Opinion

Albert Chang v. Department of Agriculture

Court: Merit Systems Protection Board
Filed: Apr 4, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.7%

recognizing, however, that all events must be considered in context, i.e., as part of the totality of the circumstances

How later courts described this case

recognizing, however, that all events must be considered in context, i.e., as part of the totality of the circumstances

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ALBERT CHANG, DOCKET NUMBER

Appellant, DC-0752-22-0446-I-1

DEPARTMENT OF AGRICULTURE, DATE: April 4, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Albert Chang , Potomac, Maryland, pro se.

Sandra Santos , Fairfield, California, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

FINAL ORDER

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

dismissed his appeal claiming harassment and retaliation 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 based on an erroneous interpretation of statute or regulation

or the erroneous application of the law to the facts of the case; the administrative

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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. We AFFIRM the initial decision

except as expressly MODIFIED as follows: (1) we VACATE the administrative

judge’s finding that the appellant made only generalized allegations and sweeping

conclusions; and (2) we VACATE the administrative judge’s reasoning pertaining

to the agency’s termination of the appellant’s accused harasser.

BACKGROUND

The appellant retired from his position as a GS-14 Supervisory Financial

and Loan Business Specialist in Washington, District of Columbia, in December

2021. Initial Appeal File (IAF), Tab 1 at 1, 7, Tab 7 at 18. He filed an equal

employment opportunity (EEO) complaint asserting that he was forced to retire

due to discrimination based on his race and national origin and retaliation for

prior opposition to harassment. IAF, Tab 1 at 8-44. He received a final agency

decision in May 2022. Id. This appeal followed. Id. at 1, 3.

The administrative judge issued a jurisdictional order providing notice to

the appellant that his appeal would be dismissed absent a nonfrivolous allegation

that his retirement was involuntary. IAF, Tab 5 at 2. Following the parties’

submissions, IAF, Tabs 6-8, the administrative judge dismissed the appeal for

lack of jurisdiction without holding the appellant’s requested hearing, IAF, Tab 9,

Initial Decision (ID) at 11.

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

File, Tab 3, and the agency has responded in opposition to his petition, PFR File,

Tab 4. The appellant has replied to the agency’s response. PFR File, Tab 6.

DISCUSSION OF ARGUMENTS ON REVIEW

In the initial decision, the administrative judge found that the appellant did

not allege facts which, if proven, could establish that his decision to retire was

involuntary. ID at 10-11. On review, the appellant reasserts that he had no

choice but to retire because he had been subjected to a hostile work environment

since May 2020. PFR File, Tab 3 at 6, Tab 6 at 4-5; IAF, Tab 1 at 5.

An employee-initiated action, such as a resignation or retirement, is

presumed to be voluntary and generally is not an appealable adverse action. See

Shoaf v. Department of Agriculture, 260 F.3d 1336, 1340-41 (Fed. Cir. 2001).

However, the Board has jurisdiction over an employee-initiated action as a

“constructive” adverse action under 5 U.S.C. chapter 75 if the appellant

establishes the following: (1) that he lacked a meaningful choice, and (2) this

was because of the agency’s improper actions. See Bean v. U.S. Postal Service,

120 M.S.P.R. 397, ¶ 11 (2013) (setting forth a two-part jurisdictional standard as

a unifying principle for all constructive adverse action appeals). To obtain a

jurisdictional hearing, the appellant must make nonfrivolous allegations of a

constructive adverse action. See Burgess v. Merit Systems Protection Board,

758 F.2d 641, 642-43 (Fed. Cir. 1985); Bean, 120 M.S.P.R. 397, ¶¶ 11, 14. An

allegation generally will be considered nonfrivolous when, under oath or penalty

of perjury, an individual makes an allegation that (1) is more than conclusory;

(2) is plausible on its face; and (3) is material to the legal issues in the appeal.

5 C.F.R. § 1201.4(s).

Turning to the appellant’s allegations, he has been treated for depression

and retired for the sake of his mental health in response to unbearable harassment

based on his race or national origin that went unaddressed by his agency. IAF,

Tab 6 at 4. He did not allege any specific medical restrictions that were

incompatible with his assigned duties. Cf. Bean, 120 M.S.P.R. 397, ¶¶ 11-13

(explaining that the first part of the two-part jurisdictional standard is met if an

appellant has no option but to work outside of medical restrictions).

Nevertheless, we examine the appellant’s factual allegations to determine whether

he has presented a plausible claim the agency engaged in a course of action that

made working conditions so difficult or unpleasant that a reasonable person in the

appellant’s position would have felt compelled to retire. 2 See Axsom v.

Department of Veterans Affairs, 110 M.S.P.R. 605, ¶ 12 (2009); see also Bean,

120 M.S.P.R. 397, ¶ 11 (explaining the first part in the two-part jurisdictional

requirement in constructive adverse action appeals—that the appellant lacked a

meaningful choice).

We disagree with the administrative judge’s statement that the appellant

made only generalized allegations of harassment and discrimination and presented

sweeping conclusions, not facts. ID at 9. The appellant supplied the final agency

decision on his EEO complaint, which contains his specific factual allegations.

IAF, Tab 1 at 8-44. Namely, the appellant set forth specific emails from the

accused harasser 3 and specific conduct by the accused harasser in meetings. Id.

