Sheila G. Redmond v. Department of Defense

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

SHEILA G. REDMOND, DOCKET NUMBER

Appellant, DC-0752-15-0578-I-1

v.

DEPARTMENT OF DEFENSE, DATE: January 19, 2016

Agency.

THIS ORDER IS NONPRECEDENTIAL *

Richard E. Patrick, Esquire, Fairfax, Virginia, for the appellant.

Emily Shilts, Fort Belvoir, Virginia, 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 her involuntary retirement appeal for lack of jurisdiction. For the

reasons discussed below, we GRANT the appellant’s petition for review and

REMAND the case to the regional office for further adjudication in accordance

with this Order.

*

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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DISCUSSION OF ARGUMENTS ON REVIEW

¶2 The appellant filed an appeal in which she alleged that her retirement from

the GS-12 position of Supervisory Social Worker with the agency’s Fort Belvoir

Community Hospital on November 30, 2012, was involuntary. Initial Appeal File

(IAF), Tab 1. Because it appeared that the Board might not have jurisdiction over

the appellant’s claim, the administrative judge issued a jurisdictional order that

advised the appellant of her burden of proof to establish the Board’s jurisdiction,

and directed her to file evidence and argument showing jurisdiction. IAF, Tab 2.

¶3 In her response, the appellant alleged that she was “forced to retire because

of the Agency’s wrongful discriminatory and retaliatory acts” and that the hostile

acts “are set forth in the Report of Investigation (ROI).” IAF, Tab 3 at 5. She

further alleged that the agency’s actions included an unwarranted removal from

her position as Chief, the unsupported removal of her credentials and being

subjected to supervision, the failure to accommodate her asthma, monitoring of

all of her movements, and not being given a key to an office. She also claimed

that the agency retaliated against her based on her written complaints to her

superiors regarding the horrible workplace conditions imposed upon her, which

allegedly included ongoing retaliation and disability discrimination. Id. The

appellant asserted that it was a difficult work environment and she felt like a

prisoner. She argued that “a reasonable person confronted with the same set of

circumstances would be coerced into leaving the workplace.” Id.

¶4 The agency filed a response to the appeal arguing that its evidence

established that the Board does not have jurisdiction over the appeal because the

appellant’s retirement was voluntary. IAF, Tab 4. The agency argued that, while

the appellant “may actually believe that her working conditions were so

unpleasant that she needed to retire,” the evidence does not support her

allegations. Id. at 16. The agency asserted that, when her supervisor received

reports of various types of misconduct by the appellant, her supervisor

investigated and responded appropriately. Id. The agency asserted further that,

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when the appellant was caught in “behaviors that put the clinic’s integrity and her

patients at risk; poor charting practices, falsifying records of visits, not following

up with” mental health patients, she was “appropriately given additional

supervision and ultimately reported to credentialing.” Id. To support the

assertions in its response, the agency included a substantial amount of

documentary evidence. IAF, Tabs 4-9. Without holding the requested hearing,

the administrative judge dismissed the appeal finding that the appellant failed to

set forth a nonfrivolous allegation that her retirement was involuntary. IAF,

Tab 16, Initial Decision (ID).

¶5 The appellant filed a timely petition for review, arguing that she produced

sufficient facts to support her allegation that she was forced to retire due to an

intolerable work environment created by agency officials. Petition for Review

(PFR) File, Tab 1. The agency filed a response in which it asserts that the

appellant has failed to meet her burden of proof that the Board has jurisdiction

over this case. PFR File, Tab 3.

¶6 The appellant has the burden of proving the Board’s jurisdiction by a

preponderance of the evidence. Parrott v. Merit Systems Protection

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

employee-initiated action, such as retirement or resignation, is presumed to be

voluntary, and thus outside the Board’s jurisdiction. See Vitale v. Department of

Veterans Affairs, 107 M.S.P.R. 501, ¶ 17 (2007). An involuntary retirement,

however, is equivalent to a forced removal and therefore within the Board’s

jurisdiction. Garcia v. Department of Homeland Security, 437 F.3d 1322, 1328

(Fed. Cir. 2006) (en banc). To overcome the presumption that a retirement is

voluntary, the employee must show that it was the result of the agency’s

misinformation or deception or was coerced by the agency. See

Vitale, 107 M.S.P.R. 501, ¶ 19. To establish involuntariness on the basis of

coercion, the appellant must establish that the agency imposed the terms of the

retirement, she had no realistic alternative but to retire, and the retirement was the

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result of improper actions by the agency. Garcia, 437 F.3d at 1329. If the

employee claims that her retirement was coerced by the agency’s creating

intolerable working conditions, she must show that a reasonable employee in her

position would have found the working conditions so oppressive that she would

have felt compelled to retire. Id. When an appellant raises an allegation of

discrimination in connection with a claim of involuntariness, the allegation may

be addressed only insofar as it relates to the issue of jurisdiction and not whether

it would establish discrimination as an affirmative defense. Pickens v. Social

Security Administration, 88 M.S.P.R. 525, ¶ 6 (2001).

