The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
PAUL MENARD, DOCKET NUMBER
Appellant, SF-0752-13-4803-I-1
v.
DEPARTMENT OF THE INTERIOR, DATE: August 27, 2014
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Paul Menard, Bellingham, Washington, pro se.
Martha F. Ansty, Esquire, Essex Junction, Vermont, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his involuntary resignation appeal for lack of jurisdiction. Generally,
we grant petitions such as this one only when: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
1
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the 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. See 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, and based on the following
points and authorities, 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 by this Final Order,
we AFFIRM the initial decision.
¶2 The appellant’s duty station was Glen Jean, West Virginia. Initial Appeal
File (IAF), Tab 5, Subtab 4t at 1. In November of 2010, the appellant moved to
Montana, at his own expense, for personal reasons. IAF, Tab 8 at 2, 5. However,
the agency executed a telework arrangement, primarily to temporarily
accommodate his personal needs. Id.; IAF, Tab 5, Subtab 4s. Although he
continued to work for the West Virginia office, the agency changed the
appellant’s duty station of record to his new home in Montana. IAF, Tab 5,
Subtab 4p.
¶3 By at least February of 2012, the agency was no longer satisfied with the
telework arrangement. See IAF, Tab 5, Subtab 4m at 1. Not wanting to return to
West Virginia, the appellant suggested a variety of options to facilitate his
separation. Id. at 1-3. Among them, he requested a change in duty station to
Bellingham, Washington, to accommodate both a job search and his family’s
wishes. Id. at 2. The agency changed his duty station and telework agreement
accordingly. IAF, Tab 5, Subtab 4k, Subtab 4l at 3. However, the appellant
cancelled his plans to move, and the agency cancelled the change in duty station
for his convenience. IAF, Tab 5, Subtab 4f; see IAF, Tab 8 at 6 (containing an
3
explanation from the appellant that his move to Washington did not happen
because of the terms of a lease and a family medical issue).
¶4 In May of 2012, the agency notified the appellant that it would be
terminating his telework arrangement based on agency needs, effective June of
2012. IAF, Tab 5, Subtab 4j. The agency provided advance notice to give the
appellant time to arrange his return to West Virginia. Id.
¶5 Days before he was scheduled to appear for work in West Virginia, the
appellant requested a temporary extension of the telework arrangement to
accommodate his family. IAF, Tab 5, Subtab 4g. The agency denied this request,
citing an urgent need at the West Virginia office and the exhaustion of tasks that
could be completed remotely. IAF, Tab 8 at 3. Consequently, the appellant
submitted a letter of resignation, effective July 2, 2012. IAF, Tab 5, Subtab 4c.
¶6 The appellant filed an appeal with the Board in August of 2013. IAF, Tab 1
at 5. The administrative judge issued an acknowledgment order, construing the
appeal as one of involuntary resignation 2 and directing the appellant to meet his
burden of proving that the Board had jurisdiction over his claim. 3 IAF, Tab 2
at 2. The appellant responded, arguing that his resignation was the result of
duress, coercion, and misrepresentation by the agency. IAF, Tab 4 at 4. He
alleged that the agency misrepresented its actions as the cancelling of the
2
The narrative included in the appellant’s initial appeal also alleged that he was forced
to take leave from June 17, 2012, until July 2, 2012. IAF, Tab 1 at 5. However, the
allegation was intertwined with the appellant’s argument that his work environment had
become hostile and forced his resignation. Id. The appellant’s pleadings did not appear
to assert his leave as a claim separate from his allegation of involuntary resignation.
Moreover, the record contains no indication that his leave was forced. Instead, the
evidence of record indicates that the agency allowed the appellant to take leave until
July 2, 2012, to accommodate his return to West Virginia from Montana. IAF, Tab 8 at
1; see Yarnell v. Department of Transportation, 109 M.S.P.R. 416, ¶ 10 (2008) (an
employee’s voluntary placement in a leave status is not appealable).
3
The order also directed the appellant to prove the timeliness of his appeal, as it had
been filed more than a year after his resignation. IAF, Tab 2 at 3. However, because
the judge found that the Board lacked jurisdiction, the judge’s dismissal did not address
the timeliness of the appeal. IAF, Tab 10, Initial Decision (ID) at 1 n.1.
