The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
THOMAS C. HENRY, JR., DOCKET NUMBER
Appellant, DA-0752-15-0248-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: March 31, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Thomas C. Henry, Jr., Rudy, Arkansas, pro se.
Eric B. Fryda, Esquire, Dallas, Texas, 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 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
erroneous interpretation of statute or regulation or the erroneous application of
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
¶2 The appellant, a preference-eligible Electronic Technician, filed an appeal
on February 23, 2015, in which he alleged that his retirement, effective
October 31, 2009, was involuntary. Initial Appeal File (IAF), Tab 1. He
explained that he was a local union vice president and an advocate for the
American Postal Workers Union, and that the plant manager, who “was known to
not like union officials,” subjected him to harassment, urging supervisors to
discipline him, which they did by imposing suspensions that the appellant deemed
to be unwarranted. Believing that the plant manager wanted to get rid of him and
that the harassment was adversely affecting his health, the appellant stated that he
felt that he had to retire or be fired. Id. at 5. He also submitted evidence showing
that he filed a complaint with the agency’s Office of Inspector General (OIG) on
August 25, 2009, wherein he alleged that the plant manager had retaliated against
him for making a protected disclosure on behalf of a coworker, id. at 7-10, and an
October 29, 2009 letter from the OIG stating that it would take no further action
on the matter because of the appellant’s retirement, id. at 11. The appellant
requested a hearing before the Board. Id. at 2.
3
¶3 In responding to the administrative judge’s jurisdictional orders, 2 the
appellant again described the harassment he suffered that he attributed to the
plant manager, including being disciplined twice. IAF, Tab 7. The appellant
explained that, approximately 2 weeks after he filed the OIG complaint against
the plant manager, an action that angered him, the appellant felt compelled to
apply for early retirement because he needed to have income and keep his health
insurance, and that, even so, a week later, he received notice of another 14-day
suspension, 3 which he perceived as a threat to keep him from changing his mind
about retiring. Id. The appellant submitted his medical records to support his
claim that he was suffering from stress, IAF, Tab 14, and a number of affidavits
and statements in support of his claim that he was harassed, IAF, Tabs 15-22.
The agency urged that the appeal be dismissed for lack of jurisdiction. IAF,
Tab 10.
¶4 In an initial decision based on the written record, the administrative judge
dismissed the appeal, IAF, Tab 34, Initial Decision (ID) at 1, 6, finding that the
appellant had failed to raise nonfrivolous allegations of fact that, if proven, could
establish that his retirement was involuntary so as to establish the Board’s
jurisdiction over his appeal, 4 ID at 4-6.
¶5 The appellant has filed a petition for review, Petition for Review (PFR)
File, Tab 1, in which he argues that he did make a nonfrivolous allegation that his
retirement was involuntary, and that the administrative judge erred in not
convening the hearing he requested, id. at 6. The agency has responded in
opposition to the appellant’s petition. PFR File, Tab 3.
2
The appellant’s first response was to a jurisdictional order that was issued in error.
IAF, Tabs, 4, 7; IAF, Tab 34, Initial Decision at 4 n.3.
3
This suspension was subsequently rescinded after the appellant retired, in settlement
of grievances he had filed over this 14-day suspension and the earlier one. IAF, Tab 8.
4
In light of his ruling, the administrative judge made no determination as to whether
the appellant showed good cause for his 5-year delay in filing the appeal. ID at 6 n.4.
4
¶6 An employee-initiated action, such as a retirement, is presumed to be
voluntary, and thus outside the Board’s jurisdiction, unless the employee presents
sufficient evidence to establish that the action was obtained through duress or
coercion or that a reasonable person would have been misled by the agency.
Staats v. U.S. Postal Service, 99 F.3d 1120, 1123-24 (Fed. Cir. 1996). The
doctrine of coercive involuntariness is narrow. 5 As explained by our reviewing
court, an employee must show that the agency effectively imposed the terms of
the retirement, that he had no realistic alternative but to retire, and that his
retirement was the result of improper acts by the agency. Id. at 1124. If an
employee’s working conditions are so intolerable that he is forced to retire, the
retirement is involuntary and constitutes a constructive removal. E.g., Heining v.
