The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
OMILANA THOMAS, DOCKET NUMBER
Appellant, NY-0752-15-0111-I-1
v.
DEPARTMENT OF DATE: November 16, 2015
TRANSPORTATION,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Omilana Thomas, Rockville Centre, 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,
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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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).
BACKGROUND
¶2 The appellant filed an appeal alleging that she involuntarily retired from her
position of Human Resources Specialist, FV-0201-H, with the agency’s Federal
Aviation Administration, in Queens, New York, effective January 10, 2015.
Initial Appeal File (IAF), Tab 1, Tab 8 at 11. The underlying facts of the appeal
are undisputed. On April 22, 2014, the agency informed the appellant by
memorandum that it intended to consolidate its benefits services functions at the
existing Benefits Operations Center (BOC) in Kansas City, Missouri, effective
January 11, 2015. IAF, Tab 8 at 12. The memorandum stated that the
consolidation was intended to “streamline processes and improve quality control,
and improve the management of workflow.” Id. It also stated that the appellant
would be administratively reassigned to the BOC in Kansas City. Id. It further
stated that her pay plan, grade/level, and basic pay rate would remain the same, 2
and that she would be eligible for relocation expense reimbursement. Id. It
2
The locality pay rate, however, would be the rate for Kansas City if she accepted the
reassignment. IAF, Tab 8 at 12.
3
stated, moreover, that she would be subject to involuntary separation through
adverse action procedures if she declined the administrative reassignment. Id.
at 13.
¶3 On April 28, 2014, the agency issued the appellant a letter stating that she
could request special consideration for certain vacancies in human resources and
encouraging her to apply for other job opportunities and vacancy announcements
within or outside of the agency during the period preceding January 11, 2015. Id.
at 15-16. The letter further indicated that the selecting officials for such
positions would consider her before considering other candidates but that there
was no guarantee that she would be selected for any position. Id.
¶4 On June 20, 2014, the appellant accepted the administrative reassignment.
Id. at 17. However, she retired effective January 10, 2015. Id. at 11. This appeal
followed. IAF, Tab 1. The appellant initially requested a hearing, but later
withdrew her request, and the appeal was decided on the written record. Id. at 2;
IAF, Tab 12 at 3.
¶5 The administrative judge, in the initial decision, found that the agency
sufficiently refuted the appellant’s allegation that her reassignment was not based
on legitimate and bona fide management reasons, and the administrative judge
thus declined to review the considerations underlying the agency’s exercise of
discretion. IAF, Tab 28, Initial Decision (ID) at 6. The administrative judge
found that the appellant did not show that the agency failed to afford her the
information that she needed to make an informed decision about the reassignment
or that she materially relied on misinformation to her detriment. ID at 7. The
administrative judge further found that the appellant did not show that her
working conditions were so intolerable as to compel a reasonable person to retire.
ID at 9. The administrative judge concluded that the appellant failed to establish
the Board’s jurisdiction over her appeal and thus dismissed the appeal. ID
at 9-10.
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¶6 The appellant filed a petition for review. Petition for Review (PFR) File,
Tab 1. The agency responded to the petition for review. PFR File, Tab 3.
ANALYSIS AND FINDINGS
¶7 An employee-initiated action, such as a resignation or retirement, is
presumed to be voluntary and, as such, is not appealable. Atkins v. Department of
Commerce, 81 M.S.P.R. 246, ¶ 6 (1999). The presumption of voluntariness may
be rebutted if the employee can establish that the resignation or retirement was
the product of duress or coercion brought on by government action, or of
misleading or deceptive information, or if she is mentally incompetent.
Heining v. General Services Administration, 68 M.S.P.R. 513, 519 (1995).
Generally, the employee can establish involuntariness based on coercion by
showing that: (1) the agency effectively imposed the terms of her resignation or
retirement; (2) she had no realistic alternative but to resign or retire; and (3) her
resignation or retirement was the result of improper acts by the agency. Shoaf v.
Department of Agriculture, 260 F.3d 1336, 1341-42 (Fed. Cir. 2001). The Board
will consider whether the totality of the circumstances show that the employee’s
working conditions were made so difficult that a reasonable person in her position
would have felt compelled to resign or retire. Id. at 1342; Heining, 68 M.S.P.R.
513, 519-20. The employee bears the burden of proving that the Board has
jurisdiction over her appeal. See 5 C.F.R. § 1201.56(a).
