Opinion

Andrea Weisman v. Department of Justice

Court: Merit Systems Protection Board
Filed: Apr 20, 2023
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 23.1%

stating that “unsubstantial speculation in a pleading,” unsupported by affidavits or other evidence, does not constitute a nonfrivolous allegation

How later courts described this case

stating that “unsubstantial speculation in a pleading,” unsupported by affidavits or other evidence, does not constitute a nonfrivolous allegation

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ANDREA R. WEISMAN, DOCKET NUMBER

Appellant, DC-0752-17-0274-I-1

DEPARTMENT OF JUSTICE, DATE: April 20, 2023

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Andrea R. Weisman, North Chesterfield, Virginia, pro se.

Ted Booth, Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which

dismissed her alleged 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 based on an erroneous interpretation of statute or regulation

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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 and AFFIRM the initial decision,

which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).

BACKGROUND

¶2 Effective May 26, 2015, the appellant resigned from her position as a GS -13

Clinical Psychologist at the Bureau of Prisons, Federal Correctional Complex in

Petersburg, Virginia. Initial Appeal File (IAF), Tab 9 at 9. In her resignation

letter, she indicated that she was resigning “as a result of health concerns due to

ongoing harassment, bullying by [her] supervisor, . . . and lack of protection from

anyone in the administration.” IAF, Tab 7 at 50. After receiving a January 3,

2017 final agency decision finding, among other things, that the agency did not

constructively discharge her in retaliation for protected activity, the appellant

timely filed the instant Board appeal and requested a hearing. Id. at 28-41; IAF,

Tab 1.

¶3 The administrative judge issued a jurisdictional order informing the

appellant that the Board lacks jurisdiction over voluntary action s, such as

resignations, and directing her to submit evidence and argument amounting to a

nonfrivolous allegation that her retirement was involuntary because of duress,

coercion, or misrepresentation by the agency. IAF, Tab 3 at 2-3. In response, the

appellant alleged that individuals in her chain of command discriminated and

retaliated against her for prior equal employment opportunity (EEO) activity and

subjected her to intolerable working conditions that forced her to resign. IAF,

Tab 5 at 3, Tab 6 at 3. The agency moved to dismiss the appeal for lack of

jurisdiction. IAF, Tab 8.

¶4 In an initial decision, the administrative judge found that the appellant

failed to nonfrivolously allege that her resignation was involuntary. IAF, Tab 10,

Initial Decision (ID) at 5-10. Therefore, she denied her request for a hearing and

dismissed the appeal for lack of jurisdiction. ID at 10-11. The appellant has filed

a petition for review of the initial decision, and the agency has responded in

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

DISCUSSION OF ARGUMENTS ON REVIEW

¶5 Generally, the Board lacks the authority to review an employee’s decision

to resign, which is presumed to be a voluntary act. Brown v. U.S. Postal Service,

115 M.S.P.R. 609, ¶ 9, aff’d, 469 F. App’x 852 (Fed. Cir. 2011). An involuntary

resignation, however, is tantamount to a removal and is therefore subject to the

Board’s jurisdiction. Vitale v. Department of Veterans Affairs, 107 M.S.P.R. 501,

¶ 17 (2007). An employee may overcome the presumption of voluntariness by

showing that her resignation was the product of misinformation or deception by

the agency, or of coercive acts by the agency, such as intolerable working

conditions or the unjustified threat of an adverse action. SanSoucie v.

Department of Agriculture, 116 M.S.P.R. 149, ¶ 14 (2011). If the employee

makes a nonfrivolous allegation of jurisdiction, i.e., an allegation that, if proven,

could establish the Board’s jurisdiction, she is entitled to a hearing at which she

must prove jurisdiction by a preponderance of the evidence. 2 Vitale,

107 M.S.P.R. 501, ¶ 18.

A preponderance of the evidence is the degree of relevant evidence that a reasonable

person, considering the record as a whole, would accept as sufficient to find that a

contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).

¶6 When, as here, an employee alleges that intolerable working conditions

forced her to resign, the Board will find her resignation involuntary only if she

demonstrates 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 resign. Id., ¶ 20. The doctrine of coerced

involuntariness is “a narrow one” and does not apply if the employee resigns

because she “does not want to accept [measures] that the agency is authorized to

adopt, even if those measures make continuation in the job so unpleasant . . . that

[she] feels that [she] has no realistic option but to leave.” Staats v. U.S. Postal

Service, 99 F.3d 1120, 1124 (Fed. Cir. 1996). 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. Vitale, 107 M.S.P.R. 501, ¶ 19.