General Services Administration, 68 M.S.P.R. 513, 520 (1995). The issue is
whether, considering the totality of the circumstances, the employee’s working
conditions were made so difficult that a reasonable person in the employee’s
position would have felt compelled to retire. Markon v. Department of State,
71 M.S.P.R. 574, 577-78 (1996); see Vaughan v. Department of Agriculture,
116 M.S.P.R. 493, ¶ 11 (2011).
¶7 The appellant bears the burden of proving by preponderant evidence that the
matter he is appealing is within the Board’s authority to review. See Garcia v.
Department of Homeland Security, 437 F.3d 1322, 1344 (Fed. Cir. 2006);
5 C.F.R. § 1201.56(a)(2)(i). If the appellant makes a nonfrivolous allegation that
the matter is within the Board’s jurisdiction, he is entitled to a hearing at which
he must prove jurisdiction. Garcia, 437 F.3d at 1344. A nonfrivolous allegation
in this context is an allegation of fact that, if proven, could establish that the
agency coerced the appellant’s retirement. Harris v. Department of Veterans
Affairs, 114 M.S.P.R. 239, ¶ 9 (2010).
5
The administrative judge found that the appellant did not allege that agency
misinformation led to his retirement, ID at 3, and he has not challenged this finding
on review.
5
¶8 The appellant argues on review that, in determining whether he had raised a
nonfrivolous allegation that his retirement was rendered involuntary by agency
coercion, the administrative judge failed to consider the totality of the
circumstances, specifically, that he was subjected to several disciplinary actions
in 2009 for unsatisfactory performance. PFR File, Tab 1 at 4-5; IAF, Tab 8. On
the contrary, the administrative judge specifically noted the appellant’s past
disciplinary record, ID at 2, but found that the fact that both 14-day suspensions
were still under challenge at the time the appellant retired is a factor that weighs
against a finding that he made a nonfrivolous allegation of coercion, ID at 4
(citing Heining, 68 M.S.P.R. at 523); see Brown v. U.S. Postal Service,
115 M.S.P.R. 609, ¶ 15, aff’d, 469 F. App’x 852 (Fed. Cir. 2011).
¶9 The appellant further argues that the administrative judge failed to consider
three statements he submitted in support of his claim. PFR File, Tab 1 at 5. The
first was from an individual who supervised the appellant for 15 years until his
retirement. That individual related that, in 2008, the Postmaster stated that he
wanted the appellant fired, and that, several days later, the plant manager advised
him to take action against the appellant for his computer activity, but that, when
the supervisor declined to do so, having found no evidence of wrongdoing on the
appellant’s part, the Postmaster became upset and said that “they would take
[care] of [the appellant] themselves.” IAF, Tab 15 at 4. The second and third
statements were from an individual described by the appellant as a “National
Business Agent.” Claiming to have dealt with discipline cases for over 20 years,
he opined that the discipline in the appellant’s case was punitive in “an attempt to
‘stack up’ the discipline in order to terminate [him] or force him into retirement.”
IAF, Tab 16. The individual also recalled that, during a 2012 arbitration hearing,
the plant manager commented that the appellant retired to keep from getting fired
or knew he was going to get fired, and so he took the early retirement. IAF,
Tab 20 at 4.
6
¶10 We first note that the administrative judge’s failure to mention all of the
evidence of record does not mean that he did not consider it in reaching his
decision. Marques v. Department of Health & Human Services, 22 M.S.P.R. 129,
132 (1984), aff’d, 776 F.2d 1062 (Fed. Cir. 1985) (Table). Moreover, even if we
consider these statements, we find that they would not change the result the
administrative judge reached. As he found, there is no evidence that there was a
removal action pending against the appellant at the time in question. ID at 4. To
the extent that there was a suspension action pending against the appellant at the
time he retired, it was the subject of a grievance, as was the other 14-day
suspension he had suffered, and he could have continued to challenge those
actions. See Brown, 115 M.S.P.R. 609, ¶ 15. It is well established that the fact
that an employee is faced with the unpleasant choice of either retiring or opposing
a potential adverse action does not rebut the presumed voluntariness of his
ultimate choice to retire. Green v. Department of Veterans Affairs, 112 M.S.P.R.
59, ¶ 8 (2009).
