Gerald Dove v. Department of the Army

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

GERALD L. DOVE, DOCKET NUMBER

Appellant, PH-3443-20-0094-I-1

v.

DEPARTMENT OF THE ARMY, DATE: February 27, 2024

Agency.

THIS ORDER IS NONPRECEDENTIAL 1

Shaun Frederick Owens , Esquire, Upper Marlboro, Maryland, for the

appellant.

Michael L. Hoyle , Esquire, Aberdeen Proving Ground, Maryland, for the

agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

REMAND ORDER

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

dismissed his involuntary retirement appeal for lack of jurisdiction. For the

reasons discussed below, we GRANT the appellant’s petition for review,

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

The appellant was employed by the agency as a Supervisory Police Officer

in the Directorate of Emergency Services (DES) at a U.S. Army Installation

Command in Maryland. Initial Appeal File (IAF), Tab 1 at 20. In March 2018,

the agency announced a “window of opportunity” in which employees could

apply for Voluntary Early Retirement Authority (VERA)/Voluntary Separation

Incentive Pay (VSIP). IAF, Tab 3 at 19-36, Tab 7 at 35. On March 23, 2018, the

appellant submitted a fiscal year 2018 Buy-Out Application, stating that he was

pursuing incentive pay for optional retirement with a requested retirement date of

April 29, 2018. IAF, Tab 3 at 38, 40. The appellant provided the following

justification for the VSIP: “Currently, my position has been offered/accepted

placing me in an Over-hire Position.” Id. at 40. On March 30, 2018, the

appellant sent a memorandum to the Garrison Commander regarding his request,

stating that his “conventional retirement date” was July 2019. IAF, Tab 7 at 26.

He maintained that the agency had hired someone for his position on March 14,

2018, placing him in an over-hire position, so that there was “no conflict to

impair approval of the Buyout (VSIP) incentive.” Id.

On April 20, 2018, the Director of Human Resources (HR) notified the

appellant via email that the agency had denied his request for a VSIP. Id. at 25.

The email stated that the appellant was “in an authorized position even though

DES proactively recruited to backfill [his] position prior to [his] retiring,” and

that his “position [could not] be restricted or abolished as it is critical to [the

agency’s] mission.” Id. According to the appellant, on April 24, 2018 he met

with the Director of DES and the Garrison Commander to discuss the agency’s

denial of his application. IAF, Tab 3 at 46. The appellant retired from the

agency, effective April 29, 2018. IAF, Tab 1 at 20.

3

On May 7, 2018, 8 days after the effective date of his retirement, the

appellant sent a memorandum to the Garrison Commander challenging the denial

of his VSIP. IAF, Tab 7 at 27-29. He repeated his contention regarding the

agency’s purported “illegal hire” for his position that had taken place 2 weeks

prior to his application for early retirement. Id. at 27. The appellant argued that

the hiring forced him out of his position, placed him in an over-hire position, and

“even if retirement was withdrawn gave [him] no recourse” because he would no

longer have his DES Police Captain position. Id. The appellant also asserted that

the Garrison Commander and the Director of DES stated that even if he withdrew

his early retirement there would be no Police Captain position for him at DES,

and instead he would “probably be carried as excess somewhere on APG,”

placing him in a RIF/over hire position. Id. at 28. Finally, the appellant

complained that the Garrison Commander had waited to inform him of the denial

of his VSIP request until after his retirement ceremony and that he had “assumed”

that a negative response to his application would have been “given immediately

and without delay.” Id. The appellant subsequently filed an equal employment

opportunity (EEO) complaint alleging that the agency discriminated against him

on the basis of age when it placed him in an over-hire position and then denied

his VSIP request. IAF, Tab 7 at 31-32. Although he initially requested a hearing,

he withdrew the request and requested a final agency decision (FAD) with Board

appeal rights, stating that his complaint was “most akin to a claim of constructive

retirement” and therefore a mixed-case complaint. Id. at 32. The agency issued a

FAD on November 14, 2019, finding that the appellant had not shown that he was

subjected to age-based discrimination. Id. at 31, 50.

The appellant timely filed the present appeal, alleging that his retirement

was tantamount to a constructive discharge. IAF, Tab 1 at 6-11. He alleged that

the HR Director had specifically instructed him to state on his VSIP application

that his position had been offered to and accepted by another individual, placing

him in an over-hire position. Id. at 7. The appellant further alleged that he had

4

been told by the Army Benefits Center that he qualified for optional retirement

under VSIP. Id. at 8.

In an acknowledgment order, the administrative judge characterized the

appellant’s appeal as a “denial of [his] request for VERA/VSIP” and informed

him that the Board may not have jurisdiction over his appeal. IAF, Tab 2 at 2.

