The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KIM S. MCCLAIN-LEAZURE, DOCKET NUMBER
Petitioner, CB-7521-17-0007-T-1
v.
SOCIAL SECURITY DATE: August 14, 2023
ADMINISTRATION,
Respondent.
THIS ORDER IS NONPRECEDENTIAL 1
Kim S. McClain-Leazure, Calera, Alabama, pro se.
Marcus Johns, Esquire, and Natalie Liem, Esquire, Atlanta, Georgia, for
the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
REMAND ORDER
¶1 The appellant 2 has filed a petition for review of the initial decision , which
found she was not constructively removed from her administrative law judge
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 ad ministrative 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
Although proceedings under 5 C.F.R. § 1201.142 do not lie within our appellate
jurisdiction, for the sake of clarity we follow our usual practice of referring to the
2
(ALJ) position. For the reasons discussed below, we GRANT the appellant’s
petition for review, VACATE the initial decision, and REMAND the case to an
ALJ for further adjudication in accordance with this Remand Order.
BACKGROUND
¶2 Prior to her resignation, the appellant was an ALJ with the agency’s Office
of Disability Adjudication and Review in Mobile, Alabama. Initial Appeal File
(IAF), Tab 1 at 7. In October 2015, the parties entered into a settlement
agreement that resolved a pending complaint before the Equal Employment
Opportunity Commission (EEOC). IAF, Tab 53 at 3-9. In exchange for
consideration including a lump sum payment and leave adjustments, the appellant
agreed to the withdrawal and dismissal of the EEOC complaint as well as all
pending equal employment opportunity (EEO) complaints and pending complaints
with the Office of Special Counsel. Id. at 3-5. The agreement also contained a
waiver of appeal rights concerning the events underlying the EEOC complaint
and any employment-related actions that occurred before the agreement’s
effective date:
Complainant represents that she will file or submit no other
complaints, grievances, or administrative or judicial a ctions with
respect to the events underlying this complaint with any
administrative agency, arbitrator, Court, or legislative body.
Additionally, Complainant represents that she will not file a
complaint, grievance, or administrative or judicial action ag ainst the
agency, or any officer or employee thereof, with respect to any
action that relates to or arises out of her employment with the agency
and that occurred prior to the effective date of this Settlement
Agreement.
Id. at 5.
¶3 The appellant remained in her position, but on or about October 4, 2016,
she submitted a letter of resignation, citing her medical condition and the
complainant as the “appellant.” See, e.g., McDougall v. Social Security Administration,
114 M.S.P.R. 534, ¶ 1 (2010).
3
agency’s alleged failure to provide reasonable accommodation. IAF, Tab 55 at 7.
On October 24, 2016, the agency issued a Standard Form 50-B recording her
resignation effective that same day. IAF, Tab 1 at 7. The appellant subsequently
filed an appeal form with the Board. Id. at 1-5. On the form, she indicated that
she had involuntarily resigned and raised claims of whistleblower retaliation and
denial of reasonable accommodation. Id. at 3.
¶4 The case was assigned to an ALJ. IAF, Tab 2. At the outset of the hearing,
the agency moved to exclude any testimony concerning events that occurred
before October 10, 2015, the effective date of the settlement agreement. Hearing
Transcript (HT) (May 10, 2017) at 15-16, 22. The presiding ALJ granted the
motion over the appellant’s objections. Id. at 26. Following the hearing, the
presiding official issued an initial decision finding that the appellant failed to
show that her resignation was involuntary and that she therefore had no right to
appeal to the Board. IAF, Tab 56, Initial Decision (ID) at 2, 28-29. The
presiding ALJ further found that, in the absence of an appealable action , the
Board also lacked jurisdiction over the appellant’s claims of whistleblowing
reprisal and failure to accommodate. ID at 22-25, 26-27.
¶5 In her petition for review, the appellant argues that the presiding ALJ erred
in his ruling excluding testimony concerning events before October 10, 2015.
Petition for Review (PFR) File, Tab 1 at 5-16. She contends that the waiver
provision extends no further than the specific claims at issue in the formal EEOC
complaint and that the agency voided the agreement by breaching it. Id. She
further asserts that the agency made misrepresentations before the Board and that
the presiding ALJ made inappropriate comments and interrupt ions that took a toll
on her health and deprived her of a full and fair hearing. Id. at 16-18. She
contests various findings of fact in the initial decision and submits additional
evidence, including medical documentation concerning her disability. Id.
at 18-30, 32-91. The agency has filed a response. PFR File, Tab 3.
4
ANALYSIS
¶6 Section 7521 of Title 5 of the U.S. Code provides that an ALJ may be
removed only for good cause determined by the Board after opportunity for a
hearing. While proceedings under 5 U.S.C. § 7521 are typically initiated by the
employing agency, the Board’s regulation at 5 C.F.R. § 1201.142 provides that an
ALJ who alleges a constructive removal or other action in violation of 5 U.S.C.
