Paul F. Henley v. Department of Agriculture

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

PAUL F. HENLEY, DOCKET NUMBER

Appellant, AT-0752-15-0087-I-1

v.

DEPARTMENT OF AGRICULTURE, DATE: April 11, 2016

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Paul F. Henley, Birch Run, Michigan, pro se.

Elizabeth N. Moran, Esquire, and Kevin Owen, Esquire, Silver Spring,

Maryland, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

FINAL ORDER

¶1 The agency has filed a petition for review of the initial decision, which

dismissed his involuntary resignation 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

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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, which is now the Board’s final decision. 5 C.F.R.

§ 1201.113(b).

BACKGROUND

¶2 The appellant was employed by the agency as a teacher. Initial Appeal File

(IAF), Tab 7 at 185. He resigned from his position effective May 24, 2011. Id.

In June 2011, he filed a formal equal employment opportunity (EEO) complaint

in which he alleged that he experienced harassment, discrimination on the bases

of age and disability, and retaliation for prior EEO activity until his resignation.

IAF, Tab 6 at 86-87. The agency issued a final agency decision in

September 2014, finding that the appellant was not subjected to discrimination or

harassment. Id. at 26-48.

¶3 The appellant filed the instant Board appeal in which he alleged that his

resignation was involuntary. IAF, Tab 1. He did not request a hearing. Id. In

response to a jurisdictional order from the administrative judge, the appellant

alleged that his resignation was the result of discrimination and harassment based

upon age, disability, and retaliation for prior EEO activity. IAF, Tab 4. The

agency moved to dismiss the appeal for lack of jurisdiction. IAF, Tab 6 at 6-18.

3

The appellant submitted additional evidence and argument in support of his

appeal. IAF, Tabs 10-13. 2

¶4 The administrative judge issued an initial decision dismissing the appeal for

lack of jurisdiction. IAF, Tab 17, Initial Decision (ID). Specifically, she found

that, even accepting the appellant’s allegations as true, he failed to nonfrivolously

allege that he met his obligation to act reasonably, not assume the worst, and not

jump to conclusions too quickly and thus he failed to nonfrivolously allege that

the agency effectively imposed the terms of his resignation, he had no realistic

alternative but to resign, and his resignation was the result of improper acts by

the agency. ID at 8. Therefore, she concluded that the appellant did not establish

that he was entitled to a jurisdictional hearing and that he failed to establish that

his resignation was tantamount to a constructive removal within the Board’s

jurisdiction. ID at 8. The appellant filed a timely petition for review in which he

argues that he was discriminated against based upon age and disability, retaliated

against, and that the agency created a hostile work environment. Petition for

Review (PFR) File, Tab 1 at 5-7. He also alleges that the agency discriminated

against him under the Fair Housing Act. Id. at 7. The appellant additionally

alleges that the administrative judge erred in failing to consider that he was

effectively a whistleblower and that the agency retaliated against him on this

basis. Id. at 11. The agency has responded in opposition to the appellant’s

petition for review. PFR File, Tab 3.

DISCUSSION OF ARGUMENTS ON REVIEW

¶5 A decision to resign or retire is presumed to be a voluntary act outside the

Board’s jurisdiction unless the appellant shows by a preponderance of the

2

The appellant also submitted two pleadings under the title “Appellant Response to

Agency Motion to Dismiss.” IAF, Tabs 8-9. However, he later requested that these

documents not be considered. IAF, Tab 14. The administrative judge granted that

request. Id. We have not considered those two pleadings in reaching this decision.

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evidence 3 that his 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, the

appellant must show that: (1) the agency effectively imposed the terms of his

resignation or retirement; (2) he had no realistic alternative but to resign or retire;

and (3) his resignation or retirement was the result of improper acts by the

agency. Id. In cases such as this one, where the appellant alleges that the agency

took actions that made working conditions so intolerable that he was driven to an

involuntary resignation or retirement, the Board will find an action involuntary

only if he demonstrates that the agency engaged in a course of action that made

working conditions so difficult or unpleasant that a reasonable person in his

position would have felt compelled to resign or retire. Id., ¶ 20. 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 appellant

establishes the Board’s jurisdiction over the appeal by showing that his

resignation or retirement was involuntary, he also has established the merits of

his appeal. Shoaf v. Department of Agriculture, 260 F.3d 1336, 1341 (Fed.

Cir. 2001).

¶6 When discrimination or retaliation is alleged in connection with a

determination of involuntariness, these allegations may be addressed only insofar

as they relate to the issue of voluntariness, and not whether the evidence would

3

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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establish discrimination or retaliation under the standards used to prove

discrimination. Wright v. Department of Veterans Affairs, 85 M.S.P.R. 358, ¶ 25

(2000). The Board also does not have jurisdiction to consider claims of

whistleblower retaliation unless the appellant establishes jurisdiction over his

involuntary resignation appeal. Comito v. Department of the Army, 90 M.S.P.R.

