The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
FRANCISCA E. REMOT, DOCKET NUMBER
Appellant, CH-0752-15-0339-I-1
v.
DEPARTMENT OF VETERANS DATE: February 26, 2016
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Timothy A. Bridge, Esquire, St. Charles, Illinois, for the appellant.
Robert Vega, Esquire, Hines, Illinois, 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
erroneous 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, 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.
¶2 On February 19, 2014, the appellant, a GS-12 Clinical Pharmacist with the
agency’s Captain James A. Lovell Federal Healthcare Center in North Chicago,
Illinois, sought leave to care for her brother while he recuperated from surgery in
California. Initial Appeal File (IAF), Tab 7 at 28-32. The appellant requested to
use her accrued leave and leave without pay (LWOP) under the Family and
Medical Leave Act (FMLA). Beginning on February 24, 2014, she resided in
California. IAF, Tab 4 at 8. After being informed that FMLA leave did not apply
to her situation because it only could be used to care for parents, children, or
spouses, IAF, Tab 7 at 27, the appellant resubmitted her leave request on
February 25, 2014, this time for 414 hours of accrued sick leave from
February 24, 2014, to May 5, 2014, and 60 hours of non-FMLA LWOP from
May 6, 2014, to July 6, 2014. Id. at 19-25. On March 6, 2014, the appellant’s
supervisors approved her request to use her accrued leave, but disapproved her
request for non-FMLA LWOP “due to staffing/other leave requests.” Id. at 18.
On April 17, 2014, the appellant was notified that her request for LWOP was
3
denied and that she must return to duty, effective May 6, 2014. 2 Id. at 14-16.
The appellant explained that she could not return by that date because she
could not find anyone else to care for her brother on such short notice, but she
was advised that the agency’s decision was final. IAF, Tab 4 at 8. On April 22,
2014, the appellant informed her supervisors that she intended to retire, effective
April 30, 2014, IAF, Tab 7 at 14, which she did, id. at 10.
¶3 The appellant had filed an equal employment opportunity (EEO) complaint
in May 2013, alleging a failure to accommodate on the agency’s part, and she
filed a second one in June 2014 in which she alleged that the agency improperly
denied her FMLA leave on April 17, 2014, and constructively discharged her on
April 30, 2014. The complaints were consolidated for the issuance of a Final
Agency Decision (FAD). IAF, Tab 1, FAD at 2. Therein the agency found no
discrimination or retaliation for protected EEO activity regarding the first
complaint, no discrimination or retaliation in the agency’s denial of FMLA leave,
and no discrimination or retaliation regarding the appellant’s claimed constructive
discharge. Id. at 9-18. She was advised that, as to the latter claim, she could
appeal the FAD to the Board, id. at 20, and she did, IAF, Tab 1 at 1-9. On
appeal, the appellant claimed that the agency misrepresented that her request for
both accrued leave and LWOP for the period from February 23, 2014, through
July 6, 2014, had been approved, and that, in reliance on that misrepresentation,
she relocated to California, and that the agency failed to advise her that it had
changed its decision to grant the LWOP in a timely manner sufficient to allow her
to find a substitute caregiver for her brother. She also alleged that her retirement
application was the product of duress because she was told that her failure to
report for duty on May 6, 2014, would result in disciplinary action up to and
2
The agency also advised the appellant that it had, in fact, erred in granting her request
for 414 hours of accrued sick leave because agency policy only allows employees to use
13 days of accrued sick leave each year to care for a family member, but that since it
was the agency’s error, her sick leave request was honored as approved. IAF, Tab 7
at 16.
4
including removal, because circumstances permitted no other alternative, and
because those circumstances were the result of coercive acts and
misrepresentation on the part of the agency. The appellant also claimed that her
retirement was the result of retaliation for her protected EEO activity. She
requested a hearing. Id. at 9.
¶4 The administrative judge issued an order explaining that the appellant’s
appeal would be dismissed unless she made a nonfrivolous allegation that she
retired because of duress, coercion, or misrepresentation by the agency and that,
if she asked for a hearing, one would be held only if she supported her claim with
affidavits or other evidence of facts which, if proven, could show that her
retirement was involuntary because of duress, coercion, or misrepresentation.
