The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MANDY M. MARLAND, DOCKET NUMBER
Appellant, CH-0752-14-0794-I-2
v.
DEPARTMENT OF THE ARMY, DATE: March 18, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Mandy M. Marland, Blue Grass, Iowa, pro se.
Christine L. Kachan, Esquire, Warren, Michigan, 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 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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, 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 was employed as a logistics management specialist. Marland
v. Department of the Army, MSPB Docket No. CH-0752-14-0794-I-1, Initial
Appeal File (IAF), Tab 1, Report of Investigation (ROI) at 152. After her
third‑level supervisor gave her the option to do so, she went on leave without pay
(LWOP) status in September 2012. Hearing Transcript (HT) at 74. However, she
resigned from her position effective in October 2012. IAF, Tab 1, ROI at 152.
She filed a formal complaint of discrimination in which she alleged, inter alia,
that she resigned as a result of the agency’s actions, which exacerbated her
disability. Id. at 13-23. The agency issued a final agency decision finding, inter
alia, that the appellant failed to establish that her resignation amounted to a
constructive discharge. IAF, Tab 4 at 13-15. The appellant filed the instant
Board appeal regarding the resignation and requested a hearing. IAF, Tab 1. The
administrative judge dismissed the appeal without prejudice to be automatically
refiled at a later date. IAF, Tab 11, Initial Decision. The appeal subsequently
was automatically refiled. Marland v. Department of the Army, MSPB Docket
No. CH-0752-14-0794-I-2, Refiled Appeal File (RAF), Tab 1.
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¶3 After holding a videoconference hearing, the administrative judge dismissed
the appeal for lack of jurisdiction. RAF, Tab 18, Initial Decision (I-2 ID).
Specifically, she found that the appellant failed to show that her resignation was
the result of improper acts on the part of the agency and that she therefore failed
to prove by preponderant evidence that her resignation was involuntary. I-2 ID
at 7-8. The appellant filed a timely petition for review in which she argues that
the administrative judge: (1) improperly focused on the agency’s accommodation
efforts when the reason she resigned was her first-level supervisor’s
discrimination and creation of a hostile work environment; and (2) failed to take
into consideration her disability and symptoms in determining that a reasonable
person in her position would not have felt compelled to resign. Petition for
Review (PFR) File, Tab 1 at 4. The agency has responded in opposition to the
appellant’s petition for review. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
¶4 A decision to resign is presumed to be a voluntary act outside the Board’s
jurisdiction unless the appellant shows by a preponderance of the evidence 2 that
her resignation was involuntary and therefore tantamount to a forced removal.
Freeborn v. Department of Justice, 119 M.S.P.R. 290, ¶ 9 (2013). The appellant
may overcome the presumption of voluntariness by showing that: (1) the
resignation or retirement was the product of misinformation or deception by the
agency; or (2) the resignation or retirement was the product of coercion by the
agency. Vitale v. Department of Veterans Affairs, 107 M.S.P.R. 501, ¶ 19 (2007).
To establish involuntariness on the basis of coercion, an employee must show
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
2
A preponderance of the evidence is that degree of relevant evidence that a reasonable
person, considering the record as a whole, would accept as sufficient to find that a
contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).
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resignation or retirement was the result of improper acts by the agency. Id. In
cases such as this one, where the employee alleges that the agency took actions
that made working conditions so intolerable that she was driven to an involuntary
resignation or retirement, the Board will find an action involuntary only if she
demonstrates that the employer engaged in a course of action that made working
conditions so difficult or unpleasant that a reasonable person in her position
would have felt compelled to resign or retire. Id., ¶ 20. When discrimination is
alleged in connection with a determination of involuntariness, evidence of
discrimination or retaliation may only be addressed insofar as it relates to the
issue of voluntariness and not whether the evidence would establish
discrimination or reprisal under the standards used to prove discrimination.
Wright v. Department of Veterans Affairs, 85 M.S.P.R. 358, ¶ 25 (2000).
¶5 The issue of the Board’s jurisdiction in an involuntary resignation or
retirement case is inextricably intertwined with the merits of the appeal—where
the employee establishes the Board’s jurisdiction over the appeal by showing that
her resignation or retirement was involuntary, she has also established the merits
of her appeal. Shoaf v. Department of Agriculture, 260 F.3d 1336, 1341 (Fed.
