Brown v. Merit Systems Protection Board

NOTE: This disposition is nonprecedential.

United States Court of Appeals

for the Federal Circuit

__________________________

JOHNNIE L. BROWN,

Petitioner,

v.

MERIT SYSTEMS PROTECTION BOARD,

Respondent.

__________________________

2011-3109

__________________________

Petition for review of the Merit Systems Protection

Board in case no. SF0752090881-I-1.

__________________________

Decided: December 13, 2011

__________________________

JOHNNIE L. BROWN, of Oakland, California, pro se.

DAVID S. BROOKS, Attorney, Office of the General

Counsel, Merit Systems Protection Board, of Washington,

DC, for respondent. With him on the brief were JAMES M.

EISENMANN, General Counsel and KEISHA DAWN BELL,

Deputy General Counsel.

__________________________

2 BROWN v. MSPB

Before RADER, Chief Judge, LINN and MOORE, Circuit

Judges.

PER CURIAM.

Johnnie L. Brown (“Brown”) appeals from a final

decision of the Merit Systems Protection Board (“Board”)

dismissing her appeal for lack of jurisdiction. Brown v.

U.S. Postal Serv., 2011 M.S.P.B. 23 (Feb. 11, 2011)

(“Board Decision”). Because the Board correctly deter-

mined that Brown failed to make non-frivolous allegations

which, if proven, could establish involuntary retirement,

this court affirms.

I. BACKGROUND

Brown served as an employee of the Oakland, Califor-

nia processing and distribution facility of the United

States Postal Service (“the Agency”) from August 1965

through August 2000. In 1991, Brown was promoted to

the position of supervisor of distributions, where she

served until 1999. Brown alleges that the Agency sub-

jected her to a hostile and discriminatory work environ-

ment during her tenure in this position. Board Decision

at 1-2. Brown alleges that her work situation was so bad

that on August 18, 1999, she lost consciousness at work

after being called into a meeting with her supervisor. Id.

at 2, 9. After this incident, Brown was hospitalized and

did not report back to work. Id. On May 12, 2000,

Brown’s treating psychologist reported that she was

“totally disabled . . . for the near foreseeable future” and

diagnosed her with “acute, chronic, and pervasive stress”

and “depress[ion] because of the stress, . . . lowered con-

centration, cognitive difficulties as well as physical over-

lays.” App. T, Ex. 84 at 29. Brown pursued a traumatic

injury claim with the Office of Workers’ Compensation

Programs (“OWCP”) based on the August 1999 incident,

which the OWCP denied in June 2000, but the OWCP

BROWN v. MSPB 3

advised her to pursue another occupational disease claim

related to other on the job incidents that she had refer-

enced. Board Decision at 9. Effective August 2, 2000,

Brown retired from the Agency. Id. at 2.

While still employed, from 1994 through 1999, Brown

unsuccessfully pursued various claims of age and sex

discrimination, retaliation, and intentional infliction of

emotional distress before the Equal Employment Oppor-

tunity Commission (“EEOC”) and the U.S. District Court

for the Northern District of California. Id. In 2003,

Brown filed another district court action alleging em-

ployment discrimination and constructive termination,

the latter of which the court dismissed for failure to

exhaust administrative remedies. Brown v. Potter, No.

C03-1248 MJJ, slip. op. 17 (N.D. Cal. Sept. 14, 2004),

aff’d, 285 F. App’x 421 (9th Cir. 2008), cert. denied, 129 S.

Ct. 2426 (2009). More than nine years after her retire-

ment, on August 11, 2009, Brown filed an appeal with the

Board alleging involuntary retirement. The administra-

tive judge (“AJ”) dismissed Brown’s claim as untimely,

finding no good cause or excuse for her nine-year delay in

filing. Brown v. U.S. Postal Serv., No. SF0752090881-I-1,

at 10 (M.S.P.B. Dec. 7, 2009) (“Initial Decision”). On

review, the Board held that “[b]ecause the issues of time-

liness and jurisdiction [we]re inextricably intertwined in

this appeal, the [AJ] should not have dismissed the appeal

on timeliness grounds without first addressing jurisdic-

tion.” Board Decision at 5. The Board then dismissed the

appeal for lack of jurisdiction—without a hearing—based

on its conclusion that Brown failed to make a non-

frivolous allegation that her retirement was an involun-

tary action within the Board’s jurisdiction. Id. at 10, 12.

Brown timely appealed, and this court has jurisdiction

under 28 U.S.C. § 1295(a)(9).

