Opinion

Toby Burke v. Department of the Interior

Court: Merit Systems Protection Board
Filed: Jan 19, 2023
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 22.6%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

TOBY BURKE, DOCKET NUMBER

Appellant, SF-0752-17-0334-I-1

DEPARTMENT OF THE INTERIOR, DATE: January 19, 2023

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Toby Burke, Kenai, Alaska, pro se.

Rachel Wieghaus, Washington, D.C., for the agency.

Kevin D. Mack, Esquire, Sacramento, California, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

Member Limon recused himself and

did not participate in the adjudication of this appeal.

FINAL ORDER

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

dismissed his involuntary resignation appeal for lack of jurisdiction. Generally,

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

we grant petitions such as this one only in the following circumstances: the

initial decision contains erroneous findings of material fact; the initial decision is

based on an erroneous 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 materi al 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. Except as expressly MODIFIED to VACATE the

administrative judge’s finding regarding the precipitating event of the appellant’s

resignation, we AFFIRM the initial decision.

¶2 On review, the appellant submits his “rebuttal” to the initial decision and

largely repeats his arguments below that he was “over-worked[,]

undercompensated” and subjected to “unequitable and illegal” treatment by his

supervisor. Petition for Review (PFR) File, Tab 2 at 5. 2 The appellant argues

that the initial decision was based on “factual errors and statements taken

completely out of context” in the agency’s submissions below , but he maintains

that these errors are “too numerous to document.” Id. at 9. He argues that the

written format of the Board appeal was prohibitively time consuming , and he

Approximately 11 hours after filing his petition for review, PFR File, Tab 1, the

appellant filed a corrected petition for review “to replace [his] earlier petiti on which

had more than a few spelling and grammatical errors as well as irregular spacing and

unintentional word omissions and additions that interfered with readability and

comprehension,” PFR File, Tab 2 at 4. The appellant maintained that there “were n o

substantive changes only mechanical corrections” in his corrected petition for review.

Id. We have considered both petitions and have determined that neither meet the

standard for granting a petition for review under 5 C.F.R. § 1201.115.

requests that the parties and the administrative judge appear in person so that he

can “dismantle” the agency’s arguments and the administrative judge’s “faulty

analysis and erroneous decision.” Id. The appellant contests the administrative

judge’s finding that a reasonable person would not have felt compelled to resign

under the circumstances he set forth regarding his last 10 years of Federal

employment, particularly concerning the agency’s alleged advancement of

underperforming employees over him and failure to investigate his complaints

against his supervisor’s general mismanagement and failure to pay him overtime.

Id. at 5-6.

¶3 As the administrative judge correctly determined, the appellant’s

contentions that he was overworked, treated less favorably than other employees

regarding advancement opportunities, and given unfair work assignments by his

supervisor do not evince the type of intolerable working conditions that deprive

an individual of a meaningful choice and would compel a reasonable person in the

appellant’s position to resign. See Vitale v. Department of Veterans Affairs,

107 M.S.P.R. 501, ¶ 20 (2007); Miller v. Department of Defense, 85 M.S.P.R.

310, ¶ 32 (2000); Initial Appeal File (IAF), Tab 15, Initial Decision (ID) at 8-10.

The administrative judge erred, however, to the extent that he weighed the

evidence at the jurisdictional stage of the appeal in finding that the “precipitating

event” in the appellant’s decision to resign was the agency’s refusal to grant him

a 5-month leave of absence on short notice. ID at 12; see Ferdon v. U.S. Postal

Service, 60 M.S.P.R. 325, 329 (1994) (finding that, although the Board may

consider the agency’s documentary submissions in determining whether the

appellant has made a nonfrivolous allegation, 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). Therefore, we

vacate that finding. Nevertheless, we have considered the extensive allegations in

the appellant’s jurisdictional response, from alleged problems with the agency

dating back more than 20 years before his resignation to the circumstances

surrounding his requested leave of absence, and we find that he has failed to

make a nonfrivolous allegation 3 that he lacked a meaningful choice in his

resignation and that the agency’s wrongful actions deprived him of that choice.

IAF, Tab 5; see Bean v. U.S. Postal Service, 120 M.S.P.R. 397, ¶ 8 (2013).

Because the appellant has not presented nonfrivolous allegations of Board

jurisdiction, he is not entitled to a jurisdictional hearing. See Ferdon,

60 M.S.P.R. at 329.

¶4 The appellant also asserts on review that he suffered “heart pains from

chronic lack of sleep and the unrelenting stress from work” prior to his alleged

involuntary resignation. PFR File, Tab 2 at 6. He argues that he had to “take a

break” because he feared that he would have a heart attack. Id. In this regard,

the appellant is expanding on his general claims regarding “health concerns” and

“stress” in his jurisdictional response. IAF, Tab 5 at 40. Although a resignation

may be rendered involuntary when an agency improperly denies an employee’s

request for a reasonable accommodation that would have enabled him to continue

in his position, the appellant made no such allegation before the administrative

judge below on or review. See Hosozawa v. Department of Veterans Affairs,

113 M.S.P.R. 110, ¶ 7 (2010). Although the administrative judge did not address

the appellant’s vague assertions about health concerns directly in the initial

decision, we find that these assertions provide no basis for Board jurisdiction

over his appeal. See Panter v. Department of the Air Force, 22 M.S.P.R. 281,

282 (1984) (explaining that an adjudicatory error that is not prejudicial to a

party’s substantive rights provides no basis for reversal of an initial decision).

¶5 Accordingly, we deny the petition for review and affirm as modified the

initial decision.

A nonfrivolous allegation is an assertion that, if proven, could establish the matter at

issue. 5 C.F.R. § 1201.4(s).

NOTICE OF APPEAL RIGHTS 4

The initial decision, as supplemented by this Final Order, constitutes the

Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain

review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of

your claims determines the time limit for seeking such review and the appropriate

forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following

summary of available appeal rights, the Merit Systems Protection Board does not

provide legal advice on which option is most appropriate for your situation an d

the rights described below do not represent a statement of how courts will rule

regarding which cases fall within their jurisdiction. If you wish to seek review of

this final decision, you should immediately review the law applicable to your

claims and carefully follow all filing time limits and requirements. Failure to file

within the applicable time limit may result in the dismissal of your case by your

chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general. As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit 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, 10, 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

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination. This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims—by filing a civil action with an appropriate U.S . district court (not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a

representative in this case, and your representative receives this decision before

you do, then you must file with the district court no later than 30 calendar days

after your representative receives this decision. If the action involves a claim of

discrimination based on race, color, religion, sex, national origin, or a disabling

condition, you may be entitled to representation by a court-appointed lawyer and

to waiver of any requirement of prepayment of fees, costs, or other security. See

42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012. This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in

section 2302(b) other than practices described in section 2302(b)(8), or

2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial

review either with the U.S. Court of Appeals for the Federal Circuit or any court

of appeals of competent jurisdiction. 5 The court of appeals must receive your

petition for review within 60 days of the date of issuance of this decision.

5 U.S.C. § 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the