For example, the appellant alleged that his colleague harassed him by not

capitalizing the first letter of his name in several emails, assigning 55 projects to

his staff without his consent, refusing to meet with him on work -related matters,

requesting via email that the appellant stop emailing him, and interrupting the

appellant’s discussion of a technical issue during a meeting by yelling, “this is

ridiculous!” IAF, Tab 1 at 9, 26, 28. The appellant also set forth details

regarding his complaints to managers about the alleged harassment as well as the

At the jurisdictional stage, we consider the appellant’s allegations of race

discrimination or retaliation only insofar as they relate to this issue. See Pickens v.

Social Security Administration, 88 M.S.P.R. 525, ¶ 6 (2001); Markon v. Department of

State, 71 M.S.P.R. 574, 577-80 (1996).

These emails are evidenced in the agency’s file. IAF, Tab 7 at 48-59, 62-64, 73-85.

ways in which they failed to appropriately address his complaints. IAF, Tab 1

at 5, 12-13, 26-33, Tab 8 at 6-7, 11. Therefore, we vacate the statement in the

initial decision. Nevertheless, the administrative judge discussed the appellant’s

specific factual allegations as background and appears to have considered them in

his decision. ID at 2-4, 10-11. We agree with his conclusion that the facts

described by the appellant did not rebut the presumption of the voluntariness of

his retirement because a reasonable person in his position would not have felt

compelled to retire under such circumstances. ID at 10-11.

Significantly, the administrative judge reasoned that the departure of the

appellant’s accused harasser from the agency in early September 2021, a few

months prior to the appellant’s December 2021 retirement, made his allegations

of an ongoing intolerable working conditions implausible. ID at 9; IAF, Tab 8

at 6-7. We generally agree with this reasoning. Events temporally close to an

employee’s retirement are usually the most probative evidence of involuntariness.

See Shoaf, 260 F.3d at 1342-43 (recognizing, however, that all events must be

considered in context, i.e., as part of the totality of the circumstances). Here, the

main cause of the alleged hostile work environment was no longer a factor by the

time the appellant decided to retire. IAF, Tab 1 at 5, Tab 7 at 38. We note that

the appellant alleged, however, that his depression continued through his

retirement because of the agency’s mishandling of its anti-harassment policy.

IAF, Tab 1 at 5, 13-15, Tab 8 at 6-8; PFR File, Tab 3 at 4-6. He alleged that

Human Resources refused to supply him with a report of its investigation into his

harassment complaint; an unrelated EEO decision issued in November 2021 found

a violation of the Rehabilitation Act in another division headed by his supervisor;

and, upon being told by the appellant that he was considering retirement, his

supervisor suggested that he wished him to leave quietly. IAF, Tab 1 at 5, 13-15,

Tab 8 at 6-8. We find that these circumstances, considered in the context of all

the other events alleged by the appellant beginning in May 2020, could not be

viewed as so difficult or unpleasant as to compel a reasonable person to retire.

IAF, Tab 1 at 5, 9. Thus, the first part of the two-part jurisdictional standard in

Bean is not met. See Bean, 120 M.S.P.R. 397, ¶ 11. We need not address the

second part, i.e., the agency’s culpability, in this case. Id.

We modify the administrative judge’s decision in one other, minor respect.

We vacate the administrative judge’s reasoning that the agency’s termination of

the appellant’s accused harasser undermined his assertion that the agency failed

to respond to his complaints such that he had no choice but to retire. ID at 9-10;

IAF, Tab 8 at 6-7. As the appellant noted correctly in his petition for review, the

agency did not terminate the appellant’s accused harasser: he separated from the

agency under 5 C.F.R. § 715, which covers non-disciplinary separations, and

began employment at another Federal agency. PFR File, Tab 3 at 5, 9; IAF,

Tab 7 at 38, 70, 98, 101. This factual finding is immaterial to our conclusion that

the appellant has not presented nonfrivolous allegations of working conditions

under which a reasonable employee would have felt compelled to retire.

Lastly, the appellant submits evidence for the first time in his petition for

review. He presents evidence of his antidepressant medications, which he states

were prescribed for symptoms caused by the alleged harassment. PFR File, Tab 3

at 4-5, 7-8. He also submits a March 2022 memorandum from the agency’s

human resources office, which clarifies information already in the record about

his accused harasser’s separation from the agency . PFR File, Tab 3 at 9; IAF,

Tab 7 at 98, 101. We decline to consider evidence submitted by the appellant for

the first time with his petition for review because he has not shown that it was

unavailable before the close of the record before the administrative judge. See

Chin v. Department of Defense, 2022 MSPB 34, ¶ 8; Avansino v. U.S. Postal

Service, 3 M.S.P.R. 211, 214 (1980). In addition, the new evidence is not of

sufficient weight to warrant an outcome different from that of the initial decision.

See Spivey v. Department of Justice, 2022 MSPB 24, ¶ 15; Russo v. Veterans

Administration, 3 M.S.P.R. 345, 349 (1980).

Thus, we affirm the initial decision, which dismissed his appeal for lack of

jurisdiction, as modified.

NOTICE OF APPEAL RIGHTS 4

The initial decision, as supplemented by this Final Order, constitutes the

Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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. 5 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