The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
HAROLD L. WILBORN, DOCKET NUMBER
Appellant, SF-0752-16-0033-I-1
v.
DEPARTMENT OF HOMELAND DATE: July 1, 2016
SECURITY,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Harold L. Wilborn, El Cajon, California, pro se.
Sofia Flood, Esquire, Chula Vista, California, 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 for lack of jurisdiction his appeal in which he alleged that his
retirement was involuntary. Generally, we grant petitions such as this one only
when: the initial decision contains erroneous findings of material fact; the initial
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 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 The appellant, a GS-7 Supervisory Law Enforcement Communications
Assistant, filed a Board appeal in which he alleged that his retirement, effective
January 31, 2015, was involuntary. Initial Appeal File (IAF), Tab 1.
Specifically, he claimed that coercion by agency officials and intolerable working
conditions rendered his retirement a constructive discharge. He also claimed
discrimination based on sex, race, age, denial of reasonable accommodation,
retaliation for whistleblowing and protected equal employment opportunity (EEO)
activity, a violation of his rights under the Uniformed Services Employment and
Reemployment Rights Act of 1994 (USERRA), and a denial of due process in
connection with the agency’s processing of an EEO complaint he filed in 2014.
He requested a hearing. Id. at 2.
¶3 In acknowledging the appeal, the administrative judge explained that,
because retirements are presumed to be voluntary actions over which the Board
lacks jurisdiction, the appellant’s appeal would be dismissed unless he made
nonfrivolous allegations that he retired because of duress, coercion, or
misrepresentation by the agency. IAF, Tab 2. In his response, the appellant
repeated his allegation of denial of due process, claiming that the investigative
3
file that the agency provided him in July 2015 in his EEO complaint 2 was
inadequate. IAF, Tab 4 at 3-8. He also claimed that the agency had counseled
him about his performance and issued him two Notices of Unsatisfactory
Performance/Opportunity to Improve, id., Subtab 5, based on which he had no
realistic alternative but to retire, IAF, Tab 4 at 13. In further support of his
claim, the appellant submitted a copy of an October 2, 2014 Notice of Proposed
10-day Suspension that the agency issued him based on Lack of Candor. Id.,
Subtab 4 at 1-3. The agency moved that the appeal be dismissed for lack of
jurisdiction, IAF, Tab 5, and the appellant responded to the agency’s motion,
IAF, Tab 6.
¶4 The administrative judge issued another acknowledgment order specifically
addressing the appellant’s claim of retaliation for whistleblowing and setting
forth information on USERRA jurisdiction and proof requirements. IAF, Tab 7.
In his response, the appellant first reiterated that his appeal was from the
agency’s Final Agency Decision (FAD) on his EEO complaint, issued on August
31, 2015. IAF, Tab 9 at 1-2. He argued that the agency knew or should have
known that the charge in support of the suspension action 3 was not bona fide, id.
at 4-5, and that the agency’s actions rendered the workplace so intolerable that he
was compelled to retire, id. at 6. The appellant also stated that he was filing an
individual right of action (IRA) appeal, id. at 10-12, and he repeated his claims
that the agency retaliated against him for having filed an EEO complaint, id. at
13-14, and failed to reasonably accommodate his undescribed disabling condition
by denying him accrued leave to go to the Department of Veterans Affairs (VA)
2
The appellant filed this EEO complaint on October 9, 2014, but in the Final Agency
Decision (FAD), the agency also considered his claim of constructive discharge, which
was presumably added during the complaint process. IAF, Tab 4, Subtab 2 at 1-3;
Subtab 3 at 25.
3
According to the appellant, the agency ultimately decided to suspend him for only
1 day, IAF, Tab 9 at 4, but he acknowledged that he did not serve the suspension
because of his retirement. IAF, Tab 12 at 4.
4
hospital, id. at 15-16. He also described his past military service. Id. at 17.
Again, the appellant argued that the agency’s issuance of the FAD without
completing the “investigative process” constituted not only a violation of due
process, but also an appealable action under USERRA and the Whistleblower
Protection Act. Id. at 22; see IAF, Tab 10.
¶5 In an initial decision based on the written record, the administrative judge
dismissed the appeal for lack of jurisdiction. IAF, Tab 15, Initial Decision (ID)
at 1, 7. He found that the agency’s notifications to the appellant regarding his
performance were insufficient to render his subsequent retirement involuntary.
ID at 5. As to the claim of whistleblower retaliation, the administrative judge
found that, even if the appellant made a protected disclosure in a 2011
memorandum, he failed to nonfrivolously allege that any agency official involved
with his retirement knew of it. Similarly, as to the USERRA claim, the
administrative judge found that the appellant failed to nonfrivolously allege that
his status as a veteran was known to anyone or that it had a motivating effect on
any agency employee to take any action that could be considered coercive. ID
at 6. Finally, regarding the appellant’s claim that he suffered a hostile working
environment, the administrative judge found that he failed to nonfrivolously
allege that he was subjected to a pattern of harassment based on his military
service, or any other basis, that was sufficiently severe or pervasive to alter the
terms and conditions of his employment. ID at 7.
