JoMichele Agee-Long v. General Services Administration

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JOMICHELE AGEE-LONG, DOCKET NUMBER

Appellant, SF-0752-17-0518-I-1

v.

GENERAL SERVICES DATE: January 20, 2023

ADMINISTRATION,

Agency.

THIS ORDER IS NONPRECEDENTIAL 1

Andrew Kim, Esquire, Atlanta, Georgia, for the appellant.

Deborah Finch, San Francisco, California, 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 alleged involuntary retirement appeal for lack of jurisdiction . For

the reasons discussed below, we GRANT the appellant’s petition for review ,

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

VACATE the initial decision, and REMAND the case to the regional office for

further adjudication in accordance with this Remand Order.

BACKGROUND

¶2 The appellant was a Contract Specialist for the agency. Initial Appeal File

(IAF), Tab 10 at 46. She alleges that, in early 2015, she reported that her

second-level supervisor was intoxicated on the job and would be absent from

work for “hours at a time” or an entire day. IAF, Tab 1 at 7, Tab 6 at 8. On

November 9, 2015, the appellant’s first-level supervisor issued her a Letter of

Warning for inappropriate behavior during a routine status meeting. IAF, Tab 10

at 44-45. According to the appellant, the same supervisor placed her on a

3-month sick leave abuse plan during this timeframe, requiring that she provide a

doctor’s note for each day that she requested sick leave. IAF, Tab 3 at 6 , 9, Tab 7

at 16. In May 2016, the appellant’s first- and second-level supervisors issued her

an interim performance rating of “unacceptable” and revoked her telework

privileges. IAF, Tab 8 at 50; Tab 10 at 43. The agency also denied her a

within-grade increase (WIGI) at or around the same time. IAF, Tab 8 at 50.

¶3 The appellant also alleges that she made reports to Federal Protective

Services (FPS) in the summer of 2016. IAF, Tab 6 at 8, Tab 7 at 14, 29, Tab 8

at 5. She alleges that she disclosed to FPS that supervisors and managers were

engaging in a “chronic drinking environment . . . during duty hours.” IAF, Tab 8

at 5. She also claims that she disclosed to FPS that her second-level supervisor

had an outburst at work, during which, “[f]or about 5 minutes, over and over

again, he jumped and screamed, ‘I hate this fucking place’” and “‘I hate this

fucking job.’” 2 IAF, Tab 6 at 8.

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The appellant alleges that she spoke with the agency’s Office of Inspector General

regarding her claim that she was subjected to a hostile work environment. IAF, Tab 5

at 10, Tab 8 at 48. However, it is unclear if this conversation took place before or after

her retirement. IAF, Tab 8 at 48. The appellant generally alleges that her second -level

supervisor “yell[ed]” at her, but provides no example of this alleged yelling, other than

the incident discussed above. IAF, Tab 6 at 14.

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¶4 In June 2016, the appellant’s first-level supervisor issued her a written

reprimand for two instances of failure to follow instructions. IAF, Tab 10

at 36-37. A month later, he issued the appellant a Notice of Proposed Suspension

for failure to follow instructions, inappropriate behavior, failure to provide him

with a contract inventory status, failure to send 60-day notices of the

Government’s intent to exercise contract options, and failure to issue contract

modifications. Id. at 29-35. The appellant’s division director, who was the

deciding official, sustained the charges and suspended the appellant from

September 6 to 20, 2016. Id. at 20-28.

¶5 On September 22, 2016, the appellant’s first-level supervisor again issued

the appellant a written reprimand for disruptive behavior. Id. at 14-15. He also

placed her on a 90-day performance improvement plan (PIP). Id. at 4-10. The

appellant alleges that during the PIP the agency added new assignments on top of

her existing assignments and denied her training that she needed to complete her

assignments. IAF, Tab 5 at 19. Six days after the agency placed her on a PIP, the

appellant began seeking retirement counseling from the agency. IAF, Tab 11

at 8-10.

¶6 On October 26, 2016, the appellant requested reasonable accommodations

of a flexible work schedule and a quiet location where she could “focus on [her]

duties.” 3 IAF, Tab 9 at 63-65. On October 31, 2016, an agency reasonable

accommodation coordinator asked the appellant to provide medical

documentation to substantiate her need for a quiet work location. Id. She

observed that the medical documentation the appellant provided did not reflect

“any required changes in [her] workplace.” Id. at 64. She also indicated that a

flexible work schedule would prevent the appellant from performing her essential

job duties. Id. at 65. It appears that the appellant did not provide the requested

3

The appellant alleges that she first requested accommodation while she was serving

her September 2016 suspension and that the agency denied that request due to lack of

medical documentation. IAF, Tab 6 at 13.

