The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
REBECCA HUEY, DOCKET NUMBER
Appellant, SF-0752-16-0627-I-1
v.
DEPARTMENT OF LABOR, DATE: February 15, 2023
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Rebecca Huey, Concord, California, pro se.
Amy R. Walker, Esquire, Atlanta, Georgia, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her appeal of her allegedly involuntary reduction in grade for lack of
jurisdiction. For the reasons discussed below, we GRANT the appellant’s
petition for review, VACATE the initial decision, and REMAND the case to the
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
Office of Regional Operations for further adjudication in accordance with this
Remand Order.
BACKGROUND
¶2 The appellant requested and received a reassignment from her GS-12
position to a GS-7 position in December 2014. Initial Appeal File (IAF), Tab 1
at 3, 5, Tab 5 at 2. She later filed a Board appeal alleging that her reduction in
grade was involuntary and was compelled by her managers’ harassing conduct.
IAF, Tab 1 at 3, 5, Tab 5 at 4-5. She requested a hearing. IAF, Tab 1 at 2.
¶3 The administrative judge issued an order instructing the appellant how to
establish jurisdiction over her constructive adverse action appeal. IAF, Tab 11.
The appellant submitted a response alleging that, between fiscal years 2011 and
2013, her overall performance rating was lowered from Exemplary to Highly
Effective to Effective, in retaliation for complaints that the appellant either
brought herself or for which she served as a witness. IAF, Tab 12 at 4 -5. She
alleged that her managers ignored her complaints of a hostile work environment,
berated her in front of colleagues, set her up to fail, subjected her to an
inequitable and unrealistic workload that compelled her to work 26 days in a row,
reduced her telework agreement from 2 days to 1 day weekly and later revoked it
entirely, denied her ad hoc telework requests, micromanaged her, made false
accusations against her, and called her parents at their home to ascertain the
appellant’s whereabouts. IAF, Tab 12 at 4-11. The appellant’s therapist
purportedly prescribed her antidepressants and recommended the appellant take
medical leave from October through December 2014 due to workplace stress. Id.
at 10-11. The appellant also filed medical notes that she submitted to the agency
on or around September 2 and October 24, 2014, in which her therapist
recommended that the appellant be granted 2 telework days per week. IAF, Tab 5
at 24-26, 30-31. One week later, on October 31, 2014, the agency suspended the
appellant’s telework eligibility entirely. Id. at 47.
3
¶4 The administrative judge issued an initial decision dismissing the appeal for
lack of jurisdiction without holding a hearing. IAF, Tab 14, Initial Decision (ID).
The appellant has filed a petition for review, and the agency has filed a response.
Petition for Review (PFR) File, Tabs 1, 3.
DISCUSSION OF ARGUMENTS ON REVIEW
¶5 The Board lacks jurisdiction over appeals of employees’ voluntary actions.
O’Clery v. U.S. Postal Service, 67 M.S.P.R. 300, 302 (1995), aff’d, 95 F.3d 1166
(Fed. Cir. 1996) (Table); 5 C.F.R. § 752.401(b)(9). However, the Board has
recognized that employee-initiated actions that appear voluntary on their face are
not always so. Spiegel v. Department of the Army, 2 M.S.P.R. 140, 141 (1980).
The Board may have jurisdiction over such actions under 5 U.S.C. chapter 75 as
“constructive” adverse actions. To establish Board jurisdiction over a
constructive reduction-in-grade claim, the appellant must show (1) that she lacked
a meaningful choice in the matter, and (2) it was the agency’s wrongful actions
that deprived her of that choice. See Bean v. U.S. Postal Service, 120 M.S.P.R.
397, ¶ 8 (2013). When an employee alleges that the intolerable working
conditions effectively deprived her of choice, she may need to show that she
informed the agency of the existence of the objec tionable conditions and
requested assistance or remediation from the agency. See Peoples v. Department
of the Navy, 83 M.S.P.R. 216, ¶ 8 (1999), overruled on other grounds by Abbott v.
U.S. Postal Service, 121 M.S.P.R. 294 (2014). If the appellant makes a
nonfrivolous allegation of fact establishing Board jurisdiction, she is entitled to a
hearing at which she must prove jurisdiction by preponderant evidence. Garcia v.
Department of Homeland Security, 437 F.3d 1322, 1344 (Fed. Cir. 2006) (en
banc); Thomas v. Department of the Navy, 123 M.S.P.R. 628, ¶ 11 (2016).
¶6 In dismissing this appeal for lack of jurisdiction, the administrative judge
found that the appellant failed to make nonfrivolous allegations as to eac h
element noted above. ID at 3-8. For the reasons set forth below, we find the
4
appellant made a nonfrivolous allegation of Board jurisdiction over the appeal ,
and we remand this appeal for further proceedings.
¶7 In finding the appellant failed to nonfrivolously allege that she lacked a
meaningful choice in accepting a reduction in grade and that it was the agency’s
wrongful conduct that deprived her of that choice, the administrative judge cited
Miller v. Department of Defense, 85 M.S.P.R. 310, ¶ 32 (2000), for the
proposition that 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. ID at 7-8. In its response
to the appellant’s petition for review, the agency cites Miller and Brown v. U.S.
Postal Service, 115 M.S.P.R. 609, ¶ 15, aff’d, 469 F. App’x 852 (Fed. Cir. 2011),
and asserts that the appellant alleged little more than a difficult relationship with
her supervisors. PFR File, Tab 3 at 11.
