Karin Weng v. Department of Labor

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

KARIN WENG, DOCKET NUMBER

Appellant, CB-7121-13-0180-V-1

v.

DEPARTMENT OF LABOR, DATE: March 12, 2015

Agency.

THIS FINAL ORDER IS NO NPRECEDENTIAL 1

Karin Weng, Rockville, Maryland, pro se.

Laura K. Teresinski, Esquire, and Rolando Valdez, Esquire, Washington,

D.C., for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

FINAL ORDER

¶1 Pursuant to the Board’s instructions in its April 17, 2014 Order, the

administrative judge issued an August 28, 2014 recommendation on the

appellant’s allegation of an involuntary resignation. For the reasons set forth

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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below, we ADOPT the administrative judge’s recommendations in this Final

Order and DISMISS the appellant’s request for review for lack of jurisdiction.

¶2 The pertinent background for this case is set forth in our Order forwarding

the matter to the regional office for an addendum proceeding on the issues of

Board jurisdiction over the appellant’s alleged involuntary resignation,

discrimination, and reprisal claims. Weng v. Department of Labor, MSPB Docket

No. CB-7121-13-0180-V-1 (V-1 File), Order (Apr. 17, 2014). We found that the

arbitrator erred in his legal analysis by not allowing additional evidence to be

presented in accordance with Board law relating to allegations of an involuntary

resignation; and therefore there was a question of whether we had jurisdiction

over the appeal. Id. at 3, 7. We forwarded the matter to the Washington Regional

Office (WRO) to make recommended findings on the appellant’s involuntary

resignation claim and, if the administrative judge found that the Board had

jurisdiction over this claim, to make further findings on her discrimination and

reprisal claims. Id. at 8.

¶3 An administrative judge at WRO issued a recommendation decision that

found the appellant failed to make a nonfrivolous allegation that her resignation

was involuntary and recommended that the case be dismissed for lack of

jurisdiction. Weng v. Department of Labor, MSPB Docket No. CB-7121-13-

0180-H-1 (H-1 File), Tab 27, Recommendation Decision (RD) at 5-6. 2 The

administrative judge found that the appellant, who was represented by counsel

during this period, did not provide a responsive pleading to the jurisdictional

order that required her to make a nonfrivolous allegation of Board jurisdiction

over her alleged involuntary resignation and that the appellant’s statement that

she was resigning based on the advice of her union representative was not an

allegation of involuntariness. RD at 2-5. The administrative judge also found

2

The recommendation decision was in itially issued erroneously as an initial decision,

however, WRO issued an erratum order advising the parties that the decision was a

recommendation and of their right to file exceptions with the Board. I d., Tab 29.

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that the appellant had a choice between unpleasant alternatives, but the choice

between unpleasant alternatives did not render her resignation involuntary. RD

at 5. She found that the appellant did not allege that she was subject to working

conditions so intolerable that she was forced to resign. RD at 5. Because the

appellant did not make a nonfrivolous allegation of jurisdiction that her

resignation was involuntary, the administrative judge recommended that the case

be dismissed for lack of jurisdiction. RD at 5-6.

¶4 After she issued the recommendation, the administrative judge informed the

parties that the recommendation would be forwarded back to the Board and that

the parties could file exceptions to the recommendation with the Clerk of the

Board within 20 days of the issuance of the recommendation. H-1 File, Tab 29.

The appellant has filed exceptions to the administrative judge’s recommended

decision. V-1 File, Tab 13. The agency has responded to the appellant’s

exceptions, and the appellant submitted a reply to the agency’s response. V-1

File, Tabs 14, 16.

The appellant failed to make a nonfrivolous allegation that her resignation was

involuntary due to agency misinformation.

¶5 In her submission to the administrative judge, the appellant argued that the

agency’s failure to correct the information regarding her resignation’s effect on

her appeal rights resulted in her relying on misinformation and rendered her

resignation involuntary. H-1 File, Tab 13 at 11-12. The administrative judge did

not address this argument in her recommendation decision. We disagree with the

appellant’s argument that her resignation was involuntary due to agency

misinformation.