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documentation. IAF, Tab 6 at 13. She asserts that she believed documentation

that she previously provided to the agency was sufficient because her disability

was “well-documented and noted as permanent.” Id. According to the appellant,

the agency’s treatment of her caused her medical condition to worsen, and she

began a period of leave on November 3, 2016. Id. at 14. She also alleges that she

learned on November 14, 2016, that her annual performance rating was going to

be unacceptable. Id. at 13. She retired effective November 30, 2016. IAF, Tab 9

at 53-54. Two days before her retirement, she told an agency employee

processing her retirement paperwork that, “I am happy with the decision and very

much looking forward to the next season in my life’s journey.” Id. at 54.

¶7 The appellant filed an equal employment opportunity (EEO) complaint in

which she alleged that she involuntarily retired as a result of agency

discrimination. IAF, Tab 9 at 15. The agency issued a Final Agency Decision

(FAD) denying the appellant’s EEO complaint on May 22, 2017. Id. at 16-39.

Although the appellant also raised a whistleblower reprisal claim in her EEO

complaint, the FAD did not include notice of her right to file a claim with the

Office of Special Counsel (OSC). Id. at 37-38. The appellant filed this

involuntary retirement appeal on June 21, 2017. IAF, Tab 1. She re-raised her

discrimination and whistleblower reprisal claims. Id. at 12. The administrative

judge gave the appellant notice of the elements and burdens of establishing

jurisdiction over her involuntary retirement appeal, but did not address her

potential whistleblower reprisal claim. IAF, Tab 2 at 2-3.

¶8 Both parties responded to the jurisdictional notice. IAF, Tabs 5 -8, 11. The

administrative judge determined that the appellant failed to make a nonfrivolous

allegation that the agency’s actions had affected her decision-making process in a

way that deprived her of freedom of choice and coerced her retire ment. IAF,

Tab 13, Initial Decision (ID) at 3-7. Thus, he dismissed the appeal for lack of

Board jurisdiction without holding the appellant’s requested hearing. ID at 1;

IAF, Tab 1 at 2.

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¶9 On review, the appellant reiterates that her decision to retire was the result

of the intolerable working conditions caused by the agency’s discriminatory and

retaliatory acts. Petition for Review (PFR) File, Tab 1 at 5-6, 19-20. The agency

has filed a response in opposition to the appellant’s petition for review. PFR File,

Tab 3.

DISCUSSION OF ARGUMENTS ON REVIEW

The appeal must be remanded for the appellant to make a knowing and informed

election of remedies.

¶10 Under 5 U.S.C. § 7121(g), an appellant who has been subjected to an action

appealable to the Board, and who alleges that she has been affected by a

prohibited personnel practice other than a claim of discrimination under 5 U.S.C.

§ 2302(b)(1), may elect one, and only one, of the following remedies: (1) an

appeal to the Board under 5 U.S.C. § 7701; (2) a grievance filed under the

provisions of a negotiated grievance procedure; or (3) a n OSC complaint,

potentially followed by an individual right of action (IRA) appeal. Corthell v.

Department of Homeland Security, 123 M.S.P.R. 417, ¶ 15 (2016); Savage v.

Department of the Army, 122 M.S.P.R. 612, ¶ 17 (2015), overruled in part

by Pridgen v. Office of Management & Budget, 2022 MSPB 31, ¶¶ 23-25. An

election under 5 U.S.C. § 7121(g) is binding only if it was knowing and informed.

Corthell, 123 M.S.P.R. 417, ¶ 17. An agency’s failure to inform an employee

fully of her potential appeal rights under 5 U.S.C. § 7121(g) and any limitation on

those rights precludes a finding that the appellant made a knowing and an

informed election of remedies under that provision. Corthell, 123 M.S.P.R. 417,

¶ 17. Here, the agency did not issue a letter of decision regarding the appellant’s

retirement, and its disciplinary actions did not include such notice. IAF, Tab 10

at 15, 28, 37, 45. Further, there is no indication that she was informed through

other means, such as the agency’s FAD on her EEO complaint. IAF, Tab 9 at

37-39. Thus, we must remand the appeal for the appellant to make a knowing and

informed election of remedies. See Corthell, 123 M.S.P.R. 417, ¶¶ 17-18

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(remanding a case for an administrative judge to allow an appellant to make a

knowing and an informed election of his remedy because he had not receive

notice of his option to file an adverse action appeal).

