Petition for Writ of Certiorari — Goodwin v. Department of the Treasury
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| Supreme Court, U.S.
. 92-1866 |e
| MAY 24 1993
THE CLERK
In The
Supreme Court of the United States
October Term, 1992
t
DAVID A. GOODWIN,
Petitioner,
versus
DEPARTMENT OF THE TREASURY,
Respondent.
—?
Petition For Writ Of Certiorari
To The United States Court Of Appeals
For The Federal Circuit
4
PETITION FOR WRIT OF CERTIORARI
+
BurTON A. NADLER
Counsel of Record
PETRUCELLY & Nap ter, P.C.
Suite 1000
One Court Street
Boston, MA 02108
(617) 720-1717
Attorney for Petitioner
COCKLE LAW BRIEF PRINTING CO., (800) 225-6964
OR CALL COLLECT (402) 342-2831
QUESTIONS PRESENTED
Did the Court of Appeals for the Federal Circuit err
when it created a new immunity from liability for
federal employees who initiate negative and deroga-
tory communications to co-employees of the same
Agency as well as release unauthorized investigation
files to third parties, when both actions were in
breach of a voluntary resignation agreement?
Did the Court of Appeals for the Federal Circuit err
when it failed to even consider the violation of the
rights to due process of the petitioner which would
otherwise require reversal of the determination fail-
ing to reinstate the petitioner to his employment?
Did the Court of Appeals for the Federal Circuit err
when it failed to consider the impact of the peti-
tioner’s lawful rescission of his initial resignation
after he discovered that the Agency breached the
retirement settlement agreement?
ii
PARTIES TO THE PROCEEDING
David A. Goodwin, Petitioner
V.
United States Department of the Treasury, Respondent
TABLE OF CONTENTS
Page
SF ye OR eg iy | ee i
PARTIGS FU? IP PROCEEDING .... nce scccccenss ii
IE SRP UMURIES NOUS 0 cbc esccesscccesscesoees iv
i Es dvd eecev sss ee nee reed ease teens 1
JURISDICTION OF THE SUPREME COURT OF THE
TASES eee eee ee eee ee eee 1
STATUTES AND REGULATIONS INVOLVED ...... 1
UMRWUEED GAP FEED CASE... 2. cece reer cesneees 5
ARGUMENT FOR GRANTING OF THE WRIT:
I. The United States Court Of Appeals For The
Federal Circuit Erred When It Created, Out Of
Whole Cloth, An Immunity For Federal
Employees Who Breach A Voluntary Resigna-
Serre eee eee eee eee eee eee 11
Il. The Lower Court Ignored The Allegations Of
Violations Of The Petitioner’s Rights Of Due
Process, Which Violations Would Require Rever-
eg Re PP eee eee 19
III. The Court Of Appeals Erred When It Failed To
Consider The Legal Ramifications Of The Peti-
tioner’s Attempt To Rescind His Resignation
After He Found The Agency Had Breached The
Retirement Agreement .................---+5-- 21
Ne eke we teks eke sd eee wee a ae 23
iV
TABLE OF AUTHORITIES
Page
Cases
Cleveland Board of Education v. Loudermill, 470 U.S.
Ri | ae er re re ees ea aRareta ie 3 19
Cornelius v. North, 472 U.S. 648 (1985)............... 20
Covington v. Dept. of Health and Human Services,
re ee | eee re eee Tere 17
Greco v. Dept. of the Army, 852 F.2d 358 (Fed.Cir.
| ee ret eT weet ery re ree errr TT eee eee 18
Gromo v. Office of Personnel Management, 944 F.2d
oe ie eee re rere rrr rr? Freer 11
James Grubka v. Department of the Treasury, 858 F.2d
Se I SI oa bi ink Aen wae ne ks sso 6
Scharf v. Dept. of the Air Force, 710 F.2d 1572
1, fa Sppergeerrerer errr etre ere rere 12, 14
Shiflett v. U.S. Postal Service, 839 F.2d 669 (Fed.Cir.