¶11 On review, the appellant challenges the administrative judge’s statement
that the undisputed fact that the appellant applied for retirement through a special
incentive program, 6 which the agency could have denied, rather than taking an
early retirement penalty, evidenced that he was not deprived of the freedom of
choice. PFR File, Tab 6; ID at 4-5. The appellant argues that it would have been
very difficult for him to retire without the incentive program because of the
penalties ordinarily associated with early retirement. PFR File, Tab 1 at 6. While
that fact perhaps justified the appellant’s conclusion as to his best option, it
does not constitute a nonfrivolous allegation that his retirement was coerced. See
Staats, 99 F.3d at 1126.
6
According to the appellant, the retirement incentive program offered by the agency
waived the penalty normally associated with early retirement and included a bonus
equal to 3 months’ pay. IAF, Tab 7 at 7.
7
¶12 The appellant also argues that the administrative judge erred in considering
his medical records. Specifically, the appellant contends that the administrative
judge improperly found that the fact that his symptoms showed improvement
prior to his retirement suggested that his working conditions were not difficult,
whereas in fact any improvement in his condition was due to an increase in
medication and his having stayed off work for a week, per his doctor’s
instructions. PFR File, Tab 1 at 6. An examination of the appellant’s medical
records does not support his claim. Rather, the records reveal that he first
presented to his physician with job-related stress on July 20, 2009, for which he
was prescribed Zoloft, ½ pill daily for 6 days, followed by “maintenance” at one
pill per day. IAF, Tab 14 at 17, 19. On July 28, 2009, more than a month before
he applied for early out retirement, when he reported feeling “much better” with
no limit on his activities, his prescription for Zoloft remained at one pill per day.
Id. at 11, 15. On September 16, 2009, when the appellant reported “doing better,”
his prescription for Zoloft remained at one pill per day. Id. at 5, 9. In any event,
an employee is not guaranteed a stress-free environment. Miller v. Department of
Defense, 85 M.S.P.R. 310, ¶ 32 (2000). As such, even if the appellant genuinely
felt that he had no alternative but to retire, in part due to stress, he failed to make
a sufficient allegation of a coercive act on the part of the agency that could have
left a reasonable person in his position with no other choice but to retire on
October 31, 2009. See Staats, 99 F.3d at 1124.
¶13 We conclude, therefore, that, contrary to the appellant’s claim on review,
the administrative judge correctly found that he failed to make a nonfrivolous
allegation that his retirement was involuntary and, on that basis, properly denied
his request for a hearing and properly dismissed the appeal for lack of
jurisdiction. 7 See Green, 112 M.S.P.R. 59, ¶ 13 (2009).
7
On review, the appellant argues that the administrative judge erred in failing to issue a
subpoena that he requested. PFR File, Tab 1 at 7. The record reflects that the appellant
8
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.
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 want to request review of the Board’s decision concerning your
claims of prohibited personnel practices under 5 U.S.C. § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request review of this final decision by the U.S. Court of Appeals for the
Federal Circuit or any court of appeals of competent jurisdiction. The court of
appeals must receive your petition for review within 60 days after the date of this
order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If you choose
sought a subpoena covering the period from March 1, 2009, through January 1, 2010,
for:
all documents and records involving [him] in all media whether
maintained at any Postal Service Facility or any other location, including,
but not limited to: hand written or typed notes, journals, letters, or
calendar notations; emails from or to any person, audio or video
recordings; or any other record, communication or correspondence.
IAF, Tab 13. The administrative judge did not rule on the appellant’s request, but noted
in the initial decision that the motion for subpoena was denied as moot. ID at 6 n.4. As
to the material requested, the appellant has not shown, nor does it otherwise appear, that
he complied with the Board’s discovery regulations. See 5 C.F.R § 1201.73. Moreover,
he has not explained how any information he sought to discover would have changed
the result in this appeal. See Russell v. Equal Employment Opportunity Commission,
110 M.S.P.R. 557, ¶ 15 (2009). Thus, we find that the appellant has failed to show any
abuse of discretion on the part of the administrative judge as to this matter.
9
to file, be very careful to file on time. You may choose to request review of the
Board’s decision in the U.S. Court of Appeals for the Federal Circuit or any other
court of appeals of competent jurisdiction, but not both. Once you choose to seek
review in one court of appeals, you may be precluded from seeking review in any
other court.
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 about
the U.S. Court of Appeals for the Federal Circuit 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. Additional information about other
courts of appeals can be found at their respective websites, which can be accessed
through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
If you are interested in securing pro bono representation for your 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.