Opinion

Keith Orr v. Department of Agriculture

Court: Merit Systems Protection Board
Filed: Jan 18, 2023
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 22.6%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

KEITH A. ORR, DOCKET NUMBER

Appellant, SF-0752-16-0273-I-1

DEPARTMENT OF AGRICULTURE, DATE: January 18, 2023

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Lesa L. Donnelly, Anderson, California, for the appellant.

Marcus Mitchell, Albuquerque, New Mexico, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

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,

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

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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 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. Except as expressly MODIFIED by this Final Order to vacate the

administrative judge’s findings concerning the merits of the appellant’s

discrimination and retaliation claims and to address such claims only insofar as

they relate to the issue of voluntariness, we AFFIRM the initial decision.

BACKGROUND

¶2 The appellant was formerly employed by the agency as a Supervisory

Forestry Technician until he resigned, effective May 16, 2015. Initial Appeal File

(IAF), Tab 14 at 8. He filed a Board appeal alleging that his resignation was

involuntary due to intolerable working conditions. IAF, Tab 1 at 4, 6. In

particular, he alleged that beginning in July 2013, management erroneously

believed that he was unfit for duty following his heart attack and temporarily

reassigned him pending an inquiry regarding his fitness for duty. IAF, Tab 17

at 4. Management also required him to take a physical examination and a work

capacity test and issued him a letter of reprimand for failing to timely comply

with these instructions. Id. at 4-5.

¶3 The appellant also alleged that he was subjected to a hostile work

environment when management permanently moved Engine 53’s official duty

station from Big Bend, California to his station (Engine 52) in Redding ,

California. Id. at 5. The appellant alleged that Engine 53 was given assignments

that should have been given to Engine 52 and that Engine 53 personnel caused

problems, engaged in misconduct, and created a hostile work environment for him

and his personnel. Id. at 5-6. Following an investigation into his reports

regarding the working conditions, on May 16, 2015, he received a letter of

instruction. Id. at 6, 8. Finally, he alleged that from February to March 17, 2015,

his access to the Engine 52 fire cache 2 was removed. Id. at 7. He contended that

the agency’s actions were due both to discrimination based on its perception of

him as disabled and retaliation. IAF, Tab 1 at 6, Tab 17 at 5.

¶4 The administrative judge determined that the appellant had made

nonfrivolous allegations of an involuntary resignation sufficient to warrant a

hearing. IAF, Tab 19. After holding a hearing, the administrative judge issued

an initial decision, dismissing the appeal for lack of jurisdiction. IAF, Tab 35,

Initial Decision (ID). She found that the appellant failed to prove by

preponderant evidence that the agency rendered his working conditions so

intolerable that a reasonable person would have felt compelled to resign. ID

at 14. The administrative judge found that the agency’s inquiry into the

appellant’s fitness for duty was motivated by a legitimate concern that a frontline

Engine Captain be suitably fit to perform. ID at 8-10. She also found that the

appellant’s claims that he was marginalized from performing his job duties

because of the presence of Engine 53 at his station, the consolidation of the fire

cache for the entire district, and the March 28, 2015 letter of instruction failed to

render his working conditions so intolerable that a reasonable person would have

felt compelled to resign. ID at 12-14.

The fire cache is a supply of fire tools and equipment. IAF, Tab 1 at 22.

¶5 The appellant has filed a petition for review. Petition for Review (PFR)

File, Tabs 1-2. 3 The agency has opposed the appellant’s petition. PFR File,

Tab 4.

DISCUSSION OF ARGUMENTS ON REVIEW

¶6 An employee-initiated action, such as a resignation or retirement, is

presumed to be voluntary, and thus outside the Board’s jurisdiction, unless the

employee presents sufficient evidence to establish that the action was obtained

through duress or coercion or shows that a reasonable person would have been

misled by the agency. Green v. Department of Veterans Affairs, 112 M.S.P.R. 59,

¶ 8 (2009). In cases such as this one, where the employee alleges that the agency

took actions that made working conditions so intolerable that the employee was

driven to an involuntary resignation, the Board will find an action involuntary

only if the employee demonstrates that the employer engaged in a course of

action that made working conditions so difficult or unpleasant that a rea sonable

person in that employee’s position would have felt compelled to resign. Vitale v.