COIN 5 dans ew ouie sce Sache ahe Red aGe gee aechees ens 20
Steger v. Defense Investigative Service Department of
the Department of Defense, 717 F.2d 1402 (Fed.Cir.
| eT Pree eee? TET ee eres ee eee eee 12
Stephen v. Dept. of the Air Force, 47 M.S.P.R. 672
i) oer rere © Pee rere err erika eee pe 19
FEDERAL STATUTES
DUG. & Frees 5055 6h 04000ns spears acnee 2, 20
DRED. “Pee isco esc eneee eee sie 2, 11
USE 4 TS... ee 1,2
TABLE OF AUTHORITIES - Continued
Page
FEDERAL REGULATIONS
SCE. & FIRB). 20sec cit ey a aoe
fe. Ay: |} eee ere eee Te reeks 4, 19, 20
fees eb: fk Rr ererrry errr Terre err ee 2
OTHER AUTHORITIES
og og to Serr errr yr rer er rT eS rrr 4,9
OPINIONS BELOW
David A. Goodwin v. Department of the Treasury, 52 M.S.P.R.
136 (1991), decided December 20, 1991;
David A. Goodwin v. Department of the Treasury, 983 F.2d
226 (Fed. Cir. 1992), decided December 18, 1992; petition
for rehearing denied February 23, 1993.
e —
JURISDICTION OF THE SUPREME COURT
OF THE UNITED STATES
1. On February 23, 1993, the United States Court of
Appeals for the Federal Circuit denied the peti-
tioner’s Petition For Rehearing and declined a sug-
gestion for rehearing in banc, after the same had been
timely submitted to said Court by the petitioner. The
United States Court of Appeals for the Federal Cir-
cuit, on December 18, 1992, after argument and sub-
mission, affirmed a determination made by the Merit
Systems Protection Board.
2. This Court’s jurisdiction arises pursuant to 28 U.S.C.
§ 1254(1).
S
STATUTES AND REGULATIONS INVOLVED
This action concerns judicially developed case law
and reference to the following statutory and regulatory
provisions:
5 U.S.C. § 7701(c)(2)(A):
Notwithstanding paragraph (1), the agency’s deci-
sion may not be sustained under subsection (b) of this
section if the employee or applicant for employment -
(A): shows harmful error in the application of the
agency’s procedures in arriving at such decision;
cz * om
5 U.S.C. § 7703 (c):
In any case filed in the United States Court of Claims
or United States court of appeals, the court shall review
the record and hold unlawful and set aside any agency
action, findings, or conclusions found to be -
(1): arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law;
(2): obtained without procedures required by law,
rule, or regulation having been followed; or
(3): unsupported by substantial evidence;
+ + *
28 U.S.C. § 1254(1):
Cases in the courts of appeals may be reviewed by
the Supreme Court by the following methods:
(1) By writ of certiorari granted upon the petition of
any party to any civil or criminal case, before or after
rendition of judgment or decree.
* * *
5 C.ER. § 715.202 Resignation. (a):
General. An employee is free to resign at any time, to
set the effective date of his resignation, and to have his
reasons for resigning entered in his official records.
(b) Withdrawal of Resignation. An agency may permit
an employee to withdraw his resignation at any time
before it has become effective. An agency may decline a
request to withdraw a resignation before its effective date
only when the agency has a valid reason and explains
that reason to the employee. A valid reason includes, but
is not limited to, administrative disruption or the hiring
or commitment to hire a replacement. Avoidance of
adverse action proceedings is not a valid reason.
* * *
31 C.E.R. § 0.735.55 Falsification of official records.
(a) Employees shall avoid making false, misleading
or ambiguous statements, deliberately or willfully,
whether oral or written, in connection with any matter of
official interest. Some of these matters of official interest
are: Transactions with the public, other Federal agencies
or fellow employees; application forms and other forms
which serve as a basis for appointment, reassignment,
promotion or other personnel action; vouchers; leave
records; work reports of any nature or accounts of any
kind; affidavits; entry or record of any matter relating to
or connected with the employee’s duties; and report of
any moneys or securities received, held or paid to, for or
on behalf of the United States.