58, ¶ 13 (2001).

¶7 If an appellant makes nonfrivolous allegations of fact that, if proven, could

establish jurisdiction over his constructive removal appeal and he has requested a

hearing, then he is entitled to a jurisdictional hearing. Vitale, 107 M.S.P.R. 501,

¶ 18. Where, as here, an appellant has not requested a hearing, the threshold

question is not whether he has raised a nonfrivolous allegation of jurisdiction, but

whether he has established by preponderant evidence that the Board has

jurisdiction over his appeal. Id.

¶8 We find that, in this case, the appellant has failed to establish by

preponderant evidence that his resignation was involuntary. First, we consider

the appellant’s assertions regarding the agency’s actions from September 2008

until December 2010. The appellant asserted, inter alia, that: (1) in

September 2008, the Center Director made it known that he was upset that the

appellant raised workplace safety issues; (2) the Center Director was upset in

November 2008 when he had not “bumped fists” with him and made it clear that

his job was in jeopardy; (3) the Center Director announced at a staff meeting that

he was going to fix the bad attitudes of certain employees; and (4) upper

management did not respond to his complaints. IAF, Tab 4 at 5-7. The appellant

also asserted that the agency changed the deadline by which he was required to

submit his teaching certificate, 4 required him to perform additional duties,

4

According to an email submitted by the appellant, the agency required proof of his

certification on an earlier date for the certificate to be processed prior to his 1-year

work anniversary. IAF, Tab 10 at 35.

6

threatened him by saying that other people wanted his job, and denied his

participation in the agency’s wellness program. Id. at 7-9.

¶9 In further support of his claim of involuntariness, the appellant asserted

that: (1) he was issued a derogatory letter about his work performance in

September 2009 5 and a rating of only fully successful; (2) the Center Director

dismissed his request to transfer to another team due to work tensions and refused

his request to transfer to a different room in government quarters; (3) in

March 2010, the agency did not select him for two supervisory teacher positions; 6

(4) the Center Director denied his request for participation in the student loan

repayment program; 7 (5) he received a performance rating of only fully successful

for the period from October 2009 to September 2010, and when he refused to sign

his evaluation, his first-line supervisor threatened retaliation; and (6) in

December 2010, the Center Director denied his second request to participate in

the agency’s wellness program. IAF, Tab 4 at 9-15.

¶10 These facts, even if true, do not support a finding that the appellant’s

resignation was involuntary. First, we find that these allegedly coercive acts

are not particularly probative of the involuntariness of the appellant’s resignation

because of the long time period between many of the alleged acts and the

appellant’s resignation. See Terban v. Department of Energy, 216 F.3d 1021,

1024 (Fed. Cir. 2000). Furthermore, the U.S. Court of Appeals for the Federal

Circuit has held that the doctrine of coerced involuntariness does not apply if the

5

The Center Director subsequently rescinded this letter and a performance

improvement plan in November 2009. IAF, Tab 11 at 7.

6

On review, the appellant asserts that the agency’s denial of these promotions

“deceived or willfully obstructed” him in order to, inter alia, deny him his veterans’

preference. PFR File, Tab 1 at 19. He does not indicate that he intends to raise a

separate claim under the Veterans Employment Opportunities Act of 1998.

7

The Center Director stated that he would not approve participation in the student loan

program for any staff. IAF, Tab 11 at 16. The appellant contended that this statement

was pretextual and that the Center Director made this decision to discriminate and

retaliate against him. IAF, Tab 4 at 13.

7

employee resigns or retires because he 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

he feels that 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 many of the agency’s decisions, such as the denial of his

participation in the wellness program and the student loan repayment program, his

performance ratings, a change in duties, failure to transfer him, and refusal to

promote him, the decisions did not render his resignation involuntary.

Furthermore, the appellant’s previously described dissatisfaction with his

interactions with management does not prove that his resignation was

involuntary. See Miller v. Department of Defense, 85 M.S.P.R. 310, ¶ 32 (2000)

(“An employee is not guaranteed a working environment free of stress.

Dissatisfaction 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.”).

¶11 We next consider the appellant’s allegations regarding agency actions

between March and May 2011. The appellant asserted that: (1) in March 2011,

the Center Director did not follow through with several recommendations that he

made on incident reports when he was the acting academic director; (2) also in

March 2011, his first-line supervisor spoke to him harshly and made inappropriate

comments, which led to a physical struggle between the two; (3) the agency

placed him on a different shift outside of his normal job duties after requesting to

be separated from his first-line supervisor, as opposed to reassigning the

supervisor; (4) despite his opposition, the agency placed him on administrative

leave after discussions with his union steward that had mentioned administrative

leave; and (5) although the agency told him that he would be placed on

administrative leave until an investigation was completed, the agency required

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him to return to work in April 2011, prior to the completion of an investigation.

