Opinion

Christine Anderson v. Department of Defense

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Status: Unpublished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

CHRISTINE ANDERSON, DOCKET NUMBER

Appellant, DC-0752-17-0044-I-1

DEPARTMENT OF DEFENSE, DATE: January 18, 2023

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Bradley R. Marshall, Charleston, South Carolina, for the appellant.

Jason Myers, APO, AE, 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 her alleged involuntary retirement 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;

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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 material

evidence or legal argument is available that, despite the petitio ner’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 clarify that we have considered the appellant’s discrimination

and retaliation claims to the extent they relate to the voluntariness issue , we

AFFIRM the initial decision.

BACKGROUND

¶2 The appellant, who was employed as a Teacher by the Department of

Defense Dependent Schools, filed an appeal on October 11, 2016, in which she

alleged that her August 31, 2016 retirement was involuntary. Initial Appeal File

(IAF), Tab 1 at 4. The appellant alleged that the agency subjected her to

discrimination based on age and sex and that she was subjected to reprisal for

prior protected equal employment opportunity (EEO) activity. Id. She included a

copy of a formal complaint she filed with the Equal Employment Opportunity

Commission (EEOC) on February 10, 2015. Id. at 8-33. Because it appeared that

the Board may not have jurisdiction over her appeal, the administrative judge

ordered the appellant to submit evidence and argument establishing a

nonfrivolous allegation of jurisdiction. IAF, Tab 3. The appellant did not file a

response. The agency subsequently filed a pleading requesting that the appeal be

dismissed for lack of jurisdiction. IAF, Tab 5.

¶3 Thereafter, the administrative judge issued an initial decision, finding that

the appellant failed to make a nonfrivolous allegation of jurisdiction over her

involuntary retirement claim. IAF, Tab 6, Initial Decision (ID) at 3-5. He also

found that the Board lacks jurisdiction over the appellant’s claim that the

agency’s action was the result of discrimination based on age and sex and

retaliation for EEO activity. ID at 6. He therefore dismissed the appeal for lack

of jurisdiction without holding the requested hearing. ID at 1, 6. Because the

administrative judge found that the Board lacks jurisdiction over the appeal, he

did not address the timeliness of the appeal. ID at 1 n.1.

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

File, Tab 3. The agency has filed a response. PFR File, Tab 5.

DISCUSSION OF ARGUMENTS ON REVIEW

The appellant has failed to make a nonfrivolous allegation that her re tirement was

involuntary.

¶5 Retirements are presumed to be voluntary, and the appellant bears the

burden of proving otherwise. Axsom v. Department of Veterans Affairs,

110 M.S.P.R. 605, ¶ 12 (2009). To overcome the presumption that a retirement

was voluntary, the employee must show that the retirement was the result of the

agency’s misinformation or deception, or that the retirement was coerced by the

agency. Id. To establish involuntariness on the basis of coercion, an employee

must show that the agency effectively imposed the terms of the employee’s

retirement, the employee had no realistic alternative but to retire, and the

employee’s retirement was the result of improper acts by the agency. Id. The

touchstone of the “voluntariness” analysis is whether, considering the totality of

the circumstances, factors operated on the employee’s decision-making process

that deprived her of freedom of choice. Id. If an employee claims that her

retirement was coerced by the agency creating intolerable working conditions, the

employee must show a reasonable employee in her position would have found the

working conditions so difficult or unpleasant that they would have felt compelled

to retire. Id. The Board addresses allegations of discrimination and reprisal in

connection with an alleged involuntary retirement only insofar as those

allegations relate to the issue of voluntariness. Id.

¶6 Here, the appellant appears to reassert on review that her retirement was the

result of discrimination and retaliation for her EEO-related activity. PFR File,

Tab 3; IAF, Tab 1 at 8-33. The administrative judge found that the Board lacks

the authority to review these claims absent an otherwise appealable action. ID

at 6. However, we have examined these claims insofar as they relate to the

involuntariness of her decision to retire and conclude that they fail to raise a

nonfrivolous allegation of involuntariness. See Axsom, 110 M.S.P.R. 605, ¶¶ 12,

17. Specifically, while the appellant’s formal EEO complaint describes her

interactions with school administrators, the last interaction described occurred in

November 2014. IAF, Tab 1 at 28-29. However, she did not complete her

retirement application until May 15, 2016, and she specified that her retirement

was to be effective on August 31, 2016. IAF, Tab 5 at 9-11. Because the

appellant made the choice to continue to work for at least a year and a half after

the last described incident, she did not allege facts that could show that the

agency engaged in a course of action that made working conditions so difficult or

unpleasant that a reasonable person in her position would have felt compelled to

retire. See Axsom, 110 M.S.P.R. 605, ¶ 12.

¶7 On review, the appellant has submitted sworn declarations that were

submitted as evidence in her discrimination complaint filed with the EEOC. PFR

File, Tab 3 at 31-82. The declarations, as well as the assertions in her petition for

review, expand on the factual allegations she made below that she was forced to

retire due to intolerable working conditions. Id. Although these declarations may

raise new arguments by describing additional interactions with school

administrators, parents, and students, these allegations are based on facts that

were known to the appellant while her appeal was pending before the

administrative judge. Id. Generally, the Board will not consider an argument

raised for the first time in a petition for review absent a showing that it is based

on new and material evidence not previously available despite the party’s due

diligence. Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271 (1980).

The appellant here has not attempted to make her required showing, and we thus

have not relied on her new arguments on review. Nevertheless, even if we were

to consider them, they do not affect the outcome of the case.

¶8 A nonfrivolous allegation is an allegation of fact that, if proven, could

establish a prima facie case that the Board has jurisdiction over the appeal. See

Axsom, 110 M.S.P.R. 605, ¶ 9. The appellant’s new arguments, even if she were

able to prove them, would not show that her retirement was involuntary. For

example, the newly submitted declarations allege that the appellant had additional

negative or uncomfortable interactions involving school administrators, parents,

and students in 2015 and 2016 prior to her retirement, and she sets forth her

version of these interactions. PFR File, Tab 3 at 31-82. Although the appellant

has alleged unpleasant working conditions, she has not alleged facts to show that

her working conditions were so intolerable such that a reasonable person in her

position would have felt compelled to retire or resign. See Miller v. Department

of Defense, 85 M.S.P.R. 310, ¶ 32 (2000) (explaining 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). We find, therefore, that the administrative judge correctly

dismissed this appeal for lack of jurisdiction. Because the Board does not have

jurisdiction over this appeal, we have not addressed the issue of whether this

appeal was timely filed.

NOTICE OF APPEAL RIGHTS 2

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 decis ion 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 disa bling

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 s ection

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. 3 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