Pamela Adams v. Department of Veterans Affairs

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

PAMELA N. ADAMS, DOCKET NUMBER

Appellant, DC-0752-23-0426-I-1

v.

DEPARTMENT OF VETERANS DATE: January 19, 2024

AFFAIRS,

Agency.

THIS ORDER IS NONPRECEDENTIAL 1

Amanda Stevens , Richmond, Virginia, for the appellant.

Michael J.A. Klein , Esquire, Baltimore, Maryland, 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 her alleged involuntary resignation appeal for lack of Board

jurisdiction. For the reasons discussed below, we GRANT the appellant’s petition

for review, VACATE the initial decision, and REMAND the case to the

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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Washington Regional Office for further adjudication in accordance with this

Remand Order.

BACKGROUND

¶2 On April 20, 2023, the appellant, a former GS-11 Respiratory Therapist,

filed an initial appeal with the Board, indicating that she was appealing her

involuntary resignation and demotion from Lead Respiratory Therapist. Initial

Appeal File (IAF), Tab 1 at 4. She filed her appeal via facsimile and, at that

time, her designated representative did not register to be an e-filer. Id. at 7.

¶3 The administrative judge issued an order to show cause, notifying the

appellant of her burden of proof to establish jurisdiction over her constructive

resignation claim; however, the order did not notify her of her burden to establish

a constructive demotion. IAF, Tab 3 at 1-3. According to the certificate of

service, the appellant was served a copy of the order via U.S. Mail and her

representative was served via electronic mail. Id. at 5. Neither party responded

to the order to show cause. Without holding the appellant’s requested hearing,

the administrative judge issued an initial decision dismissing the appeal for lack

of jurisdiction. IAF, Tab 1 at 2, Tab 5, Initial Decision (ID) at 1, 7.

¶4 The appellant has filed a petition for review of the initial decision. 2 Petition

for Review (PFR) File, Tab 1. On review, the appellant’s representative alleges

that neither she nor the appellant received the administrative judge’s order to

show cause because they were not registered as e-filers. Id. at 6; PFR File, Tab 4

at 5. She also submits information and documentation regarding the merits of the

appellant’s involuntary resignation and constructive demotion claims. PFR File,

Tab 4 at 6-7. The agency has responded to the petition for review and the

appellant has replied. PFR File, Tabs 3-4.

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On review, the appellant filed a new appeal via e-Appeal Online and registered as an

e-filer. PFR File, Tab 1 at 2.

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DISCUSSION OF ARGUMENTS ON REVIEW

¶5 On review, the appellant alleges that neither she nor her representative

received the administrative judge’s order to show cause because her

representative was improperly served via e-Appeal, despite not being registered

as an e-filer. PFR File, Tab 1 at 6, Tab 4 at 5. Electronic service of the Board’s

issuances is only appropriate for properly registered e-filers who affirmatively

consent to electronic service. See 5 C.F.R. § 1201.14(e)(1)-(2) (noting that

registration as an e-filer constitutes consent to accept electronic service and that

the exclusive means for registering as an e-filer is to do so through e-Appeal

Online), (j)(1) (identifying that paper copies of Board issuances are not ordinarily

served on registered e-filers), (j)(3) (noting that registered e -filers are responsible

for monitoring case activity in the e-Appeal Online Repository to ensure that they

have received all case-related documents). The record below does not contain the

representative’s affirmative consent to accept electronic service; therefore, the

administrative judge’s order to show cause was improperly served on the

appellant’s representative electronically. IAF, Tab 1 at 7, Tab 3 at 5.

Accordingly, because the issue of jurisdiction is always before the Board and may

be raised at any time during a Board proceeding, we will consider the appellant’s

newly raised evidence and arguments on review. Poole v. Department of the

Army, 117 M.S.P.R. 516, ¶ 9 (2012) (finding that the issue of jurisdiction is

always before the Board and may be raised at any time during a Board

proceeding).

The appellant has alleged facts that, if true, could establish that she was subjected

to a constructive demotion.

¶6 The Board’s jurisdiction is limited to those matters over which it has been

given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems

Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). An appellant is entitled to a

jurisdictional hearing only if she makes a nonfrivolous allegation of Board

jurisdiction. Francis v. Department of the Air Force, 120 M.S.P.R. 138, ¶ 14

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(2013). A nonfrivolous allegation of Board jurisdiction is an allegation of fact

that, if proven, could establish that the Board has jurisdiction over the matter at

issue. Id.; 5 C.F.R. § 1201.4(s).