IAF, Tab 4 at 15-18.

¶12 The appellant was recalled to work on April 14, 2011, and, on April 15,

2011, he was given a “virtual assignment” that he could complete remotely.

Id. at 18. On April 18, 2011, he sent the Center Director an email stating that he

would complete the assignment off-site because the internet in his government

quarters in Bristol, Tennessee, was not working, IAF, Tab 12 at 33, but he alleged

that he never received a response, IAF, Tab 4 at 19. On April 27, 2011, he sent

another email to the Center Director seeking clarification of the assignment and

requesting to telework from his home in Michigan, where he would have better

internet access, IAF, Tab 12 at 34-35, but he alleges that he did not receive an

immediate response, IAF, Tab 4 at 19-20.

¶13 The appellant received a call from his first-line supervisor and the Center

Director on May 2, 2011, in which they stated that his virtual assignment was due

on May 6, 2011. IAF, Tab 4 at 20, Tab 12 at 34. On May 3, 2011 the Center

Director told him to bring in his computer equipment for examination by a

technician, at which point he told the Center Director that this was impossible

because he was in Michigan. IAF, Tab 4 at 21, Tab 7 at 168-69. The Center

Director informed the appellant that he was absent without leave (AWOL) and

ordered him to return to work on May 4, 2011. IAF, Tab 7 at 173-74. The

appellant did not return to work until May 9, 2011. IAF, Tab 4 at 22.

¶14 The appellant argued that his virtual assignment was outside of his job

description and that the agency improperly placed him on AWOL. Id. at 23-24;

IAF, Tab 13 at 9. He asserted that the Center Director assigned him to a building

to illegally monitor him. IAF, Tab 4 at 23. The appellant alleged that he

contacted upper management, but felt that they had abandoned him. Id. at 24. He

argued that he therefore had no choice but to resign. IAF, Tab 4 at 24-25, Tab 7

at 179-80.

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¶15 We find that these assertions, even if true, do not establish that the

appellant’s resignation was involuntary. Although the appellant was dissatisfied

with a number of actions that the agency took, including, inter alia, placing him

on administrative leave, reassigning him, placing him on AWOL, and assigning

him to a building where he could be monitored, these actions do not support a

finding that his resignation was involuntary. See Comito, 90 M.S.P.R. 58,

¶¶ 12-13 (finding that, although it was undisputed that the agency took a number

of actions against the appellant, including the denial of her within-grade increase,

placing her on AWOL, significantly changing her duties, and proposing her

termination, such actions did not render her resignation involuntary).

Furthermore, although the appellant engaged in a physical struggle with his

first-line supervisor, the agency addressed this situation by placing the appellant

on administrative leave, conducting an investigation, and reassigning him. IAF,

Tab 6 at 90, Tab 7 at 137-45. The appellant’s disagreement with the agency’s

response also does not render his resignation involuntary. See Conforto v. Merit

Systems Protection Board, 713 F.3d 1111, 1121-22 (Fed. Cir. 2013) (holding that

the doctrine of coerced involuntariness does not apply if the employee resigns or

retires because he does not like agency decisions that the agency is authorized to

adopt). Additionally, to the extent that the appellant alleged that he resigned

because he feared that the agency would remove him, he has not presented

evidence to rebut the presumed voluntariness of his resignation. See Baldwin v.

Department of Veterans Affairs, 109 M.S.P.R. 392, ¶ 12 (2008) (holding that the

fact that an employee is faced with the unpleasant choice of either resigning or

opposing a potential adverse action does not rebut the presumed voluntariness of

his ultimate choice of resignation unless he shows that an agency knew that it

would not prevail on a proposed adverse action).

¶16 We have considered the appellant’s arguments on review that the

administrative judge did not properly consider his claims of harassment, age and

disability discrimination, retaliation for prior EEO activity, and whistleblower

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retaliation. PFR File, Tab 1 at 5-7, 11. However, because the Board otherwise

does not have jurisdiction over this appeal, the administrative judge properly

considered these arguments only in the context of the voluntariness of the

appellant’s resignation. See Comito, 90 M.S.P.R. 58, ¶ 13; see also Wright,

85 M.S.P.R. 358, ¶ 25. Regarding the appellant’s allegation of discrimination

under the Fair Housing Act, because we do not have jurisdiction over the

appellant’s involuntary resignation appeal and because we find no independent

basis for exercising jurisdiction over such a claim, we do not consider this

allegation. Maddox v. Merit Systems Protection Board, 759 F.2d 9, 10 (Fed.

Cir. 1985) (explaining that the Board’s jurisdiction is limited to those matters

over which it has been given jurisdiction by law, rule, or regulation).

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 United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.

11

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.