Department of Veterans Affairs, 107 M.S.P.R. 501, ¶ 20 (2007). The Board

addresses allegations of discrimination and reprisal in connection with an alleged

involuntary resignation only insofar as those allegations relate to the issue of

voluntariness. Id. If an appellant makes nonfrivolous allegations of jurisdiction,

i.e., allegations that, if proven, could establish the Board’s jurisdiction, he is

entitled to a hearing at which he must prove jurisdiction by a preponderance of

the evidence. 5 C.F.R. § 1201.4(s).

¶7 We agree with the administrative judge’s finding that the appellant did not

prove by preponderant evidence that his resignation was involuntary and, thus, an

action within the Board’s jurisdiction. First, we agree with the administrative

judge that the agency’s inquiry into the appellant’s physical fitness would not

On November 11, 2016, the appellant electronically filed two separate pleadings, both

of which are identified as his petition for review. We have considered both pleadings.

have caused a reasonable person to resign on May 15, 2015, over a year after

having been reinstated on April 3, 2014, following the inquiry. ID at 10.

¶8 Second, we also agree with the administrative judge that the appellant’s

claims regarding being subjected to a hostile work environment following

Engine 53’s move into the station fail to establish that his resignation was

involuntary. In a sworn declaration submitted during the agency’s investi gation

of his claims, the appellant indicated that the problems involved, among other

things, conflicting management styles and Engine 53 failing to assist with

cleaning, station maintenance and dealing with equipment, and using their

supplies without returning them. IAF, Tab 20 at 82-86.

¶9 The administrative judge found that the appellant had strong negative

feelings about the decision to have Engine 53 at his station, was concerned with

where the Engine 53 employees parked their fire truck and how they maintained

the station, and accused them of taking Engine 52’s calls and being lazy. ID

at 13. We agree with the administrative judge that such claims fail to amount to a

hostile work environment sufficient to establish that the appellant was compelled

to resign. See, e.g., Miller v. Department of Defense, 85 M.S.P.R. 310, ¶ 32

(2000) (explaining that an employee is not guaranteed a working environment

free of stress and that dissatisfaction with work assignments, a feeling of being

unfairly criticized, or difficult or unpleasant working conditions generally are not

so intolerable as to compel a reasonable person to resign).

¶10 We similarly agree with the administrative judge that the appellant’s receipt

of the letter of instruction would not warrant a reasonable person to conclude that

he had no other choice but to resign. ID at 13. Following an investigation into

the working conditions, the agency issued letters of instruction to the appellant

and several other individuals concerning their behavior. IAF, Tab 11 at 15-17,

Tab 20 at 10-14.. We also find that the appellant has failed to establish that the

agency subjected him to working conditions that would have compelled a

reasonable person to resign even considering the cumulative effect of the

allegedly harassing incidents cited by the appellant. See Coufal v. Department of

Justice, 98 M.S.P.R. 31, ¶ 22 (2004).

¶11 The administrative judge also considered, but rejected, the appellant’s

claims that the agency’s actions were due to discrimination and retaliation. ID

at 10-12. She found that the inquiry into the appellant’s physical fitness was not

motivated by discriminatory animus. ID at 10. She also considered the

appellant’s contention that the agency issued him the letter of instruction and

removed his access to the fire cache in retaliation for his filing an equal

employment opportunity (EEO) complaint in 2013, but found that the appellant

failed to prove such a claim. ID at 10-12. In particular, she found that

management had little contact with EEO personnel during the processing of the

appellant’s informal complaint and the fact that the agency frequently mentioned

the appellant’s EEO complaint in correspondence was not direct evidence of

retaliation and did not comprise a “convincing mosaic” of circumstantial

evidence. ID at 10-11.