¶7 Here, in a formal EEO complaint, the appellant alleged that, from

November 19, 2014, to January 23, 2015, management officials subjected her to

harassment and verbal abuse, denied her request for an EEO representative during

meetings, and issued her a letter of counseling in retaliation for her prior EEO

activity, reporting staff misconduct and violations of law, and “speaking up after

being mistreated.” IAF, Tab 7 at 55-58. The appellant later amended her

complaint to include allegations that, in February 2015, she became aware that

her second-level supervisor would be reviewing all of her work. Id. at 52. She

subsequently submitted another amendment, alleging that, on March 27, 2015, she

was ordered to stay past her duty hours, and her supervisor challenged her

complete work assignments, personally attacked her work integrity, and accused

her of violating boundaries. Id. at 53. After the appellant resigned, she again

amended her EEO complaint, alleging that she felt threatened when alone with

her supervisor and that “ongoing harassment, bullying by [her] supervisor and

lack of protection from the administration” forced her to resign. Id. at 47.

¶8 In addition, in response to the administrative judge’s order on jurisdiction,

the appellant alleged that the following agency actions created intolerable

working conditions: (1) management treated her differently than her coworkers ;

(2) management moved her from the psychology department to an inmate unit;

(3) management did not allow her to supervise an intern; (4) her supervisor and

the chief of her department harassed her; (5) she did not receive an outstanding

rating on her performance evaluation; (6) a coworker harassed and physically

struck her before being escorted out of the building; (7) the Special Investigative

Supervisor and Office of Internal Affairs each filed a “case” against her; (8) her

supervisor sent her harassing emails on a daily basis and entered her office

throughout the day to talk about her performance; (9) she was “blamed for the

suicide of an inmate [she] was helping”; (10) management made “slanderous and

retaliatory” claims about her and questioned her ethics; (11) her “files were

reviewed and not released in a timely manner”; and (12) management denied her

request for representation during meetings. IAF, Tab 5 at 3.

¶9 In the initial decision, the administrative judge found that the appellant’s

stated reasons for resigning—allegations of a stressful work environment,

increased scrutiny, and unfair assignments—were insufficient as a matter of law

to establish involuntariness. ID at 8. She further found that the appellant’s

unsupported allegation that a coworker harassed her and physical ly struck her was

insufficient to establish a nonfrivolous allegation of jurisdiction. ID at 8-9. The

administrative judge also found that the investigation of the appellant in

connection with her former patient’s suicide did not render her resignation

involuntary. ID at 10. Lastly, the administrative judge found that, when the

appellant resigned, she was pursuing her retaliation complaints through the EEO

process and that she had a viable option to remain in her position and fight the

alleged harassment and retaliation through that process rather than resign. Id.

Thus, the administrative judge concluded that the appellant failed to

nonfrivolously allege that her resignation was involuntary. ID at 10 -11.

¶10 On review, the appellant does not identify any particular error in the initial

decision but argues again that the agency subjected her to intolerable working

conditions that forced her to resign and that its coercive actions were retaliatory

and discriminatory. 3 PFR File, Tab 1. The appellant’s mere disagreement with

the administrative judge’s well-reasoned findings provides no basis to disturb the

initial decision. See Davison v. Department of Veterans Affairs, 115 M.S.P.R.

640, ¶ 9 (2011). We agree with the administrative judge’s determination that the

appellant failed to nonfrivolously allege that the agency coerced her resignation

through intolerable working conditions.

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

Although the appellant reiterates many of her allegations from below, she does not

renew her contention that the agency created intolerable working condit ions when a

coworker “harassed and physically struck” her. PFR File, Tab 1. We have reviewed

the record and agree with the administrative judge’s determination that the appellant ’s

unsupported allegation of harassment and physical assault by an unspecified coworker

at an unspecified time is insufficient to constitute a nonfrivolous allegation of

involuntariness. ID at 8-10; see Marcino v. U.S. Postal Service, 344 F.3d 1199, 1204

(Fed. Cir. 2003) (stating that “unsubstantial speculation in a pleading,” unsupported by

affidavits or other evidence, does not constitute a nonfrivolous allegation).

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.

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).

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 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 for

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