The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOHN A. STOLARCZYK, DOCKET NUMBER
Appellant, DC-1221-10-0875-B-2
v.
DEPARTMENT OF HOMELAND DATE: September 23, 2014
SECURITY,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Nicholas Woodfield, Esquire, and R. Scott Oswald, Esquire, Washington,
D.C., for the appellant.
Daniela Murch, Joseph Rieu, and Michael W. Gaches, Esquire, Arlington,
Virginia, 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 remand initial decision,
which dismissed his individual right of action (IRA) appeal for lack of
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 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 and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2 This IRA appeal is before the Board on petition for review of a remand
initial decision dismissing it for lack of jurisdiction. In its prior Opinion and
Order, the Board found that the appellant made nonfrivolous allegations that he
made protected disclosures concerning misuse of government credit cards and
that the agency subjected him to at least one covered personnel action (a
probationary termination). Stolarczyk v. Department of Homeland Security,
119 M.S.P.R. 343, ¶¶ 13-22 (2012). We also found that the circumstances of
these events would be sufficient to establish through the knowledge/timing test of
5 U.S.C. § 2302(a)(2)(A), that the appellant’s disclosures were a contributing
factor to his termination. Id., ¶¶ 23-24.
¶3 On remand, the administrative judge scheduled a hearing on the merits of
the appeal. MSPB Docket No. DC-1221-10-0875-B-1 (B-1), Remand File (RF),
Tab 1. Subsequently, the appellant confirmed that the agency did not terminate
him; rather, he resigned when the agency presented him with a termination letter
and provided him the option to resign in lieu of termination. MSPB Docket No.
3
DC-1221-10-0875-B-2 (B-2), RF, Tab 9 at 1-2. The administrative judge notified
the appellant of how to show that his resignation was involuntary and ordered him
to file evidence and argument on the issue. Id. at 2-3. The administrative judge
also notified the appellant that, if he made a nonfrivolous allegation that his
resignation was involuntary, then the Board would have jurisdiction to adjudicate
that personnel action in the context of the instant IRA appeal. Id. at 3-4.
¶4 In accordance with the administrative judge’s order, the appellant filed
evidence and argument on the issue of voluntariness. B-2, RF, Tab 10. The
administrative judge then notified the parties that “the record plainly
demonstrates that the appellant resigned from his position in order to avoid the
consequences of a formal termination action” and that he therefore did not intend
to take any further evidence on the issue at the hearing. B-2, RF, Tab 12 at 2.
Nevertheless, because the appellant had established IRA jurisdiction with respect
to other personnel actions, i.e., a nonselection for appointment and a change in
duties, responsibilities, and official title, the administrative judge would render a
decision on whether the resignation was voluntary after a hearing on the merits.
B-2, RF, Tab 12 at 1-2, Tab 24 at 2.
¶5 Subsequently, the appellant filed a “Notice of Voluntary Dismissal and
Request for Jurisdictional Order.” B-2, RF, Tab 25. He withdrew his claims
regarding the nonselection and change in duties, responsibilities and official title,
so that the only personnel action remaining was the alleged constructive
termination. Id. at 4-5. Given the administrative judge’s intention not to accept
testimony at the hearing regarding the constructive termination, the appellant
requested that the administrative judge issue an initial decision on the written
record so that he could petition for review to the full Board. 2 Id. at 4-5.
2
The appellant reserved his right to a hearing should the Board remand the appeal a
second time on a finding that he made a nonfrivolous allegation that he was
constructively terminated. B-2, RF, Tab 25 at 5.
4
¶6 The administrative judge issued a remand initial decision dismissing the
appeal for lack of jurisdiction. B-2, RF, Tab 27, Remand Initial Decision (RID)
at 1, 12. He found that the appellant did not allege that his resignation was the
product of intolerable working conditions, misinformation, misrepresentation, or
deception; nor did he claim that the agency knew that it would not prevail if the
action was challenged or that it lacked reasonable grounds to support its decision
to terminate his probationary employment. RID at 10-11. Rather, he appeared to
rely on a “fundamental misunderstanding” of controlling legal authority when he
claimed that his decision to resign in order to avoid the consequences of a
removal for cause was coercive as a matter of law. RID at 11. The
administrative judge found that the appellant was forced to choose between two
unpleasant alternatives—termination and resignation—but that his choice of
resignation was nevertheless voluntary. RID at 10.
