The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
VANETTA SIMMONS, DOCKET NUMBER
Appellant, NY-0752-15-0109-I-1
v.
DEPARTMENT OF DATE: September 28, 2015
TRANSPORTATION,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Vanetta Simmons, South Ozone Park, New York, pro se.
Jennifer D. Ambrose, Esquire, and Parisa Naraghi-Arani, 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 involuntary retirement appeal for lack of jurisdiction. Generally,
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
2
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
the facts of the case; the administrative 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 On April 22, 2014, the agency notified the appellant that she would be
administratively reassigned from her Human Resources Specialist position in
New York to the same position at its Benefits Operations Center (BOC) in
Kansas City, Missouri, effective no later than January 11, 2015. Initial Appeal
File (IAF), Tab 6 at 12-13. The agency explained that it was consolidating the
benefits function within its Office of Human Resource Management to streamline
processes, and to improve quality control, management workflow, and the
agency’s ability to collaborate on cross-cutting organizational issues and meet
service delivery expectations. Id. at 12. The appellant would retain the same pay
plan, grade/level and basic rate of pay, 2 and she would be eligible for relocation
expense reimbursement. Id. The agency further stated that it would propose her
separation if she declined the reassignment. Id. at 13. On April 28, 2014, the
2
The agency informed the appellant that the locality rate of pay would be lower. IAF,
Tab 6 at 12.
3
agency advised the appellant that she also had the option to request special
consideration for certain job vacancies at her current duty station. Id. at 15-16.
¶3 The appellant accepted the reassignment on June 20, 2014, stating that she
was doing so “under duress because [she] was not given the proper information to
make a reasonable or rational decision.” Id. at 17. On December 18, 2014, the
agency reminded her that she would be separated from service if she failed to
report to her new duty station in Missouri on January 12, 2015. Id. at 21.
However, on January 8, 2015, the appellant applied for a discontinued service
retirement. Id. at 40-43. Her retirement became effective on January 10, 2015.
Id. at 11, 40.
¶4 The appellant timely filed an involuntary retirement appeal with the Board.
IAF, Tab 1. She asserted that her retirement was involuntary because: (1) it
would have been a hardship for her to relocate due to her health and the health of
her elderly mother, and she could not afford to maintain a home in New York and
live in Missouri; (2) the agency required regional employees to relocate, while
similar employees in the agency’s Washington, D.C. headquarters were not
required to relocate; (3) employees in other regions received greater assistance in
finding positions that would not require them to relocate; (4) when the agency
first established the BOC in 2010, it maintained for several years that it would not
require regional employees to relocate; (5) the agency provided piecemeal,
conflicting information regarding the possibility of pay retention in the event that
an employee voluntarily accepted a lower paying job and delayed in providing
complete information regarding the Voluntary Early Retirement/Voluntary
Incentive Separation Program (VERA/VISP); (6) the agency failed to inform her
of vacancies that were posted for similar positions in Washington, D.C., did not
consider allowing her to work virtually, and did not actively pursue her placement
into a position that would not require her to relocate; (7) she did not receive the
promised special consideration for any vacancies; (8) the agency’s offer for
employees to go on a house hunting trip in Missouri was disingenuous because
4
the trip coincided with training they were required to complete in Missouri and
the agency provided unclear information as to whether employees would be
required to pay back funds for the house hunting trip if they ultimately chose not
to relocate; (9) the agency threatened to place her on sick leave restriction;
(10) her relocation to the BOC was unnecessary because her work performance
and quality was already good at her current duty station, whereas the BOC has
been unsuccessful and ineffective since its establishment; and (11) agency
management informed employees that they were lucky to have jobs and could be
separated at any time if they declined reassignment. Id.; IAF, Tab 8 at 4-7,
Tab 13 at 4-43, Tab 16 at 4-7.
