The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LINDA ELAINE LATEEF, DOCKET NUMBER
Appellant, DC-0752-15-0402-I-1
v.
DEPARTMENT OF THE TREASURY, DATE: July 14, 2015
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Rosemary Dettling, Esquire, Washington, D.C., for the appellant.
Byron D. Smalley, Esquire, and Robert M. Mirkov, Esquire, Washington,
D.C., 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 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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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. 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, a former supervisory program manager, retired from federal
service after the agency proposed her removal. Initial Appeal File (IAF), Tab 1
at 8. She subsequently filed this timely appeal in which she alleged that her
retirement was involuntary and requested a hearing. Id. at 1-6. She asserted that
she was forced to retire because the agency retaliated against her for filing an
equal employment opportunity (EEO) claim, altered several of her working
conditions while it did not alter the working conditions of other employees, and
improperly disciplined her. Id. at 6. Additionally, the appellant contended that
the agency made her work extremely stressful. Id. She asserted that she
therefore filed a reasonable accommodation request and sought reassignment, but
that the agency denied the short-term reassignment that she sought. Id.
¶3 The administrative judge issued an acknowledgment order providing the
appellant with her burden of proof on jurisdiction. IAF, Tab 2. The agency
responded, asserting that the appellant: (1) requested retirement documents prior
to the proposed removal; (2) elected to retire rather than oppose her removal; and
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(3) made no showing that her election to retire was involuntary. IAF, Tab 7
at 4-5. The appellant responded and submitted an affidavit in which she alleged
that she retired because she was subjected to duress and coercion. IAF, Tab 8
at 6-7.
¶4 The administrative judge dismissed the appeal for lack of jurisdiction
without holding a hearing, finding that the appellant had failed to raise
nonfrivolous allegations of Board jurisdiction over her appeal. IAF, Tab 9, Initial
Decision (ID) at 1. Specifically, she found that: (1) the appellant was planning
to retire prior to receiving the agency’s removal; (2) the appellant failed to
nonfrivolously allege that the agency could not support its removal; and (3) there
was no evidence of agency coercion or improper actions. ID at 4-6.
¶5 The appellant filed a timely petition for review in which she challenges the
dismissal for lack of jurisdiction. Petition for Review (PFR) File, Tab 1.
Specifically, she asserts, inter alia, that the administrative judge did not consider
her affidavit in its entirety. 2 Id. at 8. The appellant also asserts that the
administrative judge, in finding no evidence of agency coercion or improper
action and that the appellant was not deprived of alternatives to retirement, failed
to consider the agency’s numerous specific acts of harassment and retaliation. Id.
at 9-10. The appellant further contends that she was entitled to a jurisdictional
hearing. Id. at 10. The agency has responded in opposition to the petition for
review. PFR File, Tab 3.
¶6 We agree with the administrative judge that the appellant failed to raise
nonfrivolous allegations of Board jurisdiction over her appeal. An
2
To the extent that the appellant argues that the administrative judge did not fully
consider her affidavit, we note that the administrative judge cited the affidavit in setting
forth the factual background of the case and in her analysis. ID at 4-5. Regardless, the
administrative judge’s failure to mention all of the evidence of record does not mean
that she did not consider it in reaching her decision. See Marques v. Department of
Health & Human Services, 22 M.S.P.R. 129, 132 (1984), aff’d, 776 F.2d 1062 (Fed. Cir.
1985) (Table).
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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). 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. In this
regard, intolerable working conditions may render an action involuntary when,
under all the circumstances, the working conditions were made so difficult by the
agency that a reasonable person in the employee’s position would have felt
compelled to absent herself from the workplace. Wright v. Department of
Veterans Affairs, 85 M.S.P.R. 358, ¶ 25 (2000). The touchstone of the
“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. Coufal v. Department of Justice, 98 M.S.P.R. 31, ¶ 22 (2004).
¶7 An appellant is entitled to a hearing on the issue of Board jurisdiction over
an appeal of an alleged involuntary separation 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). 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. Locke v. U.S. Postal
Service, 61 M.S.P.R. 283, 288 (1994).
¶8 Here, the appellant alleges that, regardless of the timing of the proposed
removal, she had already planned to retire due to harassment and retaliation. PFR
File, Tab 1 at 10. We agree with the administrative judge’s finding that the
appellant did not nonfrivolously allege that she was effectively deprived of any
alternative but to retire. ID at 5. In particular, we find that the appellant’s
assertions, including, inter alia, that the agency altered her working conditions,
improperly disciplined her, caused her working environment to become stressful,
and denied her short-term reassignment request, do not constitute nonfrivolous
allegations that her retirement was involuntary. See Miller v. Department of
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Defense, 85 M.S.P.R. 310, ¶ 32 (2000) (an employee is not guaranteed a working
environment free of stress, unfair criticism, or unpleasant working conditions).
To the extent that the appellant asserts that she was discriminated and retaliated
against for prior EEO activity, IAF, Tab 1; PFR File, Tab 1 at 9, we have
considered such claims insofar as they relate to the issue of voluntariness, see
Wright, 85 M.S.P.R. 358, ¶ 25. In an involuntary retirement appeal, as opposed
to considering these claims separately, the Board considers evidence of
discrimination and retaliation as it relates to the ultimate question of coercion,
namely, whether, under all of the circumstances, working conditions were made
so difficult by the agency that a reasonable person in the employee’s position
would have felt compelled to retire. Id. As discussed, we find that the appellant
has failed to nonfrivolously allege that she had no alternative but to retire.
¶9 Even if the appellant were alleging that she retired in order to avoid having
to oppose a potential removal action, the mere fact that she was faced with the
unpleasant choice of either retiring or opposing a potential removal for cause
does not rebut the presumed voluntariness of her ultimate choice to retire. Lloyd
v. Small Business Administration, 96 M.S.P.R. 518, ¶ 3 (2004). Rather, for an
appellant’s retirement in such circumstances to be considered involuntary and
therefore appealable as a constructive removal, she must establish that the agency
did not have reasonable grounds for proposing removal. Id. In this case, the
appellant has failed to nonfrivolously allege that that the agency lacked
reasonable grounds for proposing her removal. 3
3
There is no dispute that the agency proposed the appellant’s removal based upon
charges of insubordination, failure to follow a supervisor’s directive, unprofessional
conduct, and making false or misleading statements in a matter of official interest. IAF,
Tab 1. The proposal contained detailed specifications in support of the charges. Id.
The appellant does not dispute many of the instances of misconduct that serve as the
basis for these charges. Id.; PFR File, Tab 1. She also does not dispute the
administrative judge’s finding that the agency had reasonable grounds for proposing her
removal. PFR File, Tab 1; see ID at 4-5.
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¶10 Accordingly, because the appellant failed to raise nonfrivolous allegations
casting doubt on the presumption of voluntariness, we find that the administrative
judge properly dismissed the appeal for lack of jurisdiction without holding a
hearing.
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
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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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 information regarding pro bono
representation for Merit Systems Protection Board appellants before the Federal
Circuit. 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.