¶7 The appellant has filed a petition for review, arguing that the agency lacked
reasonable grounds to terminate him because its termination was in retaliation for
protected whistleblowing. B-2, Petition for Review (PFR) File, Tab 1 at 12. He
argues that the remand initial decision is contrary to Board and U.S. Court of
Appeals for the Federal Circuit precedent regarding constructive removals. Id. at
13-16. Specifically, he argues that the administrative judge presupposed that the
agency would have met its burden of showing by clear and convincing evidence
that it would have terminated him notwithstanding his whistleblowing and that he
required the appellant to show in advance of the hearing that his resignation was
involuntary in order to obtain a hearing on that very issue. Id. at 16. Finally, the
appellant argues that the administrative judge failed to follow the Board’s
instruction to resolve on remand the issue of termination on the merits. Id. at
16-17. The agency has filed a response to the petition for review, PFR File, Tab
3, and the appellant has filed a reply to the agency’s response, PFR File, Tab 4.
¶8 As an initial matter, we disagree with the appellant that the administrative
judge failed on remand to follow the Board’s instructions. In our Opinion and
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Order, as quoted in the petition for review, the Board found that the appellant
made a nonfrivolous allegation that he was terminated, and we directed the
administrative judge to resolve on the merits the issue of whether the appellant
was, in fact, terminated. Stolarczyk, 119 M.S.P.R. 343, ¶ 13. In making this
finding, we perceived a factual dispute concerning whether the agency terminated
the appellant or whether he resigned. Id. Ultimately, however, it proved
unnecessary for the administrative judge to decide this issue because the appellant
conceded on remand that he separated from service by resignation. B-2, RF, Tab
9 at 1-2. He clarified that he was claiming that his resignation constituted a
constructive termination. Id. Our Opinion and Order did not address the issue of
whether the appellant made a nonfrivolous allegation that he was subjected to a
constructive termination.
¶9 As for the appellant’s argument that he resigned in the face of an improper
termination action, the administrative judge stated below that he did not perceive
any such argument by the appellant. RID at 10-11. Moreover, this argument
appears to be inconsistent with the appellant’s stipulation during the prehearing
conference that there was no dispute of material fact concerning the voluntariness
of his resignation. B-2, RF, Tab 24 at 2 n.1. Therefore, the appellant’s argument
that he resigned in the face of an improper termination has the appearance of
being raised for the first time on petition for review. See Banks v. Department of
the Air Force, 4 M.S.P.R. 268, 271 (1980) (the Board generally will not consider
an argument raised for the first time in a petition for review absent a showing that
it is based on new and material evidence not previously available despite the
party’s due diligence). Nevertheless, considering that this is an IRA appeal and
that the appellant’s argument bears on the jurisdictional issue, we will give him
the benefit of the doubt and find that he raised it implicitly below. We will
therefore consider it on review.
¶10 A constructive termination is a personnel action under the Whistleblower
Protection Act. Murphy v. Department of Veterans Affairs, 102 M.S.P.R. 238, ¶ 8
6
(2006). However, just as in appeals under 5 U.S.C. chapter 75 and 5 C.F.R. Part
315, a resignation is actionable in an IRA appeal only if the appellant shows that
it was involuntary. Lawley v. Department of the Treasury, 84 M.S.P.R. 253, ¶ 8
(1999); Mintzmyer v. Department of the Interior, 84 F.3d 419, 423 (1996). Under
the appellant’s theory of the case, the question of whether his resignation
amounted to a constructive removal is intertwined with whether the agency
retaliated against him for whistleblowing. In other words, the Board would have
to determine if the agency’s decision to terminate the appellant was in retaliation
for whistleblowing before it could determine whether the appellant’s resignation
was a constructive termination. It is true that the Board will sometimes consider
reprisal and discrimination claims for the limited purpose of determining whether
a retirement or resignation was voluntary. Garcia v. Department of Homeland
Security, 437 F.3d 1322, 1341 (Fed. Cir. 2006) (en banc); Markon v. Department
of State, 71 M.S.P.R. 574, 578 (1996); Tripp v. Department of the Air Force,
59 M.S.P.R. 458, 461 (1993). This is so even in the context of IRA appeals
alleging constructive removals as personnel actions. Diefenderfer v. Department
of Transportation, 108 M.S.P.R. 651, ¶ 37 (2008). However, the Board’s
consideration of these issues does not extend to the ultimate determination of
whether discrimination or reprisal actually occurred. See Taber v. Department of
the Air Force, 112 M.S.P.R. 124, ¶ 11 (2009) (in an involuntary retirement or
resignation appeal, evidence of discrimination 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).
¶11 Nor does this line of cases have any bearing on the theory of
involuntariness under which the appellant is proceeding, i.e., that he resigned in
the face of an improper termination. The appellant argues that the issue should be
analyzed by weighing the evidence that the agency decided to terminate him
based on protected whistleblowing against the evidence that the agency
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terminated him because he was not a good employee. PFR File, Tab 1 at 16.