¶5 The administrative judge issued an initial decision based on the written
record. 3 IAF, Tab 20, Initial Decision (ID). She dismissed the appellant’s appeal
for lack of jurisdiction, finding that the appellant failed to establish that she
retired involuntarily. ID. Specifically, she concluded that: (1) the agency
sufficiently refuted the appellant’s arguments suggesting that it did not have bona
fide, legitimate management reasons for the reassignment; (2) the appellant
did not establish that the agency provided her with insufficient, misleading, or
inaccurate information that prevented her from making an informed decision
about whether to accept the reassignment; and (3) the appellant’s claims
concerning the infeasibility of relocation based upon her personal and financial
circumstances did not establish that her decision to retire was involuntary. ID
at 4-9.
¶6 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. She argues that the administrative judge failed to consider affidavits
she submitted as evidence and instead relied upon the agency’s evidence, which
contained numerous inaccuracies, in reaching her decision. Id. at 4. She states
that the agency coerced her to retire because it forced her to choose between
3
The administrative judge found that the appellant was entitled to a jurisdictional
hearing, but the appellant withdrew her hearing request. IAF, Tab 1 at 2, Tab 9 at 3.
5
relocating, resigning, or retiring; and she could not resign because she needed
income due to her medical problems. Id. at 4, 9. She also renews her arguments
that: (1) regional employees were required to relocate, but headquarters
employees were not; (2) the agency delayed in providing information regarding
the VERA/VSIP; (3) the agency failed to assist affected employees to find new
positions, including not providing special consideration for job vacancies as
promised; and (4) she was under duress when threatened with leave restriction.
Id. at 4, 6-9. The agency filed a response, to which the appellant did not reply.
PFR File, Tab 3.
¶7 As an initial matter, we find the appellant’s claim that the administrative
judge failed to consider affidavits she submitted as evidence to be without merit.
The administrative judge explicitly noted in the initial decision that “[t]he
appellant submitted an affidavit and filed affidavits from other co-workers
supporting her allegations of duress, coercion and misrepresentation.” ID at 4.
She addressed the statements contained therein in detail in the initial decision.
ID at 5-9. The appellant’s mere disagreement with the administrative judge’s
assessment of the evidence does not establish a basis for review. See Broughton
v. Department of Health & Human Services, 33 M.S.P.R. 357, 359 (1987).
¶8 A decision to retire is presumed to be voluntary and an employee who
voluntarily retires has no right to appeal to the Board. Jones v. Department of the
Treasury, 107 M.S.P.R. 466, ¶ 10 (2007). An involuntary retirement, however, is
tantamount to a removal and, accordingly, is an appealable action. Salazar v.
Department of the Army, 115 M.S.P.R. 296, ¶ 9 (2010). An appellant can rebut
the presumption that her retirement was voluntary with evidence showing that her
retirement was the result of agency misrepresentation, coercion, or duress. Id.
For the reasons set forth below, we agree with the administrative judge that the
appellant has not established that she retired involuntarily based on any of
these criteria.
6
¶9 A decision to retire 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). An
agency must provide information that is not only correct in nature but adequate in
scope to allow an employee to make an informed decision. Id. The appellant
claims that the agency delayed in providing full and accurate information
regarding the VERA/VSIP, thus impeding her ability to make an informed
decision as to whether to accept the reassignment. PFR File, Tab 1 at 7. The
VERA/VSIP was not approved until June 2014 and, as such, it appears that
eligible employees did not receive letters regarding this option until mid-June
2014. IAF, Tab 8 at 21. However, the appellant did not apply for retirement until
January 2015, so we discern no basis to conclude that this brief delay in her
receipt of information regarding the VERA/VSIP affected her decision to retire.
Indeed, she does not contend that she would have accepted the VERA/VSIP had
she received the information sooner. To the contrary, she states that she
ultimately chose not to accept it because it would have required her to repay the
incentive payment received if she began working for the government within
5 years, a term to which she did not want to agree. PFR File, Tab 1 at 7.
¶10 Where an agency threatens a removal action knowing that it cannot be
substantiated, an employee’s retirement in the face of such a removal is the
product of coercion and is deemed involuntary. Schultz v. United States
Navy, 810 F.2d 1133, 1136-37 (Fed. Cir. 1987). A directed reassignment must be
bona fide and based upon legitimate management considerations in the interest of
the service. Ketterer v. Department of Agriculture, 2 M.S.P.R. 294, 299 (1980).
