Opinion

Christopher Barry v. Department of the Interior

Court: Merit Systems Protection Board
Filed: Oct 7, 2022
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 22.6%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

CHRISTOPHER S. BARRY, DOCKET NUMBER

Appellant, DC-0752-14-0040-B-2

DEPARTMENT OF THE INTERIOR, DATE: October 7, 2022

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Glenn H. Stephens, III, Esquire, Falls Church, Virginia, for the appellant.

Daniel T. Raposa, Esquire, Deborah Charette, Esquire, Rachel Wiedhaus,

and Virginia Fritchey, Washington, D.C., 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, wh ich

dismissed his alleged involuntary resignation appeal for lack of jurisdiction.

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

Generally, we grant petitions such as this one only when: 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 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 petiti on for review and

AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.

§ 1201.113(b).

BACKGROUND

¶2 The agency employed the appellant as the Director of its National Offshore

Training and Learning Center (NOTLC) beginning in September 2011.

Barry v. Department of the Interior, MSPB Docket No. DC-0752-14-0040-I-1,

Initial Appeal File (IAF), Tab 1. 2 After receiving the final agency decision

denying his equal employment opportunity (EEO) complaint, he timely filed an

October 18, 2013 appeal in which he contended that the agency constructively

The Board previously remanded this appeal to the regional office for a jurisdictional

hearing because we found that the appellant had made nonfrivolous allegations that, if

proven, could establish jurisdiction over his involuntary resignation appeal. Barry v.

Department of the Interior, MSPB Docket No. DC-0752-14-0040-I-1, Remand Order

(Sept. 5, 2014). The administrative judge dismissed the remanded appeal without

prejudice to allow the agency to reassign the case to another attorney. Barry v.

Department of the Interior, MSPB Docket No. DC-0752-14-0040-B-1, Remand Initial

Decision (Feb. 10, 2015). In accordance with the administrative judge ’s instructions,

the appeal was then automatically refiled. Barry v. Department of the Interior, MSPB

Docket No. DC-0752-14-0040-B-2, Remand File, Tabs 1, 3.

discharged him, effective June 27, 2012, due to a hostile work environment and

discrimination based on sex, sexual orientation, and EEO activity. IAF, Tabs 1,

10. The administrative judge, in an initial decision, dismissed the appeal for lack

of jurisdiction, and we remanded it to the regional office for a jurisdictional

hearing because we found that the appellant had made n onfrivolous allegations

that, if proven, could establish jurisdiction over his involuntary resignation.

Barry v. Department of the Interior, MSPB Docket No. DC-0752-14-0040-I-1,

Remand Order (Sept. 5, 2014).

¶3 On remand, the administrative judge held a hearing and again dismissed the

appeal for lack of jurisdiction, finding that the appellant failed to establish that

the agency coerced his resignation by subjecting him to a hostile work

environment. Barry v. Department of the Interior, MSPB Docket No. DC-0752-

14-0040-B-2, Remand File (B-2 RF), Tab 22, Remand Initial Decision (RID)

at 22. The administrative judge found that the witnesses who testified in support

of the appellant were credible but that the appellant, despite his “clear, direct, and

straightforward manner,” was not credible because “key points of his testimony

[were] either inherently improbable or contradicted by other record evidence.”

RID at 20.

¶4 For example, the administrative judge found that the coworkers who the

appellant identified as using slurs involving his sexual orientation in

December 2011 provided credible and unrebutted testimony that they did not

make the alleged slurs and that they were unaware of his sexual orientation until

after he filed his June 2012 EEO complaint. RID at 7, 20. In finding that the

appellant’s allegations in this regard were inherently improbable, t he

administrative judge also cited the appellant’s consistent unwillingness to identify

to his supervisors the coworkers whom he claimed he overheard making the slurs,

as well as the credible testimony of several employees that they never heard

anyone do so in their presence. RID at 7, 9-10, 12, 15, 18-20. Similarly, the

administrative judge found the appellant’s contention that employees had

maligned the NOTLC and were boycotting its programs was without support in

the record and, in any event, did not constitute working conditions so intolerable

that a reasonable person in the appellant’s situation would have felt compelled to

resign. RID at 7, 9-10, 12, 15, 19-20, 23.

¶5 In his petition for review, the appellant contends that the agency’s

representative intimidated his witnesses and that agency witnesses lied

concerning whether the agency would either drop its investigation or pursue

criminal charges against him if he resigned or stepped down. Remand Petition for

Review (RPFR) File, Tab 1 at 4, Tab 2. He challenges the agency’s investigation

into his alleged misconduct and claims that the agency detailed him to work for

the supervisor about whom he had complained. RPFR File, Tab 1 at 4-5. He

argues that the administrative judge erroneously bifurcated the hearing and also

improperly limited it to 1 day, preventing him from introducing testimony

regarding his medical condition. Id. at 5. He further claims that the

administrative judge improperly denied some of his witnesses and erroneously

assessed the credibility of the testimony and the weight of the evidence before

him. Id. at 5-6. The agency submits a detailed opposition to the appellant’s

petition for review, including excerpts from the hearing transcript , and the

appellant replies in opposition to the agency’s response. RPFR File, Tabs 8-10. 3