However, this is not the proper standard. The proper standard is whether the
agency knew or should have known that the reasons for its threatened termination
could not be substantiated. Harris v. Department of Veterans Affairs,
114 M.S.P.R. 239, ¶ 8 (2010) (citing Schultz v. U.S. Navy, 810 F.2d 1133, 1136
(Fed. Cir. 1987)). To show that his resignation amounted to a constructive
termination under this theory, the appellant must do more than merely rebut the
agency’s reasons for terminating him. He must show that the agency lacked
reasonable grounds for threatening the termination in the first place. Garland v.
Department of the Air Force, 44 M.S.P.R. 537, 540-41 (1990).
¶12 Regardless of whether the appellant was a whistleblower, the record shows
that the agency did have reasonable grounds for terminating his employment.
These include reports from multiple employees, including the appellant’s
supervisors, subordinates, and peers, that the appellant had an unprofessional
communication style marked with loud, angry outbursts and an intimidating
demeanor. MSPB Docket No. DC-1221-10-0875-W-1, Initial Appeal File (IAF),
Tab 7, Subtabs 4B-4E, Tab 19, Subtab 18; B-2, RF, Tab 17 at 36-37. This
evidence provided a reasonable basis for the agency’s decision to terminate the
appellant for his inability to control his temper and poor interpersonal skills.
IAF, Tab 19, Subtab 26. The appellant’s whistleblower claim and his
characterization of these reports as “exaggerations” and “isolated anecdotes” may
constitute plausible rebuttals to the agency’s reasons for terminating him, but
they do not constitute a nonfrivolous allegation that the agency lacked reasonable
grounds for its threatened action or that the reasons for the termination could not
be substantiated.
¶13 Furthermore, we disagree with the appellant’s argument that the
administrative judge applied the preponderance of the evidence standard in
dismissing his appeal for lack of jurisdiction. PFR File, Tab 1 at 16. In his
remand initial decision, the administrative judge captioned the discussion of the
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voluntariness issue as follows: “The appellant has failed to prove that his
decision to resign from his position in lieu of a probationary termination was
involuntary.” RID at 8. Although this may suggest that the administrative judge
applied a preponderant evidence standard, a reading of the analysis itself shows
that the administrative judge based it on the undisputed facts of the case, as the
parties agreed that he would do during the prehearing conference. RID at 10-11;
B-2, RF, Tab 24 at 2 n.1. To the extent that the administrative judge did not
consider whether the reasons for the threatened termination could be
substantiated, this is because the appellant failed to apprise the administrative
judge that this was the nature of his claim even though the administrative judge
notified him of this theory of involuntariness and directed him toward the
relevant case law. B-2, RF, Tab 9 at 2-3.
¶14 In this regard, we note that the agency subjected the appellant to a covered
personnel action when it presented him with a termination notice and threatened
to terminate him. See 5 U.S.C. § 2302(a)(2)(A)(iii); Zygmunt v. Department of
Health & Human Services, 61 M.S.P.R. 379, 381 (1994). In Zygmunt, the Board
found that the appellant’s claim that the agency constructively removed her in
retaliation for whistleblowing was, in the context of her IRA appeal, better
construed as a claim that the agency threatened to remove her in retaliation for
whistleblowing. 61 M.S.P.R. at 381-84. It remanded the appeal for further
adjudication under that theory. Id. at 381-82. In this case, however, the
appellant, represented by an attorney, has been explicit that the only personnel
action at issue in this IRA appeal is a constructive termination. B-2, RF, Tab 24
at 2-3, Tab 25. Neither the appellant, nor the administrative judges, nor the
Board in its previous Opinion and Order considered the appellant’s constructive
removal claim under this theory. Importantly, the appellant does not argue on
petition for review that the administrative judge erred in failing to consider the
threatened termination as a separate personnel action. See 5 C.F.R. § 1201.115
(the Board normally will consider only issues raised in a timely filed petition or
9
cross petition for review). For these reasons, we find it inappropriate to raise a
new personnel action sua sponte at this stage of the litigation.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit.
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 want to request review of the Board’s decision concerning your
claims of prohibited personnel practices under 5 U.S.C. § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request review of this final decision by the United States Court of Appeals
for the Federal Circuit or any court of appeals of competent jurisdiction. The
court of appeals must receive your petition for review within 60 days after the
date of this order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If
you choose to file, be very careful to file on time. You may choose to request
review of the Board’s decision in the United States Court of Appeals for the
Federal Circuit or any other court of appeals of competent jurisdiction, but not
both. Once you choose to seek review in one court of appeals, you may be
precluded from seeking review in any other court.
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
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States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information about the United States 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, and 11.
Additional information about other courts of appeals can be found at their
respective websites, which can be accessed through
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
If you are interested in securing pro bono representation for an appeal to the
United States Court of Appeals for the Federal Circuit, 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 Federal Circuit. 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.