4 BROWN v. MSPB

II. DISCUSSION

A. Standard of Review

The Board’s jurisdiction is a question of law, which

this Court reviews de novo. Garcia v. Dep’t of Homeland

Sec., 437 F.3d 1322, 1344 (Fed. Cir. 2006) (en banc). This

court, however, is bound by the AJ’s factual findings on

which the jurisdictional determination is based unless

unsupported by substantial evidence. Bolton v. Merit Sys.

Prot. Bd., 154 F.3d 1313, 1316 (Fed. Cir. 1998).

B. The Board’s Jurisdiction

The Board’s jurisdiction “is not plenary, but is limited

to those areas specifically granted by statute or regula-

tion.” Garcia, 437 F.3d at 1327 (internal citations omit-

ted). The Board generally lacks jurisdiction over an

employee’s voluntary actions, see 5 U.S.C. § 7512, and an

“employee who voluntarily resigns or retires has no right

to appeal to the [Board].” Garcia, 437 F.3d at 1228.

However, the Board does possess jurisdiction over an

employee’s retirement if it “was involuntary and thus

tantamount to forced removal.” Id. (citing Shoaf v. Dep’t

of Agric., 260 F.3d 1336, 1340-41 (Fed. Cir. 2001)). “Res-

ignations are presumed voluntary, and the burden of

showing that the resignation was involuntary is on the

petitioner.” Terban v. Dep’t of Energy, 216 F.3d 1021,

1024 (Fed. Cir. 2000). To establish a right to a hearing on

the issue of involuntary retirement, the petitioner must

make a non-frivolous allegation of fact, i.e., an allegation

that, if proven, could establish the Board’s jurisdiction.

Garcia, 437 F.3d at 1344.

C. Involuntary Retirement

“An employee may demonstrate that his or her resig-

nation was involuntary by demonstrating that the resig-

nation was the product of coercion.” Parrot v. Merit Sys.

Prot. Bd., 519 F.3d 1328, 1332 (Fed. Cir. 2008) (citing

BROWN v. MSPB 5

Garcia, 437 F.3d at 1329). To satisfy the “narrow doc-

trine” of involuntary retirement based on coercion, an

employee must show that “(1) the agency effectively

imposed the terms of the employee’s resignation or re-

tirement; (2) the employee had no realistic alternative but

to resign or retire; and (3) the employee’s resignation or

retirement was the result of improper acts by the agency.”

Garcia, 437 F.3d at 1329 (citing Shoaf, 260 F.3d at 1341).

The reviewing tribunal must consider the totality of the

circumstances “[t]o objectively determine whether a

reasonable person in the employee’s position would have

felt compelled to resign.” Shoaf, 260 F.3d at 1342. The

test is thus one of “external coercion and duress, and [is]

not [based on] internal misconceptions or unsubstantiated

threats.” McGucken v. United States, 407 F.2d 1349, 1351

(Ct. Cl. 1969). Although discrimination claims are gener-

ally made to the EEOC, the Board must consider an

appellant’s allegations of discrimination when those

allegations form the basis of an adverse action claim, such

as a claim for involuntary retirement. 5 U.S.C.

§ 7702(a)(1); Garcia, 437 F.3d at 1328.

Brown argues that the Agency coerced her retirement

because, inter alia, “she was subjected to continuing

harassment, disparate treatment and a hostile work

environment.” Appellant Br. ¶ 12. According to Brown,

the discriminatory work conditions, along with her medi-

cal condition, “had a tremendous impact on her ability to

fulfill her work functions.” Id. Brown contends that the

Agency discriminated against her by (1) denying her light

duty request in March 1997—while granting other em-

ployee’s light duty requests—and, instead, assigning her

to work on large volumes of sack mail with fewer employ-

ees than other supervisors; (2) setting impossible produc-

tivity goals for her unit; and (3) groundlessly criticizing

her. Id. ¶¶ 19-20, 55-56. Further, Brown alleges a pat-

tern of poor treatment, including an incident in Septem-

6 BROWN v. MSPB

ber 1996 where one of her supervisors, in an effort to

prevent her from sitting down during her assignment,

allegedly “thr[ew her desk] out on the platform and de-

stroyed [it] including [Brown’s] personal items and official

records.” Id. ¶ 51. Thus, Brown argues that she “had no

realistic alternative but to retire.” Id. ¶ 15; See Shoaf,

260 F.3d at 1342.

The government argues that none of Brown’s allega-

tions were sufficient to establish that her retirement was

compelled. Because Brown continued to work from 1991

through 1999, and for two and a half years after the

denial of her light duty request, the government argues

that she was not forced to retire based on the Agency’s

actions. See Terban, 216 F.3d at 1024-25. The govern-

ment asserts that the Board properly “weighed Brown’s

allegations against the principle that an employee is not

guaranteed a stress-free working environment.” Appellee

Br. 10; Miller v. Dep’t of Defense, 85 M.S.P.R. 310, ¶ 32

(2000) (“An employee is not guaranteed a working envi-

ronment free of stress. Dissatisfaction with work assign-

ments, a feeling of being unfairly criticized, or difficult or

unpleasant working conditions are generally not so intol-

erable as to compel a reasonable person to resign.”)

