Opinion

Kathy Jones v. Department of the Army

Court: Merit Systems Protection Board
Filed: Jul 8, 2022
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 22.6%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

KATHY ANN JONES, DOCKET NUMBER

Appellant, DC-0351-16-0049-I-1

DEPARTMENT OF THE ARMY, DATE: July 8, 2022

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Kevin Smith, Columbia, Maryland, for the appellant.

Michael A. Egan, Fort McNair, Virginia, for the agency.

Rebecca Bedford, Esquire, Washington, D.C., 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 the appeal of her alleged involuntary resignation for lack of

jurisdiction. Generally, we grant petitions such as this one only when: the initial

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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 peti tion 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 appellant held an Assistant Inspector General position at the agency’s

Office of Inspector General. Initial Appeal File (IAF), Tab 14 at 17. Her

assigned duty station was Fort Meade, Maryland. Id. On July 21, 2015, the

agency identified the position she held for abolishment through a

reduction-in-force (RIF) action. Id. at 28. However, during the RIF proceedings,

the agency deemed the appellant to have a higher standing within her competitive

level than that of an Assistant Inspector General assigned to Fort Belvoir,

Virginia. Id. at 25. As a result, on August 3, 2015, the agency directed the

appellant’s reassignment to the Fort Belvoir position, thereby displacing the

employee who held that position pursuant to RIF procedures. Id. In its letter

informing the appellant of the directed reassignment, the agency advised her that,

if she refused the reassignment, it would separate her from Federal service. Id.

The agency also advised her that refusal to accept the reassignment would make

her ineligible for severance pay and that she would not be permitted to register

for the Priority Placement Program. Id. The appellant declined the directed

reassignment and resigned, effective October 3, 2015. Id. at 22. Consequently,

the agency informed the employee who was holding the Assistant Inspector

General position at Fort Belvoir that she could remain in the position. Id. at 19.

¶3 The appellant appealed her resignation to the Board, primarily arguing that

the agency forced her to resign because the reassigned position at Fort Belvoir

was outside her local commuting area. IAF, Tab 1 at 6. The administrative judge

advised the appellant of her jurisdictional burden, IAF, Tab 12, held a

jurisdictional hearing, IAF, Tab 29, and issued an initial decision dismissing the

appeal for lack of jurisdiction, IAF, Tab 31, Initial Decision (ID). The

administrative judge found that the appellant failed to show that her resignation

was the product of coercion, duress, or misrepresentation on the part of the

agency, or that her working conditions were so intolerable that a reasonable

person in her position would have felt compelled to re sign. ID at 8-11. As to her

argument that Fort Belvoir was outside the local commuting area, the

administrative judge found that, even if correct, this factor alone would not be

enough to show that the appellant had no choice but to resign. ID at 10 -11. He

additionally found that the Board lacked jurisdiction over the appellant’s

independent claims concerning her lateral reassignment, the agency’s decision to

deny her priority placement and severance pay, and disability discrimination.

ID at 8, 11. The appellant has filed a petition for review, and the agency has

replied in opposition. Petition for Review (PFR) File, Tabs 1, 3.

DISCUSSION OF ARGUMENTS ON REVIEW

¶4 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, when 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 reasonable

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.

¶5 In her petition for review, the appellant reasserts her contention that her

resignation was involuntary because the Fort Belvoir position was outside her

local commuting area. 2 PFR File, Tab 1 at 1. First, we agree with the

administrative judge’s explanation that, for purposes of the RIF, the agency did

not attempt to reassign the appellant to a location outside of the local commuting

area. ID at 10. Specifically, the administrative judge found, and we agree, based

on the totality of the evidence presented below, that the distance between Fort

Meade and Fort Belvoir was not so great as to be beyond what employees could

“reasonably be expected to travel back and forth daily to their usual

employment.” Id. (quoting 5 C.F.R. § 351.203). Second, and significantly, we

agree with the administrative judge’s conclusion that, even if the Fort Belvoir

position was outside the local commuting area as the appellant contends, she did

not present evidence to show that she had no choice but to resign rather than

accept the reassignment. ID at 10-11. The record reflects that the administrative

judge considered the appellant’s arguments concerning the extended daily

The appellant has not challenged the administrative judge’s findings that the Board

lacked jurisdiction over her lateral reassignment, priority placement, severance pay, and

disability discrimination claims, ID at 8, 11, and we discern no reason to disturb these

findings on review.

commute, including her alleged nighttime vision problems, and properly

concluded that “the mere fact that the appellant was faced with unpleasant

choices, i.e., that of accepting a position 53 miles away or resigning, does not, by

itself, render her decision to resign involuntary.” ID at 6-11; see, e.g., Christie v.

United States, 518 F.2d 584, 587-88 (Ct. Cl. 1975); Baldwin v. Department of

Veterans Affairs, 109 M.S.P.R. 392, ¶¶ 19-20 (2008) (explaining that allegations

of being assigned to onerous tasks, being unjustifiably threatened wit h discipline,

and being subjected to unnecessary investigations did not suffice to prove an

allegation of involuntary resignation). For example, we note that, instead of

resigning, the appellant could have chosen to refuse to accept the directed

reassignment and challenged any possible disciplinary action the agency may

have taken as a result of that refusal. Accordingly, we affirm the initial decision.

NOTICE OF APPEAL RIGHTS 3

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.

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.

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).

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, th e

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. 4 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 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.

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

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