She did not provide jurisdictional notice regarding alleged constructive actions

such as an involuntary retirement. Id. at 2-3. Instead, the administrative judge

informed the appellant of four possible bases of jurisdiction over a denial of

VERA/VSIP, including as a personnel action taken in retaliation for making a

protected disclosure or engaging in protected activity, discrimination based on

uniformed service, or a denial in violation of veterans’ preference rights. Id. In

response to the acknowledgment order, the appellant argued that his appeal

concerned two issues: (1) the denial of his VSIP application, and (2) whether the

information that agency officials provided to him during his application process

was knowingly inaccurate, provided with intent to induce him to retire, and led to

his constructive retirement. IAF, Tab 3 at 4-5. The appellant argued that he had

made nonfrivolous claims of constructive retirement because of the statements

made regarding his eligibility for VSIP from the Director of HR and benefits

center employees. Id. at 7-8.

Without holding the requested hearing, the administrative judge issued an

initial decision dismissing the appeal for lack of jurisdiction. IAF, Tab 1 at 2,

Tab 8, Initial Decision (ID) at 1, 5. The administrative judge found that the

appellant failed to make nonfrivolous allegations that his retirement was

involuntary. ID at 3-5. She found that the appellant had failed to nonfrivolously

allege that he had been misled by the agency and that he had reasonably relied on

the misinformation to his detriment. ID at 5. Finally, the administrative judge

found that the appellant’s age discrimination claim was not an independent source

of Board jurisdiction. Id.

5

The appellant has filed a petition for review, and the agency has filed a

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

DISCUSSION OF ARGUMENTS ON REVIEW

On petition for review, the appellant argues that the administrative judge

erred in finding that he failed to raise nonfrivolous allegations that his retirement

was involuntary. PFR File, Tab 1 at 9-15. He maintains that, due to the

statements of agency officials, he reasonably believed that the agency’s

promotion of another individual to take his position “divested him of a job” and

placed him in an over-hire position, such that he would be unable to return to his

position if he withdrew his retirement application and could be subject to

relocation or reduction in grade. Id. at 5, 13-14; IAF, Tab 3 at 7-8. The appellant

also repeats his allegations that the Director of HR provided to him the “specific

language” to use in his VSIP application regarding the over-hire position and that

benefits center employees informed him that he qualified for optional retirement

under VSIP. PFR File, Tab 1 at 6, 13; IAF, Tab 1 at 7, Tab 3 at 7. He argues that

the administrative judge erroneously determined that the Director of HR was

unlikely to have made the statement regarding the VSIP application, in large part

due to the language in her email later denying the request. PFR File, Tab 1 at 10.

Finally, the appellant challenges the administrative judge’s finding that his two

prior applications and denials for VSIP demonstrated his understanding of the

voluntary nature of his retirement. Id.

Retirements and resignations are presumed to be voluntary, but the Board

has jurisdiction over an appeal filed by an employee who has retired if his

retirement was involuntary and tantamount to a forced removal. See Parrott v.

Merit Systems Protection Board, 519 F.3d 1328, 1332 (Fed. Cir. 2008) (internal

citations omitted). The presumption that a retirement is voluntary can be rebutted

by evidence showing that the retirement was the result of agency

misrepresentation. Salazar v. Department of the Army, 115 M.S.P.R. 296, ¶ 9

6

(2010). Where such a claim is made, an appellant must show the following:

(1) the agency made misleading statements; and (2) he reasonably relied on the

misinformation to his detriment. Id. The touchstone of the analysis of whether a

retirement is involuntary is whether the employee made an informed choice.

Baldwin v. Department of Veterans Affairs, 111 M.S.P.R. 586, ¶ 16 (2009). A

decision made “with blinders on,” based on misinformation or lack of

information, cannot be binding as a matter of fundamental fairness and due

process.” Id. (quoting Covington v. Department of Health and Human Services ,

750 F.2d 937, 943 (Fed. Cir. 1984)). An agency must provide information that is

not only correct in nature but adequate in scope to allow an employee to make an

informed decision. Baldwin, 111 M.S.P.R. 586, ¶ 16. This includes an obligation

to correct any erroneous information on which it has reason to know an employee

is relying. Id.

An appellant bears the burden of proving Board jurisdiction by

preponderant evidence. 2 5 C.F.R. § 1201.56(b)(2)(i)(A). An appellant is entitled

to a jurisdictional hearing if he presents nonfrivolous allegations 3 of Board

jurisdiction. See Ferdon v. U.S. Postal Service, 60 M.S.P.R. 325, 329 (1994). In

determining whether the appellant has made a nonfrivolous allegation of

jurisdiction entitling him to a hearing, the administrative judge may consider the

agency’s documentary submissions; however, to the extent that the agency’s

evidence constitutes mere factual contradiction of the appellant’s otherwise

adequate prima facie showing of jurisdiction, the administrative judge may not

weigh evidence and resolve conflicting assertions of the parties and the agency’s

evidence may not be dispositive. Id. Although the administrative judge failed to

provide the appellant with proper jurisdictional notice regarding constructive

2

A preponderance of the evidence is that “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).