¶12 On review, the appellant disputes these findings and contends that he was

entitled to rely on circumstantial evidence to prove his claims. PFR File, Tab 2

at 5-10. In an involuntary resignation appeal, however, the Board considers

allegations of discrimination and reprisal only insofar as they relate to the issue

of voluntariness and not whether they would establish discrimination or reprisal

as an affirmative defense. See, e.g., Pickens v. Social Security Administration,

88 M.S.P.R. 525, ¶ 6 (2001). To the extent the administrative judge found that

the appellant failed to prove that the agency discriminated against him or

retaliated against him for his prior EEO activity, the Board lacks jurisdiction to

consider such claims in the context of this appeal, and we vacate such findings.

Nonetheless, any error does not provide a basis for reversal because, while the

appellant alleged discrimination and reprisal, he failed to establish that the

working conditions preceding his resignation were so difficult or intolerable that

a reasonable person would have felt they had no choice but to retire. See Panter

v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984) (stating that an

adjudicatory error that is not prejudicial to a party’s substantive rights provides

no basis for reversal of an initial decision).

¶13 On review, the appellant reiterates the contentions he raised below. His

mere disagreement with the administrative judge’s findings does establish a basis

for reversal. See, e.g., Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 105-06

(1997) (finding no reason to disturb the administrative judge’s findings when she

considered the evidence as a whole, drew appropriate inferences, and made

reasoned conclusions); Broughton v. Department of Health & Human Services,

33 M.S.P.R. 357, 359 (1987) (same). Further, despite the appellant’s arguments

to the contrary, we find that the administrative judge did not fail to consider

material evidence or ignore the appellant’s allegations in making her decision to

dismiss the appeal for lack of jurisdiction. See Marques v. Department of Health

& Human Services, 22 M.S.P.R. 129, 132 (1984) (stating that the administrative

judge’s failure to mention all of the evidence of record does not mean that he did

not consider it in reaching his decision), aff’d, 776 F.2d 1062 (Fed. Cir. 1985)

(Table).

The appellant’s remaining arguments do not provide a basis for reversal.

¶14 On review, the appellant contends generally that the administrative judge

failed to consider that testimony by agency officials contradicted their prior

sworn testimony. PFR File, Tab 1 at 12. However, he fails to identify the

specific testimony to which he is referring. Thus, the Board will not embark upon

a complete review of the record to try and address this argument. See Baney v.

Department of Justice, 109 M.S.P.R. 242, ¶ 7 (2008); Tines v. Department of the

Air Force, 56 M.S.P.R. 90, 92 (1992); 5 C.F.R. § 1201.115.

¶15 The appellant also argues that the facts of his case are analogous to those in

Middleton v. Department of Defense, 185 F.3d 1374 (Fed. Cir. 1999), in which

the court found that the appellant raised nonfrivolous allegations that his

retirement was involuntary, entitling him to a hearing. PFR File, Tab 1 at 13-14.

Here, however, the administrative judge found that the appellant raised

nonfrivolous allegations and afforded him a hearing, but found he failed to meet

his burden of proving by preponderant evidence that his resignation was

involuntary. Thus, this case is distinguishable from the court’s decision in

Middleton.

¶16 Finally, we find unavailing the appellant’s arguments that the

administrative judge failed to take into account his 28 years of Federal service,

lack of any discipline prior to his heart surgery, and lack of performance issues.

PFR File, Tab 2 at 14. Such arguments are not relevant to the issue of whether

the appellant’s working conditions were so intolerable that a reasonable person

would have felt compelled to resign.

¶17 Based on the foregoing, we affirm, as modified, the initial decision

dismissing the appeal for lack of jurisdiction.

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

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.

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 revie w 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).

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).

The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expired on

December 27, 2017. The All Circuit Review Act, signed into law by the President on

July 7, 2018, permanently allows appellants to file petiti ons for judicial review of

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,

132 Stat. 1510.

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