Brenda L. Berkley v. Department of Transportation

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

BRENDA L. BERKLEY, DOCKET NUMBER

Appellant, PH-1221-14-0539-W-1

v.

DEPARTMENT OF DATE: January 20, 2015

TRANSPORTATION,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Darrin W. Gibbons, Esquire, Richmond, Virginia, for the appellant.

Anastasiya Sidorova, Washington, D.C., 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 her individual right of action (IRA) appeal for lack of jurisdiction and

also dismissed her claim of an involuntary retirement for lack of jurisdiction.

Generally, we grant petitions such as this one only when: the initial decision

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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,

and we DENY the petition for review. The administrative judge’s initial

decision, as supplemented by this Final Order with regard to the jurisdictional

dismissal of the involuntary retirement claim, constitutes the Board’s final

decision in this matter. 5 C.F.R. § 1201.113.

DISCUSSION OF ARGUMENTS ON REVIEW

¶2 The appellant, a former Financial Management Specialist with the Federal

Highway Administration, submitted an application for retirement effective

October 31, 2013. Initial Appeal File (IAF), Tab 1, Subtab 8. After retiring from

federal service, the appellant filed a complaint with the Office of Special Counsel

(OSC) challenging several agency actions on the basis of whistleblower reprisal.

IAF, Tab 14 at 25-34. OSC issued the appellant a close-out letter on January 15,

2014, and the appellant thereafter filed a timely IRA appeal with the Board. IAF,

Tab 1 & Subtab 5 (OSC close-out letter). After holding several status

conferences with the parties in an effort to define the issues presented, and after

issuing several jurisdictional orders explaining the appellant’s various burdens to

establish the Board’s jurisdiction over her potential claims, the administrative

judge issued an initial decision dismissing her appeal for lack of jurisdiction.

3

IAF, Tab 30, Initial Decision (ID). Specifically, the administrative judge found

that the appellant failed to nonfrivolously allege that she made a protected

disclosure under 5 U.S.C. § 2302(b)(8) and that she also failed to nonfrivolously

allege that she engaged in a protected activity under 5 U.S.C. § 2302(b)(9). ID

at 5-6. The administrative judge further concluded that the appellant failed to

exhaust her claim of reprisal based on her filing a complaint with the agency’s

Office of Inspector General (OIG), ID at 6, and he also determined that the

appellant failed to nonfrivolously allege that she was forced to retire based upon

alleged intolerable working conditions which left her no choice but to leave

federal service involuntarily, ID at 7-8.

¶3 The appellant has filed a petition for review challenging the administrative

judge’s jurisdictional dismissal of her claim of an involuntary retirement. 2

Petition for Review (PFR) File, Tab 1 at 4-6. The agency has filed a response in

opposition to the petition for review. PFR File, Tab 3.

The administrative judge properly dismissed the appellant’s IRA appeal for lack

of jurisdiction.

¶4 The Board has jurisdiction over an IRA appeal if the appellant exhausts her

administrative remedies with OSC and makes nonfrivolous allegations that:

(1) she made a disclosure under 5 U.S.C. § 2302(b)(8), or engaged in a protected

activity under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the disclosure

or protected activity was a contributing factor in the agency’s decision to take or

fail to take a personnel action as defined by 5 U.S.C. § 2302(a). See 5 U.S.C.

§§ 1214(a)(3), 1221(e)(1); see also Yunus v. Department of Veterans

Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001). A nonfrivolous allegation is an

allegation of fact that, if proven, could establish a prima facie case that the Board

has jurisdiction over the appeal. Carney v. Department of Veterans

2

The appellant has not specifically challenged any of the administrative judge’s

findings as to the jurisdictional dismissal of her IRA appeal on review. See PFR File,

Tab 1 at 4-6. As explained below, we have reviewed the initial decision and concur

with the dismissal of the IRA appeal for lack of jurisdiction.