IAF, Tab 3. In her response, and in a sworn affidavit, the appellant argued that
she reasonably relied on the agency’s misrepresentations that her leave request
had been approved by moving to California, that the agency’s unilateral
rescission of the previously approved leave, warnings of job termination, and
demand that she return to duty while she was caring for her brother compelled her
to choose between his health and her continued employment at the agency, and
that her application was therefore clearly the product of duress, intimidation, and
coercion by the agency. The appellant further argued that a reasonable fact finder
could determine that the agency’s actions were retaliatory. IAF, Tab 4. The
agency moved that the appeal be dismissed for lack of jurisdiction. IAF, Tab 6.
¶5 In an initial decision based on the written record, the administrative judge
dismissed the appeal for lack jurisdiction, IAF, Tab 8, Initial Decision (ID) at 2,
11, 3 finding that the appellant did not make a nonfrivolous allegation that her
3
Because the administrative judge determined that the Board’s lack of jurisdiction was
apparent from the documentary record, she did not convene the requested hearing. ID
at 2.
5
retirement was involuntary based on agency misinformation, coercion, or
intolerable working conditions. 4 ID at 7-10.
¶6 The appellant has filed a petition for review, Petition for Review (PFR)
File, Tab 1, to which the agency has responded in opposition, PFR File, Tab 3.
On review, the appellant argues that she did, in fact, raise a nonfrivolous
allegation that her retirement was rendered involuntary based on misinformation
provided by the agency, and that the administrative judge erred in weighing the
evidence and resolving the parties’ conflicting assertions in lieu of convening the
requested hearing. PFR File, Tab 1 at 3-7.
¶7 An appellant is entitled to a hearing on the issue of Board jurisdiction over
an appeal of an alleged involuntary resignation or retirement only if she makes a
nonfrivolous allegation casting doubt on the presumption of voluntariness.
Burgess v. Merit Systems Protection Board, 758 F.2d 641, 643 (Fed. Cir. 1985).
A nonfrivolous allegation of Board jurisdiction is an allegation of fact which, if
proven, could establish a prima facie case that the Board has jurisdiction over the
matter at issue. Deines v. Department of Energy, 98 M.S.P.R. 389, ¶ 11 (2005).
In determining whether the appellant has made a nonfrivolous allegation of
4
The administrative judge further found that, to the extent the appellant was alleging
disability discrimination, the Board lacks authority to review such a claim and that, in
the absence of an otherwise appealable matter, the Board lacks jurisdiction to consider
such allegations. ID at 10. Although the appellant did, in her EEO complaint, allege
disability discrimination among other types of discrimination in connection with her
alleged involuntary retirement, she did not raise discrimination before the Board, but
only retaliation for EEO activity. IAF, Tab 4 at 4. When an appellant raises an
allegation of discrimination, including retaliation for EEO activity, in connection with a
claim of involuntariness, the allegation may be addressed, but only insofar as it relates
to the issue of jurisdiction and not whether it would establish discrimination or
retaliation as an affirmative defense. See Pickens v. Social Security Administration,
88 M.S.P.R. 525, ¶ 6 (2001). The administrative judge did not consider the appellant’s
claim of retaliation for EEO activity insofar as it related to the issue of jurisdiction.
Nonetheless, any such error did not prejudice the appellant’s substantive rights because,
even if the administrative judge had considered this claim insofar as it relates to the
issue of jurisdiction, the outcome would be the same. See Panter v. Department of the
Air Force, 22 M.S.P.R. 281, 282 (1984).
6
jurisdiction entitling him to a hearing, the administrative judge may consider the
agency’s documentary submissions; however, to the extent that the agency’s
evidence constitutes mere factual contradiction of the appellant’s otherwise
adequate prima facie showing of jurisdiction, the administrative judge may not
weigh evidence and resolve conflicting assertions of the parties and the agency’s
evidence may not be dispositive. Ferdon v. U.S. Postal Service, 60 M.S.P.R. 325,
329 (1994).
