Opinion

Brenda Bryant v. Department of Agriculture

Court: Merit Systems Protection Board
Filed: Dec 28, 2023
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 14.7%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

BRENDA FAYE BRYANT, DOCKET NUMBER

Appellant, AT-0752-18-0475-I-1

DEPARTMENT OF AGRICULTURE, DATE: December 28, 2023

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Brenda Faye Bryant , Deland, Florida, pro se.

Valerie Portwood , Saint Louis, Missouri, for the agency.

David Organes , Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

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

dismissed her involuntary retirement 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

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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 petition

for review and AFFIRM the initial decision, which is now the Board’s final

decision. 5 C.F.R. § 1201.113(b).

BACKGROUND

The appellant was a GS-12 Loan Specialist working with the agency in

Florida. Initial Appeal File (IAF), Tab 6 at 19. In or about January 2018, the

agency’s State Director issued a directive that, effective April 2, 2018, all GS-12

Loan Specialists would have to be present in the office 4 days per week for

training and outreach. Id. at 24, 34. Until this time, the appellant teleworked

4 days per week and was only present in the office 1 day per week. Id. at 34.

On January 24, 2018, the appellant requested that she be allowed to

continue teleworking 4 days per week as a reasonable accommodation of her

disability. Id. She asserted that prolonged travel in a car caused her pain in her

back, hip, and legs, and that the 65-mile commute between her home and the

office was such that she could only tolerate it once per week with the help of pain

medication. Id. She indicated that she could not increase her pain medication in

order to come into the office more often because doing so would adversely affect

her overall health. Id.

After receiving corroborating medical documentation from the appellant,

the agency determined that she had a disability. Id. at 26. On March 26, 2018,

the State Director denied the appellant’s request, indicating that the appellant

could not meet the requirements of her position without appearing at the office

4 days per week. IAF, Tab 7 at 24. Instead, the State Director offered the

appellant the following accommodations: (1) liberal leave; (2) an adjustable

standing desk; (3) telework on days when the appellant had a doctor’s

appointment; and (4) two 15-minute paid health breaks each day. Id. The

appellant was informed that she could request the State Director to reconsider her

decision, or request that the agency’s Disability Employment Program Manager

reconsider the State Director’s decision. Id. at 25. The appellant was also

informed about the possibility of filing an equal employment opportunity (EEO)

complaint, a union grievance, a Board appeal, or of utilizing the agency’s

alternative dispute resolution process. Id.

On March 28, 2018, the appellant submitted a request to retire effective

April 2, 2018. IAF, Tab 6 at 17. Her separation was processed as a voluntary

retirement. Id. at 16, 19. The appellant then filed this appeal and requested a

hearing. IAF, Tab 1. In a subsequent filing, she argued that her retirement was

involuntary because she could not commute to work 4 days a week and her

request to telework as an accommodation was denied. IAF, Tab 3 at 4.

The administrative judge set forth the applicable burdens of proof and

ordered the appellant to make a nonfrivolous allegation of Board jurisdiction over

her appeal. IAF, Tab 4. The parties responded to the administrative judge’s

order. IAF, Tabs 7-8. In an initial decision, the administrative judge found that

because, among other things, the appellant could have sought review of the State

Director’s decision, she had failed to nonfrivolously allege that her retirement

was involuntary. IAF, Tab 9, Initial Decision (ID) at 5-6. He therefore dismissed

her appeal for lack of jurisdiction without holding a hearing. ID at 6.

The appellant has filed a petition for review. Petition for Review (PFR)

File, Tab 1. The agency has filed a response. PFR File, Tab 3.

DISCUSSION OF ARGUMENTS ON REVIEW

An employee’s retirement is presumed to be a voluntary action and, as

such, is not within the Board’s jurisdiction. Salazar v. Department of the Army,

115 M.S.P.R. 296, ¶ 9 (2010). An involuntary retirement, however, is tantamount

to a removal, and, accordingly, is appealable to the Board. Id. The presumption

that a retirement is voluntary can be rebutted by evidence showing that the

retirement was the result of agency misrepresentation, coercion, or duress. 2 Id.

