Lutrell Denson v. United States Postal Service

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

LUTRELL DENSON, DOCKET NUMBER

Appellant, PH-0752-14-0671-I-1

v.

UNITED STATES POSTAL SERVICE, DATE: April 3, 2015

Agency.

THIS FINAL ORDER IS NO NPRECEDENTIAL 1

Lutrell Denson, Philadelphia, Pennsylvania, pro se.

Robert L. Sawicki, Philadelphia, Pennsylvania, 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 alleged 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

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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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 Effective September 1, 2013, the appellant retired from her position of

Supervisor, Customer Services. Initial Appeal File (IAF), Tab 5 at 34. She

subsequently filed an equal employment opportunity (EEO) complaint alleging

that she was discriminated against based on her race, sex, and age and that such

discrimination elevated her stress to the extent that she was forced to retire. Id.

at 32-33; see IAF, Tab 6 at 26-27. On April 2, 2014, the agency issued a final

agency decision (FAD) finding no discrimination and that a reasonable person in

the appellant’s position would not have felt compelled to retire. IAF, Tab 1

at 9-26. The appellant filed this appeal of the FAD and requested a hearing. Id.

at 1-6. In separate acknowledgment and jurisdiction orders, the administrative

judge informed the appellant that a retirement is presumed to be voluntary and

not within the Board’s jurisdiction. IAF, Tabs 2, 4. The administrative judge

stated that the appellant would be granted a jurisdictional hearing only if she

made a nonfrivolous allegation of fact that could support a prima facie case of

involuntariness. IAF, Tabs 2, 4. The administrative judge also ordered the

appellant to file evidence and argument on the jurisdictional issue. IAF, Tabs 2,

4. In response to the jurisdiction order, the agency submitted a narrative response

and a motion to dismiss the appeal for lack of jurisdiction. IAF, Tab 5. The

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appellant also filed a narrative statement and evidence on the jurisdictional issue.

IAF, Tab 6. Without holding the requested hearing, the administrative judge

issued an initial decision dismissing the appeal because the appellant failed to

make a nonfrivolous allegation of jurisdiction. IAF, Tab 7, Initial Decision (ID)

at 1, 8-9.

¶3 The appellant has filed a petition for review. Petition for Review (PFR)

File, Tab 1. The agency has filed a response to the petition for review in

opposition. PFR File, Tab 3. The appellant has filed a reply to the agency’s

response. PFR File, Tabs 4-7. 2

The administrative judge properly dismissed the appeal because the appellant

failed to make a nonfrivolous allegation of jurisdiction.

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

voluntary and thus outside the Board’s jurisdiction. Vitale v. Department of

Veterans Affairs, 107 M.S.P.R. 501, ¶ 17 (2007). An involuntary retirement is

tantamount to a removal, however, and is therefore subject to the Board’s

jurisdiction. Id. To overcome the presumption that a retirement is voluntary, an

employee must show that the retirement was the product of agency

misinformation, deception, or coercion. Id., ¶ 19. The touchstone of

voluntariness analysis is whether, considering the totality of the circumstances,

factors operated on the employee’s decision-making process that deprived her of

freedom of choice. Id. Application of this totality of the circumstances test must

be gauged by an objective standard rather than the employee’s purely subjective

evaluation. Heining v. General Services Administration, 68 M.S.P.R. 513, 519-20

(1995).

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On October 23, 2014, the Clerk of the Board received the appellant’s reply to the

agency’s response. PFR File, Tab 4. On March 9, 2015, the Clerk of the Board issued

a notice advising the parties that a portion of the appellant’s reply had been misplaced;

the notice requested that the appellant re-submit the reply and that the agency submit a

copy of the appellant’s reply as served on the agency. PFR File, Tab 5. The parties

complied with the request. PFR File, Tabs 6-7.

