The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LOUIS PEASLEY, DOCKET NUMBER
Appellant, DC-0752-15-0305-I-1
v.
SMALL BUSINESS DATE: October 23, 2015
ADMINISTRATION,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Louis Peasley, Springfield, Virginia, pro se.
Claudine Landry, Esquire, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his appeal for lack of jurisdiction. For the reasons discussed below, we
GRANT the appellant’s petition for review, VACATE the initial decision, and
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
REMAND the case to the regional office for further adjudication in accordance
with this Order.
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 In February 2014, the appellant transferred to the agency to accept a
Supervisory Financial Program Analyst position. Initial Appeal File (IAF), Tab 7
at 216. Beginning in October 2014, the appellant submitted three written
resignations. Id. at 65, 106, 118, 125. He withdrew the first two requests. Id.
at 106, 118, 120-21. His third and final resignation letter was effective
December 8, 2014. Id. at 65. The agency processed the appellant’s separation
accordingly. Id. at 57, 59, 62.
¶3 The appellant filed a Board appeal in January 2015, checking the boxes to
indicate that he was challenging a negative suitability determination and
constructive discharge. IAF, Tab 1 at 3. He also indicated that he had filed a
whistleblower complaint with the Office of Special Counsel (OSC) in
October 2014, but that he had not received notification that it had made a decision
or terminated its investigation. Id. at 4. The appellant provided a narrative
explanation of his allegations, including claims of disability discrimination and
whistleblower reprisal, along with corresponding evidence. Id. at 5, 7-24.
¶4 The administrative judge issued a show cause order, directing the appellant
to meet his jurisdictional burden. IAF, Tab 3. She provided information about
his burden with respect to suitability and involuntary resignation appeals. Id.
at 1-5. The administrative judge also noted that it was unclear if the appellant
was attempting to file an individual right of action (IRA) appeal pursuant
to 5 U.S.C. § 1221, and informed him that, if that was his intent, he could file a
separate appeal after exhausting his administrative remedy with OSC. Id.
at 1 n.1.
¶5 After permitting the appellant to submit further argument and evidence, the
administrative judge denied his request for a hearing and dismissed his appeal,
3
finding that he failed to present nonfrivolous allegations of Board jurisdiction.
IAF, Tab 8, Initial Decision (ID) at 1. The appellant has filed a petition for
review. Petition for Review (PFR) File, Tab 1. 2 The agency filed a response, and
the appellant filed an untimely reply. 3 PFR File, Tabs 3, 6.
The administrative judge failed to address the appellant’s filing of an equal
employment opportunity (EEO) complaint.
¶6 Below, the agency asserted that the appellant filed a formal EEO complaint
alleging hostile treatment and constructive discharge on December 4, 2014, prior
to filing this appeal. IAF, Tab 7 at 28. The appellant did not dispute this
assertion. However, the administrative judge failed to further develop or address
the issue.
¶7 When an employee who has been affected by an action that is appealable to
the Board believes that the action was the result of prohibited discrimination, he
must elect between filing a mixed-case complaint with the agency or filing a
mixed-case appeal directly with the Board, and whichever is filed first is
considered an election to proceed in that forum. Shapiro v. Department of
Veterans Affairs, 114 M.S.P.R. 585, ¶7 (2010); 5 C.F.R. § 1201.154;
see 29 C.F.R. § 1614.302(b). The same applies to claims of prohibited
discrimination in the context of an alleged constructive action.
Shapiro, 114 M.S.P.R. 585, ¶ 7; see Ball v. Department of Veterans
2
The appellant titled his filing as “reopening an appeal dismissed without prejudice.”
PFR File, Tab 1 at 1. The Clerk of the Board notified the appellant that the initial
decision did not dismiss his appeal without prejudice, so his filing would be construed
as a petition for review. PFR File, Tab 2 at 1.
3
The Clerk of the Board informed the appellant that he could submit a reply within
10 days after the date of service of an agency response. PFR File, Tab 2 at 1. The
agency served the appellant with its response on June 5, 2015. PFR File, Tab 3 at 13.
On June 16, 2015, the appellant requested an extension of time to reply, but because the
appellant was already untimely, the Clerk of the Board denied that request. PFR File,
Tab 4 at 3, Tab 5 at 1. Despite that denial, the appellant submitted a reply on June 24,
2015, more than 1 week after the deadline for doing so. PFR File, Tab 6. We have not
considered this untimely reply.
4
Affairs, 68 M.S.P.R. 482, 484 (1995) (observing that an appellant’s election in a
construction resignation appeal was not binding if it was made without knowledge
of her options). If an employee elects to file his complaint with the agency, the
right to subsequently pursue the matter before the Board vests when the agency
issues a final decision on the discrimination complaint or 120 days have passed
since the filing of the complaint. Miranne v. Department of the
Navy, 121 M.S.P.R. 235, ¶¶ 12-13 (2014).