Cir. 2001). We agree with the administrative judge that the appellant failed to
show by preponderant evidence that her resignation was involuntary.
¶6 The appellant alleged that she experienced intolerable working conditions in
the form of harassment, primarily from her first-level supervisor, which caused
her to resign. Specifically, she asserted that, in August 2011, he denied her
requested leave, wrote her up for tardiness and leaving early, and required her to
complete extra paperwork when submitting leave requests as compared to her
coworkers who did not have to complete this extra paperwork. IAF, Tab 1, ROI
at 16; IAF, Tab 14 at 4. She also asserted that, in September 2011, her first-level
supervisor presented her a “write-up” for sleeping on the job during her lunch
break due to health issues, despite the fact that another coworker had dozed off
during a meeting. IAF, Tab 1, ROI at 17; IAF, Tab 14 at 5. The appellant further
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alleged that, in October 2011, her first-level supervisor denied her leave request
for the afternoon because he thought she had insufficient leave, even though she
did have sufficient leave. IAF, Tab 1, ROI at 18; IAF, Tab 14 at 5. She also
described that this situation turned into a loud argument about her leave that
everyone could hear and that he eventually approved the leave. IAF, Tab 1, ROI
at 18; IAF, Tab 14 at 5. According to the appellant, in August 2012, her
first‑level supervisor talked about her disability in front of other people and said
people were scared to come into work because of her disability. IAF, Tab 1, ROI
at 21. He also told her that, if she missed more than 3 days of work in a row, she
would need to submit a doctor’s note. Id. The appellant described another
incident the same month in which her first-level supervisor told her that she could
not go to the doctor, but her second-level supervisor gave her permission to do so.
Id. at 22; IAF, Tab 14 at 7. The appellant asserted that this situation caused her
to have severely elevated blood pressure and to miss work for a day. IAF, Tab 1,
ROI at 22; IAF, Tab 14 at 7. Last, she asserted that, also in August 2012, her
third-level supervisor told her that she would be moved to another team, but, after
packing her things, she waited for 2 days at her desk prior to being moved to the
new team because managers were unaware of her move. IAF, Tab 1, ROI at 22;
IAF, Tab 14 at 7.
¶7 On review, the appellant asserts that the administrative judge improperly
focused on the agency’s accommodation efforts when the reason she resigned was
her first-level supervisor’s discrimination and creation of a hostile work
environment. PFR File, Tab 1 at 4. The administrative judge considered the
appellant’s complaints regarding her first-level supervisor, but found that she
failed to produce evidence that her resignation was the result of improper acts on
the part of the agency. I-2 ID at 6-7. We agree that the appellant’s allegations of
harassment do not render her resignation involuntary.
¶8 An employee is not guaranteed a working environment free of stress.
Miller v. Department of Defense, 85 M.S.P.R. 310, ¶ 32 (2000). Dissatisfaction
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with work assignments, a feeling of being unfairly criticized, or difficult or
unpleasant working conditions are generally not so intolerable as to compel a
reasonable person to resign. Id. Thus, we do not find that the alleged harassment
that the appellant has described would have caused a reasonable person to resign.
Additionally, the U.S. Court of Appeals for the Federal Circuit has held that the
doctrine of coerced involuntariness does not apply if the employee resigns or
retires because she does not like agency decisions such as “a new assignment, a
transfer, or other measures that the agency is authorized to adopt, even if those
measures make continuation in the job so unpleasant . . . that [s]he feels that [s]he
has no realistic option but to leave.” Staats v. U.S. Postal Service, 99 F.3d 1120,
1124 (Fed. Cir. 1996). Thus, even if the appellant disagreed with the leave
procedures and denials from her first-level supervisor, this disagreement does not
provide a basis for finding that her resignation was involuntary.
