The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KATHRYN J. ROBINSON, DOCKET NUMBER
Appellant, SF-0752-15-0066-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: October 13, 2015
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Kathryn J. Robinson, Inglewood, California, pro se.
Melinda Varszegi, Esquire, Sandy, Utah, 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A nonprecedential order is one that the Board has determined does not add
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 Parties may cite nonprecedential orders,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
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, 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).
BACKGROUND
¶2 The appellant retired from her Human Resources Manager position effective
January 31, 2014. Initial Appeal File (IAF), Tab 5 at 14. Thereafter, she filed a
formal equal employment opportunity (EEO) complaint alleging that the agency
had discriminated against her on the basis of her age (64) and made her working
conditions so intolerable that she was forced to retire. IAF, Tab 1 at 17. On
September 18, 2014, the agency issued a final agency decision finding no
discrimination and advising the appellant of her right to file a Board appeal. Id.
at 17-38.
¶3 The appellant timely filed an appeal with the Board and did not request a
hearing. IAF, Tab 1. The administrative judge issued an order advising the
appellant that retirement actions are presumed to be voluntary and not appealable
to the Board and that her appeal would be dismissed unless she amended it to
allege that her retirement was the result of duress, coercion, or misrepresentation
by the agency. IAF, Tab 2. The appellant filed an amended appeal clarifying that
her retirement was the result of duress and coercion by agency leadership and
describing a number of occurrences “taken by or directed by” the district manager
3
that rendered her working conditions so intolerable that she was forced to retire.
IAF, Tab 4. Specifically, the appellant alleged that: (1) in June and
October 2013, she was subjected to two “unwarranted” and “humiliating”
investigative interviews regarding an alleged romantic relationship with another
manager (H.S.); (2) during her year-end review, the district manager asked her
about her retirement plans; (3) in an attempt to “set [her] up,” the district
manager instructed another employee to have the appellant respond to an EEO
complaint filed by H.S., even though he knew about the investigation into the
alleged relationship between the appellant and H.S.; (4) in December 2013, the
district manager issued the appellant an unsupportable letter of warning charging
her with unprofessional conduct for giving H.S. special treatment; (5) during a
meeting, the district manager made “insensitive age-related comments” to the
appellant by referring to her as being in her “twilight years”; (6) the Area
Manager of Human Resources suggested that the letter of warning could be
resolved if the appellant retired; and (7) although the district manager verbally
agreed to rescind the letter of warning on January 15, 2014, he did not officially
do so until January 29, 2014, 1 day after he received the appellant’s written
notification of her intent to retire effective January 31, 2014. Id. at 1-3, 7. She
claimed that these agency actions damaged her reputation and ability to function
effectively in her position and made her “extremely uncomfortable” in senior
management meetings because the other senior managers “were now questioning
[her] integrity.” Id. at 1. She further asserted that, after she reached out to the
Area Vice President for assistance and received no response, she concluded that
there would be no relief for her intolerable situation. Id. at 2.
¶4 The administrative judge determined that the appellant had made
nonfrivolous allegations of an involuntary retirement sufficient to warrant
adjudication of her claim and, because the appellant had not requested a hearing,
advised that he would decide the appeal on the basis of the written record after
affording the parties an opportunity to submit final evidence and argument. IAF,
4
Tab 6. In an initial decision, the administrative judge dismissed the appeal for
lack of jurisdiction, finding that the appellant failed to show by preponderant
evidence that the agency’s actions rendered her retirement involuntary. IAF,
Tab 21, Initial Decision (ID). In particular, he found that: the agency
investigation and letter of warning were appropriate under the circumstances and
were not coercive; the district manager’s actions and comments were not
improper or discriminatory; and the Area Manager did not attempt to incentivize
the appellant to retire. ID at 10-13. The administrative judge further found that
the evidence established that the appellant intended to retire in early 2014 and
that the agency’s actions did not motivate her to advance her retirement date. ID
at 13-15. Lastly, the administrative judge found that, absent an otherwise
appealable action, the Board lacked jurisdiction to address the appellant’s
discrimination claims. ID at 15-16.
¶5 The appellant has filed a petition for review of the initial decision, the
agency has responded in opposition to the petition for review, and the appellant
has replied to the agency’s opposition. Petition for Review (PFR) File, Tabs 1,
3-4.