4

Affairs, 121 M.S.P.R. 446, ¶ 11 (2014). In determining whether the appellant has

made a nonfrivolous allegation of jurisdiction entitling her to a hearing, the

administrative judge may not weigh evidence or resolve conflicting assertions of

the parties. Id.

¶5 In response to the administrative judge’s jurisdictional orders concerning

her IRA appeal, the appellant alleged that she contacted an agency equal

employment opportunity (EEO) counselor in April 2013, to file a complaint of

discrimination in which she disclosed retaliation and harassment based on, inter

alia, the agency’s overburdening her with work and placing her on a performance

improvement plan (PIP). IAF, Tab 14. After considering the appellant’s

allegations, the administrative judge gave the parties an additional opportunity to

brief the issue of whether a complaint of discrimination could serve as a protected

disclosure under section 2302(b)(8). IAF, Tab 20. In response, the appellant

argued that her IRA appeal “is not based upon a discrimination complaint, but

rather [] is based upon reprisal related to the filing of a previous discrimination

complaint.” IAF, Tab 21.

¶6 We agree with the administrative judge that the appellant failed to

nonfrivolously allege facts which could establish the Board’s jurisdiction over her

IRA appeal. The Board has found that allegations that are limited to EEO matters

covered under 5 U.S.C. § 2302(b)(1) and (b)(9) are excluded from coverage under

section 2302(b)(8). See Applewhite v. Equal Employment Opportunity

Commission, 94 M.S.P.R. 300, ¶ 23 (2003). Thus, to the extent that the appellant

sought to predicate her IRA appeal on her disclosure of EEO matters, the

administrative judge properly found that a complaint of discrimination is not a

protected disclosure under 2302(b)(8). 3 See Parikh v. Department of Veterans

Affairs, 110 M.S.P.R. 295, ¶ 24 (2008).

3

We agree with the administrative judge that the changes enacted by the Whistleblower

Protection Enhancement Act of 2012 (WPEA) do not change this result. ID at 5.

5

¶7 We further concur with the administrative judge that the appellant’s

allegation of reprisal under section 2302(b)(9) based on her filing a prior EEO

complaint of discrimination does not establish the Board’s jurisdiction in an IRA

appeal. See ID at 5. Pursuant to the WPEA, an employee may now seek

corrective action in an IRA appeal for any personnel action taken as a result of a

prohibited personnel practice described in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C),

or (D). See Colbert v. Department of Veterans Affairs, 121 M.S.P.R. 677, ¶ 6

(2014); see also 5 U.S.C. § 1221(a). Reprisal for filing a prior EEO complaint,

however, is not included among this listing of prohibited personnel practices

which can form the basis of an IRA appeal; rather, this prohibition is contained

within 5 U.S.C. § 2302(b)(9)(A)(ii), and it does not provide a basis for

establishing the Board’s jurisdiction over an IRA appeal. See Mudd v.

Department of Veterans Affairs, 120 M.S.P.R. 365, ¶ 7 (2013). The administrative

judge properly found that the appellant’s allegations of EEO reprisal fail to

nonfrivolously establish the Board’s jurisdiction over an IRA appeal. Id.

¶8 Finally, we find no reason to differ with the administrative judge’s

conclusion that the appellant failed to exhaust her alleged protected disclosure

made to the OIG. ID at 6. The Board has consistently held that it may only

consider the specific allegations of reprisal which have been presented to OSC,

and the appellant has presented no evidence that she exhausted this claim with

OSC. 4 See Coufal v. Department of Justice, 98 M.S.P.R. 31, 37 (2004). We

accordingly AFFIRM the jurisdictional dismissal of the appellant’s IRA appeal.

The administrative judge properly dismissed the appellant’s involuntary

retirement claim for lack of jurisdiction.