(b) Furnishing false information may subject
employees to dismissal from Federal employment, or
other disciplinary or adverse action; and may also result
in criminal prosecution (18 U.S.C. 1001).
IRM 0715.4 (10-24-80) (3):
Conditional resignations are not acceptable. If the
employee submits a statement of conditions under which
he/she will resign, it must be refused. A notice of resig-
nation accepted by the Service may be withdrawn prior
to its effective date only by mutual agreement between
Internal Revenue officials and the employee.
5 C.FR. § 1201.21 Notice of Appeal Rights.
When an agency issues a decision notice to an
employee on a matter that is appealable to the Board, the
agency must provide the employee with the following:
(a) Notice of the time limits for appealing to the
Board, the requirements of § 1201.22(c), and the address
of the appropriate Board office for filing the appeal;
(b) A copy, or access to a copy, of the Board’s regu-
lations;
(c) A copy of the appeal form in appendix I of this
part; and
(d) Notice of any right the employee has to file a
grievance.
STATEMENT OF THE CASE
The petitioner herein, David A. Goodwin, involun-
tarily resigned from the competitive service position of
Program Manager (Chief, Examination Division, GM-15)
at the Internal Revenue Service, Buffalo, New York Dis-
trict Office in January 1987. (Appendix, hereinafter,
“A-5.”) He subsequently requested a hearing before the
Merit Systems Protection Board (hereinafter, “MSPB”)
with regards to said involuntary resignation. The peti-
tioner had approximately 19 years of service with the
Internal Revenue Service before he resigned his position,
which resignation was effective on June 15, 1987. At the
time of said involuntary resignation and when he filed
his appeal and refiled his appeal with the MSPB, the
Petitioner was not serving in a probationary period.
Prior to November, 1986, in the 19 years of his
employment with the Internal Revenue Service, the peti-
tioner had never received any type of disciplinary action
of any sort whatsoever and he received an overall out-
standing rating in his last performance appraisal in or
about October, 1986. This was the first time that a divi-
sion chief in Buffalo had ever received this high a rating.
(A-28.) The petitioner had received several other out-
standing and superior ratings while employed at the
Agency, had received other merit rating pay increases
and had even received cash awards from the Agency for
the high quality of his work. In fact, every year that the
petitioner held his position, he received performance
awards from the IRS (hereinafter, “Agency”). (A-28.)
On December 8, 1986, the Buffalo District Director,
Gary Matthews, orally informed the petitioner that he
was being placed on special assignment, after being told
on the telephone on the previous Saturday night after
Thanksgiving that he should not return to his managerial
job, as he was being placed on immediate administrative
leave. (A-33.) This, he was informed by Mr. Matthews,
was to be an assignment pending completion of an inves-
tigation into anonymously presented allegations that sup-
posedly stated that the petitioner had engaged in alleged
“misconduct” during an off-site, after-hours, private Hal-
loween party. These allegations were made by an anony-
mous letter and were totally unsubstantiated. (A-34.)
What took place over the next eight weeks of the
petitioner’s life was best described by the U.S. Court of
Appeals for the Federal Circuit in the case of James Grubka
v. Department of the Treasury, 858 F.2d 1570 (Fed. Cir.
1988), when the Court stated that the actions of the
Agency with regards to this alleged “investigation” of the
party were, in fact, “frivolous, innocuous and unsup-
ported by any evidence.” James Grubka v. Department of the
Treasury, supra.
While the so-called investigation was pending, the
petitioner was placed in his special assignment until
December 23, 1986, when Mr. Matthews orally informed
the petitioner that the Agency intended to propose his
demotion for misconduct unless the petitioner agreed to
choose a voluntary demotion. (A-35.) At no time since the
initial investigation commenced, up until this point, had
the petitioner «ver been presented in writing, as required
by law, any of his rights to appeal any action of the
Agency to the MSPB. (A-71.)