¶7 On review, the appellant alleges for the first time that she was subjected to a

constructive demotion because the agency reassigned her to a “lesser position,”

and then the agency converted her former position to a higher grade. PFR File,

Tab 4 at 6-7. As mentioned above, although the appellant generally alleged

below that she was demoted and required to work in a higher-graded position

without compensation, the administrative judge did not give the appellant notice

of the standard for establishing jurisdiction over a constructive demotion claim,

nor did he address a constructive demotion claim in his initial decision. IAF,

Tab 1 at 4; ID at 5. Therefore, we consider the appellant’s evidence and

arguments and find that the appellant has nonfrivolously alleged facts that, if

proven, could establish that the Board has jurisdiction over her constructive

demotion claim.

¶8 In support of her involuntary resignation and constructive demotion claim,

the appellant, through her representative, certifies the following on review. In

March 2021, her agency underwent a reorganization. PFR File, Tab 4 at 6. Prior

to the reorganization, she was a GS-9 Lead Respiratory Therapist and alleges that

“typically non-lead Respiratory Therapists [were] at the GS-8 level.” Id. On

March 14, 2021, the agency “initiated a national promotion event that was

supposed to convert all the Respiratory Therapists to the GS[-]11 level, and all

Lead Respiratory Therapists to the GS-12 level.” PFR File, Tab 4 at 6. From

March 14, 2021, through February 8, 2023, she claims she was “reassigned” to a

GS-11 Respiratory Therapist position because she was “coded” as a GS-11

Respiratory Therapist, instead of a GS-12, even though she continued to perform

the duties of a Lead Respiratory Therapist. Id. at 6-7. On May 31, 2022, the

Chief of Service told the appellant that “the Leads . . . positions have to be

re-announced” and “those who are already in these positions will have to

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re-apply.” Id. at 7, 9. The appellant further alleges that on unspecified dates she

reapplied for the Lead Respiratory Therapist position, was not selected, suffered a

loss in pay and a hostile work environment, and eventually resigned. Id. at 7;

IAF, Tab 1 at 4, 6.

¶9 A reassignment without loss of grade or pay is not appealable to the Board.

Marcheggiani v. Department of Defense, 90 M.S.P.R. 212, ¶ 7 (2001). A narrow

exception exists when an employee is deemed to have suffered a constructive

demotion and she is assigned from a position which, due to issuance of a new

classification standard or correction of a classification error, was worth a higher

grade, the employee met the legal and qualification requirements for promotion to

the higher grade, and she was permanently reassigned to a position classified at a

grade level lower than the grade level to which she would otherwise have been

promoted. Russell v. Department of the Navy, 6 M.S.P.R. 698, 711 (1981). In

Russell, the appellant was reassigned from the position of GS-11, Supervisory

Employee Development Specialist to a GS-11, Employee Development Specialist.

Russell, 6 M.S.P.R. 698, 700. Five months later, the agency established a GS-12

Supervisor Employee Development Specialist position, for which the appellant

was not selected. Id. at 701. The appellant alleged that the GS-11, Supervisory

Employee Development Specialist he held prior to his reassignment and the

GS-12 position were identical and that he was constructively reduced in grade

because the original GS-11 position he held should have been classified at GS-12.

Id. Similarly, here the appellant has nonfrivolously alleged that her Lead position

was reclassified upward to a GS-12, she is entitled to a noncompetitive promotion

to the higher-graded GS-12 Lead position because she successfully performed

Lead duties and allegedly continued to perform Lead duties even after the

reorganization, and she was reassigned to the GS-11 position at a grade level

lower than the GS-12 grade level to which she would otherwise have been

promoted. Thus, we find that the Board may exercise jurisdiction over her

constructive demotion claim. See Marcheggiani, 90 M.S.P.R. 212, ¶¶ 8-9 (stating

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that the Board may exercise its jurisdiction in a constructive demotion appeal

only when a position actually has been reclassified upward and the employee

claims entitlement to a noncompetitive promotion to the higher-graded position);

Burrell v. Environmental Protection Agency , 81 M.S.P.R. 427, ¶ 17 (1999)

(finding that an employee raised a nonfrivolous allegation of constructive

demotion when he asserted that his GM-13 position was upgraded to GS-14,

without a significant change in duties or responsibilities, at the time he was

reassigned to another position).

We decline to disturb the administrative judge’s finding that the appellant failed

to nonfrivolously allege jurisdiction over her involuntary resignation claim.