4
telework arrangement when it should have instead provided him rights associated
with a directed reassignment or reduction in force (RIF). Id. at 6. According to
the appellant, this coerced him into resigning. Id. The agency submitted a
motion to dismiss. IAF, Tab 9 at 4-10.
¶7 Without holding a hearing, the administrative judge dismissed the appeal
for lack of jurisdiction. ID. He concluded that the appellant failed to present a
nonfrivolous allegation that his resignation was involuntary. ID at 9. The
appellant has filed a petition for review. Petition for Review (PFR) File, Tab 1.
The agency has filed a response. PFR File, Tab 3.
The appellant failed to nonfrivolously allege that his resignation was involuntary
due to coercion. 4
¶8 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). An appellant has the
burden of proving, by preponderant evidence, 5 that his appeal is within the
Board’s jurisdiction. 5 C.F.R. § 1201.56(a)(2)(i).
¶9 An employee-initiated action, such as a resignation, is presumed to be
voluntary and thus outside the Board’s jurisdiction. Gibeault v. Department of
the Treasury, 114 M.S.P.R. 664, ¶ 6 (2010). In order to overcome the
presumption that a resignation was voluntary, an appellant must show that: (1) the
resignation was the product of misinformation or deception by the agency; or
(2) the resignation was the product of coercion by the agency. Vitale v.
4
The appellant’s petition for review appears premised on allegations of
misrepresentation rather than coercion. See PFR File, Tab 1 at 5-6. However, to the
extent that he intended to intertwine arguments of misrepresentation and coercion, as he
did below, we will address each. See Hosozawa v. Department of Veterans Affairs,
113 M.S.P.R. 110, ¶ 7 (2010) (pro se filings are to be construed liberally).
5
A preponderance of the evidence is the degree of relevant evidence that a reasonable
person, considering the record as a whole, would accept as sufficient to find that a
contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.56(c)(2).
5
Department of Veterans Affairs, 107 M.S.P.R. 501, ¶ 19 (2007). An appellant is
entitled to a jurisdictional hearing if he makes a nonfrivolous allegation 6 that the
Board has jurisdiction over his appeal. Gibeault, 114 M.S.P.R. 664, ¶ 6.
¶10 In his initial appeal, the appellant asserted that “the agency created a hostile
work environment through repeated misrepresentation of facts, false accusations,
hostile posturing, and punitive acts,” coercing him to resign. IAF, Tab 4 at 4, 6.
According to the appellant, he was “duped into a game of bait-and-switch.” Id. at
5. However, the administrative judge concluded that the appellant’s resignation
was not involuntary due to coercion, ID at 8-9, and we agree.
¶11 To establish involuntariness on the basis of coercion, an appellant must
show that the agency effectively imposed the terms of the resignation, the
appellant had no realistic alternative but to resign, and his resignation was the
result of improper acts by the agency. Vitale, 107 M.S.P.R. 501, ¶ 19. 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. Id.
¶12 One example of an involuntary resignation based on coercion is a
resignation induced by a threat to take a disciplinary action that the agency knows
cannot be substantiated. Staats v. U.S. Postal Service, 99 F.3d 1120, 1124 (Fed.
Cir. 1996). A resignation also is coerced where an agency takes steps against an
employee, “not for any legitimate agency purpose but simply to force the
employee to quit.” Id. However, “[t]he doctrine of coercive involuntariness is a
narrow one.” Id. An employee’s decision to resign to avoid a transfer that an
agency has the authority to direct is not involuntary, even if it makes the job “so
unpleasant for the employee that he feels that he has no realistic option but to
6
Nonfrivolous allegations of Board jurisdiction are allegations of fact which, if proven,
could establish a prima facie case that the Board has jurisdiction over the matter at
issue. Gibeault, 114 M.S.P.R. 664, ¶ 6.
6
leave.” Id. The employee’s decision is not made involuntary merely by the
requirement that he choose between two unattractive alternatives. Id.
¶13 Here, the record is filled with evidence that the appellant’s move to
Montana was intended as a temporary accommodation to meet his personal needs.
