Chase Lentz v. Department of the Interior

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

CHASE M. LENTZ, DOCKET NUMBERS

Appellant, SF-0752-15-0363-R-1

SF-4324-15-0364-M-1

v. SF-4324-16-0198-I-1

SF-4324-17-0229-I-1

DEPARTMENT OF THE INTERIOR,

Agency.

DATE: June 30, 2022

THIS ORDER IS NONPRECEDENTIAL 1

Chase M. Lentz, Fresno, California, pro se.

Christine Foley and 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 these appeals.

1

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

2

REMAND ORDER

¶1 The appellant has petitioned for review of the initial decisions in Lentz v.

Department of the Interior, MSPB Docket Nos. SF-4324-16-0198-I-1 (0198

Appeal) and SF-4324-17-0229-I-1 (0229 Appeal), which denied corrective action

in his Uniformed Services Employment and Reemployment Rights Act of 1994

(USERRA) appeals. In addition, the appellant has pending before the Board his

USERRA appeal in Lentz v. Department of the Interior, MSPB Docket

No. SF-4324-15-0364-M-1 (0364 Appeal), in which the U.S. Court of Appeals for

the Federal Circuit vacated the Board’s holding that his resignation was voluntary

and remanded for a redetermination on that issue. See Lentz v. Merit Systems

Protection Board, 876 F.3d 1380, 1381 (Fed. Cir. 2017). The court found that the

Board erred when it bifurcated a single appeal filed by the appellant into a

separate appeal filed under 5 U.S.C. chapter 75, Lentz v. Department of the

Interior, MSPB Docket No. SF-0752-15-0363-I-1, Final Order (Jan. 11, 2016)

(0363 Appeal), and the 0364 USERRA appeal, and thereby failed to consider the

totality of the evidence in determining the voluntariness question. Id. at 1386.

The court has asked the Board to address whether the totality of events, on all of

the evidence, produced a working environment sufficiently hostile as to lead to an

involuntary resignation. Id.

¶2 For the following reasons, we VACATE the initial decisions in the 0198

and 0229 Appeals, REOPEN and VACATE the initial decision in the

0363 Appeal, and JOIN all of these cases with the vacated and remanded

0364 Appeal. We further FIND that the appellant has made nonfrivolous

allegations that entitle him to a hearing, and REMAND these cases for further

adjudication. We also order the Board’s Western Regional Office to JOIN these

cases with the appellant’s separate IRA appeal that is before that office, MSPB

3

Docket No. SF-1221-21-0497-W-3, 2 because doing so would expedite their

processing and not adversely affect the interests of the parties . See 5 U.S.C.

§ 7701(f)(2); 5 C.F.R. § 1201.36(b).

BACKGROUND

¶3 The appellant, a Botanist with the agency’s Bureau of Land Management,

filed separate USERRA appeals on December 29, 2014, alleging that his military

service and protected activity were substantial or motivating factors in the

issuance of a fully successful performance appraisal for fiscal year 2014 and the

denial of a reasonable accommodation request. Lentz v. Department of the

Interior, MSPB Docket No. SF-4324-15-0215-I-1, Initial Decision at 1-2

(Apr. 27, 2015) (0215 ID); MSPB Docket No. SF-4324-15-0225-I-1, Final Order,

¶ 2 (Sept. 21, 2015) (0225 Final Order). The administrative judge and the Board

denied corrective action in those cases upon finding that the appellant did not

prove that his military service or his filing of a prior USERRA complaint was a

substantial or motivating factor in those actions, and that the agency proved that

it would have taken the same actions for a valid reason and in the absence of the

2

This separate IRA appeal before the Board’s Western Regional Office was originally

docketed as MSPB Docket No. SF-1221-16-0681-W-1. The appeal was refiled and

dismissed without prejudice multiple times. See MSPB Docket Nos. SF-1221-16-0681-

W-1 through SF-1221-16-0681-W-9. When the appeal was refiled a ninth time, due to

technical limitations of the Board’s software, it was assigned a new docket number,

MSPB Docket No. SF-1221-21-0497-W-1, and was again dismissed without prejudice

and then refiled. On March 8, 2022, the Board’s Western Regional Office issued an

initial decision in MSPB Docket No. SF-1221-21-0497-W-2, dismissing the appeal

without prejudice to be automatically refiled within 15 calendar days of the first of the

following to occur: (1) the date of issuance of a Board opinion in SF -1221-15-0688-

W-1; or (2) September 5, 2022. See MSPB Docket No. SF-1221-21-0497-W-2, Initial

Decision (Mar. 8, 2022). As set forth in the Board’s separately issued decisi on in

MSPB Docket No. SF-1221-15-0688-W-1, the Board’s Western Regional Office shall

refile the appeal as MSPB Docket No. SF-1221-21-0497-W-3. Further, in accordance

with this Remand Order, the Western Regional Office shall join MSPB Docket

No. SF-1221-21-0497-W-3 with these cases.