¶9 Upon reviewing the appellant’s responses to his jurisdictional orders, the

administrative judge found that the appellant also was alleging that she was

forced to retire, and he issued a separate jurisdictional order outlining the

4

The appellant conceded below that she did not present this disclosure to OSC and that

it was unexhausted. ID at 6.

6

appellant’s burden of establishing the Board’s jurisdiction over an involuntary

retirement. 5 IAF, Tab 28. In response, the appellant alleged that she was

subjected to harassment, including disparaging comments, verbal altercations

with coworkers and supervisors, and threatened disciplinary actions, and that she

was subsequently placed on a 90-day PIP (which triggered the cancellation of her

eligibility to telework), at the end of which the agency proposed her removal for

unacceptable performance under chapter 43. IAF, Tab 29. In support of these

allegations, the appellant submitted an affidavit statement and an email exchange

between several supervisory-level employees. Id. at 6-10. The administrative

judge found that the appellant failed to nonfrivolously allege that, based on these

working conditions, she had no choice but to retire. ID at 7-8. We have carefully

reviewed the administrative judge’s initial decision and the appellant’s arguments

presented below, and, for the reasons that follow, we too conclude that the

appellant has failed to establish that the agency coerced her into retiring “by

creating working conditions so intolerable for the employee that he or she is

driven to involuntarily resign or retire.” See Shoaf v. Department of

Agriculture, 260 F.3d 1336, 1341 (Fed. Cir. 2001). The administrative judge’s

5

The appellant’s involuntary retirement was among the personnel actions the appellant

sought to challenge in her IRA appeal. See IAF, Tab 14 at 30, 34. The Board has held

that an appellant can challenge a constructive adverse action in an IRA appeal. See

Colbert, 121 M.S.P.R. 677, ¶ 12. Generally, an employee can only elect to pursue a

remedy for a prohibited personnel practice through one of the following mechanisms: a

direct appeal to the Board under 5 U.S.C. § 7701; a grievance under the provisions of a

negotiated grievance procedure; or a complaint seeking corrective action from OSC.

See Edwards v. Department of the Air Force, 120 M.S.P.R. 307, ¶ 12 (2013).

Whichever remedy is sought first by an aggrieved employee is deemed an election of

that procedure and precludes pursing the matter in either of the other two forums. Id.

Here, the appellant filed a complaint with OSC prior to filing her Board appeal; it

appears, however, that the agency did not give the appellant notice of her procedural

options for electing a remedy under 5 U.S.C. § 7121(g). Under these circumstances, the

Board has found that an employee’s election is not knowing and informed and thus not

binding. Id. (citing Agoranos v. Department of Justice, 119 M.S.P.R. 498, ¶¶ 14, 17

(2013)). We find that the appellant’s filing of a complaint with OSC did not preclude

the administrative judge from considering whether the appellant could separately

establish jurisdiction over her alleged involuntary retirement under chapter 75.

7

initial decision dismissing the appellant’s claim of an involuntary retirement, as

supplemented by the following analysis, is AFFIRMED.

¶10 An employee-initiated action, such as a retirement, is presumed to be

voluntary, and thus outside of the Board’s jurisdiction, unless the employee

presents sufficient evidence to establish that the action was obtained through

duress or coercion or show that a reasonable person would have been misled by

the agency. Searcy v. Department of Commerce, 114 M.S.P.R. 281, ¶ 12 (2010).

To establish the involuntary nature of an action based on coercion, an appellant

must show that: (1) the agency effectively imposed the terms of the employee’s

resignation or retirement; (2) the employee had no realistic alternative but to

resign or retire; and (3) the employee’s resignation or retirement was the result of

improper acts by the agency. Shoaf, 260 F.3d at 1341. The Federal Circuit has

held that “[t]he doctrine of involuntariness is a narrow one, requiring that the

employee satisfy a demanding legal standard.” Conforto v. Merit Systems

Protection Board, 713 F.3d 1111, 1121 (Fed. Cir. 2013). The test for

demonstrating involuntariness is objective, i.e., whether a reasonable employee

confronted with the same circumstances would feel coerced into resigning or

retiring. Id.; see Carey v. Department of Health & Human Services, 112 M.S.P.R.