3

A nonfrivolous allegation is an assertion that, if proven, could establish the matter at

issue. 5 C.F.R. § 1201.4(s).

7

actions, the parties briefed this issue in their responses to the acknowledgment

order and the initial decision set forth the proper jurisdictional standard. IAF,

Tab 2 at 2-3, Tab 3 at 6-8, Tab 7 at 6-9; see Mapstone v. Department of the

Interior, 106 M.S.P.R. 691, ¶ 9 (2007) (stating that an administrative judge’s

failure to provide an appellant with proper jurisdictional notice can be cured if

the initial decision puts the appellant on notice of what he must do to establish

jurisdiction).

The agency argues in its response to the petition for review that the

“appellant alone asserts that he was given misinformation by the Director of

Human Resources” (emphasis in original) and that the assertion is not supported

by the evidentiary record. PFR File, Tab 3 at 7. However, the administrative

judge erred to the extent that she weighed the evidence at the jurisdictional stage

of the appeal in finding that “it appear[ed] unlikely that [the Director of HR] told

the appellant to claim that he was in an over-hire situation” in his VSIP

application based on her email denying the request as set forth in the agency’s

evidence file. ID at 4; IAF Tab 7 at 25; see Ferdon, 60 M.S.P.R. at 329; see also

Dumas v. Merit Systems Protection Board, 789 F.2d 892, 894 (Fed. Cir. 1986)

(stating if the alleged facts are sufficient to support a prima facie case of

involuntariness, the issue cannot be summarily determined adversely; the

petitioner is entitled to an evidentiary hearing on the issue). In addition, although

the administrative judge dismissed the appellant’s arguments regarding his

detrimental reliance on the misinformation regarding his retirement qualification

status because he “did not attempt to withdraw his request for optional

retirement” in the 9 days between the agency’s notification of the VSIP denial

and his retirement date, she failed to address the appellant’s claims regarding the

agency’s misinformation and his reliance thereon that he would be unable to

return to his Police Captain position if he withdrew his retirement request and

could be subject to reductions in force and other employment uncertainty. ID

at 4; IAF, Tab 1 at 7-9, Tab 3 at 7-8.

8

The record evidence demonstrates that the appellant has made the same

allegations regarding the misinformation about his qualification for VSIP and the

implications of the agency’s hiring of another individual for his position on his

job status since he applied for the VSIP. In his EEO complaint, he made the same

allegations as in his jurisdictional response regarding the Director of HR’s

instructions regarding his VSIP application as well as his belief that the hiring of

the other individual for his position placed him in an over-hire position and that

the Garrison Commander and the Director of DES told him there would be no

place for him at DES if he withdrew his early retirement. IAF, Tab 1 at 7-9,

24-25, 28-29, Tab 3 at 6-8. Moreover, the record suggests that the agency had

reason to know that the appellant was relying on mistaken information that he

qualified for optional retirement under the VSIP due to being in an over-hire

position from his statements both in his application and his March 30, 2018

“Garrison Employee Canvas Response Buyout (VISP) FY 2018” memorandum to

the Garrison Commander. IAF, Tab 1 at 15-16; see Baldwin, 111 M.S.P.R. 586, ¶

16. Further, the appellant alleged that the agency did nothing to correct the

appellant’s erroneous belief in his VSIP qualification or over-hire status until

after his retirement ceremony. IAF, Tab 1 at 8-10, 18. He also asserted that the

Garrison Commander and the Director of DES told him during their

post-ceremony meeting (but prior to the effective date of his retirement) that

“even if [he] withdrew [his] early retirement there would be no Police Captain

position for [him] at DES” and that he “would probably be carried as excess.” Id.

at 18. If true, the appellant would have reasonably relied on the statements that

he was in an over-hire position, eligible for VSIP, and not able to return to his

existing position if he withdrew his request for early retirement from the relevant

agency officials in HR, the benefits center, and his chain of command.

Therefore, we find that the appellant has made a nonfrivolous allegation

that his retirement was involuntary because he materially relied on agency

misinformation regarding his retirement. See Morrison v. Department of the

9

Navy, 122 M.S.P.R. 205, ¶¶ 8-10 (2015) (finding that the appellant’s allegation

that an agency official improperly told him that he would lose his retirement

benefits if he were removed, in addition to record evidence demonstrating that the

agency has reason to know that appellant was relying on the misinformation,

constituted a nonfrivolous allegation that he was subjected to a constructive

removal); Aldridge v. Department of Agriculture, 110 M.S.P.R. 21, ¶¶ 11-12

(2008). Because the appellant has presented nonfrivolous allegations of Board

jurisdiction, he is entitled to a jurisdictional hearing. See Ferdon, 60 M.S.P.R.

at 329.

ORDER

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: ______________________________

Gina K. Grippando

Clerk of the Board

Washington, D.C.