4

protected activity. 0215 ID at 5-10; 0225 Final Order, ¶¶ 3-4, 6. Those appeals

became final on June 1, 2015, and September 21, 2015, respectively.

¶4 On February 25, 2015, the appellant filed an appeal alleging that his

February 13, 2015 resignation was involuntary, and that the agency therefore

constructively discharged him based on continual harassment, discrimination, and

reprisal. 0363 Appeal, Initial Appeal File (0363 IAF), Tabs 1, 11, Initial

Decision (0363 ID) at 4-5. The administrative judge dismissed the appeal for

lack of jurisdiction in a July 10, 2015 initial decision, finding that the appellant

did not make a nonfrivolous allegation that the agency coerced his resignation by

reprimanding him, sustaining a proposed 14-day suspension, and failing to select

him for various positions; an employee is not guaranteed a stress-free

environment; many months had elapsed between the reprimand and the

resignation; the appellant did not explain why he could not have continued his

employment while he pursued relief from those actions; a list of expectations did

not constitute an improper act or create intolerable working conditions ; and his

claims of a failure to reasonably accommodate him were conclusory and vague .

0363 ID at 1, 7-15, 18-19. The Board denied the appellant’s petition for review.

Lentz v. Department of the Interior, MSPB Docket No. SF-0752-15-0363-I-1,

Final Order (Jan. 11, 2016).

¶5 Based on the same appeal form filed in the 0363 Appeal, the administrative

judge docketed a separate USERRA appeal based on the appellant’s allegation

that the agency violated USERRA when it constructively discharged him by

means of his February 13, 2015 involuntary resignation. 0364 Appeal, Initial

Appeal File, Tabs 1, 12, Initial Decision (0364 ID) at 1, 4. The administrative

judge dismissed that appeal for lack of jurisdiction in a January 19, 2016 initial

decision, finding that the appellant was collaterally estopped from relitigating the

issue of whether his resignation was involuntary given the Final Order in the

0363 Appeal. 0364 ID at 2, 6. The administrative judge further found that the

appellant failed to make nonfrivolous allegations that a reasonable person in his

5

position would have felt compelled to resign due to USERRA -based

discrimination or reprisal. 0364 ID at 7-8. On petition for review of that initial

decision, the Board noted that, for reasons that were unclear, the regional office

docketed the appellant’s February 25, 2015 pleading as two separate appeals of

the involuntary resignation: one under 5 U.S.C. chapter 75, and one under

USERRA. Lentz v. Department of the Interior, MSPB Docket No. SF-0752-15-

0364-I-1, Final Order, ¶¶ 1, 5 (Oct. 14, 2016). Nevertheless, the Board agreed

with the administrative judge’s application of collateral estoppel and dismissal of

the appeal of the alleged involuntary resignation, but forwarded the appellant’s

USERRA claims concerning his letter of reprimand (LOR), 14-day suspension,

and alleged constructive suspension to the regional office for docketing as a new

appeal. Id., ¶¶ 1, 13-15. As set forth above, the court vacated that decision on

December 12, 2017, finding that the Board erred in separating the chapter 75 and

USERRA appeals, and remanded for a redetermination regarding whether the

totality of the events produced a working environment sufficiently hostile as to

lead to an involuntary resignation. See Lentz, 876 F.3d at 1381.

¶6 While the above appeals were pending, the appellant filed additional

appeals on July 12, 2015, January 4, 2016, and August 7, 2016, (1) challenging in

an IRA appeal the LOR, decision to suspend for 14 days, and harassment leading

to his alleged involuntary resignation, Lentz v. Department of the Interior, MSPB

Docket No. SF-1221-15-0688-W-1 (0688 Appeal); (2) alleging that the agency

violated USERRA when it failed to select him for several vacancies and a detail

(0198 Appeal); and (3) alleging that the agency violated USERRA when his prior

managers provided him with negative employment references to prospective

employers after he resigned, see Lentz v. Department of the Interior, MSPB

Docket No. SF-4324-16-0680-I-1 (0680 Appeal). 3 The administrative judge

3

We have not joined the 0688 Appeal and the 0680 Appeal with these appeals, but

instead adjudicate those cases separately. As discussed in the separately issued Board

decision in the 0688 Appeal, the resolution of that case, an IRA appeal, turns on

6

either applied the doctrine of collateral estoppel, dismissed the appeals for lack of

jurisdiction, and/or denied corrective action in the appeals. The appellant has

filed petitions for review of those initial decisions.