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¶5 To establish involuntariness on the basis of coercion, an employee must

show that the agency effectively imposed the terms of the retirement, the

employee had no realistic alternative but to retire, and the retirement was the

result of improper acts by the agency. Vitale, 107 M.S.P.R. 501, ¶ 19. Where, as

here, intolerable working conditions are alleged, the Board will find an action

involuntary only if the employee demonstrates that the agency engaged in an

improper course of action that made working conditions so difficult or unpleasant

that a reasonable person in that employee’s position would have felt compelled to

retire. See id., ¶ 20; see also Bean v. U.S. Postal Service, 120 M.S.P.R. 397, ¶ 11

(2013) (an appellant must show improper agency action in a constructive adverse

action appeal). The Board addresses allegations of discrimination and reprisal in

connection with an alleged involuntary retirement only insofar as those

allegations relate to the issue of voluntariness. Vitale, 107 M.S.P.R. 501, ¶ 20.

¶6 The appellant bears the burden of establishing the Board’s jurisdiction by a

preponderance of the evidence. Id., ¶ 17; 5 C.F.R. § 1201.56(a)(2)(i). An

appellant is entitled to a hearing on the issue of Board jurisdiction over an appeal

of an alleged involuntary retirement only if she 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). Nonfrivolous allegations

of Board jurisdiction are allegations of fact that, if proven, could establish a

prima facie case that the Board has jurisdiction over the matter at issue. Green v.

Department of Veterans Affairs, 112 M.S.P.R. 59, ¶ 6 (2009).

¶7 In her EEO complaint, the appellant made the following six allegations of

the agency’s improper conduct: (1) she was improperly granted leave without

pay (LWOP) under the Family and Medical Leave Act (FMLA) instead of FMLA

sick leave; (2) her postmaster ceased communicating with her when she returned

from FMLA LWOP and did not discuss her schedule with her; (3) her postmaster

yelled at her, saying, “if you cannot get this mail up you’re out!”; (4) her manager

gave her a Letter of Warning regarding her authorization for an employee to work

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his non-scheduled day without proper higher level authorization; (5) her

postmaster spoke about her in a meeting of all supervisors without giving her a

chance to respond after she personally pushed mail off a truck when she was

short-staffed; and (6) her manager placed her on a performance improvement plan

(PIP). See IAF, Tab 1 at 14-18. In her response to the jurisdiction order, the

appellant reasserted the six allegations and provided supplementary background

information surrounding the agency’s conduct. IAF, Tab 6. In finding that the

appellant did not make nonfrivolous allegations of intolerable working

conditions, the administrative judge reasoned that “the appellant’s assertions

relate to disagreements she had with her supervisors’ attempts to correct her

scheduling and performance issues” and that the appellant “was afforded an

opportunity to improve her performance but did not allow the PIP to run its

course” and instead made the voluntary decision to retire. ID at 8.

¶8 We agree that the appellant failed to nonfrivolously allege intolerable

working conditions. We find that a reasonable person in the appellant’s position

would not have felt compelled to retire. See Miller v. Department of Defense,

85 M.S.P.R. 310, ¶ 32 (2000) (finding that 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). Her contentions do not nonfrivolously allege that the agency effectively

denied her freedom of choice because she voluntarily chose to retire instead of

completing the PIP. To the extent that she believed that she would be subject to

future disciplinary action as a result of the PIP, there is no evidence that such an

action was planned, and an employee’s anticipation of an adverse action does not

constitute coercion or duress on the part of an agency. See Schultz v. U.S. Navy,

810 F.2d 1133, 1136 (Fed. Cir. 1987) (“[W]here an employee is faced merely

with the unpleasant alternatives of resigning or being subject to removal for

cause, such limited choices do not make the resulting resignation an involuntary

act.”); see also Holman v. Department of the Treasury, 9 M.S.P.R. 218, 220

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(1981), aff’d, 703 F.2d 584 (Fed. Cir. 1982) (Table). On review, the appellant

challenges the imposition of the PIP as improper. PFR File, Tab 1 at 13-14,

Tab 6 at 11-12. The appellant’s placement on the PIP is outside the scope of the

Board’s jurisdiction. See Shaishaa v. Department of the Army, 58 M.S.P.R. 450,

454 (1992); see also 5 C.F.R. § 1201.3. Further, the appellant’s claims in this

regard do not constitute a nonfrivolous allegation that she was subjected to

circumstances that would have compelled a reasonable person to retire. Instead

of retiring based on her speculation that a disciplinary action might occur in the

future, she had an option of contesting an action she thought was invalid if and

when it did occur. See Brown v. U.S. Postal Service, 115 M.S.P.R. 609, ¶ 15,

aff’d, 469 F. App’x 852 (Fed. Cir. 2011) (unpublished); see also Garcia v.

