Michael F. Carroll v. Department of the Interior

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

MICHAEL F. CARROLL, DOCKET NUMBER

Appellant, SF-0752-13-4271-I-1

v.

DEPARTMENT OF THE INTERIOR, DATE: December 3, 2014

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Brook L. Beesley, Alameda, California, for the appellant.

Alexandra M. Viscusi, Esquire, and Felippe Moncarz, Esquire, Boise,

Idaho, 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 appeal of his separation 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 and AFFIRM the initial decision, which is now the

Board’s final decision. 5 C.F.R. § 1201.113(b).

¶2 The appellant held the position of Security Guard. Initial Appeal File

(IAF), Tab 6 at 16. In March 2013, his primary care physician recommended that

he be off work until he saw a neurologist for severe headaches. IAF, Tab 9 at 12.

The following month, the appellant underwent further evaluation with a

neurologist who concluded that his exam was normal and suggested that the

headaches were stress-related. Id. at 13-14. Days later, on April 25, 2013, the

appellant’s primary care physician again recommended that the appellant be off

work, this time for an evaluation by a specialist for behavioral modification and

stress management. Id. at 15.

¶3 On May 8, 2013, the appellant submitted a leave request, invoking the

Family and Medical Leave Act of 1993 (FMLA). IAF, Tab 6 at 26. The agency

placed him on leave, with final approval of FMLA contingent upon submission of

appropriate documentation. See id. at 18. However, the appellant did not submit

any further documentation. Id. Instead, on May 22, 2013, the appellant emailed

the agency, indicating that he was in “fairly good health” and that he did not

think FMLA applied to his situation. Id. at 25. He went on to assert that he was

“choosing not to come to work at this time,” due to what he characterized as a

3

hostile work environment and retaliation. Id. He requested paid administrative

leave. Id.

¶4 The agency responded to the email, directing the appellant to return to his

position for his next assigned shift, on May 29, 2013. Id. at 22-23. Nevertheless,

by June 18, 2013, the appellant had neither returned to work nor contacted his

supervisor to request leave. See id. at 18-19. Therefore, the agency warned that

he would be separated by voluntary resignation due to job abandonment if he did

not contact his supervisor prior to his scheduled shift on June 20, 2013. Id. at 19.

The appellant responded by calling his supervisor and indicating that he was not

returning to work. Id. at 17. He requested that someone with the agency come

gather his work-related belongings. Id.

¶5 Effective June 20, 2013, the agency executed a Standard Form 50,

terminating the appellant’s employment due to abandonment. Id. at 16. The

appellant filed a Board appeal, alleging that he was removed without due

process. 2 IAF, Tab 1 at 4. He claimed that his absence was due to medical issues

and that the agency had retaliated against him for equal employment opportunity

(EEO) and whistleblowing activity. Id. The appellant later clarified that he was

only appealing under chapter 75, and that his allegations should not be construed

as an IRA appeal. IAF, Tab 11 at 2-3.

¶6 Without holding a hearing, 3 the administrative judge dismissed the appeal

for lack of jurisdiction. ID at 1. The appellant has filed a petition for review. 4

2

Although the appellant did not file his Board appeal within 30 days of his separation,

the administrative judge found good cause for his untimeliness, and the agency has not

disputed that finding on review. See IAF, Tab 43, Initial Decision (ID) at 5-6; see also

Alonzo v. Department of the Air Force, 4 M.S.P.R. 180, 184 (1980) (to establish good

cause for the untimely filing of an appeal, a party must show that he exercised due

diligence or ordinary prudence under the particular circumstances of the case).

Therefore, we will not revisit the appellant’s untimeliness.

3

The appellant requested a hearing when he filed his appeal. IAF, Tab 1 at 3.

However, the appellant withdrew that request the day before his scheduled hearing,

requesting a decision on the written record. IAF, Tab 37 at 1; see IAF, Tab 39 at 4-8

(the agency’s motion for sanctions, arguing that the appellant exercised bad faith in

4

Petition for Review (PFR) File, Tab 1. The agency has filed a response. PFR

File, Tab 3.

¶7 The appellant’s petition again argues that he did not intend to abandon or

otherwise leave his position with the agency. See PFR File, Tab 1 at 2-5.

Instead, he asserts that his continued absence at the time of separation was

unavoidable due to medical incapacitation. Id. In addition, he suggests that the

agency’s actions were in retaliation for EEO activity and whistleblower

disclosures. Id. at 2-3.

¶8 Although the appellant asserts that the agency improperly invoked

abandonment, we agree with the administrative judge’s findings that the appellant

consciously decided not to return to work. See ID at 7. The appellant made that

decision despite the agency’s notice that his failure to return would be construed

as a voluntary resignation due to abandonment. See IAF, Tab 6 at 17-19.