¶11 On remand, if the appellant elects to pursue an IRA appeal, the

administrative judge should provide her with notice of her jurisdictional burden

and an opportunity to establish jurisdiction over such an appeal. Burgess v. Merit

Systems Protection Board, 758 F.2d 641, 643-44 (Fed. Cir. 1985) (explaining that

an appellant must receive explicit information on what is required to establish an

appealable jurisdictional issue). To do so, the appellant must show by

preponderant evidence that she exhausted her remedies before OSC, and make

nonfrivolous allegations that (1) she made a disclosure described under 5 U.S.C.

§ 2302(b)(8) or engaged in a protected activity describe d under 5 U.S.C.

§ 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the disclosure or protected activity

was a contributing factor in the agency’s decision to take or fail to take a

personnel action as defined by 5 U.S.C. § 2302(a). Corthell, 123 M.S.P.R. 417,

¶ 8.

¶12 As to the first element of the jurisdictional burden, the appellant’s report to

the OIG appears to qualify as protected activity under 5 U.S.C. ¶ 2302(b)(9)(C).

Corthell, 123 M.S.P.R. 417, ¶ 9; see also Weed v. Social Security Administration,

113 M.S.P.R. 221, ¶ 12 (2010) (reflecting that a former employee can make

protected disclosures). As to the second element, the Board has found that an

appellant may pursue an involuntary retirement claim as a personnel action in an

IRA appeal. Mastrullo v. Department of Labor, 123 M.S.P.R. 110, ¶ 10 (2015).

In addition, the appellant’s letters of reprimand, suspension, WIGI denial, and

placement on a PIP are personnel actions. 5 U.S.C. § 2302(a)(2)(A)(iii), (ix); see

Horton v. Department of Veterans Affairs, 106 M.S.P.R. 234, ¶ 18 (2007) (stating

that a letter of reprimand is a personnel action); Hudson v. Department of

Veterans Affairs, 104 M.S.P.R. 283, ¶ 15 (2006) (explaining that a PIP is

considered a personnel action for purposes of an IRA appeal). The letter of

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warning also was a personnel action because it cautioned the appellant that

“future misconduct may result in more severe disciplinary action, including

removal.” IAF, Tab 10 at 44; see 5 U.S.C. § 2302(b)(8)-(9) (providing that a

threat to take a personnel action because of a protected activity or disclosure is

prohibited); Campo v. Department of the Army, 93 M.S.P.R. 1, ¶¶ 7-8 (2002)

(finding that a memorandum of warning that included the threat of disciplinary

action for any further misconduct was a personnel action). Depending on the

circumstances, the agency’s denial of the appellant’s request to relocate offices,

processing of the appellant’s leave, and denial of training also may be personnel

actions, either cumulatively or separately. See Skarada v. Department of

Veterans Affairs, 2022 MSPB 17, ¶¶ 15-16 (finding that agency actions that,

individually or collectively, have practical and significant effects on the overall

nature and quality of an employee’s working conditions, duties, or

responsibilities are actionable in an IRA appeal); Hoback v. Department of the

Treasury, 86 M.S.P.R. 425, ¶ 10 (2000) (agreeing with an administrative judge

that denial of training may be a personnel action if the training was reasonably

likely to lead to an appointment, promotion, performance evaluation, or other

action described at 5 U.S.C. § 2302(a)(2)(A)); Easterbrook v. Department of

Justice, 85 M.S.P.R. 60, ¶¶ 5, 10, 21 (2000) (adjudicating an appellant’s

placement on leave without pay following the exhaustion of his an nual and sick

leave as a personnel action).

¶13 We make no finding as to whether the appellant met her jurisdictional

burden to nonfrivolously allege that her disclosures in early 2015 and the summer

of 2016 were protected, or that her alleged protected disclosures or activities were

a contributing factor in any of the alleged agency actions, b ecause the record is

not developed on the jurisdictional issue. If the appellant elects to adjudicate any

or all of the alleged personnel actions as an IRA appeal and meets her burden to

establish Board jurisdiction, the administrative judge will lack jurisdiction over

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her EEO claims in connection with those actions. Corthell, 123 M.S.P.R. 417,

¶ 16.

If the appellant elects to pursue her chapter 75 appeal, the administrative judge

should hold a jurisdictional hearing.