¶10 On review, the appellant generally challenges the administrative judge’s

finding that the appellant failed to establish jurisdiction over her involuntary

resignation claim. PFR File, Tab 1 at 5; ID at 5-7. As mentioned above, she

claims that she did not receive the administrative judge’s order to show cause,

which gave her notice of her jurisdictional burden with respect to her involuntary

resignation claim. PFR File, Tab 1 at 6. However, the appellant received the

administrative judge’s initial decision, which also contained this notice. ID

at 3-5; see Parker v. Department of Housing and Urban Development ,

106 M.S.P.R. 329, ¶¶ 7-8 (2007) (stating that an administrative judge’s failure to

provide an appellant with specific notice of his jurisdictional burden can be cured

if the agency’s pleadings or the initial decision contain the required notice). Even

after considering the appellant’s submissions on review, we discern no basis to

disturb the administrative judge’s finding that the appellant failed to establish

jurisdiction over her involuntary resignation claim.

¶11 A resignation is presumed to be voluntary, and thus outside the Board’s

jurisdiction, unless the employee presents sufficient evidence to establish that the

action was obtained through duress or coercion or shows that a reasonable person

would have been misled by the agency. Searcy v. Department of Commerce,

114 M.S.P.R. 281, ¶ 12 (2010). An appellant claiming that her resignation is

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involuntary is entitled to a hearing on jurisdiction only if she makes nonfrivolous

allegations casting doubt on the presumption of voluntariness. Id., ¶ 10. 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. Id. Intolerable working conditions may

render an action involuntary if the employee demonstrates that the employer or

agency engaged in a course of action that made working conditions so difficult or

unpleasant that a reasonable person in the employee’s position would have felt

compelled to resign. Searcy, 114 M.S.P.R. 281, ¶ 12; see Middleton v.

Department of Defense, 185 F.3d 1374, 1379 (Fed. Cir. 1999) (explaining that a

determination as to whether an employee’s resignation was coerced is based on an

objective test). The Board will consider claims of discrimination and harassment

only insofar as those allegations relate to the issue of voluntariness. Brown v.

U.S. Postal Service, 115 M.S.P.R. 609, ¶ 10, aff’d per curiam, 469 F. App’x 852

(Fed. Cir. 2011).

¶12 Other than alleging that the agency constructively demoted her and

subjected her to a “hostile” environment, the appellant does not allege facts that

would show that her work conditions were so intolerable that she had no choice

but to resign. PFR File, Tab 1 at 17. Even if we accept as true the appellant’s

allegations that she was improperly reassigned to a GS-11 position and that the

agency continued to “have [her] working at a higher graded duty without

compensation,” such an allegation is insufficient to establish that her resignation

was involuntary. Dissatisfaction with work assignments, a feeling of being

unfairly criticized, or difficult or unpleasant working conditions are generally not

so intolerable as to compel a reasonable person to resign. Miller v. Department of

Defense, 85 M.S.P.R. 310, 322 (2000). Moreover, though the appellant alleges

that she served in her reassignment for almost 2 years, she did not allege that she

attempted to exhaust any remedial avenues prior to resigning. Because she could

have remained in her position and contested the validity of the agency’s actions

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but chose not to, we agree with the administrative judge that she has failed to

nonfrivolously allege that her resignation was involuntary. See Brown, 115

M.S.P.R. 609, ¶ 15; cf. Heining v. General Services Administration, 68 M.S.P.R.

513, 523 (1995) (finding an involuntary resignation after the appellant offered

overwhelming evidence supporting an intolerable working environment and did

not resign until she pursued many grievances and two complaints, receiving an

adverse decision on her grievances just prior to her resignation). Thus, we

decline to disturb the administrative judge’s finding that the appellant failed to

establish jurisdiction over her involuntary resignation claim.

ORDER

¶13 For the reasons discussed above, we remand this case to the Washington

Regional Office for further adjudication in accordance with this Remand Order.

On remand, the administrative judge shall permit the parties to conduct discovery

and submit additional evidence and argument and shall afford the appellant a

jurisdictional hearing on the appellant’s claim of a constructive demotion. If the

administrative judge finds that the Board has jurisdiction over that claim, he shall

adjudicate the merits of that claim. In his remand initial decision, the

administrative judge may adopt his prior finding that the appellant failed to

establish jurisdiction over her involuntary resignation claim.

FOR THE BOARD: ______________________________

Jennifer Everling

Acting Clerk of the Board

Washington, D.C.