After the record on review closed, the appellant filed five motions for leave to file an

additional pleading. RPFR File, Tabs 14, 17, 20, 27, 30. The Board’s regulations do

not provide for pleadings other than a petition for review, a cross petition for review, a

response to the petition for review or cross petition for review, and a reply to a resp onse

to a petition for review. 5 C.F.R. § 1201.114(a). For the Board to consider a party’s

pleading, other than one of those set forth above, the party must describe the nature and

need for the pleading. 5 C.F.R. § 1201.114(a)(5). If a party wishes to submit a

pleading after the record is closed, the party must show that the evidence is new, i.e.,

that it was not readily available before the record closed, and material. 5 C.F.R.

§ 1201.114(a)(5), (k). To the extent that the appellant’s motions request to file

supplemental pleadings to challenge the veracity of testimony in this appeal, RPFR File,

Tab 14 at 1-2, Tab 20 at 4-5, Tab 30 at 4, we observe that evidence offered merely to

impeach a witness’s credibility, even if new, is not generally considered material

evidence. Setevage v. Department of Defense, 77 M.S.P.R. 120, 124 (1997). To the

extent that the appellant’s motions request to file supplemental arguments concerning

DISCUSSION OF ARGUMENTS ON REVIEW

¶6 Although the Board has jurisdiction to review an employee’s removal under

5 U.S.C. §§ 7701 and 7512, its jurisdiction does not extend to an employee’s

resignation, which is presumed to be voluntary unless he establishes that the

resignation was involuntary and, therefore, tantamount to a constructive removal.

See Garcia v. Department of Homeland Security, 437 F.3d 1322, 1324 (Fed. Cir.

2006) (en banc); see, e.g., Freeborn v. Department of Justice, 119 M.S.P.R. 290,

¶ 9 (2013). The employee bears the burden of proving involuntariness by a

preponderance of the evidence and must, as a threshold matter, assert

nonfrivolous allegations that, if proven, would establish the Board ’s jurisdiction.

See Garcia, 437 F.3d at 1344; see also 5 C.F.R. § 1201.56(b)(2)(i)(A).

¶7 One means by which an appellant may overcome the presumption of

voluntariness is by showing that the resignation was obtained by agency

misinformation or deception. See, e.g., Freeborn, 119 M.S.P.R. 290, ¶ 9. When

the employee alleges, as here, 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 reason able person in that employee’s

the Board’s interpretation of a case decided before the close of the record below, RPFR

File, Tab 17, such arguments are not new. Cf. Clay v. Department of the Army, 123

M.S.P.R. 245, ¶ 6 (2016) (stating that the Board generally 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). Concerning the appellant’s motion to supplement his petition with

allegations of a hostile work environment, although the appellant’s motion to

supplement his petition for review describes “continued harassment” by the responsible

agency official and “continued bullying and threatening activity” by the agency’s

Office of the Solicitor, because this is an involuntary resignation appeal, to be relevant

any such activity must have occurred before the resignation that is the subject of the

appeal, which occurred not only before the close of the record but before the filing of

the appeal. RPFR File, Tab 27 at 4-5. We accordingly DENY the appellant’s motions

for failure to satisfy the criteria for additional filings on review beyond those provided

for in the Board’s regulations. 5 C.F.R. § 1201.114(a)(5), (k).

position would have felt compelled to resign. See, e.g., Vitale v. Department of

Veterans Affairs, 107 M.S.P.R. 501, ¶ 20 (2007). To rebut the presumption of

voluntariness, an employee must show that: (1) the agency effectively imposed

the terms of his resignation; (2) the employee had no realistic alternative but to

resign; and (3) the employee’s resignation was the result of improper acts by the

agency. See, e.g., Shoaf v. Department of Agriculture, 260 F.3d 1336, 1341 (Fed.

Cir. 2001) (citing Fruhauf Southwest Garment Co. v. United States, 111 F. Supp.

945, 951 (Ct. Cl. 1953)); Staats v. U.S. Postal Service, 99 F.3d 1120, 1124 (Fed.

Cir. 1996). 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. Vitale, 107 M.S.P.R. 501, ¶ 20.

¶8 We agree with the administrative judge that the appellant failed to establish

jurisdiction over his involuntary resignation appeal. RID at 22 -25. Although the

administrative judge wrote that the appellant failed to allege that his resignation

was the product of agency misinformation, RID at 22, the initial decision cites his

testimony that his supervisor told him that if he resigned there would be no

criminal charges filed against him, and the investigation would go away, RID at

8, 14, 21. Nevertheless, we agree with the administrative judge that the appellant

failed to establish that his resignation was procured by agency misinformation or

deception because the record shows that the appellant’s supervisor acted quickly

to disabuse the appellant of his mistaken impression that the agency offered to

drop the allegations against him if he stepped down as Director of the NOTLC.