¶6 The appellant has filed a petition for review, Petition for Review (PFR)
File, Tab 1, to which the agency has responded, PFR File, Tab 4, and the
appellant has replied thereto, PFR File, Tab 3.
¶7 On review, the appellant argues that the administrative judge erred in not
considering all 14 claims he raised in his EEO complaint. PFR, Tab 1 at 3-4.
Although the record below contains only a portion of the appellant’s unsigned and
5
undated complaint, 4 IAF, Tab 12 at 22-23, the agency’s FAD clearly includes its
treatment of his claim of involuntary retirement (“Claim 14: Forced to resign
[sic] from the Agency (constructive discharge).” IAF, Tab 4, Subtab 2 at 11. The
agency found that the appellant failed to establish this claim and it advised him of
his right to appeal to the Board. Id. at 15. While the issuance of a FAD on a
discrimination complaint is not itself a matter for Board review, an employee may
timely file an appeal of a matter within the Board’s jurisdiction that was the
subject of a FAD on a formal EEO complaint. See Lockridge v. U.S. Postal
Service, 72 M.S.P.R. 613, 617 n.2 (1996), aff’d, 121 F.3d 727 (Fed. Cir. 1997)
(Table). The administrative judge correctly found that whether the appellant’s
retirement was involuntary or not was the only issue addressed in the FAD that
could fall within the Board’s jurisdiction, 5 ID at 4 n.1; IAF, Tab 4, Subtab 2 at
2-3, and that therefore the Board lacks jurisdiction over the other matters raised
in the appellant’s EEO complaint.
¶8 The appellant also argues on review that the administrative judge erred by
failing to consider three of his pleadings. PFR File, Tab 1 at 6; ID at 5 n.2. In
his second and final order issued on November 19, 2015, the administrative judge
advised the parties that the record on jurisdiction would close on the date the
agency’s response was due, or on December 9, 2015, and that he would not accept
any more evidence or argument on the jurisdictional issues unless the party
submitting it showed that it was not readily available prior to the close of the
record. Notwithstanding, the administrative judge acknowledged that, under the
Board’s regulations, a party may respond to new evidence or argument submitted
4
We address later in this Order the administrative judge’s decision to not consider this
and other pleadings submitted by the appellant.
5
The administrative judge incorrectly stated that neither party submitted the FAD into
the record until after the record on jurisdiction closed. ID at 4 n.1. In fact, the
appellant submitted a copy of the FAD in response to the administrative judge’s first
acknowledgment order. IAF, Tab 4, Subtab 2. The appellant has not, however, shown
that the administrative judge’s misstatement caused any prejudice to his substantive
rights. Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984).
6
by the other party just before the close of the record. IAF, Tab 7 at 10. The
agency submitted its final response on December 9, 2015, and, in that response,
addressed for the first time the appellant’s claims of USERRA discrimination and
whistleblower retaliation. IAF, Tabs 5, 11. Because the response included new
argument, the appellant was entitled under 5 C.F.R. § 1201.59(b)(2) to submit
additional evidence or argument in rebuttal. However, because the appellant has
not explained, nor is it otherwise apparent, why he was compelled to make three
supplemental submissions, we find only that the administrative judge erred in
failing to consider the supplemental response of December 14, 2015, IAF, Tab 12,
but not the additional responses of December 18 and December 21, 2015, IAF,
Tabs 13-14.
¶9 In reviewing the appellant’s supplemental response of December 14, 2015,
IAF, Tab 12, we first address his claim of retaliation for whistleblowing. He
alleged that, after he filed his 2014 EEO complaint, the agency retaliated against
him for participating in the EEO process by proposing to suspend him. Id. at 2-3.
Because the appellant does not allege that his EEO complaint was “with regard to
remedying a violation of paragraph (8),” retaliation for whistleblowing, 5 U.S.C.
§ 2302(b)(9)(A)(i); id. at 22-23, he has failed to nonfrivolously allege that he
made a protected disclosure such as is required to establish Board jurisdiction
over an IRA appeal. 5 U.S.C. § 1221(e)(1). Regarding the appellant’s claim that
the agency denied him a benefit of employment based on his military service in
violation of USERRA, he alleged that the agency denied him accrued sick leave
to attend a VA hospital and that the denial was due to his service-connected
disability. IAF, Tab 12 at 6-7. The appellant’s leave request does not include the
basis for the request or otherwise support his claim in any way. Id. at 49. As
such, he has failed to nonfrivolously allege that the agency denied him an
employment benefit based on his military service. Yates v. Merit Systems
Protection Board, 145 F.3d 1480, 1495 (Fed. Cir. 1998). We conclude, therefore,
7
that the administrative judge’s error in not considering this pleading did not
prejudice the appellant’s substantive rights. Panter, 22 M.S.P.R. at 282.
