The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
HOA NGUYEN, DOCKET NUMBER
Appellant, DC-0752-14-0767-I-1
v.
DEPARTMENT OF COMMERCE, DATE: April 1, 2015
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL 1
James L. Kestell, Esquire, Falls Church, Virginia, for the appellant.
Holly Runge and Wade Norman, Alexandria, Virginia, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her involuntary retirement appeal 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
interpretation of statute or regulation or the erroneous application of the law to
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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).
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 The appellant worked for the agency as a Supervisory Patent Examiner
(SPE). Initial Appeal File (IAF), Tab 1 at 7. On September 6, 2013, the agency
proposed to demote her to a Patent Examiner position for improper conduct.
IAF, Tab 19 at 10. The deciding official notified the appellant on October 18,
2013, that she was sustaining the charge and demoting the appellant effective
October 20, 2013. Id. at 6-8. The appellant retired effective October 19, 2013,
rather than accept the demotion to the lower-graded position. IAF, Tab 1 at 7,
Tab 8 at 9. After her retirement, the appellant contacted the agency’s equal
employment opportunity (EEO) office and filed a discrimination complaint
alleging that she was forced to retire and that she was demoted based on her race
and national origin. IAF, Tab 1 at 12-13. The agency issued a final agency
decision that found no discrimination relating to her demotion or alleged
constructive discharge and advised the appellant of her Board appeal rights. Id.
at 26.
3
¶3 The appellant initiated a Board appeal alleging that the agency involuntarily
forced her to retire. 2 Id. at 4. The administrative judge issued a show cause
order directing the appellant to submit evidence and argument that the Board had
jurisdiction over her appeal. IAF, Tab 3 at 5. The administrative judge informed
the appellant that only if she made a nonfrivolous allegation that her retirement
was involuntary would she receive a hearing on jurisdiction. Id. The appellant
submitted an affidavit and five attachments in response to the administrative
judge’s order. IAF, Tabs 8-14.
¶4 The administrative judge issued an initial decision, based on the parties’
written submissions, dismissing the appeal for lack of jurisdiction. IAF, Tab 20,
Initial Decision (ID) at 1. The administrative judge concluded that the appellant
retired to avoid being demoted and that she failed to make a nonfrivolous
allegation that her retirement was involuntary. ID at 10. The appellant has filed
a timely petition for review. Petition for Review (PFR) File, Tab 1. The agency
has responded in opposition to the petition for review, and the appellant has
submitted a reply. PFR File, Tabs 3-4.
The appellant has not made a nonfrivolous allegation that her retirement was
involuntary.
¶5 The appellant argues in her petition for review that the administrative judge
erred when she found that the appellant failed to make a nonfrivolous allegation
that her retirement was involuntary. PFR File, Tab 1 at 3; ID at 10. We
disagree.
¶6 An employee’s retirement 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 retirement, however,
is tantamount to a removal and, accordingly, is appealable to the Board. Id. To
2
The appellant also alleged in her initial appeal that the agency denied her a within
grade increase. I d. at 4. The appellant subsequently withdrew this allegation and only
pursued the involuntary retirement issue. IAF, Tab 5 at 4.
4
establish entitlement to a hearing on jurisdiction, an appellant need not allege
facts which, if proven, definitely would establish that the retirement 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 It is well settled that most retirements 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). To establish Board
jurisdiction over a constructive adverse action, such as an involuntary retirement,
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 her 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. 3 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. Factors the Board will consider include undue time
pressure on retirement decisions and agency bad faith in encouraging retirement,
as well as unreasonably difficult working conditions caused by the agency.
Jones v. Department of the Treasury, 107 M.S.P.R. 466, ¶ 10 (2007).
Application of the totality of the circumstances test must be gauged by an
objective standard rather than by the employee’s purely subjective evaluation.
3
Although the appellant alleges she has engaged in no wrongdoing, she has not
contended that the agency knew or should have known that its demotion action could
not be substantiated or that the agency lacked an arguable basis for the proposed action.
PFR File, Tab 1 at 27-28; see Schultz v. Department of the Navy, 810 F.2d 1133, 1136
(Fed. Cir. 1987); see also Garland v. Department of the Air Force, 44 M.S.P.R. 537,
540 (1990).
5
Heining v. General Services Administration, 68 M.S.P.R. 513, 519-20 (1995).
