John Montgomery v. Department of Energy

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JOHN MONTGOMERY, DOCKET NUMBER

Appellant, DC-0752-16-0641-I-1

v.

DEPARTMENT OF ENERGY, DATE: December 28, 2016

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

John Montgomery, Midland, Michigan, pro se.

Jocelyn Richards and Michele A. Forte, Washington, D.C., 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 in the following

circumstances: the initial decision contains erroneou s findings of material fact;

the initial decision is based on an erroneous interpretation of statute or regulation

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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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. 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 the alleged involuntary retirement at issue in this appeal, the agency

employed the appellant as a GS-15 Management Analyst. Initial Appeal File

(IAF), Tab 4 at 20. On August 11, 2015, the appellant and the agency entered

into a settlement agreement resolving his equal employment opportunity (EEO)

complaint. Id. at 21-24. In relevant part, the appellant agreed to withdraw his

claims against the agency and to resign no later than April 30, 2016, and the

agency agreed to reassign him to a new position, place him in a limited‑term

100% regular telework status, and to pay him a lump sum payment of $40,000.

Id. at 21‑22. The appellant also agreed that, if he failed to resign by April 30,

2016, he would be required to return the $40,000 lump sum payment, his telework

agreement would expire, and he would be required to report for duty at his

regular duty station on May 2, 2016. Id. at 22. The appellant retired effective

April 30, 2016. 2 Id. at 20, 41-42.

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On several occasions prior to his retirement, the appellant contacted the agency

alleging breach of the settlement agreement. IAF, Tab 4 at 26, 31, 35. In three final

agency decisions (FADs), the agency determined that it had not breached the settlement

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¶3 On June 7, 2016, the appellant appealed his alleged involuntary retirement

to the Board and requested a hearing. IAF, Tab 1 at 1-2. The appellant alleged

that: he was forced to retire “due to harassment, discrimination, hostile working

conditions and retaliation”; “[t]he action voluntarily taken by the agency against

me was a product of misinformation or deception”; and “[s]uch action was a

product of Agency’s coercive actions that made working conditions so difficult or

unpleasant that a reasonable person in my position would have felt compelled to

resign, retire, or take demotion.” Id. at 5. 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 2 at 2-4. The agency moved to dismiss the appeal for lack

of jurisdiction and as untimely filed. IAF, Tab 4 at 5-9. Without holding the

requested hearing, the administrative judge issued an initial decision finding that

the appellant failed to make a nonfrivolous allegation that his retirement was

involuntary and dismissing the appeal for lack of jurisdiction. IAF, Tab 11,

Initial Decision (ID) at 8-11. 3

agreement as alleged by the appellant. Id. at 25, 30, 35. The appellant appealed the

FADs to the Equal Employment Opportunity Commission’s Office of Federal

Operations (OFO), which affirmed each of the FADs. Id. at 25-28, 30-33, 35-38. In

each of its decisions, OFO found that the settlement agreement was “valid and binding

on both parties.” Id. at 27, 32, 37.

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The administrative judge also found that the Board was collaterally estopped from

reviewing the validity of the settlement agreement because the identical issue was

determined by OFO in the prior EEO actions; the validity determination was necessary

to the resulting OFO decisions; and the appellant was fully represented in the prior EEO

actions. ID at 8; IAF, Tab 4 at 25-28, 30-33, 35-38. Accordingly, the administrative

judge adopted OFO’s finding that the settlement agreement was “valid and binding on

both parties.” ID at 8. The appellant does not challenge this finding on review, PFR

File, Tabs 1, 4, and we discern no basis to disturb it.

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¶4 The appellant has filed a petition for review of the initial decision, the

agency has responded in opposition, and he has replied to the agency’s

opposition. Petition for Review (PFR) File, Tabs 1, 3‑4.

¶5 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). 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.

¶6 The doctrine of coerced involuntariness is “a narrow one.” Staats v. U.S.

Postal Service, 99 F.3d 1120, 1124 (Fed. Cir. 1996). To establish involuntariness

on the basis of coercion, an employee must show that: the agency effectively

imposed the terms of his retirement; he had no realistic alternative but to retire;

and his retirement was the result of improper acts by the agency. Id. “[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.” Staats, 99 F.3d at 1124. The Board must determine 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. Brown, 115 M.S.P.R. 609, ¶ 10.