DISCUSSION OF ARGUMENTS ON REVIEW
¶6 On review, the appellant argues that the administrative judge made incorrect
findings of fact and law and erred in finding that her retirement was voluntary.
PFR File, Tab 1. Specifically, she asserts that, contrary to the administrative
judge’s findings, she had not been planning to retire in early 2014, but rather
planned to work for several more years until she reached 50 years of service.
PFR File, Tab 1 at 2, Tab 4 at 1-2. Further, she argues that the administrative
judge erroneously found that the district manager rescinded the letter of warning
prior to her application for retirement because, pursuant to agency policy,
discipline remains in the employee’s file until it is rescinded in writing. PFR
File, Tab 1 at 2, Tab 4 at 3-5. Although the district manager verbally agreed to
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rescind the letter of warning prior to the date she submitted her retirement
application, he did so in writing only after she submitted her retirement
application. PFR File, Tab 1 at 2-6, Tab 4 at 2. Moreover, the appellant argues
that the district manager violated the agency’s regulations, which require that a
supervisor must issue a written decision within 10 calendar days after receipt of
an appeal and, if this deadline cannot be met, the decision must explain the reason
for the delay. PFR File, Tab 4 at 4-5. Here, the district manager had delayed
nearly 2 weeks by the time the appellant submitted her retirement application, and
the written decision she received the next day failed to explain the delay. Id. at 5.
The appellant also argues that the administrative judge gave unwarranted weight
to the investigative report, on which he relied in finding that the agency’s
investigation and letter of warning were appropriate under the circumstances.
PFR File, Tab 1 at 6-7, Tab 4 at 5-7. In support of this contention, she has
submitted new evidence—excerpts from deposition transcripts from H.S.’s Board
appeal—which she contends discredit the investigative report and the statements
of the investigators. 2 PFR File, Tab 1 at 6-7, 11-18, Tab 4 at 5-7.
¶7 An employee-initiated action, such as a retirement or resignation, is
presumed to be voluntary and thus outside of the Board’s jurisdiction. Vitale v.
Department of Veterans Affairs, 107 M.S.P.R. 501, ¶ 17 (2007). An involuntary
retirement, however, is tantamount to a forced or constructive removal that is
appealable to the Board. Garcia v. Department of Homeland Security, 437 F.3d
1322, 1328 (Fed. Cir. 2006) (en banc). In constructive adverse action appeals,
nonfrivolous allegations do not establish jurisdiction; rather, the appellant must
2
Under 5 C.F.R. § 1201.115, the Board generally will not consider evidence submitted
for the first time with the petition for review absent a showing that it was unavailable
before the record was closed despite the party’s due diligence. Avansino v. U.S. Postal
Service, 3 M.S.P.R. 211, 214 (1980). The deposition transcripts—dated February 4,
2015, and February 19, 2015—were unavailable before the record closed on January 23,
2015. PFR File, Tab 1 at 12, 16; see IAF, Tab 17 at 1. We have considered these
documents but find that they do not change the outcome of this appeal.
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prove by preponderant evidence that the action was involuntary to establish Board
jurisdiction. Abbott v. U.S. Postal Service, 121 M.S.P.R. 294, ¶ 8 (2014). The
issue of the Board’s jurisdiction in an involuntary resignation or retirement case
is inextricably intertwined with the merits of the appeal; where the employee
establishes the Board’s jurisdiction over the appeal by showing that her
resignation or retirement was involuntary, she also has established the merits of
her appeal. Vitale, 107 M.S.P.R. 501, ¶ 17.
¶8 “The doctrine of coercive involuntariness ‘is a narrow one’ requiring that
the employee ‘satisfy a demanding legal standard.’ An employee’s dissatisfaction
with the options that an agency has made available to him is not sufficient to
render his decision to resign or retire involuntary.” Conforto v. Merit Systems
Protection Board, 713 F.3d 1111, 1121 (Fed. Cir. 2013) (quoting Staats v. U.S.
Postal Service, 99 F.3d 1120, 1124 (Fed. Cir. 1996)). Where, as here, the
appellant claims that her retirement was coerced by the agency creating
intolerable working conditions, the issue is whether, considering the totality of
the circumstances, her working conditions were made so difficult that a
reasonable person in her position would have felt compelled to resign or retire.
