal of an alleged involuntary resignation or retirement only if he makes a
nonfrivolous allegation casting doubt on the presumption of voluntariness.
Burgess v. Merit Systems Protection Board, 758 F.2d 641, 643 (Fed. Cir. 1985).
To meet the nonfrivolous standard, an appellant need only plead allegations of
fact that, if proven, could show jurisdiction. Pariseau v. Department of the Air
Force, 113 M.S.P.R. 370, ¶ 14 (2010). When an appellant raises allegations of
discrimination or reprisal in connection with an involuntariness claim, evidence
of discrimination may be considered only in terms of the standard for
voluntariness and not whether such evidence meets the test for proof of
discrimination or reprisal established under Title VII. Markon, 71 M.S.P.R.
at 578. Thus, evidence of discrimination or retaliation goes to the ultimate
question of coercion, i.e., whether, under all of the circumstances, working
conditions were made so difficult by the agency that a reasonable person in the
employee’s position would have felt compelled to resign or retire. Id.
¶5 In his appeal, the appellant alleged that: (1) he is a gay man; (2) he
overheard management officials making disparaging remarks about gay people
and he heard managers state that the training center was “run by a [expletive]”
4
and an “idiot;” (3) his supervisors falsely told him during a performance review
that employees under his supervision had complained that he had created a hostile
work environment and that, unless he voluntarily stepped down as Director, an
investigation of those complaints would ensue; and (4) when he refused to step
down, he was involuntarily reassigned to work under the direct supervision of one
of the supervisors who provided him with the false information and was a subject
of the appellant’s EEO complaint. IAF, Tab 1. We find these allegations
sufficient under the above-stated standards to satisfy the appellant’s evidentiary
burden and to garner him a jurisdictional hearing.
¶6 In determining whether the appellant has made a nonfrivolous allegation of
jurisdiction entitling him to a hearing, the administrative judge may consider the
agency’s documentary submissions; however, to the extent that the agency’s
evidence constitutes mere factual contradiction of the appellant’s otherwise
adequate prima facie showing of jurisdiction, the administrative judge may not
weigh evidence and resolve conflicting assertions of the parties and the agency’s
evidence may not be dispositive. Ferdon v. U.S. Postal Service, 60 M.S.P.R. 325,
329 (1994). Here, however, in making his determination, the administrative
judge improperly weighed the evidence and considered that information to
resolve the conflicting assertions of the parties. See, e.g., Rivera v. Department
of the Navy, 114 M.S.P.R. 52, ¶ 7 (2010). Specifically, the administrative judge
considered the agency’s response, as set forth in the FAD, and credited the
appellant’s supervisor’s contentions that: (1) the agency investigated the
appellant’s claims despite his lack of cooperation in providing requested
information; (2) the primary issue with the appellant was that he was “dismissive”
and would not listen to their suggestions; and (3) the supervisor was not aware of
any anti-gay bias from agency management. ID at 12-13.
¶7 We also disagree with the administrative judge’s conclusion that the
appellant failed to allege facts that would indicate that the agency improperly
sought his resignation and exercised pressure on him to resign. ID at 14 (citing
5
Barnett v. U.S. Postal Service, 59 M.S.P.R. 125, 128 (1993)). The appellant
alleged that his supervisors falsely told him that employees under his supervision
had complained that he had created a hostile work environment, that unless he
stepped down as Director, an investigation would ensue, and that he was
involuntarily reassigned to work for one of the supervisors who provided him
with the false information and was a subject of the appellant’s EEO complaint.
IAF, Tab 1. These allegations, if true, would strongly indicate that the agency
sought his resignation under false pretenses and improperly exercised pressure on
him to resign. Only after conducting a jurisdictional hearing will the
administrative judge be in a position to summarize the evidence on these disputed
questions, state which version he believes, and explain in detail why he found the
chosen version more credible.
¶8 Accordingly, we find that the appellant nonfrivolously alleged that his
retirement was involuntary because it was either coerced or based on
misinformation. Therefore, the appeal must be remanded for a jurisdictional
hearing.
ORDER
For the reasons discussed above, we REMAND this case to the regional
office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.