106, ¶ 5 (2009). In making this determination, the Board must consider the

totality of the circumstances surrounding the employee’s decision, including

“events not immediately preceding the leave of employ” which may provide

“context for an analysis of the events temporally close to the employee’s

retirement.” Shoaf, 260 F.3d at 1342; see Searcy, 114 M.S.P.R. 281, ¶ 12 (the

touchstone of voluntariness is whether, considering the totality of the

circumstances, the employee was deprived of freedom of choice).

¶11 We have reviewed the appellant’s arguments concerning the alleged

intolerable working conditions which caused her to retire, and we concur with the

administrative judge that a reasonable person in the appellant’s position would

not have felt compelled to retire under these circumstances. ID at 6-7. At the

8

outset, we note that the appellant’s retirement followed both her placement on a

90-day PIP and the agency’s issuing her a notice of proposed removal based upon

her unacceptable performance under chapter 43. 6 See IAF, Tab 1. Because these

events are temporally closest to the appellant’s decision to retire, we find that

they are the most probative in determining whether the agency forced her to

retire. See Shoaf, 260 F.3d at 1342 (the most probative evidence of

involuntariness is usually that which is closest to the challenged action). In

response to the administrative judge’s jurisdictional order, however, the appellant

offered no argument explaining why a reasonable person faced with these

circumstances would have felt compelled to leave federal service; instead, the

appellant only alleged that her work had never been subjected to a high level of

scrutiny in the past and that she was harassed about the quality of each work item

submitted. IAF, Tab 29 at 5. In order to sustain a performance-based action

under chapter 43, however, an agency must demonstrate by substantial evidence

that, at a minimum, it provided the appellant with the information needed for her

to perform at the level needed to avoid a performance-based action. See

Henderson v. National Aeronautics & Space Administration, 116 M.S.P.R. 96,

¶ 22 (2011) (an agency must inform an employee of what is needed to avoid

performance-based action before taking an action under chapter 43). The

employee’s opportunity to improve her performance based on this feedback is a

substantive right under 5 U.S.C. chapter 43. See Betters v. Federal Emergency

Management Agency, 57 M.S.P.R. 405, 408 (1993). We find no basis in the

record to conclude that the agency’s compliance with the substantive

requirements needed to sustain a performance-based action under chapter 43

coerced the appellant to retire.

¶12 An appellant’s placement on a PIP and the issuance of a notice of proposed

removal, under certain circumstances, could separately constitute “improper acts

6

The appellant retired prior to the agency issuing a final decision on her proposed

removal.

9

by the agency” which coerced an appellant into retirement. Conforto, 713 F.3d

at 1122; Barthel v. Department of the Army, 38 M.S.P.R. 245, 251 (1988) (if an

employee can show that the reasons for a proposed adverse action cannot be

substantiated, the proposed action would be coercive). The administrative judge,

however, specifically apprised the appellant of this possibility in his jurisdictional

order, and the appellant offered no argument in response which could demonstrate

that the agency knew or should have known that it could not sustain its proposed

removal under chapter 43. See IAF, Tabs 28 (jurisdictional order), 29

(appellant’s response); see also Harris v. Department of Veterans

Affairs, 114 M.S.P.R. 239, ¶ 10 (2010) (the granting of a within-grade increase

could demonstrate that the appellant’s performance was acceptable, and it entitled

the appellant to a jurisdictional hearing on whether the agency knew or should

have known that it could not substantiate a proposed chapter 43 removal covering

the same period of time). We find, moreover, that the appellant failed to

nonfrivolously allege that the agency wrongly placed her on a PIP, and we are not

persuaded by her argument that her work product was subjected to a high level of

scrutiny thus demonstrating intolerable working conditions which forced her to

retire. See IAF, Tab 29 at 5. We therefore find that the appellant failed to

nonfrivolously allege either that the agency’s actions immediately prior to her

retirement were so intolerable that a reasonable person in her position would have

felt compelled to resign or that the agency knew it could not substantiate its

proposed removal under chapter 43.