¶6 An employee’s resignation is presumed to be a voluntary action and, as

such, outside the Board’s appellate jurisdiction. Aldridge v. Department of

Agriculture, 111 M.S.P.R. 670, ¶ 7 (2009). An involuntary resignation, however,

is tantamount to a removal and, accordingly, is appealable to the Board. Id. To

establish entitlement to a jurisdictional hearing, an appellant need not allege facts

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which, if proven, definitely would establish that the resignation was involuntary;

she need only allege facts which, if proven, could establish such a claim. Frison

v. Department of the Army, 94 M.S.P.R. 431, ¶ 4 (2003).

¶7 To establish Board jurisdiction over a constructive adverse action, such as

an involuntary resignation, an appellant must show that: (1) she lacked a

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

deprived the employee of that choice. Bean v. U.S. Postal Service, 120 M.S.P.R.

397, ¶ 8 (2013). An appellant may overcome the presumption of voluntariness by

presenting 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).

The touchstone of the voluntariness analysis is whether, considering the totality

of circumstances, factors operated on the employee’s decision-making process

that deprived her of freedom of choice. Id. Application of this totality of

circumstances test must be gauged by an objective standard rather than by the

employee’s purely subjective evaluation. Heining v. General Services

Administration, 68 M.S.P.R. 513, 519-20 (1995). Furthermore, it is well settled

that most resignations are not constructive removals and that the “‘doctrine of

coercive involuntariness is a narrow one’ requiring that the employee ‘satisfy a

demanding legal standard.’” Garcia v. Department of Homeland

Security, 437 F.3d 1322, 1329 (Fed. Cir. 2006) (en banc).

¶8 An agency is required to provide accurate information to permit an

employee to make an informed, and thus voluntary, decision regarding her

resignation. Salazar v. Department of the Army, 115 M.S.P.R. 296, ¶ 9 (2010). A

decision made “with blinders on,” based on misinformation or lack of

information, cannot be binding as a matter of fundamental fairness and due

process. Freeborn v. Department of Justice, 119 M.S.P.R. 290, ¶ 10 (2013)

(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 our

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reviewing 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 on which it has reason to know an employee is

relying. Freeborn, 119 M.S.P.R. 290, ¶ 10.

¶9 Here, it is undisputed that the appellant’s union was the source of any

misinformation she received regarding her ability to appeal if she resigned. V-1

File, Tab 1, Subtab 19, Subtab 26 at 89-91. While the appellant may feel that she

was misled by the union representatives, they are not representatives of the

agency and their acts cannot be imputed to the agency. See Green v. Department

of Veterans Affairs, 112 M.S.P.R. 59, ¶ 9 (2009). The appellant argued in her

response to the administrative judge that the agency was obligated to correct the

erroneous advice given to her. H-1 File, Tab 13 at 11-12. However, the agency’s

obligation is only triggered when it knows the appellant is relying on the

misinformation. Willis v. Department of the Air Force, 56 M.S.P.R. 433, 440

(1993), aff’d, 29 F.3d 645 (Fed. Cir. 1994) (Table). The appellant has not alleged

that the agency knew her union representatives had advised her that she could

continue to pursue her appeal if she resigned her position. In fact, the appellant

testified at the arbitration hearing that she had never discussed the option of

resigning with agency officials. V-1 File, Tab 1, Subtab 26 at 94-95. In addition,

the appellant stated that she met with her union representatives who advised her

to resign and that she immediately returned to her desk and sent an email at

3:45 p.m. that stated she was resigning effective at 4 p.m. that day. Id. at 90-91.

The appellant provided little, if any, time for the agency to respond, even if it had

been aware of her reliance on the union’s misinformation. Finally, it is well

established Board law that the appellant is responsible for the errors of her chosen

representatives. Sofio v. Internal Revenue Service, 7 M.S.P.R. 667, 670 (1981).

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Therefore, we find that the appellant has not made a nonfrivolous allegation that

her involuntary resignation resulted from agency misinformation.

The appellant failed to make a nonfrivolous allegation that her resignation was

involuntary due to duress or coercion.

¶10 The appellant argues in her exceptions both that the administrative judge

erred in limiting her analysis of duress to three elements and that she has

submitted sufficient evidence and argument using these elements to make a

nonfrivolous allegation of duress. V-1 File, Tab 13 at 12-14. The administrative

judge recommended finding that the appellant had not made a nonfrivolous

allegation, relying in part on the three elements for duress set forth in Fruhauf

Southwest Garment Co. v. United States, 111 F. Supp. 945, 951 (Ct. Cl. 1953).