¶8 We disagree. The appellant alleged a continuing and increasing pattern of
hostility by her managers, culminating in her need to take approximately
3 months of medical leave due to workplace stress, which was later diagnosed as
post-traumatic stress disorder. IAF, Tab 5 at 4-9, Tab 12 at 4-11. The appellant
stated that, at the time she requested a reduction in grade, she was “under extreme
emotional stress at the prospect of having to return to [work] after [her] medical
leave was to end on December 31, 2014.” IAF, Tab 5 at 4. Th e appellant also
submitted medical documents to the agency that appear to have requested a
reasonable accommodation of 2 telework days per week; however, the agency
cancelled the appellant’s telework eligibility entirely approximately 1 week after
receiving the letter. 2 IAF, Tab 5 at 24-26, 30-31, 47. The Board has held that
working outside of medical restrictions is not a viable option for Federal
2
The agency asserts that the appellant failed to engage in the interactive process for
requesting reasonable accommodations. PFR File, Tab 3 at 10. The record is not
developed on this issue and, at the jurisdictional stage, the Board will not weigh
evidence to resolve conflicting assertions. See Ferdon v. U.S. Postal Service,
60 M.S.P.R. 325, 329 (1994).
5
employees and may constitute a nonfrivolous allegation that the employee lacked
a choice in the action at issue. Bean, 120 M.S.P.R. 397, ¶¶ 13-15.
¶9 We further find that the appellant’s allegations are distinguishable from the
facts alleged in Miller and Brown. The appellant in Miller did not allege that the
agency violated his medical restrictions. E.g., Miller, 85 M.S.P.R. 310, ¶¶ 12, 14,
16-20, 27. Though the appellant in Brown alleged that the agency denied her
request for an accommodation, the Board noted that she continued working for
almost 2 1/2 years after the agency denied her request. Brown, 115 M.S.P.R. 609,
¶ 17. The appellant here requested a transfer 1 1/2 months after the agency
revoked her telework and before she was to return from medical leave. While we
note that the appellant alleged she had two pending equal employment
opportunity (EEO) complaints at the time she requested a reduction in grade, we
find that she nonetheless nonfrivolously alleged that return to the alleged hostile
work environment pending resolution of her EEO complaints would have been
detrimental to her health. E.g., IAF, Tab 5 at 4; cf. Axsom v. Department of
Veterans Affairs, 110 M.S.P.R. 605, ¶ 17 (2009) (finding the appellant in a
constructive removal appeal failed to nonfrivolously allege a reasonable person in
his position would have resigned while the agency was pr ocessing his EEO
complaints and had granted his accommodation request of additional leave
beyond the requirements of the Family and Medical Leave Act). Accordingly, we
find that the appellant has alleged sufficient facts that, if proven, could establish
that she lacked a choice in accepting a reduction in grade and that it was the
agency’s wrongful conduct that deprived her of that choice.
¶10 We also disagree with the administrative judge’s finding that the appellant
failed to nonfrivolously allege that she notified the agency that she believed her
request for reassignment was compelled by intolerable working condit ions. ID
at 3-7. The administrative judge cited Peoples, 83 M.S.P.R. 216, ¶¶ 8-9, for the
proposition that the appellant must demonstrate the agency’s knowledge of the
intolerable working conditions to establish a culpable connection between the
6
objectionable conditions and the agency’s duty, if any, to alleviate the conditions.
ID at 3. However, Peoples concerned appellants who alleged that they were
forced to absent themselves because a coworker created intolerable working
conditions. Peoples, 83 M.S.P.R. 216, ¶¶ 2, 11. However, in a case such as this,
in which the appellant claims that her supervisors harassed her, we find that she
has sufficiently alleged that the agency was aware of her purported working
conditions. IAF, Tab 12 at 4-11; see O’Brien v. Department of Agriculture,
91 M.S.P.R. 139, ¶¶ 7-9 (2002) (finding that an appellant’s claim of harassment
by a supervisor constituted a nonfrivolous allegation that his re tirement was
involuntary so as to warrant a hearing).
¶11 The agency asserts that the appellant’s medical documentation was
insufficient to put it on notice that the appellant believed her working conditions
were intolerable. PFR File, Tab 3 at 9-10. However, the appellant sent numerous
emails to her supervisors alerting them of a purported hostile work environment
in the months preceding her request for a reduction in grade . E.g., IAF, Tab 5
at 16 (“This false accusation is causing me undue stress a nd creates a hostile
work environment.”), Tab 12 at 31-32 (“I wanted to alert you to this incident
because it was the worst in what I perceive to be a pattern of behavior . . . that is
creating a hostile work environment for me and the rest of the R&P Team .”),
49-50 (“This complete lack of response creates a hostile work environment for me
because my customers become angry with me.”), 52 (“I feel that the emails you
have been sending me regarding the review and this particular inquiry sheet are
hostile in nature.”), 70-71 (“This decision to modify my telework agreement has
caused and is continuing to cause me a great deal of emotional stress .”). The
appellant’s November 2014 application for benefits from the Office of Workers’
Compensation Programs (OWCP), which was provided to her supervisor, stated
that the appellant’s “work-related stress and anxiety disorder are directly
7
attributable to trauma caused by work demands/environment.” IAF, Tab 5 at 42. 3
Accordingly, we find that the appellant nonfrivolously alleged that the agency
was on notice that she believed her working conditions were intolerable.
ORDER
¶12 For the reasons discussed above, we remand this case to the Office of
Regional Operations for further development of the record and a jurisdictional
hearing in accordance with this Remand Order.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.
3
The agency notes that OWCP issued a May 6, 2015 determination finding that the
appellant was not entitled to benefits. PFR File, Tab 3 at 9. However, OWCP’s
May 2015 determination is irrelevant to whether the agency was on notice in December
2014 as to the appellant’s belief that her working conditions were intolerable.