See, e.g., IAF, Tab 8 at 5-6, 9 (acknowledging that the move to Montana was to
accommodate the appellant’s personal needs, was not intended to be permanent,
and was to be reevaluated a year after its inception). The record also establishes
that the appellant’s return to West Virginia was necessary to meet organizational
needs. See, e.g., id. at 3-4 (detailing organizational changes, including the
passing of another agency employee, that made the physical presence of the
appellant’s position in West Virginia critical, and indicating that the agency had
no more tasks that could be performed remotely). Finally, the record establishes
that the agency provided the appellant with almost 1-month’s advance notice to
return to West Virginia, after previously advising him that the telework
arrangement was nearing its close. IAF, Tab 5, Subtab 4m at 1-3 (February 23,
2012 email from the appellant preparing for an end to the telework arrangement),
Subtab 4j (May 9, 2012 notice directing the appellant to return to West Virginia
by June 4, 2012), Tab 8 at 1, 3 (June 8, 2012 letter reflecting discussions dating
from February 2012 of the planned termination of the telework arrangement and
permitting the appellant to take leave as needed before reporting to West Virginia
by July 2, 2012).
¶14 None of the evidence in the record suggests that the agency took steps to
force the appellant to quit. While the appellant may have preferred to stay in
Montana, he failed to nonfrivolously allege that his decision to resign rather than
return to West Virginia was coerced.
The appellant failed to nonfrivolously allege that his resignation was involuntary
due to misinformation.
¶15 The appellant alleged, both below and on petition for review, that his
resignation was involuntary due to misinformation. IAF, Tab 4 at 4, 6; PFR File,
7
Tab 1 at 6. According to the appellant, he was “deprived of critical information”
regarding the directive to return to West Virginia, which prevented him from
making an informed decision. PFR File, Tab 1 at 6. We disagree. 7
¶16 To establish involuntariness on the basis of misinformation, an appellant
must show that the agency provided misinformation, he materially relied on that
misinformation, and his reliance was to his detriment. Paige v. U.S. Postal
Service, 106 M.S.P.R. 299, ¶ 9 (2007). Here, the appellant’s argument is
premised on the assertion that the agency was not only cancelling a telework
arrangement, it was also subjecting him to a directed reassignment or a RIF. IAF,
Tab 4 at 6; PFR File, Tab 1 at 6. He suggests that the agency never informed him
that it could require his return to West Virginia by simply cancelling the telework
agreement. PFR File, Tab 1 at 6.
¶17 Although the appellant alleges that he was misinformed about the agency’s
ability to require his return to West Virginia and that this resulted in his
resignation, the record reflects otherwise. As detailed above, the record
establishes that the telework arrangement was intended to be temporary. Two
weeks after receiving official notice that his telework arrangement would not be
continued, the appellant responded to the agency by letter stating, in pertinent
part, that his move to Montana was intended to be a temporary solution to his
personal needs, and that he would have to return to West Virginia or be “off the
roles” at some point. IAF, Tab 8 at 5-6, 9. The letter also includes the remark, “I
do not dispute the agency’s authority to terminate our telework agreement or
reassign me.” Id. at 5.
¶18 While the appellant puts great emphasis on the fact that the duty station on
his Standard Form 50 listed his home in Montana, the location of the position
continued to be listed as Glen Jean, West Virginia. IAF, Tab 5, Subtab 4k.
Further, the telework agreement provided that the agency could suspend it and
7
We modify the initial decision, which did not specifically address this argument, to
include our finding that the appellant’s resignation was not the result of misinformation.
8
“require the employee to resume working at the official duty station.” IAF, Tab
5, Subtab 4l at 6. The appellant was well-informed that the arrangement was
temporary. See, e.g., IAF, Tab 5, Subtab 4m at 2 (stating, “[i]f I were single and
unencumbered I would move back tomorrow,” while indicating that personal
circumstances made the move difficult), Subtab 4r (email chain in which the
agency expressed its reluctance to change the appellant’s duty station and the
appellant advised that it was necessary for him for residency and tax reasons),
Tab 8 at 9 (acknowledging that a claim of relocation expenses to return to West
Virginia would “violate the spirit and intent of our agreement” (emphasis in
original)). Therefore, the appellant failed to meet his burden of nonfrivolously
alleging that his resignation was involuntary due to misinformation.