§ 7521 may file a complaint with the Board, to be processed and adjudicated in
the same manner as an agency complaint seeking disciplinary action. In such a
case, the only issue before the Board is whether the alleged action falls under
5 U.S.C. § 7521 3 and was taken prior to the hearing and Board decision required
under that section. Matter of Doyle, 29 M.S.P.R. 170, 174 (1985), superseded by
regulation on other grounds as stated in Mahoney v. Donovan, 721 F.3d 633, 637
(D.C. Cir. 2013). A showing to that effect is sufficient to establish that the
agency acted unlawfully and that the ALJ is entitled to relief. Id. Like all cases
involving actions against ALJs under 5 U.S.C. § 7521, complaints filed under
5 C.F.R. § 1210.142 lie within the Board’s original jurisdiction. McDougall v.
Social Security Administration, 114 M.S.P.R. 534, ¶ 6 (2010); 5 C.F.R.
§ 1201.2(c).
¶7 To establish a constructive removal claim under 5 C.F.R. § 1201.142, the
appellant must establish that her decision to leave the position of ALJ was
involuntary under the same standard used in appeals implicating 5 U.S.C. § 7512.
Tunik v. Social Security Administration, 93 M.S.P.R. 482, 493 (2003), vacated on
other grounds, 407 F.3d 1326 (Fed. Cir. 2005); see 70 Fed. Reg. 48081, 48081
(Aug. 16, 2005) (revising section 1201.142 to comport with the Tunik standard),
adopted as final, 71 Fed. Reg. 34231 (June 14, 2006); see also Mahoney,
3
Section 7521 covers the following actions: a removal, a suspension, a reduction in
grade, a reduction in pay, and a furlough of 30 days or less. 5 U.S.C. § 7521(b).
5
721 F.3d at 637 (acknowledging the 2005 revision). 4 Under that standard, a
decision to resign is presumed to be a voluntary act outside the Board’s
jurisdiction, and the appellant bears the burden of establishing by preponderant
evidence that her resignation was involuntary and therefore tantamount to a
forced removal. Hosozawa v. Department of Veterans Affairs, 113 M.S.P.R. 110,
¶ 5 (2010). To overcome the presumption that resignation is voluntary, the
employee must show that it was the result of the agency’s misinformation or
deception or that she was coerced by the agency. Id. When, as in this case, the
appellant alleges that her resignation was coerced by the agency’s creating
intolerable working conditions, she must show that a reasonable person in her
position would have found the working conditions so oppressive that she would
have felt compelled to resign. Id.; Heining v. General Services Administration,
68 M.S.P.R. 513, 520 (1995). As is the case with all alleged constructive actions,
the appellant must demonstrate that (1) she lacked a meaningful choice i n the
matter, and (2) it was the agency’s wrongful actions that deprived her of that
choice. See Bean v. U.S. Postal Service, 120 M.S.P.R. 397, ¶ 8 (2013).
¶8 In determining whether a resignation is voluntary, the Board considers
allegations of discrimination and retaliation insofar as they relate to the issue of
voluntariness and does not address whether the evidence is sufficient to prove
unlawful discrimination or retaliation. 5 Neice v. Department of Homeland
Security, 105 M.S.P.R. 211, ¶ 8 (2007); Markon v. Department of State,
71 M.S.P.R. 574, 578 (1996); Burke v. Department of the Treasury, 53 M.S.P.R.
434, 439 (1992). Hence, for purposes of determining our jurisdiction, we do not
reach the question of whether the appellant was subjected to a hostile work
4
The regulation was again revised in 2012 to correct a typographical error. See
77 Fed. Reg. 62350, 62359 (Oct. 12, 2012).
5
Conversely, if an agency’s actions do constitute unlawful discrimination or retaliation,
the appellant still must show how those actions coerced her resignation. Tripp v.
Department of the Air Force, 59 M.S.P.R. 458, 461 (1993).
6
environment in violation of the Whistleblower Protection Act or the
antidiscrimination statutes. 6 For the same reason, we need not decide to what
extent the appellant may have waived her right to assert such claims when she
entered into the settlement agreement. 7 In any event, the settlement agreement’s
waiver provision covers the filing or submission of complaints, grievances, or
administrative or judicial actions “with respect to the events underlying” the
complaint of discrimination. IAF, Tab 53 at 3-4. It does not prohibit the
appellant from filing an administrative action concerning events occurring after
the effective date of the settlement agreement, like this appeal, and submitting
relevant evidence during the course of that permissible action that predates the
settlement agreement. Therefore, the question before us is whether, for whatever
reasons, a reasonable person in the appellant’s position would have found her
working conditions so oppressive that she would have felt compelled to resign.
See Heining, 68 M.S.P.R. at 520.
¶9 The U.S. Court of Appeals for the Federal Circuit has held that in
determining whether a reasonable person in the appellant’s position would have
felt compelled to resign, the Board “need not limit itself to any particular
timeframe.” Terban v. Department of Energy, 216 F.3d 1021, 1024 (Fed. Cir.