¶13 We also have considered the other evidence cited by the appellant in her

response to the jurisdictional order and we find that it fails to demonstrate that

the agency subjected her to intolerable working conditions which left her no

choice but to retire. See IAF, Tab 29 at 4. Specifically, the appellant argued that

several colleagues made inappropriate comments about her weight loss due to her

medical condition. Id. From the evidence submitted, however, it appears these

comments were isolated and that they occurred more than 6 months prior to the

10

appellant’s decision to retire. Id. (citing a February 2013 email which

summarized the appellant’s complaints about prior comments; the appellant

retired in October 2013). Furthermore, the appellant did not allege that any other

rude or intolerant comments or behavior were directed toward her after

February 2013, and we accord this evidence of intolerant behavior less probative

weight in determining that the appellant failed to nonfrivolously allege that she

had no other choice but to retire in October 2013. 7 See Shoaf, 260 F.3d at 1343

(the Board has the discretion to determine the evidentiary weight of events

temporally further from the employee’s resignation); see also IAF, Tab 29 at 4.

¶14 Lastly, we have considered the appellant’s assertion that a supervisory

official instructed her that she “can’t threaten [her] [immediate] supervisor with

filing an EEO complaint” and that this same official shortly thereafter “followed

through on his stated intention to take action against the appellant if she ever

filed an EEO complaint.” Id. at 4-5. We find the manner in which the appellant’s

representative has presented this excerpt materially misleads the reader. The full

statement, which is taken from the same February 2013 email discussed above, is

as follows:

I explained to her [the appellant] that you can’t threaten

your supervisor with filing an EEO complaint, or say

that “I’m not your slave, those days are over” and not

expect her to do her duty and give you the information

so you can pursue an EEO if that’s your decision.

Id. at 9 (emphasis added). Thus, contrary to the appellant’s insinuation, the

supervisor did not instruct the appellant to refrain from exercising her EEO rights

but rather explained that, if the appellant threatened to file an EEO complaint,

7

We emphasize that the February 2013 email only summarized past comments—they

were not directed toward the appellant at this time—and it is not clear from the record

when these comments were actually made, thus further reducing their probative value.

See Searcy, 114 M.S.P.R. 281, ¶ 13 (finding a 5-month lapse between comments and an

employee’s subsequent resignation undercut the assertion of intolerable working

conditions which caused the employee to resign).

11

then it would be reasonable for the supervisor to provide the appellant with notice

of how to file such a complaint. 8 Id. We find this statement fails to

nonfrivolously allege that the appellant was subjected to such intolerable working

conditions that she was left with no choice but to retire.

¶15 For the aforementioned reasons, the administrative judge’s jurisdictional

dismissal of the involuntary retirement claim, as supplemented by this Final

Order, is AFFIRMED, and the appellant’s petition for review is DENIED.

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

8

In a separate paragraph, the same supervisor suggested that if the appellant were to

threaten her immediate supervisor “again with an EEO complaint, that we look at it as

misconduct and take appropriate action to that end.” IAF, Tab 29 at 9. There is no

evidence in the record that this statement was conveyed to the appellant prior to her

decision to retire, and we have no reason to find that it could have forced the appellant

to conclude that she had no choice but to retire in October 2013. This statement,

moreover, was made in February 2013, and the agency did not propose the appellant’s

removal until late-September 2013, over 7 months later. This lapse in time also

undermines the probative value of the statement, and we accord it less weight. See

Searcy, 114 M.S.P.R. 281, ¶ 13.

12

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

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

13

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.