The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROBERT M. COLPITTS, DOCKET NUMBER
Appellant, PH-0752-17-0398-I-1
v.
DEPARTMENT OF VETERANS DATE: April 27, 2023
AFFAIRS,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Robert M. Colpitts, Peabody, Massachusetts, pro se.
Michael Potter, Providence, Rhode Island, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his constructive removal appeal for lack of jurisdiction . For the
reasons discussed below, we GRANT the appellant’s petition for rev iew,
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
VACATE the initial decision, and REMAND the case to the Northeastern
Regional Office for further adjudication in accordance with this Remand Order.
BACKGROUND
¶2 The appellant was the GS-0201-13/8 Chief of Human Resources for the
agency’s Edith Nourse Rogers Memorial Veterans Hospita l (Bedford VA) in
Bedford, Massachusetts, from September 2010 until May 29, 2016, when he
transferred to the Department of the Air Force as a GS -0301-12/10 Resources
Specialist. Initial Appeal File (IAF), Tab 1 at 1, 7-9, 25-26, Tab 7 at 37. 2 The
appellant alleges that he had a productive working relationship with his
second-line supervisor, the Bedford VA Director, until mid-June 2015, after
which she allegedly created a hostile work environment and intolerable working
conditions for him until his May 2016 transfer. IAF, Tab 1 at 24-26, Tab 6 at 4-6,
25, 27.
¶3 Subsequently, the appellant filed an equal employment opportunity (EEO)
complaint in which he alleged discrimination based on age, race, and sex, and in
which he alleged that his May 29, 2016 transfer to the Air Force constituted a
constructive removal. IAF, Tab 1 at 22-39, Tab 6 at 28-31, Tab 7 at 28-34. The
agency issued a final agency decision on August 8, 2017, in which it found no
discrimination, no hostile work environment, and that no constructive removal
occurred. IAF, Tab 1 at 22-39.
¶4 The appellant timely filed this appeal with the Board challenging his
May 2016 transfer as a constructive removal. Id. at 3. The administrative judge
informed the appellant that the Board lacks jurisdiction over presumed voluntary
actions like resignations or removals unless the action was the result of duress,
coercion, or misrepresentation by the agency. IAF, Tab 2 at 2. The
2
The appellant’s Executive Career Field Performance Appraisal lists his Chief of
Human Resources assignment date as September 27, 2009. IAF, Tab 7 at 37. However,
whether the appellant became Chief of Human Resources in 2009 or 2010 does not
affect our disposition of this petition for review.
3
administrative judge ordered the appellant to file evidence that hi s May 2016
transfer to the Air Force was within the Board’s jurisdiction. Id. at 3; IAF, Tab 4.
After reviewing the appellant’s jurisdictional submission and the agency’s motion
to dismiss, IAF, Tabs 6-8, the administrative judge issued an initial decision that
dismissed the appeal for lack of jurisdiction without holding the requested
hearing, IAF, Tab 11, Initial Decision (ID) at 1, 7. The administrative judge
found that the appellant, despite his allegations suggesting “a very unpleasant
relationship with the Director,” failed to nonfrivolously allege facts that would
establish that his May 29, 2016 transfer resulted from coercion or intolerable
working conditions. ID at 4-6.
¶5 On review, the appellant asserts that the administrative judge should have
held a hearing at which he would have proven his constructive removal claim and
that, considering the totality of the circumstances rather than each instance of
workplace hostility in isolation, intolerable working conditions existed that
required him to transfer in May 2016. Petition for Review (PFR) File, Tab 1
at 4-8. 3 The agency has filed a response and asserts that there is no basis to
disturb the administrative judge’s decision. PFR File, Tab 3 at 4-9.
3
The appellant includes two documents with his petition for review —a screenshot of
his Resources Specialist application package status and a June 2016 email to schedule
his testimony for an Administrative Investigation Board into the Bedford VA Director’s
alleged creation of a hostile work environment. PFR File, Tab 1 at 9-11. Both of these
documents were available to the appellant prior to the close of record before the
administrative judge. Under 5 C.F.R. § 1201.115(d), the Board will not consider
evidence submitted for the first time with the petition for review ab sent a showing that
it was unavailable before the record was closed despite the party’s due diligence.
Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980). Thus, we have not
considered either document as grounds for granting his petition for review. On remand,
however, the appellant may resubmit these documents consistent with the procedures
and time limits established by the administrative judge regarding further development
of the record.