¶8 In addressing the appellant’s claim that the agency provided her
misinformation upon which she relied, the administrative judge found no
documentary evidence showing that the appellant’s request for LWOP was ever
approved by anyone in her supervisory chain. ID at 7. The administrative judge
considered evidence in the form of a quote from the Pharmacy Division Officer in
a telephonic affidavit she provided to an EEO investigator a year and a half after
the appellant retired, in connection with the appellant’s second EEO complaint.
Therein, the Officer stated that the appellant’s leave package was originally
approved. IAF, Tab 1 at 41. The administrative judge found, however, that that
evidence was weakened by the Officer’s subsequent statement to the effect that it
was only the appellant’s request for accrued leave that was approved and that her
request for LWOP was disapproved based on staffing needs. ID at 7; IAF, Tab 1
at 41. Because this evidence was submitted by the appellant and not the agency,
the administrative judge did not run afoul of Ferdon by considering it in
concluding that the appellant failed to nonfrivolously allege that her retirement
was involuntary due to agency misrepresentation.
¶9 The administrative judge credited the appellant’s assertion that she was not
informed that her request for LWOP was disapproved until April 17, 2014, 5 but
found that the agency still provided her with sufficient time (19 days) to make
5
The administrative judge found that the record did not establish that the agency’s
March 4, 2014 memorandum disapproving the appellant’s request for non-FMLA
LWOP was ever provided to her before she retired. ID at 5.
7
other arrangements for her brother’s care and return to work such that, to the
extent she relied on the approval, if any, of the requested period of LWOP, the
agency acted diligently in clarifying any potential misunderstanding. ID at 7-8.
While the appellant disputes that the agency’s actions afforded her enough time to
make alternate arrangements for her brother’s care before having to return to duty
on May 6, 2014, the granting of 2 weeks to an employee to consider her options
has not been regarded as time pressure indicating involuntariness. See Latham v.
U.S. Postal Service, 909 F.2d 500, 502 (Fed. Cir. 1990). Although the appellant
argues that the agency should have granted her additional LWOP, the granting or
denying of LWOP is discretionary with the agency. Miller v. Department of
Justice, 28 M.S.P.R. 669, 672 (1985).
¶10 To the extent that the appellant claims that the agency failed to explain why
it did not allow her to borrow leave or to receive donated leave, PFR File, Tab 1
at 8, it is of no moment because it is the appellant who bears the burden of proof
as to jurisdiction in the case of an alleged involuntary retirement. 5 C.F.R.
§ 1201.56(a)(2)(i). In any event, the appellant has not alleged that she made such
a request or that the agency would have been obligated to grant it. Moreover, it is
well established that the fact that an employee is faced with an unpleasant
situation or that her choice is limited to two unattractive options does not make
the employee’s decision any less voluntary. Covington v. Department of
Health & Human Services, 750 F.2d 937, 942 (Fed. Cir. 1984). In sum, the
appellant has not shown that the administrative judge erred in finding that she
failed to make a nonfrivolous allegation of coercion by the agency concerning her
retirement. See Staats v. U.S. Postal Service, 99 F.3d 1120, 1124 (Fed. Cir. 1996)
(holding that the doctrine of coercive involuntariness does not apply where an
employee decides to retire because he does not want to accept a measure that the
agency is authorized to adopt, even if those measures make continuation in the
job so unpleasant for the employee that he feels he has no realistic option but
to leave).
8
¶11 Because the appellant failed to raise a nonfrivolous allegation that her
retirement was involuntary, we find that the administrative judge did not err in
not conducting a jurisdictional hearing. Staats, 99 F.3d at 1127. 6
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS 7
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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 United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
6
With her petition for review, the appellant submitted documents that she submitted
below. IAF, Tabs 1, 4. Evidence that is already a part of the record is not new.
Meier v. Department of the Interior, 3 M.S.P.R. 247, 256 (1980).
7
In the initial decision, the administrative judge provided the appellant with mixed-case
appeal rights. ID at 15-16. Notwithstanding the appellant’s claim of retaliation for
protected EEO activity, nonmixed-case appeal rights are appropriate inasmuch as the
administrative judge dismissed the appeal for lack of jurisdiction and we have not
disturbed that disposition. Caros v. Department of Homeland Security, 122 M.S.P.R.
231, ¶ 22 (2015). Accordingly, we have provided the proper appeal rights in this
Final Order.
9
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 U.S. 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.