RD at 4-5. We agree.

¶11 Three elements are generally common to all situations where the employee

has tendered her resignation in the face of a threatened or proposed adverse

action: (1) one side involuntarily accepted the terms of another; (2) the

circumstances permitted no other alternative; and (3) said circumstances were the

result of coercive acts of the opposite party. Heining, at 68 M.S.P.R. at 520

(citing, among other cases, Fruhauf Southwest Garment Co., 111 F. Supp. at 951).

However, in the case where intolerable working conditions are alleged, these

elements must be tailored and/or expanded to fit the situation. Id. When, as here,

an employee claims that her resignation was the result of intolerable working

conditions, she must show that a reasonable employee in her position would have

found the working conditions so oppressive that she would have felt compelled to

resign. 3 See Hosozawa v. Department of Veterans Affairs, 113 M.S.P.R. 110, ¶ 5

3

“[W]here an employee is faced merely with the unpleasant alternatives of resigning or

being subject to a removal for cause, such limited choices do not make the resulting

resignation an involuntary act.” Schultz v. United States Navy, 810 F.2d 1133, 1136

(Fed. Cir. 1987). However, if the appellant alleged that the agency knew that it could

not substantiate the removal, then the agency’s action is coercive. I d. The appellant

has not alleged that the agency knew that it could not substantiate her removal.

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(2010). The recommendation decision accurately reflects this legal analysis. RD

at 4.

¶12 The appellant argues that the agency imposed the terms of her resignation

and that she had no alternative but to resign from her position because the agency

had issued a final decision to remove her. V-1 File, Tab 13 at 14-16. In addition,

she cites to a case, which she alleges supports her position that she did not give

up her appeal rights in her resignation letter. Id. at 16. Here, the appellant had

the choice to resign or to challenge her removal; she elected to submit her

resignation on the day of her removal. V-1 File, Tab 1, Subtab 19. The appellant

knew how to challenge personnel actions, as evidenced by her citation to a

district court settlement of $295,000 to resolve grievances during the period of

her employment from 2009-2011. H-1 File, Tab 13 at 6-7. In addition, the

appellant states in her exceptions that she has ten other grievances pending

against the agency, where the union has invoked arbitration. V-1 File, Tab 13

at 19. Therefore, we conclude that the appellant had the freedom to choose which

action she wished to pursue, and she chose to resign.

¶13 The appellant argues that her situation was analogous to the Board’s

decision in Scalese v. Department of the Air Force, 68 M.S.P.R. 247, 249 (1995).

V-1 File, Tab 13 at 16. She points to her written statement, made in connection

with her resignation, “I do not waive my appeal rights,” as evidence that she

intended to appeal the decision similar to the appellant in Scalese. We do not

find that, by making this statement, the appellant retained rights she otherwise

waived. The appellant in Scalese retired on the same date as his removal was to

be effective; therefore, he was able to challenge his removal under 5 U.S.C.

§ 7701(g), a provision that is inapplicable to the resignation at issue here. See

Scalese, 68 M.S.P.R. at 248. The Board specifically stated in Scalese that

whether the agency constructively removed the appellant was not at issue. Id.

at 249.

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¶14 The appellant’s situation is more analogous to our decisions in

Green, 112 M.S.P.R. 59, and Gordon v. Veterans Administration, 19 M.S.P.R.

532 (1984), aff’d, 790 F.2d 92 (Fed. Cir. 1986) (Table), where the Board found

that it lacked jurisdiction over the purported removal appeals because each

appellant voluntarily resigned on the effective dates of their removals.

Green, 112 M.S.P.R. 59, ¶¶ 12-13; Gordon, 19 M.S.P.R. at 533. The Board has

found that an employee cannot make an accepted agency action involuntary solely

by writing the words “under duress” or “signed under protest.” Reed v. U.S.

Postal Service, 99 M.S.P.R. 453, ¶¶ 12, 15 (2005), aff’d, 198 F. App’x 966 (Fed.