2000). The most probative evidence of involuntariness will usually be events
occurring a relatively short period of time between the alleged coercive act a nd
the employee’s resignation. Id. In contrast, a long period of time between the
6
Similarly, the agency’s alleged failure to provide the appellant reasonable
accommodation is simply a factor to be considered in assessing whether her resignation
was involuntary. Brown v. U.S. Postal Service, 115 M.S.P.R. 609, ¶ 16, aff’d,
469 F. App’x 852 (Fed. Cir. 2011).
7
To the extent the appellant contends the agency breached the agreement, PFR File,
Tab 1 at 9, we are unable to address that allegation. The Board does not have authority
to enforce or invalidate a settlement agreement reached in another forum. See Lee v.
U.S. Postal Service, 111 M.S.P.R. 551, ¶ 4 n.2 (2009), aff’d, 367 F. App’x 137 (Fed.
Cir. 2010). The appellant’s request for the Board to find the agency has breached the
terms of the agreement is tantamount to a request for enforcement of the agreement.
See Lopez v. U.S. Postal Service, 71 M.S.P.R. 461, 463 (1996).
7
alleged coercive act and the employee’s resignation diminishes the causal link
between the two events and, thus, attenuates the employee’s claim of
involuntariness. Id. Thus, in Terban, the Federal Circuit found that the Board
acted within its discretion in giving relatively little weight to events that oc curred
more than 14 days prior to the appellant’s retirement in determining whether h e
was coerced into retirement. Id. Rather, the court found the appellant’s own
actions in tolerating a long period of what he considered to be harassment
indicate that he had an alternative to retirement. Id. at 1024-25. Similarly, in
Searcy v. Department of Commerce, 114 M.S.P.R. 281 (2010), a case involving
an alleged involuntary resignation, the Board found that when the allegedly
coercive acts by the agency were raised in an EEO complaint filed 5 months
before the appellant’s resignation, the lapse in time undercut the appellant’s claim
of involuntary resignation. Id., ¶ 13. Thus, events occurring prior to the
settlement agreement, which became effective approximately 1 year before the
appellant’s resignation, are entitled to relatively little weight.
¶10 Nonetheless, in determining whether a reasonable person in the appellant’s
position would have felt compelled to resign, the Board is required to consider
the totality of the circumstances, including events not immediately preceding the
resignation. Shoaf v. Department of Agriculture, 260 F.3d 1336, 1342 (Fed. Cir.
2001). As the Federal Circuit has explained, “such events must, at a minimum, be
considered to place events occurring more immediately preceding the appellant’s
resignation into the proper context.” Id. at 1343. In granting the agency’s motion
to exclude testimony concerning events that occurred before October 10, 2015,
the presiding ALJ found Shoaf was distinguishable because it did not involve a
waiver provision such as the one at issue here. HT (May 10, 2017) at 24-25; ID
at 6 n.4. We find, however, that the waiver provision does not preclude us from
considering prior events for the limited purpose described in Shoaf, i.e., to
develop the “contextual landscape” for better understanding the allegedly
coercive acts that followed. See 260 F.3d at 1343 n.3.
8
¶11 Accordingly, we remand this case for further development of the record, to
include any relevant testimony concerning events preceding the settlement
agreement. 8 The ALJ retains broad discretion to exclude or limit testimony when
it has not been shown that the testimony would be relevant, material, and
nonrepetitious. See, e.g., Box v. U.S. Postal Service, 51 M.S.P.R. 401, 405 n.2
(1991) (finding that the administrative judge properly limited the appellant’s
cross-examination of a witness by excluding questions that the appellant failed to
show would have produced relevant and material evidence). When the record has
been fully developed, the ALJ should make a new finding as to whether the
appellant’s resignation constitutes a constructive removal for purposes of
5 U.S.C. § 7521 and 5 C.F.R. § 1201.142.
ORDER
¶12 For the reasons discussed above, we remand this case to an ALJ for further
adjudication in accordance with this Remand Order.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.
8
We discern no abuse of discretion in the presiding ALJ’s decision not to admit a
Standard Form 2810, which indicates that the appellant’s enrollment in the Federal
Employee Health Benefits program ended effective October 2, 2016. IAF, Tab 53 at 1,
Tab 54 at 96. Contrary to the appellant’s assertions , the document does not indicate the
date of her termination and has no apparent relevance to the voluntariness of her
resignation. We have also considered the appellant’s allegation that the presiding ALJ
made inappropriate comments and interruptions that deprived her of a full and fair
hearing. PFR File, Tab 1 at 17. However, we find the presiding ALJ’s conduct during
the hearing does not evidence “a deep-seated favoritism or antagonism that would make
fair judgment impossible.” Bieber v. Department of the Army, 287 F.3d 1358, 1362-63
(Fed. Cir. 2002) (quoting Liteky v. United States, 510 U.S. 540, 555 (1994)).