The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROBERT D. O'BRIEN, DOCKET NUMBER
Appellant, AT-0752-14-0640-I-1
v.
DEPARTMENT OF THE ARMY, DATE: February 10, 2015
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL 1
Adam Jerome Conti, Atlanta, Georgia, for the appellant.
Christopher M. Kenny, Fort Gordon, Georgia, 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 the appeal for lack of jurisdiction. For the reasons discussed below, we
GRANT the appellant’s petition for review and REMAND the case to the regional
office for further adjudication in accordance with this order.
1
A nonprecedential order is one that the Board has determined does not add
sign ificantly 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 Parties may cite nonprecedential orders,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
¶2 The appellant occupied a GS-13 Supervisory Security Specialist position,
which was designated as a law enforcement officer position and was subject to
random drug testing. Initial Appeal File (IAF), Tab 1. A urine sample that he
provided on February 5, 2014, was certified by an agency Medical Review
Officer as testing positive for codeine and morphine. Id. The appellant
maintained that he had codeine in his system because he had taken prescription
cough syrup with codeine a few days before the test, and that codeine metabolized
into morphine. Id. He indicated during the investigation of the positive test
result that he did not submit his prescription for cough syrup with codeine
because he had been told that the agency would not accept a prescription that was
more than 6 months old and his prescription was written more than 6 months prior
to the drug test. IAF, Tab 4 at 28. Subsequently, the appellant became aware that
the agency proposed to remove him based on the positive drug test result, and he
resigned before receiving the notice of proposed removal. IAF, Tab 9 at 11.
¶3 The appellant filed an appeal, alleging that his supervisor provided
inaccurate and misleading information that coerced his resignation. Specifically,
he alleged that, during a meeting on April 2, 2014, his supervisor failed to inform
him that before he could be removed, he had the right to an advance notice and an
opportunity to respond. Id. The appellant represented that during the meeting his
supervisor said that the agency had decided to remove the appellant and that to be
eligible for federal retirement and/or to get reinstated somewhere in the federal
system, he had to resign immediately, prior to being formally issued the notice of
proposed removal that the supervisor said he had in hand. Id. The appellant
alleged that, based on the supervisor’s representation during the meeting, he
returned to his office, drafted a resignation letter that he dated April 1, 2014, and
submitted it before receiving the proposed removal notice. Id.
¶4 The administrative judge found that the appellant had made a nonfrivolous
allegation that his resignation was coerced by his supervisor’s misleading
statements, and held a jurisdictional hearing at which the appellant and his
3
supervisor testified about the meeting of April 2, 2014. IAF, Tab 14. She found
that the appellant’s version was not credible. IAF, Tab 12, Initial Decision (ID)
at 5. Rather, she credited the appellant’s supervisor’s testimony that the appellant
arrived at the meeting with the resignation letter in hand. ID at 5. In crediting
the supervisor’s testimony, the administrative judge found that the supervisor’s
statement that the meeting lasted fewer than 5 minutes was corroborated by
another employee who was in the office at the time of the meeting, and that his
testimony was consistent with the statement that he provided earlier. ID at 5.
She also found that, even if the appellant’s supervisor made the statements that
the appellant alleges were made, the appellant was an experienced and trained
supervisor who knew or should have known that his removal needed to be
proposed before it was finalized and that he would have an opportunity to respond
to a deciding official. ID at 6-7. Thus, the administrative judge found that the
appellant failed to show that his resignation was the result of coercion. ID at 6-8.
¶5 In his petition for review, the appellant asserts that, on August 22, 2014,
based on information that he learned during the August 18, 2014 Board hearing,
he telephoned the agency’s drug testing laboratory to inquire into the manner that
his drug test had been processed. Petition for Review (PFR) File, Tab 4 at 7-8.
He said that the laboratory asked for copies of his prescriptions regardless of how
old they were, and he promptly provided them. Id. at 8. On September 2, 2014,
he received a copy of a Lab Results Report that reflected negative results for his
drug test based on the urine sample that he provided on February 5, 2014. Id. at
27. With his petition for review, the appellant provided an affidavit repeating
that he did not provide any prescriptions during the investigation of the positive
test result because he had been wrongly informed that he may submit only
prescriptions that were less than 6 months old. Id. at 15. He also provided a
copy of the Lab Results Report showing negative results, and a list of his
prescriptions showing that he was prescribed guaifenesin/codeine on
August 31, 2011. Id. at 21, 27. The appellant asks the Board to accept the
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affidavit, prescription information, and the September 2, 2014 Lab Results Report
into the record as new evidence to show that he resigned based on misleading
information.