¶7 On August 7, 2016, the appellant filed a second IRA appeal in Lentz v.

Department of the Interior, MSPB Docket No. SF-1221-16-0681-W-1. The

administrative judge dismissed that appeal without prejudice to refiling multiple

times, finding that the disclosures and personnel actions largely overlapped with

those raised in the 0688 Appeal, which was then pending before the full Board.

Lentz v. Department of the Interior, MSPB Docket No. SF-1221-21-0497-W-2

(0497 Appeal), Initial Decision at 1-3 (Mar. 8, 2022). Finally, on February 3,

2017, the administrative judge docketed the 0229 Appeal, encompassing the

USERRA claims forwarded by the Board in the 0364 Appeal, namely, the LOR,

14-day suspension, and alleged constructive suspension . The administrative

judge dismissed for lack of jurisdiction the constructive suspension claim and

denied corrective action regarding the remaining actions. 0229 Appeal, Initial

Appeal File, Tab 17, Initial Decision (0229 ID) at 2, 9-37. The appellant has

petitioned for review of that decision.

ANALYSIS

¶8 As set forth above, the court in Lentz held that the proper question in this

case is whether the totality of the evidence, including both the evidence of alleged

USERRA violations and the evidence of other coercive agency actions, rendered

whether the appellant made protected disclosures , and not on whether his resignation

was involuntary and thus a personnel action. The actions at issue in the 0680 Appeal

postdate the appellant’s resignation, and thus could not have contributed to any hostile

work environment that led to a constructive discharge. 0680 Appeal, Initial Appeal

File, Tab 14 at 2 (defining the issue as whether the appellant was discriminated against

based on his prior protected USERRA activity in job references issued by the agency on

March 2, 2015, March 18, 2015, April 21-22, 2015, June 2, 2015, July 14, 2015, and

September 30, 2015); see Terban v. Department of Energy, 216 F.3d 1021, 1024 (Fed.

Cir. 2000) (finding that the period of time between the allegedly coercive act and the

retirement is usually the most probative evidence of involuntariness).

7

the appellant’s resignation involuntary. Lentz, 876 F.3d at 1386. The court held

that the cause of action in the 0364 Appeal was the alleged constructive

discharge, not the USERRA violation alone, and that “[a]ll of the evidence

relevant to constructive discharge must be considered . . . .” Id. Thus, the

appropriate standard in this case is whether the totality of events, on all of the

evidence, produced a working environment sufficiently hostile as to lead to an

involuntary resignation. Id. In remanding the case to the Board, however, the

court stated that it had not decided whether the appellant’s allegations were

nonfrivolous based on the totality of the evidence. Id.

¶9 The court addressed much of the evidence it considered relevant for the

Board to address in determining whether the appellant’s working environment

was sufficiently hostile to lead him to resign involuntarily. For example, the

court noted that the agency had issued a LOR, as well as a proposed and sustained

14-day suspension, and that the appellant had been on medical leave between his

receipt of the proposal letter and his resignation and had alleged a denial of

reasonable accommodation. Id. at 1382-83. The court further noted that the

appellant’s resignation letter cited harassment and a hostile work environment

that aggravated an illness and his veterans disability and made his work

circumstances intolerable. Id. at 1382. It further observed the appellant’s

contentions that his performance had been rated “superior” until the most recent

2 years of employment, he had filed complaints alleging discrimination and

harassment by his supervisors, including USERRA complaints, and he had alleged

that the LOR and 14-day suspension were retaliatory and discriminatory, leading

to his coerced resignation. Id. The court mentioned that the appellant had

alleged before the Board that the agency discriminated against him based on his

status as a disabled veteran and retaliated against him for filing USERRA

complaints, and had alleged retaliation for whistleblowing activity in separate

appeals. Id.

8

¶10 To be entitled to an evidentiary hearing on jurisdiction, an employee

seeking to show that his resignation was involuntary must make nonfrivolous

allegations that could establish jurisdiction. Middleton v. Department of Defense,

185 F.3d 1374, 1379-80 (Fed. Cir. 1999). A nonfrivolous allegation is an

assertion that, if proven, could establish the matter at issue. 5 C.F.R. § 1201.4(s).