Cir. 2006). For the same reason, the appellant’s statement in her resignation

email does not automatically make her resignation involuntary. The appellant

must allege that the action was obtained through duress or coercion and not just

that she selected between two unpleasant alternatives. Loggins v. U.S. Postal

Service, 112 M.S.P.R. 471, ¶ 12 (2009).

¶15 The appellant provides a chronology of her issues with her agency’s

management in support of her claim that a hostile work environment made her

working conditions intolerable. V-1 File, Tab 13 at 16-19. The appellant cites

her numerous equal employment opportunity (EEO) complaints, arbitration

awards, and settlements regarding agency actions from 2006 through 2010. Id.

Even the most recent of these resolutions, a 2013 arbitration award, refers back to

grievances from her 2009 and 2010 performance evaluations. Id. at 18. The

appellant alleges that her working conditions became intolerable over a 6-year

period leading up to her resignation, but she does not name any agency actions

during 2011 and 2012, outside of being placed on a performance improvement

plan. Id. at 19-20. An employee is not guaranteed a work environment free of

stress. Miller v. Department of Defense, 85 M.S.P.R. 310, ¶ 32 (2000).

Dissatisfaction with work assignments, a feeling of being unfairly criticized, or

difficult and unpleasant working conditions are generally not so intolerable as to

compel a reasonable person to resign. Id. In addition, we have previously found

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that a lapse of time undercuts the appellant’s assertions that working conditions

were intolerable and compelled resignation. See Searcy, 114 M.S.P.R. 281, ¶ 13.

In Searcy, the Board found that a 5-month lapse of time between when the

appellant filed his first EEO complaint and when he resigned undercut his

involuntariness claim. Id. In the present appeal, the appellant has alleged

intolerable working conditions for 6 years but provided no evidence of any

coercive event in over a year prior to her resignation. V-1 File, Tab 13 at 16-20.

The lack of any alleged incidents during this period of time weakens any

inference that her working conditions had become so intolerable she had to

resign. See Axsom v. Department of Veterans Affairs, 110 M.S.P.R. 605, ¶ 16

(2009) (lack of incidents and reduced interaction with supervisors in the period

leading up to resignation decision weakened inference that harassment and

discrimination weighed heavily in the appellant’s decision to resign). Therefore,

we find that the appellant failed to make a nonfrivolous allegation that her daily

working conditions were so intolerable that a reasonable person in her position

would have felt compelled to resign.

Because the appellant has not established Board jurisdiction over her alleged

adverse action, the Board cannot review her discrimination and reprisal claims or

the arbitrator’s decision.

¶16 The appellant’s claims of discrimination based on disability and retaliation

for engaging in protected activity are considered only as they related to the issue

of voluntariness of her resignation. See Markon v. Department of

State, 71 M.S.P.R. 574, 578-79 (1996). Only when it is established that the

Board has jurisdiction over an appeal because there has been a constructive

discharge may issues of discrimination and reprisal be adjudicated under the

applicable standards for proof of discrimination and/or reprisal under Title VII, as

the case is then a mixed case. Id. at 580. The administrative judge did not

address the appellant’s discrimination claims in her recommendations. Because

we have found that the appellant failed to make a nonfrivolous allegation that her

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resignation was involuntary, we find that the administrative judge did not err in

failing to adjudicate these claims. See Collins v. U.S. Postal

Service, 100 M.S.P.R. 332, ¶ 17 (2005).

¶17 The Board has jurisdiction to review an arbitrator’s decision under 5 U.S.C.

§ 7121(d) only when the subject matter of the grievance is one over which the

Board has jurisdiction, the appellant has alleged discrimination under 5 U.S.C.

§ 2302(b)(1) in connection with the underlying action, and a final decision has

been issued. Sadiq v Department of Veterans Affairs, 119 M.S.P.R. 450, ¶ 4

(2013). Because we find the appellant has failed to make a nonfrivolous

allegation that her resignation was involuntary, the appellant has not alleged an

appealable action over which the Board has jurisdiction. Therefore, the Board

does not have jurisdiction to review the arbitrator’s decision, and the appellant’s

request for review must be dismissed for lack of jurisdiction. 4

None of the appellant’s procedural claims warrants remanding the case for

additional adjudication.

