Chase M. Lentz v. Department of the Interior

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

CHASE M. LENTZ, DOCKET NUMBER

Appellant, SF-0752-15-0363-I-1

v.

DEPARTMENT OF THE INTERIOR, DATE: January 11, 2016

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Chase M. Lentz, Fresno, California, pro se.

Kevin D. Mack, Esquire, Sacramento, California, 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 his 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 the law to the facts of the case; the

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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 The appellant filed an appeal alleging that he was constructively discharged

from his position as a Botanist. Initial Appeal File (IAF), Tab 1. The record

reflects that, on May 15, 2014, the appellant received a letter of reprimand (LOR)

based on charges of acting outside the scope of his authority and conduct

unbecoming. IAF, Tab 5, Subtab 4e. On November 13, 2014, the appellant

received a notice proposing a 14-day suspension, charging him again with acting

outside the scope of his authority and conduct unbecoming. Id., Subtab 4d. The

appellant responded to the proposed suspension. IAF, Tab 3 at 107-181. In a

February 10, 2015 decision, the deciding official sustained both charges and the

proposed 14-day suspension penalty, effective February 15, 2015. IAF, Tab 5,

Subtab 4c. On February 11, 2015, the appellant notified the agency that he was

resigning from his position, effective February 13, 2015. Id., Subtab 4b. The

agency processed the appellant’s resignation effective February 13, 2015, which

stated the reason for his resignation as: “I have been subjected to many acts of

harassment and a hostile work environment, that has severely aggravated an

illness and disabilities. Circumstances were so intolerable that I needed to

resign.” Id., Subtab 4a.

3

¶3 Because it appeared that the Board may not have jurisdiction over the

appellant’s claim that his resignation was involuntary, the administrative judge

issued an order informing the appellant that a resignation is presumed to be

voluntary and that, unless he alleged that his resignation was the result of duress,

coercion, or misrepresentation by the agency, his appeal would be dismissed.

IAF, Tab 2 at 2-3. The administrative judge ordered the appellant to provide

evidence and argument amounting to a nonfrivolous allegation that the Board has

jurisdiction over his claim of an involuntary resignation. Id. at 4. In response,

the appellant submitted numerous documents and argued that his resignation was

coerced because the agency brought unjustifiable charges in support of its

reprimand and 14-day suspension. IAF, Tabs 3, 6. The agency filed a motion to

dismiss the appeal for lack of jurisdiction, arguing that the appellant failed to

raise a nonfrivolous allegation that his resignation was involuntary. IAF, Tab 4.

After considering the appellant’s responses, the administrative judge dismissed

the appeal for lack of jurisdiction without holding the requested hearing, finding

that the appellant failed to nonfrivolously allege that a reasonable person in his

position would have felt compelled to resign due to coercive or improper acts by

the agency. Initial Decision (ID) at 9.

¶4 The appellant has filed a petition for review in which he alleges, inter alia,

that he resigned to avoid a threatened adverse action that the agency knew or

should have known could not be substantiated and that his other avenues of

redress have been fruitless, such as filing an equal employment opportunity

complaint, Office of Special Counsel (OSC) complaints, a USERRA 2 appeal, and

grievances. Petition for Review (PFR) File, Tab 1. The agency did not file a

response.

¶5 The appellant bears the burden of proving the Board’s jurisdiction by a

preponderance of the evidence. Parrott v. Merit Systems Protection Board,

2

Uniformed Services Employment and Reemployment Rights Act of 1994 (codified at

38 U.S.C. §§ 4301-4333).

4

519 F.3d 1328, 1332 (Fed. Cir. 2008); 5 C.F.R. § 1201.56(a)(2). An employee’s

resignation is presumed to be a voluntary action and, as such, is not within the

Board’s jurisdiction. Thomas v. Department of Housing & Urban Development,

63 M.S.P.R. 649, 656 (1994). The Board will afford an appellant a hearing on

jurisdiction over the appeal of an alleged involuntary resignation if the appellant

makes a nonfrivolous allegation of fact that would rebut the presumption of

voluntariness. Burgess v. Merit Systems Protection Board, 758 F.2d 641, 643

(Fed. Cir. 1985). A nonfrivolous allegation is one that, if proven, establishes a

prima facie case that the appellant’s resignation was involuntary. Dumas v. Merit

Systems Protection Board, 789 F.2d 892, 893-94 (Fed. Cir. 1986). The

presumption that a resignation is voluntary can be rebutted by evidence showing

that the resignation was the result of agency misrepresentation, coercion or

duress. Scharf v. Department of the Air Force, 710 F.2d 1572, 1574-75 (Fed. Cir.