¶7 If an appellant makes a nonfrivolous allegation casting doubt on the

presumption of voluntariness, she is entitled to a hearing at which she must prove

jurisdiction by a preponderance of the evidence. Parrott, 519 F.3d at 1332;

Garcia, 437 F.3d at 1344. To meet the nonfrivolous standard, an appellant need

only plead allegations of fact that, if proven, could show jurisdiction.

SanSoucie v. Department of Agriculture, 116 M.S.P.R. 149, ¶ 16 (2011). Thus, to

establish entitlement to a jurisdictional hearing, an appellant need not allege facts

that, if proven, definitely would establish that the retirement was involuntary; she

need only allege facts that if proven could establish such a claim. O’Brien v.

Department of Agriculture, 91 M.S.P.R. 139, 142 (2002). In assessing whether an

appellant has made nonfrivolous allegations entitling her to a hearing, an

administrative judge may consider the agency’s documentary submissions;

however, to the extent the agency’s evidence contradicts the appellant’s otherwise

adequate prima facie showing of jurisdiction, the administrative judge may not

weigh evidence and resolve conflicting assertions, and the agency’s evidence

may not be dispositive. Ferdon v. U.S. Postal Service, 60 M.S.P.R. 325,

329 (1994).

¶8 Here, we find that the appellant’s allegations below show that she raised a

nonfrivolous allegation that her retirement was involuntary. See Carey v.

Department of Health & Human Services, 112 M.S.P.R. 106, ¶ 7 (2009)

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(explaining that the appellant’s allegations that she was forced to retire because

the agency refused to accommodate her disability by allowing her to telecommute

were adequate to entitle her to a hearing); see also Garcia, 437 F.3d at 1324

(finding that the agency’s failure to renovate the appellant’s workspace to

accommodate her medical condition may have forced her to accept a demotion).

In support of her assertion that her retirement was the result of intolerable

working conditions, the appellant alleged that the agency removed her from her

position as Chief, removed her credentials and subjected her to supervision, failed

to accommodate her asthma, monitored her movements, and did not give her a

key to an office. IAF, Tab 3. The appellant also submitted the “re-issue” of the

agency’s final agency decision in her equal employment opportunity (EEO)

discrimination complaint. IAF, Tab 1. In her EEO complaint, the appellant

relied upon the same alleged agency actions against her as she asserts in this

appeal, and she alleged that she was subjected to a hostile work environment

because of her disabilities. Id.

¶9 However, instead of providing the appellant an opportunity for a hearing,

the administrative judge thoroughly set forth and assessed the adequacy of the

conflicting agency documentary evidence. ID at 6-9. The administrative judge

detailed the agency’s evidence regarding the appellant’s performance and

behavioral issues, as well as the actions the agency took against her in response to

her alleged misconduct. Id. Then, based upon a review of the record evidence,

the administrative judge determined that there was no evidence to support the

appellant’s claim of intolerable working conditions. ID at 9-10. Specifically, the

administrative judge found that the record demonstrated that the appellant’s

supervisor had received reports about her misconduct and, after investigating

those reports, gave the appellant additional supervision and reporting

requirements to credentialing. Id. The administrative judge further found that,

while the evidence showed that the appellant was unhappy and frustrated with her

working conditions, she failed to show that a reasonable person in her position

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would have believed that she had no other option but to retire. ID at 10. After

weighing all of the evidence, the administrative judge dismissed the appeal for

lack of jurisdiction. However, the administrative judge’s determination to

dismiss the appeal without holding a hearing was error because an administrative

judge may not weigh evidence or resolve conflicting assertions regarding disputed

facts material to the question of jurisdiction without affording the appellant the

opportunity for a jurisdictional hearing. Carey, 112 M.S.P.R. 106, ¶ 8; Ferdon,

60 M.S.P.R. at 329-30.

ORDER

¶10 Accordingly, we remand this case to the regional office for a hearing on the

issue of whether the appellant’s retirement was the result of coercion based on

intolerable working conditions, and therefore, an involuntary act within the

Board’s jurisdiction. If, on remand, the administrative judge determines that the

appellant’s retirement was involuntary and that the Board has jurisdiction over

this appeal, then the administrative judge must determine whether the appeal was

timely filed. On remand, the administrative judge also shall consider the

appellant’s claims of discrimination and retaliation as factors in determining

whether, under all of the circumstances, a reasonable person in the appellant’s

position would have felt compelled to retire. See Pickens, 88 M.S.P.R. 525,

¶¶ 12, 14; Conover v. Department of the Army, 78 M.S.P.R. 605, 612 (1998).

FOR THE BOARD: ______________________________

William D. Spencer

Clerk of the Board

Washington, D.C.