Thus, if an appellant can show that the agency knew or should have known that
its reasons for reassigning her were not bona fide and based upon legitimate
management considerations in the interest of the service, then she can show that
the agency knew or should have known that it could not substantiate its threat of
removal for declining the reassignment and that the threatened removal was
7
coercive. Jones, 107 M.S.P.R. 466, ¶ 12. On review, the appellant appears to
assert that the directed reassignment was not bona fide and based upon legitimate
management considerations because only regional employees were required to
relocate, whereas headquarters employees performing the same work were not.
However, we agree with the administrative judge that the agency presented
sufficient evidence to rebut this argument. ID at 5-6. The agency’s Director of
Compensation Benefits and Policy, who ordered the reassignment, explained that
there were two benefits specialists in Washington, D.C., who were not reassigned.
IAF, Tab 19 at 20. One employee’s position was policy focused and the agency
determined that it was more appropriate for the position to remain at headquarters
where policy is made. Id. The other employee primarily serviced executives,
most of whom worked at the headquarters location. Id. The agency decided that,
before extending the consolidated benefits function to executives, it first would
implement it for “rank and file employees” to determine whether it was working.
Id. We find the appellant’s bare assertion that regional and headquarters
employees “all did the same job,” PFR File, Tab 1 at 6, insufficient to rebut the
agency’s stated reasons for reassigning her and numerous other employees.
¶11 We discern no basis to conclude that the appellant was otherwise coerced.
She claims that the agency improperly accused her of abusing sick leave and told
her that she would be placed on leave restriction. 4 PFR File, Tab 1 at 8-9.
Although she never received a leave restriction letter, she nonetheless “felt
threaten[ed].” Id. at 9. We cannot conclude that the threat of leave restriction
rendered the appellant’s working conditions so intolerable that a reasonable
person in her position would have felt compelled to retire. See Vitale v.
Department of Veterans Affairs, 107 M.S.P.R. 501, ¶ 20 (2007). To the extent
4
The administrative judge did not address this argument in the initial decision. We
discern no harm because, for the reasons stated herein, we find that it does not warrant
a different outcome in this matter. See Panter v. Department of the Air Force,
22 M.S.P.R. 281, 282 (1984) (finding that an adjudicatory error that is not prejudicial to
a party’s substantive rights provides no basis for reversal of an initial decision).
8
that the appellant is arguing that the agency threatened to take an action that it
knew it could not sustain, she has not provided sufficient evidence. Below, she
stated that she only used 22 hours of leave between September 2014 and
November 2014, when the threat occurred. IAF, Tab 13 at 7. Even if true, this
fact does not, on its own, establish that the agency did not have a legitimate basis
to place her on leave restriction. Cf. Schultz, 810 F.2d at 1136. The appellant’s
contention that the agency should have done more to avoid reassigning her is
equally unavailing. Given the absence of evidence that the agency invoked
reassignment as a veil to effect the appellant’s separation, we cannot interfere
with the agency’s legitimate authority to exercise its discretion to reassign
employees. See Ketterer, 2 M.S.P.R. at 462 n.8; see also 5 C.F.R. § 335.102.
¶12 We are sympathetic to the fact that the appellant may not have been in a
position to relocate based on her family situation, her health, or her finances.
However, these difficulties do not render her retirement involuntary. The
doctrine of coercive involuntariness is a narrow one and does not apply to a case
in which an employee decides to retire because she does not want to accept a
geographical transfer, or other measures the agency is authorized to adopt, even if
those measures make continuation in the job so unpleasant for her that she feels
that she has no realistic option but to leave. Staats v. U.S. Postal Service, 99 F.3d
1120, 1124 (Fed. Cir. 1996). The fact that an employee is faced with an
unpleasant situation or that her choice is limited to two unattractive options
does not make her decision any less voluntary. Id.; see Sainz v. Department of
Justice, 32 M.S.P.R. 678, 682 n.3 (finding that the fact that an employee is faced
with two unpleasant alternatives does not constitute duress or coercion sufficient
to render an action involuntary), aff’d, 835 F.2d 870 (Fed. Cir. 1987) (Table).
Accordingly, we must affirm the dismissal for lack of jurisdiction.
9
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.
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
10
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.