Further, the government argues that the fact that Ms.

Brown did not retire shortly after the August 1999 inci-

dent, but first filed for OWCP benefits, indicates that she

did not feel compelled to retire after that incident. [Gov’t

Br. 12-13]

This court agrees with the Board that Brown has

failed to allege any facts which, if proven, could establish

the Board’s jurisdiction, i.e., that her retirement was

involuntary. As to the first two elements of the involun-

tary retirement test, Brown fails to allege that the Agency

“effectively imposed the terms of [her] . . . retirement” or

that she “had no realistic alternative but to . . . retire.”

See Garcia 437 F.3d at 1329. The alleged impossible

BROWN v. MSPB 7

productivity goals, groundless criticism, and desk throw-

ing incident, however unpleasant or hostile they may

have been, did not compel Brown’s retirement on this

record. Indeed, Brown did not retire, but rather contin-

ued to work during the nine-year span of alleged hostility

and discrimination, and the two and a half year period

after the Agency denied her light duty request. See

Terban, 216 F.3d at 1024-25. In her brief to this court,

Brown stated that she “loved her job and she had planned

to work five (5) years longer” but “[she] did not enjoy the

fact that she was forced to help her employees work and

also, perform her supervisory duties.” Appellant Br. ¶ 79.

Although the circumstances of her position may not have

been as enjoyable as she had wished, “it is well-

established that the mere fact that an employee is faced

with an inherently unpleasant situation or that his

choices are limited to unpleasant alternatives does not

make his decision involuntary.” Terban, 216 F.3d at

1023.

As to the third prong of the involuntary retirement

test, Brown fails to allege that her retirement was the

“result of improper acts by the [A]gency” with respect to

the Agency’s denial of her light duty request. See Garcia,

437 F.3d at 1329. Brown fails to allege that she was

actually entitled to a light duty assignment. Brown cites

to a letter from her psychiatrist, addressed to “Whom it

May Concern” dated January 27, 1997, which states that

Brown was being treated “for her emotional problems of

anxiety and stress . . . which were caused by her treat-

ment while working at her job at the [Agency],” App. T,

Ex. 79, but there is no evidence that Brown’s supervisors

saw this letter or, assuming they had, would have been

required to assign Brown to light duty. Brown’s actual

diagnosis of chronic stress causing her to be unable to

perform the functions of her job was not until May 2000,

after she left work, and thus does not support her allega-

8 BROWN v. MSPB

tion that the agency forced her to resign by denying her

light duty. See Hernandez v. U.S. Postal Serv., 74

M.S.P.R. (1997) (“Evidence of the appellant’s medical

conditions after his resignation is irrelevant to the volun-

tariness of his resignation.”)

Similarly, Brown’s May 2000 psychiatric report indi-

cates that her chronic stress condition caused her to lose

consciousness at work, App. T, Ex. 84 at 16-17, but noth-

ing in the record indicates that the agency knew of the

seriousness of her chronic stress disorder until after the

August 1999 incident, or did anything wrongful to make

her working environment intolerable given her condition.

Brown’s subjective feeling that she was being treated

unfairly, and the resulting stress from those feelings,

without more, is not enough to establish involuntary

retirement. Moreover, as the Board noted in its decision,

“[t]here is no indication in the record that [Brown] had

made a new request for accommodation or indicated that

she wished to return to work before she decided to retire

in August 2000.” Board Decision at 12. “In sum, it is not

reasonably possible to characterize [Brown’s] resignation

as the embodiment of h[er] involuntary acceptance of

terms dictated by h[er] employer.” Pitt v. United Staes,

420 F.2d 1028, 1033 (Ct. Cl. 1970).

For the foregoing reasons, this court finds no basis to

overturn the Board’s determination that Brown failed to

make a non-frivolous allegation establishing a claim of

involuntary retirement.

Absent any basis for a claim of involuntary retire-

ment, Brown’s discrimination allegations are not properly

before this court. Garcia, 437 F.3d at 1328 (“Congress has

. . . allowed certain discrimination claims that are not

otherwise within the Board’s jurisdiction to be decided as

part of the appeal” only when those discrimination claims

are “‘a basis for the action [which the employee may

BROWN v. MSPB 9

appeal to the Board].’” (citing 5 U.S.C. § 7702(a)(1) (em-

phasis added)).

III. CONCLUSION

For the foregoing reasons, this court affirms.

AFFIRMED

COSTS

Each party shall bear its own costs.