The appellant bears the burden of proving by preponderant evidence that

the matter she is appealing is within the Board’s authority to review. Brown v.

U.S. Postal Service, 115 M.S.P.R. 609, ¶ 11, aff’d, 469 F. App’x 852 (Fed. Cir.

2011). If the appellant makes a nonfrivolous allegation that the matter is within

the Board’s jurisdiction, she is entitled to a hearing at which she must prove

jurisdiction. Id. A nonfrivolous allegation is an assertion that, if proven, could

establish the matter at issue. 5 C.F.R. § 1201.4(s). An allegation generally will

be considered nonfrivolous when, under oath or penalty of perjury, an individual

makes an allegation that is more than conclusory, is plausible on its face, and is

material to the legal issues in the appeal. Id.

Here, the appellant indicates that her retirement was the result of coercion

rather than misrepresentation. PFR File, Tab 1 at 4. Accordingly, she is only

entitled to a hearing if she makes an allegation of fact that, if proven, could

establish that the agency coerced her retirement. See Brown, 115 M.S.P.R. 609,

¶ 11. For the following reasons, we find that the appellant failed to make a

The terms coercion and duress have been used interchangeably by the Board. See

Soler-Minardo v. Department of Defense, 92 M.S.P.R. 100, ¶ 6 (2002); Heining v.

General Services Administration, 68 M.S.P.R. 513, 519-21 (1995); Collins v. Defense

Logistics Agency, 55 M.S.P.R. 185, 188 (1992), modified on other grounds by Ferdon v.

U.S. Postal Service, 60 M.S.P.R. 325 (1994).

nonfrivolous allegation that her retirement is an action within the Board’s

jurisdiction.

To establish coercion, “an employee must show that the agency effectively

imposed the terms of the employee’s resignation or retirement, that the employee

had no realistic alternative but to resign or retire, and that the employee’s

resignation or retirement was the result of improper acts by the agency.” Staats

v. U.S. Postal Service, 99 F.3d 1120, 1124 (Fed. Cir. 1996). In determining

whether an employee was coerced into resignation or retirement, the Board will

consider allegations of discrimination and reprisal only insofar as those

allegations relate to the issue of voluntariness and not whether they would

establish discrimination or reprisal as an affirmative defense. Brown,

115 M.S.P.R. 609, ¶ 10.

It is well settled that an appellant may show that her retirement was

involuntary due to an agency’s failure to provide a reasonable accommodation for

her disability. E.g., Williams v. Department of Agriculture, 106 M.S.P.R. 677,

¶ 13 (2007). However, if an employee has a choice between contesting the

validity of an agency action and retiring, the employee’s decision to retire is

voluntary. See Axsom v. Department of Veterans Affairs, 110 M.S.P.R. 605,

¶¶ 17-18 (2009).

Here, the appellant indicates that it would have been futile to ask the State

Director to reconsider her decision denying the request for an accommodation

because the State Director had made it clear that she would not change her mind.

PFR File, Tab 1 at 4. However, the appellant was informed that she also had the

options of requesting that the Disability Employment Program Manager

reconsider the State Director’s decision and of seeking redress through various

administrative processes. IAF, Tab 7 at 25.

The Board has held that an appellant’s failure to exhaustively challenge

alleged discriminatory actions through the EEO process, when she did not prove

that doing so would be futile or that the agency was handling her EEO complaints

inequitably, undermined an involuntary resignation claim. Axsom, 110 M.S.P.R.

605, ¶¶ 17-18; see Baker v. U.S. Postal Service, 84 M.S.P.R. 119, ¶¶ 21-23 (1999)

(finding that an employee failed to establish that his ignored accommodations

request rendered his resignation involuntary because he could have contacted

other management officials or filed a grievance—his feeling that such actions

would prove unsuccessful did not excuse his failure to act); see also Garcia v.