¶14 If the appellant elects to pursue a chapter 75 action as to her alleged

involuntary retirement, the administrative judge should hold the appellant’s

requested hearing on the issue of jurisdiction. IAF, Tab 1 at 2. The

administrative judge found that the Board lacks jurisdiction over the appellant’s

alleged involuntary retirement because her claims that the agency’s actions were

unjustified were not supported by the record. ID at 5-6. Further, he concluded

that the evidence suggested that she was considering reti rement for some time.

ID at 6-7. We find that the administrative judge improperly weighed the evidence

at the jurisdictional stage without a hearing.

¶15 A retirement is presumed to be voluntary and outside of the Board’s

jurisdiction. Putnam v. Department of Homeland Security, 121 M.S.P.R. 532,

¶ 21 (2014). An involuntary retirement, however, is equivalent to a forced

removal within the Board’s jurisdiction under chapter 75. Id. The touchstone of

the voluntariness analysis and the common element in all Board cases involving

alleged involuntary resignations or retirements is that factors have operated on

the employee’s decision-making processes that deprived her of freedom of choice.

Coufal v. Department of Justice, 98 M.S.P.R. 31, ¶ 22 (2004). The totality of the

circumstances is examined under an objective standard to determine

voluntariness. Id. Under that standard, the Board will find a retirement or

resignation involuntary only if the employee demonstrates that under all the

circumstances working conditions were made so difficult by the agency that a

reasonable person would have felt compelled to resign. Id.

¶16 An appellant is entitled to a hearing on the issue of Board jurisdiction over

an appeal of an alleged involuntary retirement if she makes a nonfrivolous

allegation casting doubt on the presumption of voluntariness. Id., ¶ 23. A

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nonfrivolous allegation is an allegation of fact that, if proven, could establish a

prima facie case that the Board has jurisdiction over the appeal. Id. Thus, to

establish entitlement to a jurisdictional hearing, an appellant need not allege facts

that, if proven, definitely would establish that the retirement was involuntary; she

need only allege facts that, if proven, could establish such a claim. Id.

¶17 When, as here, allegations of discrimination and reprisal for whistleblowing

activity are alleged, such evidence may be addressed at the jurisdictional stage

only insofar as it relates to the issue of voluntariness and not whether the

evidence would establish discrimination or reprisal as an affirmative defense. Id.,

¶ 24. Thus, evidence of discrimination and reprisal goes to the ultimate question

of coercion. 4 Id.

¶18 In determining whether the appellant has made a nonfrivolous allegat ion of

jurisdiction entitling her to a hearing, an administrative judge may consider an

agency’s documentary submissions. Ferdon v. U.S. Postal Service, 60 M.S.P.R.

325, 329 (1994). But, to the extent that the agency’s evidence constitutes mere

factual contradiction of the appellant’s otherwise adequate prima facie showing of

jurisdiction, the administrative judge may not weigh evidence and resolve

conflicting assertions of the parties and the agency’s evidence may not be

dispositive. Id. Here, the appellant alleges that she suffered a hostile work

environment beginning in November 2015 and ending with her retirement

4

If the administrative judge determines that the Board has jurisdiction over the

appellant’s adverse action appeal, her appeal will not be subject to the jurisdictional

requirements of an IRA appeal, and the administrative judge should adjudicate the

appellant’s claims of discrimination and reprisal for protected activity and disclosures

as affirmative defenses. PFR File, Tab 1 at 19-26; IAF File, Tab 3 at 13-15; see

Corthell, 123 M.S.P.R. 417, ¶ 17 (providing that if, on remand, an appellant made a

knowing and an informed election of pursuing a chapter 75 alleged involuntary

retirement appeal, the adverse action appeal would not be subject to the jurisdictional

requirements of an IRA appeal or limited to the issues listed at 5 U.S.C. § 1221(a));

Savage, 122 M.S.P.R. 612, ¶ 22 (explaining that if an appellant proved that she suffered

a constructive suspension on remand, the administrative judge should consider whether

the suspension was taken in retaliation for whistleblowing activity).

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approximately 2 years later. IAF, Tab 1 at 7-8, 11-12. She submitted her sworn

EEO investigative affidavit, which attests to the facts underlying her claims.

IAF, Tab 6 at 4-19; see 5 C.F.R. § 1201.4(s) (indicating that an allegation

generally will be considered nonfrivolous when it is made under oath or penalty

of perjury, is more than conclusory, is plausible on its face, and is material to the

legal issues in the appeal).