¶8 The appellant argues that she acted under coercion because she only was
given the option to relocate, resign, or retire. PFR File, Tab 1 at 7. She asserts
that the agency’s characterization of the circumstances surrounding her
reassignment was inaccurate and that the administrative judge ignored the
affidavits she submitted to counter evidence that the agency submitted. Id. at 4,
6. She attacks the legitimacy of the agency’s plan to transfer her and the other
regional benefits specialists to the BOC in Kansas City because the benefits
specialists working at headquarters were not transferred at the same time. Id.
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at 7. These contentions largely echo her arguments before the administrative
judge, see, e.g., IAF, Tab 6 at 6-9, and none are availing.
¶9 Where an appellant’s claim involves a directed reassignment, the Board
considers the agency’s stated reasons for the reassignment. Although the
appellant retains the burden to prove that her separation was involuntary, the
agency must refute her allegation that the reassignment was intended to coerce
her resignation or retirement by showing that the reassignment was based on
legitimate and bona fide management reasons. Rayfield v. Department of
Agriculture, 26 M.S.P.R. 244, 246 (1985). The appellant then must be allowed to
rebut the agency’s averred reasons by proving that the reassignment had no solid
or substantial basis in personnel practice or principle. Cartwright v. Department
of Housing & Urban Development, 54 M.S.P.R. 338, 342 (1992); Rayfield,
26 M.S.P.R. at 246. Once it has been established that the agency properly
ordered a reassignment due to bona fide management considerations in the
interest of promoting the efficiency of the service, the Board will not review the
management considerations underlying the exercise of agency discretion.
Ketterer v. Department of Agriculture, 2 M.S.P.R. 294, 299 n.8 (1980). 3
¶10 Here, the administrative judge considered the appellant’s evidence,
including the affidavits she submitted. ID at 4-7. Despite that evidence, the
agency successfully refuted her allegations with evidence showing that the
reassignment was based on legitimate and bona fide management reasons. The
origins of the agency’s action reassigning the appellant and others go back to
2006, when the agency created a Tiger Team to identify potential efficiencies in
the agency’s benefits services operations pursuant to the President’s directive to
promote government-wide centralization of benefits services delivery. IAF,
3
Our reviewing court, the U.S. Court of Appeals for the Federal Circuit, recently
reaffirmed the 2-step burden-shifting framework for reassignment appeals set forth in
Ketterer. See Cobert v. Miller, No. 2014-3101, 2015 WL 5128392, at *8-10 (Fed. Cir.
Sept. 2, 2015).
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Tab 27 at 17. The team recommended centralizing benefits services functions to
achieve greater efficiency and more consistent service. Id. A team working
during 2009 and 2010 determined that these functions should be performed in a
single field location and selected Kansas City, Missouri, as that location. Id.
Initially, regional benefits services specialists remained in their respective duty
stations, but reported administratively to the BOC Director in Kansas City. Id.
at 17-18. In 2012, the agency created a centralized BOC call center in
Kansas City and set in motion a plan to complete physical centralization of
benefits services functions there by September 30, 2013. Id. at 18. The agency’s
original centralization plans were disrupted by sequestration, furloughs, and early
retirement offerings, but in 2014, the agency determined that partial centralization
of these functions had been less effective than hoped and decided to reassign all
of its benefits services specialists to Kansas City. Id. Benefits services
specialists in Washington, D.C., were not moved at that time because their job
duties differed from those of the regional specialists. Id. at 20; see PFR File,
Tab 1 at 7. The appellant failed to refute the agency’s foregoing account of its
rationale for her reassignment.
¶11 The appellant likewise has not shown that the agency gave her
misinformation that would rebut the presumption of voluntariness. PFR File,
Tab 1 at 7-10. To prove a retirement action was involuntary based on
misinformation, an appellant must show that the agency made misleading
statements upon which she reasonably relied to her detriment. Miller v.
Department of Homeland Security, 111 M.S.P.R. 325, ¶ 8 (2009), aff’d,
361 F. App’x 134 (Fed. Cir. 2010). A decision made “with blinders on,” based on
misinformation or a lack of information, cannot be binding as a matter of
fundamental fairness and due process. Id. An appellant need not show that the
agency knowingly distributed deceptive information. Id. However, an agency
must provide information that is correct in nature and adequate in scope to allow
an employee to make an informed decision. Id.