Based on the above events described by the court, we find that the appellant has

nonfrivolously alleged that the agency issued a LOR, proposed and sustained a

14-day suspension, denied him a reasonable accommodation, reduced his

performance ratings, and otherwise created a hostile work environment based on

his status as a disabled veteran, his filing of USERRA complaints, and his

whistleblowing disclosures, thereby making his working environment sufficiently

hostile so as to lead to his involuntary resignation. 4 He has further nonfrivolously

alleged that these allegedly improper actions by the agency created depression,

stress, and anxiety that further led to his involuntary resignation. See 0363 IAF,

Tab 3 at 11-12, 15, Tab 4 at 4 (resignation letter asserting that “[t]he many acts of

harassment that I have been subjected to have created a hostile work environment

that has severely aggravated an illness and disabilities which have caused me to

be placed on sick leave for an indefinite period of time,” “several times during

2014, I have been pushed to the limits of what I could endure and had to take

significant amounts of sick leave as a result,” “[t]his continued harassment is

making it nearly impossible for me to recover from the aggravated illness and

disabilities,” and he had no choice but to resign because “I can no longer endure

the physical and mental pain caused by my aggravated illness and disabilities”).

The Board has held that such allegations entitle the appellant to a jurisdictional

4

Although the court explained that the appellant had filed separate appeals that were

“not here at issue” alleging that the agency’s “actions” were in reprisal for protected

whistleblowing activity, Lentz, 876 F.3d at 1382, the appellant’s resignation letter

reflects that his hostile work environment claim in connection with his alleged

involuntary resignation included his belief that the agency had punished him for his

whistleblower disclosures, 0363 IAF, Tab 4 at 4.

9

hearing on the issue of whether a retirement or resignation is involuntary. See

O’Brien v. Department of Agriculture, 91 M.S.P.R. 139, ¶¶ 5-9 (2002) (finding a

nonfrivolous allegation of an involuntary retirement based on assertions of

harassment and retaliation that led to, among other things, depression); Koury v.

Department of Defense, 84 M.S.P.R. 219, ¶¶ 13-14, 17 (1999) (remanding for a

jurisdictional hearing upon finding that the appellant made a nonfrivolous

allegation that he had been subjected to an ongoing pattern of reprisal and

harassment that led to his resignation when he was unable to return to work due

to anxiety); Jones v. Department of the Navy, 66 M.S.P.R. 421, 423-25 (1995)

(remanding for a jurisdictional hearing because the appellant made a nonfrivolous

allegation that his resignation was involuntary due to health concerns caused by

agency harassment); Swift v. U.S. Postal Service, 61 M.S.P.R. 29, 32-33 (1994)

(remanding for a jurisdictional hearing based on nonfrivolous allegation s that the

appellant suffered from depression with anxiety as a result of specified acts of

harassment). Under these circumstances, we find that the appellant has made

nonfrivolous allegations of fact that entitle him to a jurisdictional hearing. 5

¶11 We further find that, because the 0198, 0229, and 0497 Appeals that have

been, or will be, joined to the 0363 and 0364 Appeals involve the underlying

allegations identified by the court that are relevant to the issue of the

voluntariness of the appellant’s resignation, the initial decisions in the 0198 and

0229 Appeals are vacated and the appellant is entitled to a combined hearing in

all of the joined cases if he requests one, and the opportunity to submit additional

5

The court noted that the administrative judge had reported that the appellant did not

request a hearing below, but instead requested the opportunity to develop the written

record. Lentz, 876 F.3d at 1384 n.3. Nevertheless, in light of our determination that

the appellant has raised a nonfrivolous allegation that his resignation was involuntary,

he is entitled to a hearing if he requests one on remand. If he does not request a hearing

on remand, he is entitled to present written evidence and argument so as to fully

develop the record on the question of the voluntariness of his resignation. See Lentz,

876 F.3d at 1384 (noting that the appellant “states that he provided thirty -six pieces of

evidence, none of which was directly addressed,” and that the adm inistrative judge

declined to consider information that had been segregated in the 0363 Appeal).

10

evidence and argument in those cases if he does not request a hearing . In this

regard, we note that the 0198 Appeal involves an alleged violation of USERRA in

the agency’s failure to select him for vacancies and a detail, 6 and the 0229 Appeal

involves the LOR, 14-day suspension, and alleged constructive suspension in the

context of a USERRA appeal. 7 To establish Board jurisdiction over a USERRA

discrimination appeal, the appellant must allege the following: (1) he performed

duty or has an obligation to perform duty in a uniformed service of the United

States; (2) the agency denied him initial employment, reemployment, retention,

promotion, or any benefit of employment; and (3) the denial was due to the

performance of duty or obligation to perform duty in the uniformed service.