¶8 Under the circumstances presented here, it appears that the appellant may
now choose to proceed before the Board regardless of the status of his EEO
complaint. See Stribling v. Department of Education, 107 M.S.P.R. 166,
¶¶ 15-16 (2007) (forwarding a petition for review for docketing as a refiled
removal appeal where 120 days had passed since the appellant filed an EEO
complaint regarding her removal); 5 C.F.R. § 1201.154(c) (providing that an
administrative judge will dismiss a premature mixed-case appeal without
prejudice to its later refiling, or alternatively, may hold an appeal for a short time
to allow it to become timely). On remand, the administrative judge should verify
that the appellant filed a formal EEO complaint concerning his constructive
removal claim. If so, the administrative judge should confirm that the appellant
is now electing to proceed before the Board.
The administrative judge must reconsider the appellant’s potential whistleblower
retaliation claim.
¶9 As previously discussed, the appellant’s initial appeal indicated that he filed
a whistleblower complaint with OSC. IAF, Tab 1 at 4. The administrative judge
informed the appellant that he could file a separate IRA appeal without notifying
him of the corresponding jurisdictional burden or considering if the appellant was
attempting to raise an affirmative defense to his alleged involuntary resignation
claim. Id.
¶10 Under 5 U.S.C. § 7121(g), an employee who claims to have suffered
whistleblowing reprisal regarding an adverse action may elect no more than one
5
of the following remedies: a direct appeal to the Board; a negotiated grievance
procedure pursuant to 5 U.S.C. § 7121; or a request for corrective action under
5 U.S.C. chapter 12, subchapters II and III, i.e., an OSC complaint, potentially to
be followed by an IRA appeal. Savage v. Department of the Army, 122 M.S.P.R.
612, ¶ 17 (2015). Ordinarily, an individual who first requests corrective action
from OSC will be deemed to have made a binding election to proceed in that
forum. 5 U.S.C. § 7121(g)(4)(C). In such a case, the jurisdictional requirements
for an IRA appeal apply, even if the contested personnel action would have been
directly appealable to the Board. Savage, 122 M.S.P.R. 612, ¶ 17. This principle
applies equally to alleged constructive actions. Id. However, an election
under 5 U.S.C. § 7121(g) is binding only if made knowingly and voluntarily. Id.,
¶ 18. Therefore, the administrative judge erred in failing to obtain information
regarding the nature of the appellant’s OSC complaint and to clarify if the
appellant was raising whistleblower reprisal as an affirmative defense in this
constructive adverse action appeal or attempting to bring a separate IRA appeal
regarding a distinct personnel action.
¶11 On remand, the administrative judge must develop the record concerning
the appellant’s whistleblower complaint to OSC. If his OSC complaint
challenged a distinct personnel action, the regional office should docket a
separate, now-ripe IRA appeal and provide the appellant with the appropriate
burden for establishing jurisdiction. 4 See Jundt v. Department of Veterans
Affairs, 113 M.S.P.R. 688, ¶¶ 6-7 (2010) (discussing the OSC exhaustion
requirement for IRA appeals and the Board’s practice of adjudicating an appeal
that becomes ripe while pending with the Board). However, if the OSC complaint
pertains to the constructive removal claim currently before us, the administrative
4
The appellant indicated that he filed his OSC complaint in “10/2014.” IAF, Tab 1
at 4. His first two letters of resignation, though later withdrawn, were dated October 6
and 22, 2014. IAF, Tab 7 at 118, 125. The appellant’s final letter of resignation was
dated December 8, 2014, and effectuated the same day. Id. at 57, 65.
6
judge must determine whether that complaint constitutes a binding election
under 5 U.S.C. § 7121(g). Savage, 122 M.S.P.R. 612, ¶ 18. If the appellant made
a binding election to first seek corrective action from OSC, the jurisdictional
requirements for an IRA appeal apply. Id., ¶ 17. If the appellant did not make a
binding election by first seeking corrective action from OSC, his claim may
proceed as a direct appeal to the Board. See id., ¶ 18.
The appellant presented nonfrivolous allegations of involuntariness.
¶12 The administrative judge found that the appellant failed to present
nonfrivolous allegations of Board jurisdiction and, therefore, dismissed his appeal
without a hearing. ID at 3-5. We find that, if the claim is properly before the
Board as a chapter 75 appeal, see supra ¶¶ 8, 11, the appellant’s involuntary
resignation allegations warrant a jurisdictional hearing. 5
¶13 The appellant has the burden of proving the Board’s jurisdiction by
a preponderance of the evidence. Hosozawa v. Department of Veterans
Affairs, 113 M.S.P.R. 110, ¶ 5 (2010); 5 C.F.R. § 1201.56(b)(2)(i)(A). An
employee-initiated action, such as a retirement or resignation, is presumed to be
voluntary, and thus outside the Board’s jurisdiction. Hosozawa, 113 M.S.P.R.