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¶12 Owing to the agency’s piecemeal efforts to centralize its benefits services
functions in Kansas City, the appellant reasonably may have believed that the
agency would not require her to relocate. After the agency decided to reassign
regional benefits services employees to the Kansas City BOC, however, the
appellant received timely and complete information about the reassignment. On
April 22, 2014, agency human resources officials traveled to Queens, New York,
and met with the benefits services staff, including the appellant, in the agency’s
Eastern Region. IAF, Tab 27 at 18, 22. During the meeting, the appellant
received a memorandum advising her of the pending reassignment to
Kansas City. Id.; IAF, Tab 8 at 12-14. The memorandum stated that she had to
report for work in Kansas City on January 11, 2015, if she accepted the
reassignment. IAF, Tab 8 at 12. She was given 45 days in which to decide
whether she would accept the reassignment. Id. at 13. That deadline later was
extended. IAF, Tab 27 at 23. In the 9-month period following the issuance of the
memorandum, the appellant and others had numerous opportunities to learn about
the reassignment and the Kansas City office, and those employees who accepted
the reassignment had multiple opportunities to travel there to search for housing,
visit the office, or meet with the local staff. Id. at 19, 23, 30. The appellant
did not take advantage of these travel opportunities. Id. at 23.
¶13 The appellant additionally alleges that the agency gave her misleading
information in the April 28, 2014 letter she received regarding special
consideration for job openings. PFR File, Tab 1 at 7, 9; IAF, Tab 8 at 15-16. She
argues that she was not afforded special consideration or assistance in finding
other employment within the Eastern Region or offered assistance comparable to
the assistance given to other groups of employees required to relocate. PFR File,
Tab 1 at 7-9. The agency, however, clearly stated the parameters of special
consideration in the April 28 letter, including the fact that special consideration
did not guarantee an appointment. IAF, Tab 8 at 15. The agency informed the
reassigned employees that they would be considered first for any human resources
8
position that opened up in their duty stations at their grade levels or lower, and if
interviews were held, they would be interviewed. Id.; IAF, Tab 27 at 22. The
agency advised these employees that they should update their résumés and send
them to specified human resources personnel so that the résumés could be
forwarded for consideration for positions at the same or a lower pay band. IAF,
Tab 8 at 15, Tab 27 at 22. The agency submitted an affidavit from one selecting
official, who stated that the appellant received special consideration when she
applied for a position in Labor and Employee Relations. IAF, Tab 27 at 25-26.
However, other benefits specialists applied for the same position, and another
person was selected. Id. at 26. Agency human resources managers also offered
to review the résumés of those employees slated for reassignment and offer their
feedback. Id. at 22. The appellant did not submit her résumé for such
review. Id.
¶14 Even if the appellant received erroneous information, she has failed to
allege that any agency statement affected her ultimate decision to retire. Indeed,
she admitted that she was unable to relocate to Kansas City for personal reasons.
IAF, Tab 15 at 10. She also has failed to identify any information that the agency
should have provided her, but did not, and which might have affected her decision
to retire. The appellant thus failed to show that she relied to her detriment upon
insufficient or misleading information when she decided to retire.
¶15 The appellant also realleges her contention that that the agency improperly
restricted her use of sick leave during the months preceding her retirement,
resulting in a hostile work environment. PFR File, Tab 1 at 10; IAF, Tab 15
at 6-7, 11, 21. However, dissatisfaction with work assignments, a feeling of
being unfairly criticized, or difficult or unpleasant working conditions generally
are not so intolerable to compel a reasonable person to retire. Miller v.
Department of Defense, 85 M.S.P.R. 310, ¶ 32 (2000).
¶16 In summary, we find that the appellant has not shown that her working
conditions were so intolerable to compel a reasonable person to retire. The
9
agency successfully refuted her allegation that the reassignment was intended to
coerce her retirement by showing that the reassignment was based on legitimate
and bona fide management reasons that the appellant did not rebut. Moreover,
the appellant admitted that she could not relocate owing to personal
considerations. We also note that her retirement did not become effective until
1 day before her reassignment was to take place. IAF, Tab 8 at 11. Accordingly,
we conclude that the appellant has not shown that she was coerced to retire. We
thus affirm the initial decision.
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
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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.