Department of Homeland Security, 437 F.3d 1322, 1329 (Fed. Cir. 2006) (a

resignation is not involuntary if the employee had a choice of whether to resign or

contest the validity of the agency action).

¶9 The appellant alleges on review that the agency denied her request for

annual leave. PFR File, Tab 1 at 8. We find that her argument regarding annual

leave does not nonfrivolously allege a working condition so intolerable as to

compel a reasonable person to retire. She further alleges that the agency denied

her request “to be reassigned to a limited duty position through Injury

Compensation” because she had already accepted a permanent limited duty

position. PFR File, Tab 1 at 15, Tab 6 at 13. We find that the appellant’s

argument regarding reassignment is not a nonfrivolous allegation of intolerable

working conditions because she already had a limited duty position that took

account of her medical restrictions. See PFR File, Tab 1 at 6, Subtab 2; cf.

Morman v. Department of Defense, 90 M.S.P.R. 197, ¶¶ 9-10 (2001) (finding an

appellant’s assertion that the agency refused to grant a medically-supported

change in her work schedule was a nonfrivolous allegation of jurisdiction). She

also alleges that her manager sent her an official directive letter compelling her to

provide medical documentation to substantiate her absence from duty or be

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charged with being absent without leave (AWOL) and be subject to possible

disciplinary action. PFR File, Tab 1 at 12, 14, Subtab 7. She alleges that the day

she was absent for duty was her scheduled day off for therapy approved by the

Department of Labor and paid through injury compensation and that she had

informed her manager beforehand that she would be missing work under her

doctor’s orders. PFR File, Tab 1 at 12, 14. We find that the appellant’s argument

regarding the agency’s official directive letter does not nonfrivolously allege

intolerable working conditions because the letter contemplates future actions,

such as being charged with AWOL and subject to disciplinary action, which she

could have contested if and when they occurred. See Brown, 115 M.S.P.R. 609,

¶ 15. A reasonable person in the appellant’s position would not have felt

compelled to retire based on the official directive letter. See id., ¶ 10.

¶10 Finally, the appellant asserts that she had no other option than to retire in

order to control the mental and physical symptoms of her diagnosed

post-traumatic stress disorder (PTSD). PFR File, Tab 1 at 2-15, Tab 6 at 12-14.

She states that she did not raise this issue below because it was “stressful and

difficult for [her] both mentally and physically to relive and recall” her PTSD

history. PFR File, Tab 1 at 2-3. The administrative judge’s jurisdictional order

expressly advised the appellant of when the record would close and that she

would not accept any evidence or argument on the jurisdictional issue submitted

after the close of record unless it was not readily available before the close of

record. IAF, Tab 4 at 3. Because the appellant failed to raise this argument

below and has not shown that evidence of her PTSD was unavailable despite her

due diligence when the record closed, we will not address this claim further. See

Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271 (1980); see also

5 C.F.R. § 1201.115(d).

¶11 After a thorough review of the record, we find that the appellant did not

make a nonfrivolous allegation that the agency forced her retirement, and her

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decision to retire appears to have been entirely self-initiated. Accordingly, the

appellant does not provide reason to disturb the administrative judge’s decision.

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS 3

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

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.

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The administrative judge afforded the appellant m ixed-case review rights. ID

at 13-14. However, in the absence of Board jurisdiction, this is not a mixed case. We

have provided the appellant the proper review rights here. See, e.g., Axsom v.

Department of Veterans Affairs, 110 M.S.P.R. 605 (2009).

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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 providin g 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.