¶7 Here, the appellant alleged that the agency made his working conditions

intolerable and coerced his retirement by, among other things, refusing to “meet

or speak to [him]”; denying him contact with other employees needed to complete

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his duties; harassing him by “sending him demanding emails”; threatening him by

stating “you know what is going to happen to you if you do not resign”; refusing

his request for medical leave; refusing to allow him to “fully work in the job

description assigned to [him]”; giving him an impossible performance plan;

placing him on a performance improvement plan; denying him union

representation; reassigning him to work for one of his past subordinate

employees; attempting to force him to commit a crime; attempting to cover up

sexual harassment; and using the settlement agreement to “justify … hostile

working conditions.” IAF, Tab 5 at 4-5. The administrative judge found,

however, that these allegations were insufficient to constitute a nonfrivolous

allegation that his retirement was involuntary. ID at 9-11.

¶8 On review, the appellant argues that the administrative judge erred in

finding his retirement voluntary and reiterates that the agency subjected him to

intolerable working conditions by failing to remove the supervisor he accused of

sexually harassing two females, attempting to have the appellant commit a crime,

and generally treating the appellant in a “horrible,” “extraordinary,” and

“egregious” manner. PFR File, Tab 1 at 4-7, Tab 4 at 4-6. He also asserts, as he

did below, that, “[h]is supervisor sent [him] a threating [sic] email stating ‘if you

do not resign you know what is going to happen to you[.]’” Id. at 4. According

to the appellant, this threat placed him “under duress and coercion.” Id.

¶9 The alleged threat by the appellant’s supervisor regarding what would

happen if the appellant did not resign or retire clearly refers to the terms of the

settlement agreement, which provided that, if the appellant did not resign by

April 30, 2016, he would be obligated to return the lump sum payment and re port

to his duty station on May 2, 2016. IAF, Tab 4 at 22. As stated above, the fact

that an employee must choose between two unpleasant options does not render his

ultimate choice involuntary. Staats, 99 F.3d at 1124. Thus, the fact that the

appellant had to choose between retiring and repaying the lump sum payment and

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returning to his prior duty station pursuant to the settlement agreement does not

make his choice to retire involuntary.

¶10 While the appellant’s allegations regarding sexual harassment and the

agency’s alleged attempt to have him “commit a crime” could be coercive, the

appellant failed to provide any details or evidence in support of these bare

contentions. Id. Accordingly, we find that his vague and generalized allegations,

unsupported by any specific factual allegations, fail to raise a nonfrivolous

allegation of jurisdiction over this appeal. See Marcino v. U.S. Postal Service,

344 F.3d 1199, 1204 (Fed. Cir. 2003) (finding that mere conclusory allegations,

unsupported by evidence or argument, do not constitute nonfrivolous allegations).

¶11 We have considered the appellant’s other arguments regarding the alleged

intolerable working conditions created by the agency, but agree with the

administrative judge that the incidents alleged do not evince the type of

intolerable working conditions that would compel a reasonable person in the

appellant’s position to retire. ID at 9-10; see, e.g., Searcy v. Department of

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

¶12 The appellant further argues on review that the administrative judge erred in

finding that, in the settlement agreement, he agreed to retire because “[t]he

settlement agreement never mentions the word retirement and clearly did not state

what would happen to the appellant if he did not retire.” PFR File, Tab 1 at 4-5

(emphasis in original). The appellant is correct that the settlement agreement

states that he agreed to “resign,” rather than “retire.” IAF, Tab 4 at 22.

However, the wording of the settlement agreement and the appellant’s intentions

when he entered into the settlement agreement have no relevance to the

voluntariness of his ultimate decision to retire. See Staats, 99 F.3d at 1124.

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¶13 The appellant also argues that the administrative judge was biased against

him because she: informed the appellant that “these types of cases are hard to

prove”; “did not give the appellant an opportunity to compel the agency t o

produce documents”; and “gave discretion to the agency assuming they [sic] told

the truth and that the settlement agreement allowed the agency to not be

accountable for a constructive discharge of Appellant.” PFR File, Tab 1 at 4. 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). Furthermore, an administrative judge’s conduct during the

course of a Board proceeding warrants a new adjudication only if the

administrative judge’s comments or actions evince “a deep-seated favoritism or

antagonism that would make fair judgment impossible.” Bieber v. Department of

the Army, 287 F.3d 1358, 1362-63 (Fed. Cir. 2002) (quoting Liteky v.

United States, 510 U.S. 540, 555 (1994)). Here, the appellant has not pointed to

any evidence that the administrative judge was biased or prejudiced against him,

or that she displayed favoritism or antagonism in the proceedings below.

Accordingly, we find no merit to the appellant’s complaints of bias.

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,

8

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.

Dec. 27, 2012). You may read this law and other sections o f 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: ______________________________

Jennifer Everling

Acting Clerk of the Board

Washington, D.C.