Vitale, 107 M.S.P.R. 501, ¶¶ 19-20. In making this determination, the Board will
consider allegations of discrimination and reprisal only insofar as they relate to
the issue of voluntariness and not whether they would establish discrimination or
reprisal as an affirmative defense. Id., ¶ 20.
¶9 We have reviewed the initial decision and agree with the administrative
judge that the appellant has failed to show that her retirement was involuntary
because of intolerable working conditions. As discussed above, the appellant
alleges that, over the course of 7 months, the district manager attempted to force
her to retire by: asking about her retirement plans during her year-end review;
referencing her “twilight years” during one meeting; attempting to have her
respond to H.S.’s EEO complaint; authorizing or being complicit in two
unwarranted investigative interviews; issuing the appellant an unsupportable
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letter of warning; and, after verbally agreeing to rescind the letter of warning,
failing to do so until 1 day after he received the appellant’s retirement
application. Even if the appellant proved her factual allegations by preponderant
evidence and proved that the agency acted improperly, her allegations could not,
under the totality of the circumstances, establish that the agency deprived her of a
meaningful choice as to whether to retire.
¶10 An employee is not guaranteed a stress-free working environment, and
enduring unfair criticism and unpleasant working conditions generally is not so
intolerable as to compel a reasonable person to retire. Miller v. Department of
Defense, 85 M.S.P.R. 310, ¶ 32 (2000). As such, while the district manager’s
actions and the investigatory interviews may have made the appellant feel
uncomfortable, singled out, and mistreated, they did not deprive her of a
meaningful choice. See id.; see also Baldwin v. Department of Veterans Affairs,
109 M.S.P.R. 392, ¶¶ 18-20 (2008) (finding that the appellant’s allegations that
the agency unjustifiably threatened him with discipline and conducted
unwarranted investigations targeting him did not amount to nonfrivolous
allegations that he was coerced into resigning). Further, to prove a constructive
discharge, an employee has an obligation to act reasonably, not assume the worst,
and not jump to conclusions too quickly. Miller, 85 M.S.P.R. 310, ¶ 29. Here, the
appellant acted unreasonably and assumed the worst when she submitted her
retirement application because the district manager had failed to rescind the letter
of warning in writing within 2 weeks after he verbally agreed to do so. There is
no evidence to suggest that the district manager did not intend to follow through
on his verbal agreement to formally rescind the letter of warning. Considering
the totality of the circumstances, we agree with the administrative judge that the
appellant has not met her burden to show by preponderant evidence that the
agency created working conditions so intolerable that a reasonable person in her
position would have felt compelled to retire. ID at 13-15. Accordingly, we find
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that the appellant failed to show that her retirement was involuntary, and the
administrative judge properly dismissed the appeal for lack of jurisdiction.
¶11 Lastly, in the absence of an otherwise appealable action, the administrative
judge correctly found that the Board lacks jurisdiction over the appellant’s
discrimination claims except insofar as they relate to the issue of voluntariness.
ID at 7, 15-16; see Wren v. Department of the Army, 2 M.S.P.R. 1, 2 (1980)
(finding that prohibited personnel practices under 5 U.S.C. § 2302(b) are not an
independent source of Board jurisdiction), aff’d, 681 F.2d 867, 871-73 (D.C. Cir.
1982). Likewise, we have no authority to review the appellant’s allegation that
the district manager violated agency policy or regulations in failing to timely
issue the written decision rescinding the letter of warning. 3 See Penna v. U.S.
Postal Service, 118 M.S.P.R. 355, ¶ 13 (2012) (stating that, in the absence of an
otherwise appealable action, the Board lacked jurisdiction over claims of harmful
error, prohibited personnel practices, and the agency’s alleged failure to comply
with regulations).
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
3
Although we have no authority to review this allegation absent an otherwise
appealable action, we have considered this claim insofar as it relates to the issue of
voluntariness. Assuming, without deciding, that the district manager’s delay in issuing
the written rescission did violate an agency policy or procedure, we fail to discern how
such a violation, even when considered in conjunction with the other alleged agency
actions, would compel a reasonable person to retire.
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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
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.