Mike C. Alvarez v. Department of Homeland Security

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

MIKE C. ALVAREZ, DOCKET NUMBER

Appellant, DE-0752-16-0244-I-1

v.

DEPARTMENT OF HOMELAND DATE: September 15, 2016

SECURITY,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Mike C. Alvarez, Tucson, Arizona, pro se.

Callie LeRoy, Esquire, and Cassidy James, Esquire, Tucson, Arizona,

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 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

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

DISCUSSION OF ARGUMENTS ON REVIEW

¶2 Prior to his alleged involuntary retirement at issue in this appeal, the

appellant was employed by the agency as a GS-6 Law Enforcement

Communications Assistant. Initial Appeal File (IAF), Tab 18 at 24. In 2013, the

appellant requested a reasonable accommodation for his hearing impairment, but

subsequently declined the agency’s proposed accommodations and an offer of

reassignment. 2 Id. at 25, 49-50, 52-53, 56-57, 66-68. On January 26, 2015, the

agency proposed to remove him due to his inability to perform the essential

functions of his position with or without a reasonable accommodation. IAF,

Tab 17 at 28‑31. In March 2015, the appellant notified the agency that he had

decided to wear a hearing aid in order to perform the duties of his position and

asked that the agency not impose the proposed removal. IAF, Tab 16 at 33. On

August 12, 2015, agency counsel emailed the appellant’s representative a

settlement offer, which provided, in relevant part, that the agency would hold the

appellant’s removal in abeyance for 2 years in exchange for the appellant’s

2

Although the appellant’s doctor recommended that he wear a hearing aid, he declined

to do so for “cosmetic reasons.” IAF, Tab 18 at 42, 53.

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agreement to wear a hearing aid while on duty and to submit medical

documentation establishing that he could perform the essential functions of his

position with the hearing aid within 15 days of the effective date of the

agreement. IAF, Tab 17 at 10‑15, 38. The parties entered into the agreement on

August 24, 2015. Id. at 15.

¶3 According to the appellant, the earliest appointment he could schedule with

his doctor was on September 9, 2015, 1 day after the expiration of the 15‑day

period to provide medical documentation under the settlement agreement. Id.

at 11, 15; IAF, Tab 19 at 77-79. Believing he would be unable to the meet the

15-day deadline, the appellant decided to retire rather than risk being terminated

under the terms of the settlement agreement. IAF, Tab 19 at 79. On

August 28, 2015, the appellant submitted his application for immediate

retirement. IAF, Tab 18 at 19‑22, 24.

¶4 On September 30, 2015, the appellant filed a formal equal employment

opportunity (EEO) complaint alleging that the agency discriminated against him

on the bases of his sex and disability and engaged in reprisal for prior EEO

activity and forced him to retire. IAF, Tab 19 at 44-49. Specifically, he alleged

that he was forced to retire because: (1) the agency placed him on absence

without leave (AWOL) status on August 3, 4, 12, and part of August 13, 2015,

after he was injured in a car accident; 3 (2) the agency imposed an “impossible

deadline” in the settlement agreement; (3) his supervisors refused “to show

compassion and to listen”; and (4) he feared “getting terminated if [he] returned

3

According to the appellant, he was involved in a car accident on August 1, 2015,

which left him “incapacitated for several weeks.” IAF, Tab 1 at 11. The agency

determined that he failed to properly request leave for all of his absences and coded his

absences on August 3, 4, 12, and part of August 13, 2015, as AWOL. IAF, Tab 20

at 26-29, 34-35. The appellant requested leave for these dates under the Family and

Medical Leave Act of 1993, but failed to submit the appropriate paperwork provided to

him to finalize his request. IAF, Tab 19 at 108-09, Tab 20 at 4-9, Tab 21 at 5, 47. On

August 24, 2015, the appellant requested advanced leave for the period from August 31

to September 4, 2015, but the agency denied his request. IAF, Tab 20 at 11.

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to work.” Id. at 48. On March 14, 2016, the agency issued its final agency

decision denying the appellant’s discrimination claim and notifying him of his

right to file a mixed‑case appeal with the Board. Id. at 5-13.

¶5 The appellant timely appealed his alleged involuntary retirement to the

Board and requested a hearing. IAF, Tab 1. The administrative judge issued a

jurisdictional order informing the appellant that the Board lacks jurisdiction over

voluntary actions, such as resignations and retirements, and ordered him to

submit evidence and argument amounting to a nonfrivolous allegation that his

retirement was involuntary because of duress, coercion, or misrepresentation by

the agency. IAF, Tab 3. Both parties responded, and the agency moved to

dismiss the appeal for lack of jurisdiction. IAF, Tabs 8, 11-21, 24. In an initial

decision, the administrative judge found that the appellant failed to make a

nonfrivolous allegation that his retirement was involuntary on the basis of

misinformation, intolerable working conditions, duress, or the threat of an

unjustified adverse action, and dismissed the appeal for lack of jurisdiction

without holding the requested hearing. IAF, Tab 25, Initial Decision (ID).