1983).

¶6 Here, the appellant asserts on review that the agency “has been taking

unsubstantiated, escalating disciplinary actions against me and has expressed

their desire to terminate me.” PFR File, Tab 1 at 9. The appellant asserts that the

administrative judge erred in finding that the LOR and the 14-day suspension had

not constituted improper acts or otherwise created intolerable working conditions.

Id. at 12. The appellant contends that the “unjustified escalating disciplinary

actions would have led to other unjustified adverse actions resulting in my

removal.” In this regard, he asserts that he had heard rumors that his supervisor

had stated she was going to remove him and he contends that it was wrong for the

agency to threaten him with a baseless adverse action. Id.

¶7 The test for determining whether a resignation was the result of coercion is

whether: (1) the appellant involuntarily accepted the agency’s terms; (2) the

circumstances permitted no other alternative; and (3) the circumstances were the

result of the agency’s coercive acts. Edgerton v. Merit Systems Protection Board,

768 F.2d 1314, 1316-17 (Fed. Cir. 1985); Barnett v. U.S. Postal Service,

5

59 M.S.P.R. 125, 127-28 (1993). The fact that an employee is faced with the

unpleasant choice of either resigning or opposing a potential removal action does

not rebut the presumed voluntariness of his ultimate choice of resignation.

Schultz v. U.S. Navy, 810 F.2d 1133, 1136-37 (Fed. Cir. 1987). However,

inherent in such a proposition is the presumption that the agency had “reasonable

grounds for threatening to take an adverse action.” Id. If the appellant can show

that the agency knew that the reasons for the threatened removal could not be

substantiated, the action would be purely coercive and would render his resulting

resignation involuntary, thereby making his appeal within the Board’s jurisdiction

and entitling him to reinstatement. See Barthel v. Department of the Army,

38 M.S.P.R. 245, 251 (1988). To make this showing, the appellant must do more

than merely rebut the agency’s reasons for the threatened action. See id.

¶8 Here, there is no evidence that the agency imposed the terms of the

resignation. Further, the administrative judge thoroughly considered the

appellant’s claim that his resignation was coerced. ID at 5-20. As the

administrative judge correctly found, the appellant did not explain why he did not

continue to challenge the 14-day suspension action by filing a grievance or a

discrimination complaint, instead of resigning before it went into effect, since he

already had filed a discrimination complaint over the proposed action. ID at 9.

The administrative judge also correctly found that the appellant failed to

adequately explain why the LOR had been a factor compelling him to resign,

since it had occurred over 8 months prior to his resignation, and he previously

had filed an OSC complaint and a discrimination complaint contesting it. Id.

While the appellant challenges the administrative judge’s finding that he failed to

nonfrivolously allege that there was a complete lack of support for the LOR and

14-day suspension by continuing to argue that the agency’s actions were

unsubstantiated, we agree with the administrative judge that the appellant has

failed to make a nonfrivolous allegation that the agency knew or should have

known that the LOR and 14-day suspension could not be substantiated.

6

Moreover, as to the appellant’s claim that his supervisor allegedly stated that she

was going to remove him, the agency had not proposed his removal at the time of

the resignation, and mere conjecture of an adverse action does not constitute

coercion or duress on the part of the agency. Holman v. Department of Treasury,

9 M.S.P.R. 218, 220 (1981), aff’d, 703 F.2d 584 (Fed. Cir. 1982) (Table).

¶9 The appellant also argues that he was subjected to a hostile work

environment and that he resigned because the agency created unreasonably

difficult working conditions by setting forth, in both the LOR and the notice of

proposed suspension, impossible work expectations that were meant to punish

him and justify future disciplinary actions. PFR File, Tab 1 at 13-14. 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

himself from the workplace. Wright v. Department of Veterans Affairs,

85 M.S.P.R. 358, ¶ 25 (2000). Thus, the appellant has to show that a reasonable

person would have felt that there was a causal connection between all of the

circumstances, including those incidents that were remote in time, and his

resignation. See Miller v. Department of Defense, 85 M.S.P.R. 310, ¶ 26 (2000).