Gossage v. Department of Labor, 118 M.S.P.R. 455, ¶ 10 (2012). A claim of

discrimination under USERRA should be broadly and liberally construed in

determining whether it is nonfrivolous. Id. Once an appellant has established

jurisdiction over a USERRA appeal, he has an unconditional ri ght to a hearing.

Palumbo v. Department of the Interior, 112 M.S.P.R. 206, ¶ 7 (2009). Here, we

6

Although the court does not appear to have specifically mentioned the appellant’s

allegations that the agency failed to select him for vacancies and a detail in violation of

USERRA, the record in the 0363 Appeal indicates that he raised these claims in

connection with his assertion that the agency created a hostile work environment that

led to his involuntary resignation. 0363 IAF, Tab 3 at 6-7, 9, 26-27, 30, 34.

7

The appellant alleges on review in the 0229 Appeal that the administrative judge

improperly failed to docket his constructive suspension claim as a separate chapter 75

appeal. 0229 Appeal, Petition for Review File, Tab 1 at 5. We agree. Given the

court’s reasoning in Lentz, 876 F.3d at 1386, that the proper question in that case was

whether the totality of the evidence, including both the evidence of alleged USERRA

violations and the evidence of other coercive agency actions, rendered the appellant’s

resignation involuntary, we similarly find that, in determining whether the agency

constructively suspended the appellant, the totality of the evidence, including evidence

of alleged USERRA violations and evidence of other alleged coercive acti ons, must be

considered. See Thomas v. Department of the Navy, 123 M.S.P.R. 628, ¶ 9 (2016)

(although various fact patterns may give rise to an appealable constructive suspension,

all such claims are premised on the proposition that an absence that appears to be

voluntary actually is not because the employee lacked a meaningful choice in the matter

and it was the agency’s wrongful actions that deprived her of that choice). Thus, the

administrative judge shall docket, join with these appeals, and adjudicate on remand an

appeal under 5 U.S.C. chapter 75 of the appellant’s constructive suspension claim.

11

agree with the administrative judge that the appellant made nonfrivolous

allegations in the 0198 and 0229 Appeals entitling him to a hearing, should he

request one on remand. 0198 Appeal, Initial Appeal File, Tab 28, Initial Decision

at 5; 0229 ID at 2, 6-9. Although the administrative judge must adjudicate on

remand the merits of the 0198 and 0229 Appeals, we also note that, when

allegations of discrimination or reprisal are alleged in connection with a

determination of voluntariness, such as the issue of the voluntariness of the

appellant’s resignation in these cases, such evidence of discrimination or reprisal

may be addressed insofar as it relates to the issue of voluntariness and not

whether the evidence would establish discrimination or reprisal as an affirmative

defense. O’Brien, 91 M.S.P.R. 139, ¶ 6.

¶12 The administrative judge shall adjudicate all of these joined cases after a

single hearing, if requested by the appellant, and in a single initial decision.

Although the 0215 and 0225 Appeals involved the appellant’s performance

appraisal and claim that the agency denied him a reasonable accommodation, and

although these actions were mentioned by the court in Lentz, 876 F.3d at 1382-83,

and could have been a factor in the hostile working conditions that led to his

alleged involuntary resignation, the Board’s decisions in those cases became final

and were not appealed to the court. Therefore, the administrative judge on

remand need not readjudicate the merits of those cases, but must consider the

underlying allegations in those cases in addressing the totality of the evidence as

it relates to the appellant’s alleged involuntary resignation. Similarly, the

administrative judge on remand need not readjudicate the merits of the

0688 Appeal, which is an IRA appeal, because that appeal has become final in a

separately issued Board decision. Nevertheless, he must consider the underlying

allegations of reprisal for whistleblowing in addressing the totality of the

evidence as it relates to the appellant’s alleged involuntary resignation. See

Neice v. Department of Homeland Security, 105 M.S.P.R. 211, ¶ 8 (2007).

12

ORDER

¶13 Accordingly, for the reasons discussed above, we remand these cases to the

regional office for further adjudication in accordance with this Remand Order.

FOR THE BOARD: /s/ for

Jennifer Everling

Acting Clerk of the Board

Washington, D.C.