110, ¶ 5. An involuntary resignation, however, is equivalent to a forced removal
and therefore is within the Board’s jurisdiction. Id. A constructive adverse
action claim generally has two things in common: (1) the employee lacked a
meaningful choice in the matter; and (2) it was the agency’s wrongful actions that
deprived him of that choice. Bean v. U.S. Postal Service, 120 M.S.P.R. 397, ¶ 8
(2013). The employee may overcome the presumption that a resignation is
voluntary by showing that it was the result of the agency’s misinformation,
deception, or coercion. Hosozawa, 113 M.S.P.R. 110, ¶ 5.
5
Although the appellant indicated that he also was disputing a negative suitability
determination in his initial appeal, IAF, Tab 1 at 3, the administrative judge found that
the agency did not make any suitability determination, ID at 4-5. Therefore, the
administrative judge concluded that the appellant presented no basis for considering his
case as an appeal of a negative suitability determination, id., and we agree.
7
¶14 To establish involuntariness on the basis of coercion, the appellant must
establish that the agency imposed the terms of the resignation, he had no realistic
alternative but to resign, and the resignation was the result of improper actions by
the agency. Id. If the employee claims that his resignation was coerced by the
agency’s creating intolerable working conditions, he must show that a reasonable
employee in his position would have found the working conditions so oppressive
that he would have felt compelled to resign. Id. Once the appellant presents
nonfrivolous allegations of Board jurisdiction—allegations of fact which, if
proven, would establish the Board’s jurisdiction—he is entitled to a hearing at
which he must prove jurisdiction by a preponderance of the evidence. Id.
¶15 The administrative judge concluded that, while the appellant was unhappy
with his supervisor and performance appraisal, his allegations did not reflect
conditions so pervasively unpleasant and difficult that he had no choice but to
resign. ID at 4. However, in doing so, the administrative judge failed to address
many of the appellant’s specific arguments, including claims of discrimination
and reprisal. See Neice v. Department of Homeland Security, 105 M.S.P.R. 211,
¶8 (2007) (observing that, in determining whether an appellant was
constructively discharged, the Board will consider any evidence of discrimination
or retaliation together with all the other evidence bearing on the voluntariness of
a resignation).
¶16 Pro se filings are to be construed liberally. Hosozawa, 113 M.S.P.R. 110,
¶ 7. Here, the appellant alleged that the agency singled him out to change his
tour of duty, despite requests for accommodation, exacerbating a preexisting
medical condition. IAF, Tab 1 at 5, 21, 24. He also submitted a letter from his
treating physician, which describes a deteriorating medical condition and suggests
that it may be due to his work situation. Id. at 13. The appellant further alleged
that his supervisor, C.L., retaliated against him due to his reportedly uncovering
and disclosing that C.L. had been violating agency regulations and authorizing
8
unlawful payments to recipients of Federal funding for years. Id. at 5, 8-12,
15-20, 22-24.
¶17 Under these specific circumstances, we find that the appellant has
nonfrivolously alleged that his resignation was involuntary. See
Hosozawa, 113 M.S.P.R. 110, ¶ 7 (remanding for a jurisdictional hearing where
the appellant alleged, inter alia, that her resignation was involuntary because the
agency denied her request for a reasonable accommodation); Coufal v.
Department of Justice, 98 M.S.P.R. 31, ¶¶ 26-29 (2004) (finding that the
appellant’s allegations that she was forced to retire because of harassment,
whistleblower reprisal, and failure to grant her request to reassign her for medical
reasons warranted a jurisdictional hearing); Hernandez v. U.S. Postal
Service, 74 M.S.P.R. 412, 417-19 (1997) (remanding for a jurisdictional hearing
as to the voluntariness of an employee’s resignation where he alleged coercion
based upon the agency’s failure to grant a request for reasonable
accommodation). Therefore, if the administrative judge determines that the claim
is properly before the Board as a chapter 75 appeal, see supra ¶¶ 8, 11, the
appellant is entitled to a jurisdictional hearing and the administrative judge must
specifically consider the appellant’s claims of discrimination and retaliation as
they pertain to the issue of involuntariness. The administrative judge may
consider the additional evidence the appellant submitted with his petition for
review if she finds it relevant and material to the involuntariness issue. PFR File,
Tab 1 at 5-103.
ORDER
¶18 For the reasons discussed above, we remand this appeal to the regional
office for further adjudication. In her remand initial decision, the administrative
9
judge may adopt her prior findings regarding the appellant’s claim that he was
subjected to a negative suitability determination.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.