¶6 The appellant has filed a petition for review of the initial decision and a

supplement to his petition for review containing additional attachments that were

too large to file electronically. 4 Petition for Review (PFR) File, Tabs 1-2. The

agency has responded in opposition to his petition for review. PFR File, Tab 4.

¶7 Generally, the Board lacks the authority to review an employee’s decision

to retire, which is presumed to be a voluntary act. Brown v. U.S. Postal

Service, 115 M.S.P.R. 609, ¶ 9, aff’d, 469 F. App’x 852 (Fed. Cir. 2011).

4

The attachments to the appellant’s petition for review include an annotated copy of the

initial decision and other pleadings and documents from the record below. PFR File,

Tab 1 at 7-37, Tab 2 at 7-37, 40-132. Because all of the documents are from the record

below, they are not new and do not provide a basis for review. PFR File, Tabs 1-2; see

Meier v. Department of the Interior, 3 M.S.P.R. 247, 256 (1980) (finding that evidence

that is already a part of the record is not new); 5 C.F.R. § 1201.115 (setting forth the

Board’s criteria for granting a petition for review).

5

However, an appellant may overcome the presumption of voluntariness by

showing that his retirement was the product of misinformation or deception by the

agency, or of coercive acts by the agency, such as intolerable working conditions

or the unjustified threat of an adverse action. SanSoucie v. Department of

Agriculture, 116 M.S.P.R. 149, ¶ 14 (2011). An appellant is only entitled to a

jurisdictional hearing over an alleged involuntary retirement if he makes a

nonfrivolous allegation casting doubt on the presumption of voluntariness. Id., ¶

16. Nonfrivolous allegations of Board jurisdiction are allegations of fact that, if

proven, could show Board jurisdiction over the matter at issue. Id.

¶8 On review, the appellant challenges the administrative judge’s finding that

he failed to nonfrivolously allege that his retirement was involuntary, arguing that

the agency coerced his retirement through harassment and intimidation when it

coded his absences as AWOL, failed to cooperate with him or assist him in

obtaining leave after his vehicle accident, and required him to provide medical

documentation by a nonnegotiable and “unachievable” 15-day deadline. 5 PFR

File, Tab 1 at 4‑6. He also contends that the administrative judge was biased

against him and failed to consider relevant evidence. Id. at 5.

¶9 To establish involuntariness on the basis of coercion, an employee must

show that the agency effectively imposed the terms of his resignation or

retirement, he had no realistic alternative but to resign or retire, and his

resignation or retirement was the result of improper acts by the agency. Staats v.

U.S. Postal Service, 99 F.3d 1120, 1124 (Fed. Cir. 1996); Vitale v. Department of

5

The appellant does not challenge the administrative judge’s findings that he failed to

nonfrivolously allege that his retirement was involuntary based on misinformation or

the unjustified threat of an adverse action. PFR File, Tabs 1-2; ID at 7‑10, 14.

Because the appellant has not challenged these findings, and because we discern no

error in the administrative judge’s well‑reasoned findings regarding these matters, we

will not disturb them. See Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 105‑06

(1997) (finding no basis to disturb the administrative judge’s findings where she

considered the evidence as a whole, drew appropriate inferences, and made reasoned

conclusions).

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Veterans Affairs, 107 M.S.P.R. 501, ¶ 19 (2007). The doctrine of coerced

involuntariness is “a narrow one” and does not apply if the employee retires

because he “does not want to accept [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, 99 F.3d at 1124.

“[T]he fact than an employee is faced with an unpleasant situation or that his

choice is limited to two unattractive options does not make [his] decision any less

voluntary.” Id.

¶10 When, as here, the employee alleges that the agency took actions that made

his working conditions so intolerable that he was driven to an involuntary

retirement, the Board will find his retirement involuntary only if he demonstrates

that the agency engaged in a course of action that made his working conditions so

difficult or unpleasant that a reasonable person in his position would have felt

compelled to retire. Vitale, 107 M.S.P.R. 501, ¶ 20. As the administrative judge

correctly determined, the appellant’s contentions regarding the agency’s

uncooperativeness, the unfavorable terms in the settlement agreement, and

management’s decision to designate absences as AWOL do not evince the type of

intolerable working conditions that would compel a reasonable person in the

appellant’s position to retire. ID at 10-14; see, e.g., Searcy v. Department of

Commerce, 114 M.S.P.R. 281, ¶ 13 (2010) (finding that the appellant’s

allegations 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 did not evince intolerable working conditions).