¶19 This appeal involves a number of actions that the appellant alleg ed created a

hostile work environment and forced her to retire. A combination of workplace

actions, such as a PIP, a diminished performance appraisal, and workplace

isolation, may be sufficient to meet the nonfrivolous pleading standard. Coufal,

98 M.S.P.R. 31, ¶¶ 26-27. Here, the appellant alleged that the agency took a

number of punitive actions for 2 years that culminat ed in her perception that she

had no choice but to retire. In sum, during this period, she alleges that the agency

issued her a letter of warning, two reprimands, and a suspension; placed her on a

sick leave abuse plan; denied her a WIGI, placed her on a PIP with unreasonable

work assignments, and rated her as unacceptable on her mid-year and end-of-year

evaluations; and revoked her telework privileges, denied her training, and

required her to submit medical documentation that it already had to support her

reasonable accommodation request.

¶20 The administrative judge considered and discounted a number of the

appellant’s allegations as not substantiated by the record. ID at 5-6. For

example, he found that the agency’s October 31, 2016 response to the appellan t’s

reasonable accommodation request was “detailed and thoughtful,” and the agency

“reasonably required more medical documentation to address very valid

concerns.” ID at 5. However, in doing so, he did not consider the appellant’s

statement in her affidavit that she had already submitted sufficient medical

information, and that the agency’s mistreatment caused her medical condition to

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worsen such that she could no longer work. 5 IAF, Tab 6 at 13-14; PFR File,

Tab 1 at 18-19; see Rosario-Fabregas v. Department of the Army, 122 M.S.P.R.

468, ¶¶ 14-15 (2015) (discussing those circumstance in which an agency may

request medical information under the Americans with Disabilities Act

Amendments Act), aff’d, 833 F.3d 1342 (Fed. Cir. 2016); O’Brien v. Department

of Agriculture, 91 M.S.P.R. 139, ¶¶ 8-9 (2002) (finding that the appellant

nonfrivolously alleged that the agency’s actions caused his m edical condition to

worsen, resulting in his retirement).

¶21 In making his jurisdictional finding, the administrative judge considered

evidence submitted by the agency that the appellant began inquiring about her

retirement options as early as the end of September 2016, and expressed her

satisfaction with her retirement decision a couple months later. ID at 6-7; IAF,

Tab 9 at 54, Tab 11 at 8-10. We agree that the timing of the appellant’s

retirement and her statements concerning that retirement are relevant

considerations in the voluntariness determination. E.g., Terban v. Department of

Energy, 216 F.3d 1021, 1024 (Fed. Cir. 2000) (agreeing with the Board’s decision

to give greater weight to events that occurred closer to an employee’s alleged

involuntary retirement). Nonetheless, in finding this evidence more persuasive

than the appellant’s affidavit attesting to her alleged coerced retirement, the

administrative judge impermissibly weighed the evidence without holding a

jurisdictional hearing to resolve the parties’ conflicting assertions regarding the

Board’s jurisdiction over the appeal. Walker v. Department of the Army,

119 M.S.P.R. 391, ¶ 9 (2013).

¶22 We find that, as alleged, a reasonable person in the appellant’s position

could have felt that the agency’s actions left her no choice but to retire. Because

5

On review, the appellant disputes many of the administrative judge ’s factual findings.

PFR File, Tab 1 at 16-19. She also argues that he failed to address all of the agency’s

alleged coercive acts. Id. at 15-16. In light of our remand for a hearing on the

jurisdictional issue, we do not reach these arguments.

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the appellant disputes the agency’s evidence, resolution of this issue requires that

the administrative judge hold a hearing to weigh the evidence and resolve the

conflicting factual assertions. Ferdon, 60 M.S.P.R. at 330 (remanding for a

hearing because the appellant disputed the agency’s evidence and his allegations,

if proven, could establish a prima facie case of Board jurisdiction). Thus, the

administrative judge should hold a jurisdictional hearing if the appellant chooses

to elect her chapter 75 remedy.

¶23 Further, on remand, the administrative judge should rule on the appellant’s

request to extend the period to initiate discovery. The appellant filed a timely

request to extend this deadline. IAF, Tab 2 at 4-5, Tab 12. The administrative

judge did not rule on that request below. The appellant is entitled to request

discovery of relevant materials to assist her in meeting her burden of establishing

the Board’s jurisdiction. Russo v. Department of the Navy, 85 M.S.P.R. 12, ¶ 8

(1999). On remand, the administrative judge should determine whether the

appellant still wishes to engage in the discovery process and set appropriate

deadlines.

ORDER

¶24 For the reasons discussed above, we remand this case to the regional office

for further adjudication in accordance with this Remand Order.

FOR THE BOARD: /s/ for

Jennifer Everling

Acting Clerk of the Board

Washington, D.C.