The appellant’s allegation that he was subject to a directed reassignment does not
bring his appeal within the Board’s jurisdiction.
¶19 The appellant argues that the agency subjected him to a directed
reassignment, for which he should have been provided “regulations and
entitlements.” IAF, Tab 4 at 6; see PFR File, Tab 1 at 6. He questioned the
agency’s authority to force his return to West Virginia. PFR File, Tab 1 at 6.
¶20 Although the appellant alleged that he was due reassignment rights, the
Board lacks jurisdiction over reassignments absent a reduction in grade or pay, or
unless the reassignment resulted in a coerced resignation or a removal. See
Miller v. Department of Interior, 120 M.S.P.R. 426, ¶¶ 9-24 (2013) (an agency
must have a bona fide reason for a directed geographic reassignment and may not
reassign an employee as a veil to effect separation); Bishop v. Department of
Commerce, 62 M.S.P.R. 138, 141-42 (1994). Here, the appellant’s grade and pay
remained the same despite the directive to return to West Virginia from Montana.
IAF, Tab 5, Subtabs 4e, 4p. Further, as discussed above, we find that the
appellant’s resignation was not coerced. While the appellant alleges that his
resignation was an involuntary result of the agency’s directive to return to West
Virginia, he has not alleged that the agency had an improper motive for directing
9
this return. Instead, the record establishes that the agency had a bona fide reason
for requiring that he return to West Virginia. IAF, Tab 8 at 3; see IAF, Tab 5,
Subtab 4m at 1 (email from the appellant acknowledging that the telework
arrangement was negatively impacting the agency’s operations). Therefore, even
if the cancellation of his telework arrangement amounted to a directed
reassignment, as the appellant alleges, this does not bring his appeal within the
Board’s jurisdiction.
The appellant was not subjected to a RIF.
¶21 The appellant argues that he was subjected to a RIF, for which he should
have been provided rights. IAF, Tab 4 at 6; PFR File, Tab 1 at 6. We disagree.
¶22 A RIF is an administrative procedure by which an agency eliminates jobs
for certain listed reasons, including lack of work or reorganization, and releases
employees from their competitive levels by furlough of more than 30 days,
separation, demotion, or reassignment requiring displacement. Burger v. U.S.
Postal Service, 93 M.S.P.R. 582, ¶ 9 (2003), aff’d sub nom. Hayes v. U.S. Postal
Service, 390 F.3d 1373 (Fed. Cir. 2004); 5 C.F.R. § 351.201(a)(2). An employee
who has been furloughed for more than 30 days, separated, or demoted by a RIF
may appeal to the Board. Bodus v. Department of the Air Force, 82 M.S.P.R.
508, ¶ 7 (1999); 5 C.F.R. § 351.901.
¶23 As previously explained, the agency directed the appellant to return to West
Virginia, but he was not furloughed for more than 30 days, separated, or demoted
by a RIF. Further, where, as here, an agency action is directed at an individual,
rather than a position, it is not a RIF. E.g., LaMell v. Armed Forces Retirement
Home, 104 M.S.P.R. 413, ¶ 11 (2007); Baker v. Department of Homeland
Security, 99 M.S.P.R. 92, ¶ 6 (2005). The agency merely ended the telework
arrangement, as it was entitled to do, directing the appellant to return to West
Virginia to continue performing the same position, at the same grade and pay.
10
See IAF, Tab 5, Subtabs 4e, 4j. Therefore, the appellant was not subject to a RIF
within the Board’s jurisdiction.
¶24 In conclusion, the appellant failed to meet his burden of proving that his
resignation was involuntary, or that the agency subjected him to any other action
within the Board’s jurisdiction. Therefore, we deny the petition for review and
affirm the initial decision to dismiss the appeal for lack of Board jurisdiction.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
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 have the right to
request the United States Court of Appeals for the Federal Circuit to review this
final decision. You must submit your request to the court at the following
address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information is available at the court's website, www.cafc.uscourts.gov.
11
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, and 11.
If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.