¶10 The appellant repeats on review his claim that the agency subjected him to a
hostile working environment because of his military service in violation of
USERRA. PFR File, Tab 1 at 7. He has not, however, explained how the
agency’s treatment of him was based on his military service. Thus, even broadly
construing the appellant’s allegations, he failed to nonfrivolously allege that he
was subjected to a pattern of ongoing and persistent harassing behavior based on
his military service. Therefore, he has not shown that the administrative judge
erred in finding that he failed to establish Board jurisdiction under USERRA. ID
at 7; see Kitlinski v. Department of Justice, 123 M.S.P.R. 41, ¶¶ 19-21 (2015).
¶11 On review, the appellant alleges that the administrative judge did not
convene the hearing he requested. PFR File, Tab 1 at 5. In acknowledging the
appeal, the administrative judge explained that a hearing would be convened only
if the appellant supported his claim of involuntariness with affidavits or other
evidence of facts which, if proven, could show that his retirement was
involuntary. IAF, Tab 2. The appellant’s conclusory statements and numerous
references and citations to Board decisions do not constitute support of his
claimed involuntary retirement, and, therefore, he has failed to show that the
administrative judge abused his discretion in not convening the requested hearing.
See Mims v. Social Security Administration, 120 M.S.P.R. 213, ¶ 16 (2013).
Moreover, because the appellant did not establish the Board’s jurisdiction over
this matter under USERRA or as an IRA appeal, he also was not entitled to a
hearing on those grounds. Kitlinski, 123 M.S.P.R. 41, ¶ 6; Salerno v. Department
of the Interior, 123 M.S.P.R. 230, ¶ 5 (2016).
¶12 The appellant also argues on review that the administrative judge erred by
failing to consider his claim of disability discrimination based on a denial of
reasonable accommodation. PFR File, Tab 1 at 9. However, the administrative
judge correctly stated that an appellant’s allegations of discrimination and
8
retaliation are relevant, and evidence thereof may be considered, only to the
extent that they relate to the issue of voluntariness, and not whether such
evidence meets the test for proof of discrimination under title VII of the U.S.
Code, and that only if Board jurisdiction is established in a constructive discharge
appeal may the issues be adjudicated under the standards applicable for proof
under Title VII, as the case is then a “mixed case.” ID at 3; Markon v.
Department of State, 71 M.S.P.R. 574, 578 (1996). As noted, the administrative
judge concluded, after review of the appellant’s submissions, that he failed to
make nonfrivolous allegations of fact which, if proven, would establish that he
lacked a meaningful choice in his decision to retire and that it was the agency’s
wrongful actions that deprived him of that choice. ID at 7; see Bean v. U.S.
Postal Service, 120 M.S.P.R. 397, ¶ 8 (2013). Even if the administrative judge
did not specifically so state, his finding is presumed to include consideration of
the appellant’s allegation of disability discrimination. Marques v. Department of
Health & Human Services, 22 M.S.P.R. 129, 132 (1984) (finding 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), aff’d, 776 F.2d 1062
(Fed. Cir. 1985) (Table). In any event, the appellant failed to nonfrivolously
allege that the agency’s purported denial of his request for 3 days of leave in
January 2015 compelled him to retire a year later. See Gregory v. Federal
Communications Commission, 79 M.S.P.R. 563, 569-70 (1998) (explaining that,
under certain circumstances, events may be too remote in time to have motivated
a reasonable person to resign/retire).
¶13 The appellant argues on review that, in some manner, the Equal
Employment Opportunity Commission denied him due process after the agency’s
issuance of the FAD. PFR File, Tab 1 at 14. Although the basis of this claim is
unclear, the FAD was issued 7 months after the appellant’s retirement and so it
could not have influenced or had any effect on that action.
9
¶14 Finally, the appellant alleges that the administrative judge berated him by
describing his responses as “discursive.” PFR File, Tab 1 at 15, ID at 4-5. To the
extent the appellant is suggesting that the administrative judge was biased against
him, it is well established that, in making a claim of bias or prejudice against an
administrative judge, a party must overcome the presumption of honesty and
integrity that accompanies administrative adjudicators. Oliver v. Department of
Transportation, 1 M.S.P.R. 382, 386 (1980). The appellant’s conclusory claim,
which does not involve extrajudicial conduct, is insufficient to overcome that
presumption of honesty and integrity. Simpkins v. Office of Personnel
Management, 113 M.S.P.R. 411, ¶ 5 (2010).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS 6
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.
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).
6
In the initial decision, the administrative judge provided the appellant with mixed-case
review rights to the Equal Employment Opportunity Commission regarding his claims
of discrimination. ID at 10-11. Because we agree with the administrative judge that
dismissal on jurisdictional grounds is the appropriate disposition in this case,
nonmixed-case review rights are appropriate, even though the appellant raised claims of
discrimination. Caros v. Department of Homeland Security, 122 M.S.P.R. 231, ¶ 22
(2015). We have provided the appellant with the proper review rights in this Final
Order.
10
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
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 United States 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 United
States 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 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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.