Accordingly, the appellant either abandoned or resigned from his position. 5 We

cancelling the hearing on such late notice, without informing agency’s counsel prior to

their travels to the hearing), Tab 42 at 1-2 (order denying the motion for sanctions,

finding the record insufficient to conclude that the appellant acted in bad faith).

4

As the agency rightly noted, the appellant’s petition does not comply with the Board’s

formatting requirements. See PFR File, Tab 3 at 4 n.1; compare PFR File, Tab 1

(single-spaced petition for review), with 5 C.F.R. § 1201.114(h) (requirement that a

petition for review be double-spaced). However, because the Clerk of the Board did not

reject the petition, see PFR File, Tab 2, we will consider it.

5

The appellant’s conduct could be construed as abandonment. See Office of Personnel

Management’s Guide to Processing Personnel Actions, Ch. 35 at 1 (Apr. 2014),

http://www.opm.gov/policy-data-oversight/data-analysis-documentation/personnel-

documentation#url=Processing-Personnel-Actions (defining abandonment as when an

employee does not submit a resignation but fails to report for duty); e.g., Fugate v.

Department of the Interior, 19 M.S.P.R. 506, 507-08 (1984) (an agency invoked

abandonment after an employee went missing while hiking and was never seen or heard

from again), aff’d, 765 F.2d 162 (Fed. Cir. 1985) (Table); Poschl v. United States,

206 Ct. Cl. 672, 687-88 (1975) (before separating an employee for abandonment, an

agency must first attempt to determine whether the employee intends to return).

However, the appellant’s statements and actions could be construed as a resignation.

See generally Balagot v. Department of Defense, 102 M.S.P.R. 96, ¶¶ 9-12 (2006)

(discussing how an employee’s statements and actions can signify resignation even in

the absence of a resignation letter or other such formality).

5

find no meaningful distinction for purposes of this appeal. Because the appellant

asserts that he was involuntarily separated from his position with the agency, his

appeal is properly construed as a constructive adverse action claim.

¶9 An appellant bears the burden of proving, by preponderant evidence, that

his appeal is within the Board’s jurisdiction. 5 C.F.R. § 1201.56(a)(2)(i).

Assuming all other jurisdictional requirements are met, a constructive adverse

action claim requires that an appellant prove that (1) he lacked a meaningful

choice in the matter; and (2) it was the agency’s wrongful actions that deprived

him of that choice. Bean v. U.S. Postal Service, 120 M.S.P.R. 397, ¶ 8 (2013).

One primary method of establishing an employee’s lack of a meaningful choice is

to show that his separation was the product of agency coercion. See Conforto v.

Merit Systems Protection Board, 713 F.3d 1111, 1121 (Fed. Cir. 2013).

¶10 Here, the appellant first seems to argue that he lacked a meaningful choice

because retaliation for EEO and whistleblowing activity created intolerable

working conditions that amounted to coercion. 6 PFR File, Tab 1 at 2-3; IAF, Tab

22 at 2-3. According to the appellant, he was disarmed, transferred to an

unarmed post, and denied training. 7 IAF, Tab 22 at 2. He also alleged that his

hours were reduced, his unscheduled overtime was eliminated, and his email

access was blocked. 8 Id. The administrative judge did not make any

6

When allegations of reprisal for either prior EEO or whistleblowing activity are

alleged in connection with a determination of voluntariness, such evidence of reprisal

may be addressed only insofar as it relates to the issue of voluntariness and not whether

the evidence would establish reprisal as an affirmative defense. O’Brien v. Department

of Agriculture, 91 M.S.P.R. 139, ¶ 6 (2002). Thus, evidence of reprisal goes to the

ultimate question of coercion. Id.

7

The appellant suggests that many of the changes in his working conditions coincided

with an investigation into whether the he had engaged in misconduct, including theft,

and that this occurred as a result of his EEO and whistleblowing activity. E.g., IAF,

Tab 9 at 9, Tab 22 at 2, Tab 40 at 6. However, he concedes that the agency never

charged him with any misconduct. IAF, Tab 40 at 7.

8

The appellant’s email access was temporarily suspended after he sent an email to “all

employees” requesting donations to hire an attorney and private investigator, while

6

determination as to the propriety of these purported agency actions. Instead, he

found the appellant’s assertions vague, conclusory, and insufficient to establish

that his situation had become so intolerable that a reasonable person would feel

compelled to abandon his employment. ID at 9-15. We agree.

¶11 To overcome the presumption of voluntariness based on an allegation of

coercion, an employee must establish that a reasonable person under the same

circumstances would have felt coerced into leaving his position. See Conforto,

713 F.3d at 1121. As the administrative judge noted, even if the appellant’s

working conditions had become unpleasant, he could have simply awaited the

outcome of the investigation that had led to these purported conditions and dealt

with any resulting discipline rather than refusing to come to work. ID at 10-11;

compare Miller v. Department of Defense, 85 M.S.P.R. 310, ¶ 29 (2000) (to prove

a constructive discharge, an employee has an obligation to act reasonably, not

assume the worst, and not jump to conclusions too quickly), with Bates v.