The appellant argues that she was coerced into retiring because the agency did
not provide her with sufficient time to decide whether to accept the demotion or
to retire. PFR File, Tab 1 at 21. The appellant alleges that her appeal is similar
to other cases where the Board and courts found that an agency engaged in bad
faith when it required a decision from the employee on the same day. Id.
at 20-21.
¶8 The cases cited by the appellant do not support a finding that her retirement
was coerced. 4 For example, while the Board in Bravman v. Department of the
Navy, 26 M.S.P.R. 169, 171, 173 (1985), recognized that time pressure may
result in an involuntary action, it declined to find in that case that the appellant’s
resignation, submitted to avoid removal, was involuntary. Also, in White v.
Department of the Treasury, 3 M.S.P.R. 488, 490-91 (1980), modified on other
grounds by Stephen v. Department of Air Force, 47 M.S.P.R. 672 (1991), the
Board found the appellant’s demotion was involuntary not only because of the
short time to consider the agency’s offer but also because, only 4 days prior, the
appellant had agreed to a lateral transfer that was not actually available, resulting
in the demotion offer.
¶9 As the appellant acknowledges, the Board has held that 10 days to decide
between options is not coercive. See Soler-Minardo v. Department of Defense,
92 M.S.P.R. 100, ¶ 10 (2002); see also PFR File, Tab 1 at 21. Here, the
appellant had approximately 6 weeks to consider her options as she was notified
that she may be demoted on September 6, 2013, and was informed on
October 18, 2013, that she would be demoted effective October 20, 2013. IAF,
Tab 19 at 6-8. We have previously held a similar period of time to be sufficient
for an employee to make a voluntary decision. Ryals v. Department of the Army,
4
The appellant cites the case of District of Columbia Metropolitan Police Department
v. Stanley, 942 A.2d 1172 (D.C. 2008), in support of her coercion argument. However,
this case does not involve federal employees or the application of 5 U.S.C. § 7701.
6
14 M.S.P.R. 409, 412 (1983) (finding that a period of 7 weeks for the appellant
to make a decision from the date of the proposal notice, including 1 week from
the letter of decision, was not coercive). Therefore, we find the appellant was
not coerced to retire due to insufficient time to consider her options.
¶10 In addition, the appellant’s own description of the events leading up to her
retirement fails to include allegations that the agency imposed the terms of her
retirement. The agency informed the appellant in its decision letter on her
demotion that she would be placed in a GS-14 position and advised her of her
Board appeal rights. IAF, Tab 19 at 6, 8-9. The appellant received this letter on
the morning of October 18, 2013. IAF, Tab 10 at 5. Immediately after receiving
the letter, the appellant met with her supervisor to receive her annual
performance review. Id. at 6-7. Shortly after receiving her review, but still that
same morning, the appellant met with her supervisor again regarding a missing
signature from the review, and during that meeting she mentioned to her
supervisor for the first time that she might quit. Id. at 7. Later that morning, the
appellant had another interaction with her supervisor when two information
technology staff members attempted to retrieve her computer. Id. at 8. The
appellant alleged that her supervisor said he ordered the computer retrieved
because the appellant said she was going to quit and that he attempted to get her
to make her decision immediately. IAF, Tab 10 at 8, Tab 11 at 4. However,
according to the appellant, she told him that she would not make her decision at
that time. IAF, Tab 10 at 8, Tab 11 at 4. The appellant does not allege any
further interaction with her supervisor until she sent him an email that same
afternoon at 3:29 p.m. alleging that he was forcing her to retire. IAF, Tab 11
at 4, Tab 12 at 4.
¶11 Next, the appellant alleges that during the next 30 minutes, between
3:30 p.m. and 4:00 p.m. on that date, that: (1) her supervisor and another
supervisor came to her office and informed her that she needed to take time to
make her decision whether to quit; (2) she had a conversation with another SPE
7
about some cases assigned to her; (3) she noticed her supervisory functions had
been removed in the computer system and the demotion made effective in the
computer system showing her as a Patent Examiner and no longer as an SPE;
(4) she went to the human resources office to obtain a retirement package; and
(5) she completed and submitted her retirement paperwork to human resources.
IAF, Tab 11 at 4-7. Nevertheless, she claimed that, even after submitting her
retirement paperwork, she emailed the deciding official to attempt to negotiate
an alternative to her demotion. Id. at 7. She added that her supervisor then
reiterated in an email at 4:29 p.m. that it was her decision “whether to resign”
and that he never intended to force her to make a decision. IAF, Tab 12 at 4.