¶9 Furthermore, the appellant admitted that: (1) in October 2011, her
second‑level supervisor gave the appellant permission to contact her, rather than
the first-level supervisor, with any issues; (2) although her third-level supervisor
offered to transfer her away from the supervision of her first-level supervisor, the
appellant stated that she would be willing to get along with him on a professional
level and therefore agreed to report to a project manager under the same
supervisor; (3) in January 2012, she had little to no contact with her first-level
supervisor; and (4) in August 2012, her third-level supervisor transferred her
away from the supervision of her first-level supervisor. IAF, Tab 1, ROI at 20,
22; IAF, Tab 14 at 5-7. We thus find that the appellant admitted that the agency
attempted to address her complaints regarding her first-level supervisor. The fact
that she did not fully take advantage of these attempts and resigned shortly after
the agency transferred her, undermines her argument that her resignation was
involuntary. See Miller, 85 M.S.P.R. 310, ¶ 29 (finding that, to prove a
constructive discharge, an employee has an obligation to act reasonably, not
assume the worst, and not jump to conclusions too quickly). Therefore, the
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appellant’s argument on review does not provide a basis for disturbing the initial
decision and we find that her complaints of harassment do not establish that her
resignation was involuntary. See Searcy v. Department of Commerce,
114 M.S.P.R. 281, ¶ 13 (2010) (finding that the appellant’s contentions that his
supervisor denied his request for advanced leave, spoke to him in a disrespectful
way, and did not provide him any assistance with his work assignments, and that
a higher-level official refused to grant him an education waiver that would have
allowed him to apply for certain vacancies did not evince working conditions so
intolerable that a reasonable person in the appellant’s position would have felt
compelled to resign).
¶10 Next, the appellant asserts that the administrative judge failed to take into
consideration her disability and symptoms in determining that a reasonable person
in her position would not have felt compelled to resign. PFR File, Tab 1 at 4.
Below, the appellant alleged that the agency’s failure to accommodate her
contributed to her involuntary resignation. Specifically, she asserted that she
applied for medical telework in August 2011, but that she was not able to
telework 1 day per week until January 2012. IAF, Tab 1, ROI at 16, 20; IAF,
Tab 14 at 4, 6. The appellant also alleged that when she reapplied for medical
telework in June 2012, she was only given the option to telework 32 out of
40 hours per week for an initial period of 3 months. IAF, Tab 1, ROI at 22; IAF,
Tab 14 at 6. Additionally the appellant alleged that, in August 2012, when her
third-level supervisor stated that he would move her to a different team away
from her first-level supervisor, she was required to wait for 2 days with her things
packed because certain managers did not know where she would be placed. IAF,
Tab 1, ROI at 22-23; IAF, Tab 14 at 7. The administrative judge found that the
agency did everything possible to assist the appellant with continuing her
employment including: (1) offering an accommodation of 32 hours of telework
per week, which she declined simply because she was required to report to duty
each week on a certain day; (2) offering to reassign her on two separate
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occasions; and (3) personally encouraging her to take LWOP so she could retain
her insurance and, if she wished, return to duty without going through a
competitive process. I-2 ID at 6-7. We agree.
¶11 A resignation may be an involuntary action within the Board’s jurisdiction
if an agency improperly denied an employee’s request for a reasonable
accommodation of a medical condition. See, e.g., Hosozawa, 113 M.S.P.R. 110,
¶ 7 (2010). However, the Board examines the totality of the circumstances by an
objective standard to determine voluntariness and does not rely on the employee’s
purely subjective evaluation. Coufal v. Department of Justice, 98 M.S.P.R. 31,
¶ 22 (2004). Accordingly, the appellant’s subjective belief that, considering the
severity of her disability and symptoms, the agency did not properly
accommodate her, does not affect our finding that any shortcoming in the
agency’s accommodation process did not render the appellant’s resignation
involuntary. Additionally, the appellant admitted at the hearing that her
third‑level supervisor was very accommodating and was willing to work with her.
HT at 78. We thus find that the appellant also failed to establish that her
resignation was involuntary based upon any alleged failure by the agency to
accommodate her. See Collins v. U.S. Postal Service, 100 M.S.P.R. 332, ¶¶ 9-14
(2005) (finding that the appellant’s disability retirement was not involuntary
where he did not show that the agency unjustifiably failed to offer him an
accommodation and he demonstrated that he was not interested in pursuing any
option other than retirement). Therefore, considering the record as a whole, we
agree with the administrative judge that the appellant failed to establish by
preponderant evidence that her resignation was involuntary.
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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
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
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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.