¶10 In this case, the administrative judge found that the appellant failed to

nonfrivolously allege that the agency’s issuance of these expectations constituted

an improper act or otherwise created intolerable working conditions that gave him

no realistic alternative but to resign. ID at 10-14. The administrative judge noted

that the appellant stopped coming to work and was on leave from November 14,

2014, until his resignation and that he failed to adequately explain why

management’s expectations would have made him feel he needed to resign as he

had not been performing his duties for the 3 months preceding his resignation. ID

at 13. Further, the administrative judge properly found that the appellant failed to

nonfrivolously allege that the agency created working conditions so difficult that

7

a reasonable person in his position would have felt compelled to resign. ID

at 14-17.

¶11 The appellant also asserts that the administrative judge erred by dismissing

incidents remote in time to his resignation, i.e., the LOR, or his nonselection to

various agency positions. However, even where the Board has expressly set forth

the totality of the circumstances test or cited to Heining v. General Services

Administration, 68 M.S.P.R. 513 (1995), which applies that test, the Board has

found that, under certain circumstances, events may be too remote in time to have

affected a reasonable person’s decision to resign. See Searcy v. Department of

Commerce, 114 M.S.P.R. 281, ¶ 13 (2010) (5 months’ lapse of time undercuts the

appellant’s assertion that working conditions were intolerable) (citing Terban v.

Department of Energy, 216 F.3d 1021, 1025 (Fed. Cir. 2000) (discussing that

evidence that a relatively short period of time elapsed between the alleged

coercion and the employee’s resignation is probative of involuntariness)); Bates

v. Department of Justice, 70 M.S.P.R. 659, 663-66 (1996) (finding that an

incident that occurred approximately 2 years prior to the employee’s resignation

was too remote in time to have caused her to resign and to have rendered her

resignation involuntarily). Here, the administrative judge found that the appellant

failed to adequately explain how the issuance of the May 15, 2014 LOR, or the

work expectations within that LOR, created intolerable working conditions that

caused him to resign on February 11, 2015, 9 months later, especially in light of

the fact that he had taken leave and was not performing the expectation/duties of

his position for the 3 months prior to his resignation. ID at 9. As to his

nonselection to positions in May 2012, November 2013, and April 2014, the

administrative judge found that, while the appellant felt disappointment over his

nonselections, the appellant failed to nonfrivolously allege why such

disappointment would cause him to resign. ID at 15.

¶12 Although the appellant disagrees with the administrative judge’s

determination that he has failed to adequately explain why these events compelled

8

him to resign, the applicable law and the record evidence support the

administrative judge’s determination that the appellant failed to make a

nonfrivolous allegation that a reasonable person would have felt that there was a

causal connection between all of the circumstances, including those incidents that

were remote in time, and his resignation. ID at 5-20. Therefore, we discern no

reason to disturb these explained findings. See Crosby v. U.S. Postal Service,

74 M.S.P.R. 98, 106 (1997) (finding no reason to disturb the administrative

judge’s findings where she considered the evidence as a whole, drew appropriate

inferences, and made reasoned conclusions); Broughton v. Department of Health

& Human Services, 33 M.S.P.R. 357, 359 (1987) (same).

¶13 To the extent the appellant contends that he had to resign because his other

avenues of redress have proven to be fruitless, the fact that other avenues of

redress may have involved protracted procedures or may have been unsuccessful

does not establish that his choice to resign was involuntary. See Schultz,

810 F.2d at 1136-37; see also Musone v. Department of Agriculture, 31 M.S.P.R.

85, 89 (1986) (determining that an appellant’s retirement in order to obtain an

annuity and avoid the financial pressures facing him if he opposed the removal

action does not establish coercion), aff’d, 818 F.2d 876 (Fed. Cir. 1987) (Table).

¶14 Finally, the appellant asserts on review that he was subjected to a

constructive suspension when the agency denied his reasonable accommodation

requests and forced him to take leave. PFR File, Tab 1 at 29. First, to the extent

that the appellant, by this argument, is disagreeing with the administrative judge’s

determination that the appellant failed to nonfrivolously allege that he was

coerced into resigning because of the agency’s discriminatory or retaliatory

actions, ID at 18-19, we must disagree. Second, while the appellant asserted

below that his use of sick leave was a result of a hostile work environment, he did

not argue that he was constructively suspended during this period of time. IAF,

Tabs 1, 3, 6. Thus, he raises this argument for the first time on review. Because

the appellant has made no showing that this argument is based on new and

9

material evidence not previously available despite his due diligence, we have not

considered it. See Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271

(1980). Accordingly, we conclude that the appellant has provided no basis upon

which to disturb 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 U.S. 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 U.S. 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 U.S. 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 U.S. Court of Appeals for the Federal Circuit, you may visit our website at

10

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.