Department of Justice, 70 M.S.P.R. 659, 670-71 (1996) (an employee was

coerced into resigning by years of continuous and unredressed harassment which

escalated to a level of endangering her safety), and Schultz v. U.S. Navy, 810 F.2d

1133, 1136-37 (Fed Cir. 1987) (resignation amounted to constructive removal

where an employee resigned to avoid a threatened adverse action that the agency

knew or should have known could not be sustained). Dissatisfaction with work

assignments, a feeling of being unfairly criticized, or difficult or unpleasant

working conditions are generally not so intolerable as to compel a reasonable

person to resign. Miller, 85 M.S.P.R. 310, ¶ 32.

¶12 In his petition, the appellant has not presented any substantive argument to

dispute the administrative judge’s findings regarding his retaliation claims.

Instead, he directs the Board to his previous filings, and asserts that the agency

did not present testimonial or sworn statements to dispute those claims. PFR File,

alleging that he was the subject of a criminal and malicious investigation by another

agency employee. IAF, Tab 28 at 8-9.

7

Tab 1 at 2-3. However, as discussed above, the appellant bears the burden of

proof, not the agency.

¶13 The appellant next suggests that he lacked a meaningful choice because he

was medically incapacitated at the time of his separation. PFR File, Tab 1 at 2-5.

However, we agree with the administrative judge that this argument is not

supported by the record. See ID at 9.

¶14 Although the appellant requested FMLA leave in early May 2013, he

reversed course just weeks later, proclaiming that he was in “fairly good health”

without “any serious medical conditions.” IAF, Tab 6 at 25-26. For the period

between that time and his separation, the record contains no substantive

indication that his continued absence was health-related. 9 Instead, the evidence

demonstrates that the appellant chose not to work because of his displeasure with

his working situation due to a purported investigation. See IAF, Tab 6 at 17, 25.

He requested administrative leave, which was denied, but he submitted no other

leave request. See id. at 17-19, 22-23, 25.

¶15 In his petition for review, the appellant puts great emphasis on two agency

messages, dated March 27-28, 2013, and a doctor’s note, dated April 25, 2013, to

argue that he was both medically incapacitated and on approved FMLA leave at

the time of his separation. PFR File, Tab 1 at 3-5. The agency’s messages

discuss a March 2013 request for medical leave, while the doctor’s note

summarily recommends that the appellant be “off work for evaluation by

specialist for behavioral modification for stress management.” IAF, Tab 9 at 15,

9

In concert with his appeal, the appellant submitted sworn declarations, asserting that

his failure to return to work was the result of medical incapacitation from headaches,

anxiety, panic, and fear. IAF, Tab 9 at 9-10, Tab 40 at 6-7. However, the

administrative judge gave those post hoc statements little weight because they were

inconsistent with the medical evidence of record and contrary to the appellant’s own

statements when he informed the agency that he would not return to work. ID at 9 n.1;

see IAF, Tab 9 at 11-15, Tab 6 at 25. We find no error in that credibility determination.

See Hillen v. Department of the Army, 35 M.S.P.R. 453, 458 (1987) (to resolve

credibility issues, relevant factors include prior inconsistent statements and the

contradiction of a witness’s version of events by other evidence).

8

Tab 34 at 26, 29. However, we do not find this evidence, all of which predates

the appellant’s May 22, 2013 declaration that he was in good health but choosing

not to return to work, dispositive. See Miller, 85 M.S.P.R. 310, ¶ 10 (the

circumstances immediately preceding the appellant’s discharge are most relevant

in determining the voluntariness of a resignation). Although the appellant had

previously invoked FMLA, he specifically revoked that invocation as of May 22,

2013. IAF, Tab 6 at 25-26. No evidence after that date gives any indication that

the appellant wanted to be or should have been on FMLA leave. See id. at 17-19,

22-25; see generally Ellshoff v. Department of the Interior, 76 M.S.P.R. 54, 75-76

(1997) (discussing the notice requirement under FMLA); 5 C.F.R. § 825.305(d)

(providing that an employer may deny the taking of FMLA leave where an

employee fails to provide a requested medical certification).

¶16 The appellant asserts that the administrative judge “manifestly ignored [his]

known medical incapacitation.” PFR File, Tab 1 at 2. However, the

administrative judge explicitly addressed the argument in his decision. ID at 9.

The appellant may disagree with the administrative judge’s findings, but mere

disagreement does not warrant further review. See Weaver v. Department of the

Navy, 2 M.S.P.R. 129, 133-34 (1980). Accordingly, the appellant has failed to

establish any error in the administrative judge’s conclusion that his separation

was voluntary and outside the Board’s jurisdiction. See ID at 15.

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. You must submit your request to

the court at the following address:

9

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.

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

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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.