Lastly, the appellant alleged that she worked from home on the next day,
Saturday, October 19, which was also the effective date for the start of her
retirement. 5 IAF, Tab 1 at 7, Tab 11 at 5. Based on these facts, we find that no
one from the agency ever directed the appellant to retire or limited her
decision-making time. Rather, agency officials told her that it was her decision
to make on her own schedule. 6 IAF, Tab 11 at 4, Tab 12 at 4. The appellant
5
The agency never addressed whether it agreed with the appellant that she worked from
home on this date, as she claimed. However, it is doubtful that the agency would agree,
given that the agency processed her Standard Form 50 reflecting her retirement on
October 19, 2013. The appellant is not asking that the Board order the agency to
reimburse her for any salary she believes that the agency may owe her for this date
when she supposedly worked and retired simultaneously. In any event, nothing in the
record would suggest that the appellant worked, or returned to work, the following
Monday, October 21, 2013.
6
The appellant argues on review that the administrative judge erred by viewing
disputed facts in a manner not favorab le to her. PFR File, Tab 1 at 16-17. The
appellant is correct that the administrative judge may not weigh evidence or reso lve
conflicting assertions at the jurisdictional stage. See Carey v. Department of Health &
Human Services, 112 M.S.P.R. 106, ¶ 6 (2009). However, we do not find that the
administrative judge made such an error. The appellant has not pled sufficient facts
gauged by an objective standard that establish the Board’s jurisdiction over her
invo luntary retirement appeal. See Heining, 68 M.S.P.R. at 519-20 (the totality of
circumstances of the voluntariness of a retirement is gauged by an objective standard
rather than by the employee’s purely subjective evaluation).
8
argues that she received the email from her supervisor after she submitted her
retirement papers; however, she ignores the fact that she is asserting that she was
still attempting to negotiate an alternative to her discipline even after submitting
her retirement papers and that she worked from home on a Saturday, which was
the first day she asked to begin her retirement. PFR File, Tab 1 at 4; IAF,
Tab 11 at 5, 7. Thus, we find that the appellant’s actions (her negotiations and
her alleged return to work on October 19) after she submitted her retirement
packages appear to belie her statement that she felt coerced by her supervisor,
given that she continued to weigh her options.
¶12 The fact that an employee’s choices may have been limited to unpleasant
alternatives does not make her decision to retire involuntary. Miller v.
Department of Homeland Security, 111 M.S.P.R. 325, ¶ 10 (2009), aff’d,
361 F. App’x 134 (Fed. Cir. 2010). Here, instead of retiring, the appellant could
have challenged her demotion by filing an EEO complaint or Board appeal. See
Baker v. U.S. Postal Service, 84 M.S.P.R. 119, ¶ 23 (1999).
¶13 The appellant argues, moreover, that the administrative judge erred in
finding her claims vague, conclusory and general. PFR File, Tab 1 at 25-26; ID
at 10. We agree with the appellant that she provided a detailed account of events
surrounding her retirement. PFR File, Tab 1 at 26. Nonetheless, her account
does not allege facts that, if proven, would show that her retirement was coercive
and thus involuntary.
¶14 Finally, the appellant argues that the administrative judge did not consider
her discrimination claims as support for her involuntariness argument. PFR File,
Tab 1 at 27-28. We disagree. The administrative judge found the appellant’s
claims of a hostile work environment were insufficient to constitute a
nonfrivolous allegation of involuntary retirement. ID at 10. When an appellant
raises an allegation of discrimination in connection with a claim of
involuntariness, the allegation may be addressed only insofar as it relates to the
issue of voluntariness. Hosozawa v. Department of Veterans Affairs,
9
113 M.S.P.R. 110, ¶ 5 (2010). The appellant alleged in her EEO complaint that
the agency took its action based on her race and national origin. IAF, Tab 1
at 12. Yet, nothing in the appellant’s twenty-page sworn declaration or any other
documents she submitted contain any evidence or statements beyond general
references that other employees were treated differently for similar activity.
IAF, Tabs 8-13. The appellant continues to argue on review that the agency’s
investigation into her conduct and her subsequent demotion created a hostile
environment. IAF, Tab 8 at 17; PFR File, Tab 1 at 27-28. However, we find that
she has not made allegations that, if proven, could show that a reasonable person
in her circumstances would have viewed retirement as the only viable alternative.
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:
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
10
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.