¶6 Under 5 C.F.R. § 1201.115, the Board generally will not consider evidence
submitted for the first time with the petition for review absent a showing that it
was unavailable before the record was closed despite the party’s due diligence.
Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980). Further, the Board
will not grant a petition for review based on new evidence absent a showing that
it is of sufficient weight to warrant an outcome different from that of the initial
decision. Russo v. Veterans Administration, 3 M.S.P.R. 345, 349 (1980).
¶7 Here, nothing contradicts the appellant’s statement that he first learned
during the hearing in his appeal that the agency provided misleading information
regarding whether he could submit prescriptions that were older than 6 months.
He contacted the drug testing laboratory within 4 days of the hearing in his
appeal. We find that under these circumstances the appellant acted with due
diligence to contact the laboratory, and to obtain the new evidence that he
submits on petition for review. We find further that the appellant’s statement,
made under penalty of perjury, that he was misled into failing to submit his
prescription for cough syrup with codeine, if proven, could constitute evidence
sufficient to warrant a different jurisdictional outcome. See Henson v.
Department of the Treasury, 86 M.S.P.R. 221, ¶ 7 (2000).
¶8 A decision to resign is presumed to be a voluntary act outside the Board’s
jurisdiction, and the appellant bears the burden of showing that his resignation
was involuntary and therefore tantamount to a forced removal. Baldwin v.
Department of Veterans Affairs, 111 M.S.P.R. 586, ¶ 15 (2009). One means by
which an appellant may overcome the presumption of voluntariness is by showing
that the resignation was obtained by agency misinformation or deception. Id.
¶9 The touchstone of the analysis of whether a retirement or resignation is
voluntary is whether the employee made an informed choice. Id., ¶ 16. A
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decision made “with blinders on,” based on misinformation or lack of
information, cannot be binding as a matter of fundamental fairness and due
process. Id. (quoting Covington v. Department of Health & Human
Services, 750 F.2d 937, 943 (Fed. Cir. 1984)). The Board has stated that the
principles set forth in the court’s decisions in Scharf v. Department of the Air
Force, 710 F.2d 1572, 1574–75 (Fed. Cir. 1983), and Covington require an
agency to provide information that is not only correct in nature but adequate in
scope to allow an employee to make an informed decision, and that this includes
an obligation to correct any erroneous information that it has reason to know an
employee is relying on. Baldwin, 111 M.S.P.R. 586, ¶ 16; see Johnson v. U.S.
Postal Service, 66 M.S.P.R. 620, 627–28 (1995).
¶10 We find that the appellant’s new evidence constitutes a nonfrivolous
allegation of facts which, if proven, could warrant setting aside the drug test
carried out without the benefit of that prescription. See, e.g.,
Henson, 86 M.S.P.R. 221, ¶ 8. 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. Deines v. Department of
Energy, 98 M.S.P.R. 389, ¶ 11 (2005). An appellant is entitled to a hearing on
the issue of Board jurisdiction over an alleged involuntary resignation 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).
¶11 The appellant’s assertion, and new evidence in support thereof, that he was
misled by the agency into failing to submit critical evidence, if proven, may have
affected the outcome of the investigation into his positive drug test. Absent the
appellant’s receiving misleading representation of a rule prohibiting submission
of prescriptions that were more than 6 months old, it appears that: (1) he would
not have received a positive drug test result; (2) the agency may not have
proposed his removal; and (3) he would not have felt pressured to resign. That is
so, regardless of whether the agency was aware that its statements were
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misleading. See Covington, 750 F.2d at 942. In any event, as noted, the appellant
told the agency, during the investigation of the positive test results, that he had
been informed of a rule prohibiting consideration of prescriptions that were more
than 6 months old, thereby obligating the agency to inform the appellant if his
belief was inaccurate. We find that the appellant alleged that, as a long-time
employee who had never been disciplined, IAF, Tab 1, he reasonably relied upon
the misleading statements about a rule concerning whether he could submit
certain prescriptions in concluding that he had no real choice but to immediately
resign to preserve his good employment record.
¶12 Accordingly, we remand the appeal to the Atlanta Regional Office to afford
the appellant an opportunity to prove his allegation of agency misrepresentation.
On remand, the appellant shall be given the opportunity to supplement the record,
including calling witnesses to give additional testimony, about whose testimony
the administrative judge may then make additional credibility determinations. 2
See Henson, 86 M.S.P.R. 221, ¶ 16.
ORDER
¶13 We remand this appeal to the regional office for further adjudication
consistent with this remand order.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.
2
Our findings in the remand order do not disturb the administrative judge’s credibility
findin gs regarding what transpired between the appellant and his supervisor at the
April 2, 2014 meeting.