4
DISCUSSION OF ARGUMENTS ON REVIEW
¶6 The appellant has the burden of proving the Board’s jurisdiction by a
preponderance of the evidence. Parrott v. Merit Systems Protection Board,
519 F.3d 1328, 1332 (Fed. Cir. 2008); 5 C.F.R. § 1201.56(b)(2)(i)(A). An
employee-initiated action, such as a retirement or resignation, is presumed to be
voluntary, and thus outside the Board’s jurisdiction. See Vitale v. Department of
Veterans Affairs, 107 M.S.P.R. 501, ¶ 17 (2007). Nevertheless, the Board has
recognized that employee-initiated actions that appear voluntary on their face are
not always so and the Board may have jurisdiction over such actions as
constructive adverse actions. Bean v. U.S. Postal Service, 120 M.S.P.R. 397, ¶ 7
(2013). All constructive adverse actions have two things in common: (1) the
employee lacked a meaningful choice in the matter; and (2) it was the agency’s
wrongful actions that deprived the employee of that choice. Id., ¶ 8. An
involuntary resignation is equivalent to a constructive removal and therefore
within the Board’s jurisdiction. Garcia v. Department of Homeland Security,
437 F.3d 1322, 1328 (Fed. Cir. 2006) (en banc). Similarly, an involuntary
inter-agency transfer, even without loss of grade or pay, 4 is analogous to a
constructive removal. Colburn v. Department of Justice, 80 M.S.P.R. 257, ¶¶ 5-6
(1998); see also Roach v. Department of the Army, 86 M.S.P.R. 4, ¶ 17 (2000).
¶7 In cases such as this one, when the appellant alleges that the agency made
working conditions so intolerable that he was coerced to resign, the Board will
find the resignation involuntary only if the appellant demonstrates that the agency
engaged in a course of action that made working conditions so difficult or
unpleasant that a reasonable person in his position would ha ve felt compelled to
4
Although our involuntary inter-agency transfer precedent does not require the loss of
grade or pay, here the appellant nonfrivolously alleges that his transfer resulted in the
reduction in his grade from GS-13, step 8, to GS-12, step 10, and the reduction in his
pay of approximately $13,000. IAF, Tab 1 at 7-8, 25-26, 35, Tab 6 at 4, 7, 17, 19,
Tab 7 at 35-37. A constructive reduction in grade or pay is an adverse action within the
Board’s jurisdiction. See 5 U.S.C. § 7512(3)-(4); Bean, 120 M.S.P.R. 397, ¶ 8.
5
resign. See Vitale, 107 M.S.P.R. 501, ¶ 20; Colburn, 80 M.S.P.R. 257, ¶ 5. The
doctrine of coerced involuntariness is “a narrow one” and does not apply if the
employee resigns or retires because he “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 he feels that he has no realistic option but to leave.”
Staats v. U.S. Postal Service, 99 F.3d 1120, 1124 (Fed. Cir. 1996). “[T]he fact
that an employee is faced with an unpleasant situation or that his choice is limited
to two unattractive options does not make his decision any less voluntary.” 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 him of his freedom of choice. Vitale, 107 M.S.P.R. 501, ¶ 19; see
also Bean, 120 M.S.P.R. 397, ¶¶ 8, 11 (explaining that the agency’s wrongful
actions must have deprived the employee of a meaningful choice). The Board
must consider all of the surrounding circumstances, including events not
immediately preceding the resignation or transfer, when measuring a resignation’s
voluntariness. Shoaf v. Department of Agriculture, 260 F.3d 1336, 1342 (Fed.
Cir. 2001). When an appellant raises an allegation of discrimination in
connection with a claim of involuntariness, the allegation may be addressed only
insofar as it relates to the issue of voluntariness. Axsom v. Department of
Veterans Affairs, 110 M.S.P.R. 605, ¶ 12 (2009).
¶8 Once an appellant presents nonfrivolous allegations 5 of Board jurisdiction,
he is entitled to a hearing at which he must prove jurisdiction by a preponderance
of the evidence. Parrott, 519 F.3d at 1332. In assessing whether an appellant has
made nonfrivolous allegations that would entitle him to a hearing, the
administrative judge may consider the agency’s documentary submissions;
however, to the extent that the agency’s evidence contradicts the appellant’s
otherwise prima facie showing of jurisdiction, the administrative judge may not
5
A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
issue. 5 C.F.R. § 1201.4(s).
6
weigh evidence and resolve conflicting assertions of the parties and the agency’s
evidence may not be dispositive. Ferdon v. U.S. Postal Service, 60 M.S.P.R. 325,
329 (1994).
¶9 The appellant has asserted that the Bedford VA Director created hostile and
intolerable working conditions from June 2015 until May 2016 by, among other
things, pressuring his first-line supervisor to downgrade his performance
appraisal and take administrative action against him, 6 removing him as the
Bedford VA liaison to the Hanscom Air Force Base Community Partnership
Committee, scheduling numerous meetings with him and abruptly canceling them
at the last minute, attempting to embarrass him in front of the Veterans Integrated
Service Network Director and other senior staff, ordering him to reassign one of
her direct reports rather than hold that employee accountable for his performance
because he would file an EEO complaint against her, and calling him a “moron”
on multiple occasions in front of staff members. IAF, Tab 1 at 24-25, Tab 6
at 4-6, 8-21, 23-31; PFR File, Tab 1 at 5-8.