¶11 We further agree with the administrative judge that the appellant has failed

to nonfrivolously allege that the agency’s decision to place him on AWOL

rendered his retirement involuntary. ID at 12, 15-16. When an employee is faced

with the unpleasant alternative of retiring or being subjected to an adverse action,

the resulting retirement cannot be considered involuntary unless the employee

shows that the agency lacked reasonable grounds for taking or threatening to take

7

the adverse action. See Terban v. Department of Energy, 216 F.3d 1021, 1026

(Fed. Cir. 2000) (explaining that, where an employee claimed that his retirement

was involuntary because the agency threatened to convert his approved leave

period to leave without pay, he had to show by preponderant evidence that the

agency’s threat was made without a reasonable basis). Here, the appellant argues

that the agency’s decision to place him in AWOL status was wrong or unfair

because his supervisors did not cooperate with him in obtaining approved leave,

he attempted to call his supervisors on the days he was charged with AWOL, and

the agency waited almost 2 weeks after charging him with AWOL to notify him

of the AWOL charge. IAF, Tab 8 at 1, 3, 5; PFR File, Tab 1 at 5‑6. Even if

these allegations are true, however, they would not establish that the agency

lacked reasonable grounds to code the appellant’s absences as AWOL or that it

knew that the reasons for its action could not be sustained. See Terban, 216 F.3d

at 1026. Thus, the appellant has failed to nonfrivolously allege that his

retirement was involuntary because the agency lacked a reasonable basis to place

him in an AWOL status.

¶12 We likewise find that the appellant’s complaints regarding the terms of the

settlement agreement do not constitute nonfrivolous allegations that his

retirement was involuntary. As noted above, the appellant argues that the 15-day

deadline for providing medical evidence under the terms of the settlement

agreement was nonnegotiable and “unachievable” and forced him to retire.

PFR File, Tab 1 at 4-5. Although the appellant was concerned that he would be

unable to meet the 15-day deadline agreement and that the agency would

terminate him pursuant to the agreement, he has failed to nonfrivolously allege

that an improper action by the agency deprived him of a meaningful choice in this

regard. See Staats, 99 F.3d at 1124. First, the fact that the appellant agreed to

terms of a settlement agreement that he came to regret does not indicate any

improper act by the agency. Second, he had meaningful options available to him

even after he came to believe he would not be able to meet the 15-day deadline;

8

such as, among other things, requesting an extension to provide medical

documentation or finding another medical provider who could accommodate his

time restraints. We further note that the appellant acted precipitously, submitting

his application for retirement well within the 15-day deadline to provide the

medical documentation without requesting an extension to the 15-day period. See

Miller v. Department of Defense, 85 M.S.P.R. 310, ¶ 29 (2000) (stating that, in

establishing an involuntary discharge, “an employee has an obligation to act

reasonably, not assume the worst, and not jump to conclusions too quickly”). In

any event, even if the agency would have removed him for failing to provide the

medical documentation within 15 days pursuant to the settlement agreement, the

“unpleasant situation” and “unattractive options” available to him at that time did

not render his ultimate choice to retire involuntary. See Staats, 99 F.3d at 1124.

Thus, we agree with the administrative judge that the appellant failed to

nonfrivolously allege that the deadline under the settlement agreement rendered

his retirement involuntary. ID at 15

¶13 Additionally, the appellant’s complaints that the agency’s actions were

retaliatory do not constitute nonfrivolous allegations that his retirement was

involuntary. PFR File, Tab 1 at 5‑6. The Board addresses allegations of

discrimination and reprisal in connection with an alleged involuntary retirement

only insofar as those allegations relate to the issue of voluntariness, i.e., whether,

under all of the circumstances, the agency made the appellant’s working

conditions so difficult that a reasonable person in his position would have felt

compelled to retire. Vitale, 107 M.S.P.R. 501, ¶ 20. Here, the appellant’s

allegation that the agency acted in a retaliatory manner, even if proven true, does

not establish that the agency engaged in a course of conduct that made his

working conditions so difficult that a reasonable person in his position would

have felt compelled to retire.

¶14 Finally, we find no merit to the appellant’s contention on review that the

administrative judge was biased or prejudiced against him. PFR File, Tab 1 at 5.

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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). Here, the appellant’s vague complaints about the administrative

judge’s handling of this appeal fail to overcome this presumption. Likewise, his

complaints regarding the administrative judge’s alleged failure to consider

evidence, which he deems favorable to his case, do not establish error in the

initial decision. It is well established that an administrative judge’s failure to

mention all of the evidence of record does not mean that she did not consider it in

reaching her 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).

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

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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 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.