¶18 The appellant argues that the Board’s treatment of her case by the WRO as

an appeal resulted in confusion and hindered her ability to respond to the

administrative judge’s order. V-1 File, Tab 13 at 7-8. The appellant states that

her counsel could not determine from the acknowledgment order she received

whether it was an appeal of an adverse action or a de novo review of the

arbitrability issue. Id. at 7. In the Board’s order that forwarded this case to the

WRO, the Board acknowledged that there was a question of whether it had

jurisdiction over this case. V-1 File, Tab 10, Order at 3. The Board directed the

administrative judge to conduct proceedings as necessary and to make findings

regarding the Board’s jurisdiction. Id. at 8. We agree that the acknowledgment

4

Because the Board lacks jurisdiction to review the arb itrator’s decision, we VACATE

those portions of our April 17, 2014 Order that initially granted the appellant’s request

for review and that vacated the arbitration award. V-1 File, Tab 10, Order at 1, 7.

Under 5 U.S.C. § 7121(d), the Board may only review an award over wh ich it has

jurisdiction.

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order issued by the administrative judge was not sufficiently tailored to meet the

present case in that it contained language referencing an initial appeal and rights

under a timely-filed appeal that were not applicable to this case; however, the

acknowledgment order provided clear notice to the appellant of her obligation to

submit evidence and argument that the Board had jurisdiction over her case. H-1

File, Tab 2 at 2-3. The acknowledgment order advised the appellant of the limits

on Board jurisdiction in involuntary resignation cases. Id. The appellant filed a

motion for clarification; however, it did not address the jurisdictional order and

only sought a discovery order and approval to submit additional relevant evidence

to pursue her claim. H-1 File, Tab 4 at 3. The administrative judge advised the

appellant of what she must submit to make a nonfrivolous allegation of an

involuntary resignation and to receive a hearing on the issue of jurisdiction. H-1

File, Tab 2 at 2-3. We find no evidence that the administrative judge’s failure to

rule on the appellant’s motion for clarification affected the appellant’s

substantive rights or constituted error. See Karapinka v. Department of

Energy, 6 M.S.P.R. 124, 127 (1981) (an administrative judge’s procedural error is

of no legal consequence unless it is shown to have adversely affected a party’s

substantive rights).

¶19 Finally, the appellant argues that the administrative judge erred in her

refusal to review all of the documents the appellant submitted prior to making her

determination on jurisdiction. V-1 File, Tab 13 at 8. The appellant cites to a

prior Board decision that stated that the administrative judge must consider

evidence submitted towards proof of the involuntariness of her claim. Id. at 8-9

(citing Markon, 71 M.S.P.R. at 580-81). The appellant is correct that the

administrative judge must consider evidence submitted; however, the appellant

has the responsibility to articulate her claims with “reasonable clarity and

precision” with substantive details establishing jurisdiction or risk being found to

have failed to meet her burden of making a nonfrivolous allegation. See Ellison

v. Merit Systems Protection Board, 7 F.3d 1031, 1036-37 (Fed. Cir. 1993)

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(discussing this requirement in the context of an appellant’s obligation to prove

exhaustion of a complaint of whistleblower reprisal). In addition, it is not the

Board’s obligation to pore through the record or to construe and make sense of

allegations based on various parts of an extremely voluminous case file. Keefer

v. Department of Agriculture, 92 M.S.P.R. 476, ¶ 18, n.2 (2002); see Corley v.

Rosewood Care Center, Inc. of Peoria, 388 F.3d 990, 1001 (7th Cir. 2004) (“[W]e

will not root through the hundreds of documents and thousands of pages that

make up the record here to make [the plaintiff’s] case for him.”). The appellant

provided a single response to the administrative judge’s jurisdictional order but

did not direct the administrative judge to where in the voluminous pleadings and

corrections the evidence of the appellant’s nonfrivolous allegation could be

found. H-1 File, Tab 13. The administrative judge had no obligation to go

beyond that and review every page to make the appellant’s case for her.

Therefore, we find no error in the administrative judge’s action.

¶20 This is the final decision of the Merit Systems Protection Board on the

appellant’s request for arbitration review. Title 5 of the Code of Federal

Regulations, section 1201.113(b) (5 C.F.R. § 1201.113(b)).

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

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

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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

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.