Department of Homeland Security, 437 F.3d 1322, 1329 (Fed. Cir. 2006) (en

banc) (finding that a resignation was not involuntary if the employee had a choice

whether to resign or contest the validity of the agency action). Here, the

appellant has failed to nonfrivolously allege that seeking reconsideration with the

Disability Employment Program Manager, or redress through other administrative

processes, would have been futile. 3

Instead, the appellant indicates that in order to seek such review she would

have had to use up all her leave, which would have then allegedly decreased her

retirement annuity. 4 PFR File, Tab 1 at 5-6. Additionally, in response to the

administrative judge’s suggestion that she alternatively could have relocated her

home to somewhere closer to the office, ID at 6 n.2, the appellant asserted that

such a move was unfathomable, 5 PFR File, Tab 1 at 5, 7.

However, the appellant has failed to state the basis for her belief that her

only option, other than retirement, would have been to use up her leave pending

reconsideration or administrative redress. IAF, Tab 7 at 7-9; PFR File, Tab 1

Indeed, on May 16, 2018, after she retired and filed this appeal, the appellant also

filed a formal EEO complaint regarding her request for a reasonable accommodation.

IAF, Tab 6 at 14.

The appellant has failed to allege by what amount her retirement annuity would have

been decreased if she was required to use all her leave prior to retiring. Based on the

way unused sick leave is used in calculating retirement annuities, it is unlikely that the

appellant’s use of leave would significantly reduce her retirement annuity.

In light of our other findings that the appellant failed to show that her decision to

retire was involuntary, we need not determine whether the administrative judge’s

suggestion that the appellant should relocate or use leave was improper or constituted

reasonable accommodations.

at 5-7. The appellant did state that “[t]he only two options the State Director

provided to [her] were to either begin driving back and forth [4] days a week or

use up all [her] accrued leave time while [she] waited for review of her decision.”

IAF, Tab 7 at 9. However, the appellant does not indicate whether this was

merely her interpretation of the State Director’s decision, or whether the State

Director or another individual explicitly informed her that these were her only

options. Id. The State Director’s decision does not state that the appellant would

be required to either come into the office or use her leave while she waited for a

review of her decision. Id. at 24-25. Accordingly, the appellant’s assertion that

she would have been required to use her leave pending further review of the State

Director’s decision does not constitute a nonfrivolous allegation that her

retirement was involuntary. See Luecht v. Department of the Navy, 87 M.S.P.R.

297, ¶ 5 (2000) (finding that conclusory, vague, or unsupported allegations are

insufficient to meet the nonfrivolous allegation standard).

Significant to the Board’s involuntariness analysis is the existence of undue

time pressure to make a decision regarding whether to retire. Jones v.

Department of the Treasury, 107 M.S.P.R. 466, ¶ 10 (2007). It is true that the

State Director denied the appellant’s request to continue teleworking 4 days per

week on March 26, 2018, and that the State Director had previously directed that

employees such as the appellant would be limited to teleworking 1 day per week

beginning on April 2, 2018. IAF, Tab 6 at 24. However, as indicated above, the

appellant has not alleged that she sought any clarification about her options after

receiving the State Director’s decision, such as whether she could continue

teleworking 4 days per week while seeking review of the decision or whether she

would face discipline if she did not report to work 4 days a week. Assuming

arguendo that the appellant was apprehensive about the agency taking disciplinary

action against her for not reporting to work as directed, she had the option of

contesting such discipline if and when it was brought. See Brown, 115 M.S.P.R.

609, ¶ 15. We therefore find that the appellant failed to nonfrivolously allege that

the agency used time to pressure her into making a decision regarding whether to

retire. See id. For the foregoing reasons, we find that the appellant failed to

nonfrivolously allege that her retirement was involuntary and dismiss her appeal

for lack of jurisdiction.

NOTICE OF APPEAL RIGHTS 6

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.

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).

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.

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. 420 (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. 7 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).

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