RID at 21-22; B-1 RF, Tab 18 at 63; see Shoaf, 260 F.3d at 1341. The Board

must defer to an administrative judge’s credibility determinations when they are

based, explicitly or implicitly, on observing the demeanor of witnesses testifying

at a hearing; the Board may overturn such determinations only when it has

“sufficiently sound” reasons for doing so. Haebe v. Department of Justice,

288 F.3d 1288, 1301 (Fed. Cir. 2002) . The administrative judge found that the

appellant’s testimony regarding this episode was not credible, and the appellant

fails to identify sufficient reasons on review for us to revisit the administrative

judge’s well-explained conclusions. RID at 21.

¶9 We also agree with the administrative judge that the appellant failed to

show that the agency imposed the terms of his resignation. RID at 22 -23; see

Shoaf, 260 F.3d at 1341. The administrative judge found that the record instead

reflected that the appellant dictated the terms of his resignation in a series

of email messages in May and June 2012 in which he defended his tenure as

Director of the NOTLC and reiterated his contentions of a hostile work

environment. B-1 RF, Tab 10 at 130-32. Moreover, the administrative judge

correctly notes that the evidence shows that the appellant not only selected the

date of his resignation but that he also subsequently changed it, announcing in his

June 22, 2012 email that he would resign effective immediately rather than wait

until June 30, 2012, as he had notified the agency in May. Id.; RID at 22-23.

¶10 We further agree with the administrative judge that the appellant failed to

show that a reasonable person in his position would have no realistic alternative

but to resign. RID at 23-24. The appellant could have continued to pursue his

EEO matter or waited for the outcome of the agency’s investigation into whether

he had created a hostile working environment for some of his subordinates at the

NOTLC, but he decided to resign instead. To be sure, the appellant does not

describe circumstances that are easy to abide, and, although the agency had not

proposed an adverse action, one certainly could have resulted from the

circumstances presented. Nevertheless, the fact that an employee is faced with

the unpleasant choice of either resigning or opposing a potential removal action

does not rebut the presumed voluntariness of his ultimate choice of resignation .

Schultz v. United States Navy, 810 F.2d 1133, 1136-37 (Fed. Cir. 1987).

Moreover, the administrative judge specifically based his determination on the

testimony before him, and the appellant identifies no sufficiently sound reason in

his petition for review to discount the administrative judge’s well-explained,

demeanor-based credibility determinations. RID at 23-24; Haebe, 288 F.3d

at 1301.

¶11 We also agree with the administrative judge that the appellant failed to

show that his resignation was the result of improper acts by the agency. RID

at 24-25. Although the appellant complains on review about the agency’s

investigation into a subordinate’s claim that he fostered a hostile work

environment, RPFR File, Tab 1 at 4-6, the administrative judge considered the

agency’s reasons for conducting the investigation and did not find it was

improper or unjustified, RID at 13, 16-18. The appellant also failed to show that

the agency promised him that it would drop the investigation if he stepped down ,

and as the administrative judge observed, the f irst instance of any discussion of

resignation came from the appellant himself, not the agency. RID at 24; B-1 RF,

Tab 10 at 130-32. Further, regarding this claim, the record reflects that the

administrative judge considered the evidence as a whole, drew appropriate

inferences, and made reasoned conclusions on the issue of credibility. ID at 3-5;

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).

¶12 As for the appellant’s contention on review that the agency’s representative

intimidated his witnesses, the appellant fails to identify any evidence in support

of his assertion. RPFR File, Tab 1 at 4. Moreover, the record does not reflect

that the appellant raised this argument below. The record similarly reflects that

the appellant failed to object below to the administrative judge’s denial of some

of his requested witnesses. See, e.g., Tarpley v. U.S. Postal Service, 37 M.S.P.R.

579, 581 (1988) (finding that the appellant’s failure to timely object to rulings on

witnesses precludes his doing so on petition for review). The appellant also fails

to support his contention that certain witnesses lied under oath and therefore

fails to provide sufficient reason for us to revisit the administrative judge’s

demeanor-based credibility findings concerning those witnesses. RID at 19-21;

see Haebe, 288 F.3d at 1301. Regarding the bifurcation of the hearing and the

administrative judge’s decision to limit the hearing to 1 day, such decisions are

committed to the considerable discretion of the administrative judge , and

bifurcation is an appropriate means of adjudication in cases like this where the

issue of jurisdiction is dispositive. See, e.g., Stein-Verbit v. Department of

Commerce, 72 M.S.P.R. 332, 339-40 (1996). The appellant fails to show that the

administrative judge abused his considerable discretion in this regard.

¶13 Accordingly, we affirm the initial decision finding that the appellant failed

to establish jurisdiction over his involuntary resignation appeal.

NOTICE OF APPEAL RIGHTS 4

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 and 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

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.

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).

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 Boar d’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

following address:

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 petitions 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.