¶10 Pro se filings are to be construed liberally. Farooq v. Corporation for
National and Community Service, 109 M.S.P.R. 73, ¶ 11 (2008). The
administrative judge correctly noted that an employee is not guaranteed a
stress-free work environment and must act reasonably, not assume the worst, and
not jump to conclusions too quickly. ID at 5-6; see Brown v. U.S. Postal Service,
115 M.S.P.R. 609, ¶ 15, aff’d, 469 F. App’x 852 (Fed. Cir. 2011); Miller v.
Department of Defense, 85 M.S.P.R. 310, ¶ 29 (2000). Yet, rather than consider
the appellant’s claims of intolerable working conditions as a whole, the
administrative judge appears to have evaluated and rejected the appellant’s claims
individually and in isolation when finding that the appellant failed to assert
6
Ultimately, the appellant’s first-line supervisor, the Bedford VA Associate Director,
did not downgrade the appellant’s performance appraisal and rated him overall
Outstanding. IAF, Tab 7 at 37-40. Similarly, the record reflects that the Associate
Director did not propose or effect any disciplinary or adverse action against the
appellant.
7
nonfrivolous allegations that the agency coerced his transfer. ID at 4-6; see
Shoaf, 260 F.3d at 1342; Ferdon, 60 M.S.P.R. at 329.
¶11 We disagree with the administrative judge and find that the totality of the
appellant’s allegations constitutes nonfrivolous allegations of intolerable working
conditions that entitle him to a hearing. Further, the appellant submitted
supporting documents that describe and appear to corroborate how the Director,
who was the highest-ranking official at the Bedford VA, created an allegedly
hostile work environment for the appellant with day-to-day rude and unfavorable
treatment for almost a full year. IAF, Tab 6 at 23-27, 32-35. Moreover, the
appellant encumbered a senior leadership position at the Bedfo rd VA with no
other positions at the facility reasonably available to him for reassignment. See
Markon v. Department of State, 71 M.S.P.R. 574, 581-83 (1996) (remanding the
constructive removal appeal for a hearing after the appellant alleged that she had
no choice but to retire after day-to-day rude treatment for 7 months without any
other jobs available to her).
¶12 The appellant asserts that, although the agency reassigned the Director
shortly after the appellant transferred to the Air Force, at the time he transferred
there was no reasonable basis to conclude that the agency would conduct an y
investigation into the Director’s actions or that the agency would reassign her
pending such investigation. IAF, Tab 6 at 11-12, 17. The appellant also asserts
the futility of filing a formal grievance against the Director, or that any grievance
would prompt meaningful change in his working conditions, especially when he
knew, as Chief of Human Resources, that the agency dismissed other complaints
against the Director, which led to increased harassment. IAF, Tab 6 at 5, 11-12;
PFR File, Tab 1 at 6-7; cf. Axsom, 110 M.S.P.R. 605, ¶ 17 (noting that a
reasonable person would not have felt compelled to resign when he had the option
to stand and fight the alleged discrimination, harassment, and retaliation rather
than resign). We find the appellant’s assertions of the agency’s allegedly
wrongful actions are nonconclusory, plausible, and material to the issues in this
8
appeal. See Bean, 120 M.S.P.R. 397, ¶ 8; 5 C.F.R. § 1201.4(s). To the extent
that the agency’s submissions merely contradicted the appellant’s otherwise
sufficient nonfrivolous allegations of intolerable working conditions, IAF,
Tabs 7-8, the administrative judge should not have dismissed the appeal for lack
of jurisdiction without a hearing, see Garcia, 437 F.3d at 1344; Ferdon,
60 M.S.P.R. at 329.
¶13 Accordingly, we remand this case to the regional office for a hearing on the
issue of whether the appellant’s May 29, 2016 transfer was the result of coercion
based on intolerable working conditions and therefore a constructive removal
within the Board’s jurisdiction. See Bean, 120 M.S.P.R. 397, ¶¶ 8, 11. If, on
remand, the administrative judge determines that the Board has jurisdiction over
this appeal as a constructive removal, then the administrative judge shall
adjudicate the appellant’s affirmative defenses and order appropriate relief. IAF,
Tab 1 at 3, 5; see Baldwin v. Department of Veterans Affairs, 111 M.S.P.R. 586,
¶ 46 (2009) (noting that when the Board finds a resignation or reti rement
involuntary, the Board not only has jurisdiction over the appeal, but the appellant
wins on the merits and is entitled to reinstatement) .
ORDER
¶14 For the reasons discussed above, we remand this case to the Northeastern
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.