An oral settlement agreement was eventually reached
whereby the petitioner agreed to resign from the Agency
in exchange for, among other things, a “clean record.”
(A-5, 57.)! Specifically, it was agreed by all parties that
the petitioner would resign under the following condi-
tions: (a) his resignation would occur after accumulation
of all of his sick leave; (b) he would leave the Agency
with a clean record, with no indication of the alleged
investigation in his record; (c) he would receive a mutu-
ally acceptable letter of recommendation from Mr. Mat-
thews (A-83); and (d) the Agency employee newspaper
would have a positive article regarding the reason for his
resignation. (A-57.)
On January 29, 1987, in reliance upon the oral agree-
ment between the parties, the petitioner signed a post-
dated document which was a written resignation. Subse-
quently, the Agency issued a Standard Form (SF) 50,
Notification of Personnel Action, documenting that the
petitioner had resigned effective June 15, 1987, and that
document contains no reference to the so-called investi-
gation into the allegations of misconduct. (A-77.) The
intent of the parties was that the petitioner was to have a
1 The petitioner and his predecessor counsel testified
before the MSPB that part of the Agreement to-retire included
destruction of the entire investigative file and an agreement to
keep said file completely confidential. (A-59.) This was contro-
verted by the Agency. (A-59). After the hearing, the Agency
found that there was no agreement to destroy the file but
declined to rule on whether a non-disclosure agreement was
reached with regards to the investigative materials. (A-59.)
However, the MSPB and the Court below never addressed this
determination of fact.
“clean record” which would preserve his professional
reputation, in order to facilitate his job transition by
justifiably providing favorable information regarding his
employment with the Agency and to preclude disclosure
of the circumstances leading to the petitioner’s resigna-
tion. (A-22.)
Soon thereafter, in March of 1987, the petitioner noti-
fied Mr. Hermann (regional counsel for the Agency at the
time) of the fact that he felt that the Agency had breached
the agreement by providing the unexpurgated investiga-
tive file to other parties, despite the agreement. (A-70.)
No appeal rights were ever provided the petitioner after
this notification of breach. (A-71.)
When no action was taken with regard to said oral
notification of breach of the agreement, the petitioner, by
letter dated June 4, 1987, addressed to Mr. Matthews,
attempted to rescind his resignation in accordance with 5
C.F.R. § 715.202(b), prior to its effective date. (A-84.) Mr.
Matthews responded on June 15, 1987, by simply denying
the petitioner’s request, stating that the effective date of
the resignation would not be postponed and he enclosed
with that letter a copy of the SF-50 document. (A-85.) No
appeal rights were ever given to the petitioner.
The petitioner subsequently wrote several letters to
the Agency concerning the Agency’s refusal to permit
him to rescind his resignation and further alleging that
Mr. Matthews had acted improperly in refusing to accept
the withdrawal of the resignation. The Agency responded
to those letters stating that the Agency’s actions were
proper. (A-86, 87, 88.) The Agency, again, failed to inform
the petitioner that he had a right to appeal to the MSPB if
he believed that his resignation was indeed involuntary
(A-86, 87, 88.) No written or even oral notice with regards
to his MSPB rights was ever given to him. (A-70, 71, 72.)
After the effective date of his resignation, the peti-
tioner filed an Application with the Agency’s Director of
Practice seeking authorization to practice before said
Agency, this being the only field for which the petitioner
had ever been educated or trained. (A-6.) Mr. Matthews,
on December 9, 1987, wrote an extraordinarily derogatory
memorandum to the Director of Practice, revealing ele-
ments of the alleged investigation of the petitioner and
volunteering his “strong opposition” to the petitioner’s
application for authorization to practice before the
Agency. (A-81.)
On May 16, 1990, the petitioner filed an appeai with
the MSPB alleging, inter alia, that he lacked the mental
capacity to submit his resignation, the Agency obtained
his resignation through coercion and duress, the Agency
violated the terms of the oral settlement agreement, thus
obtaining his resignation through deception, the Agency
violated 5 C.F.R. § 715.202(b) by denying his request to
withdraw his resignation before the effective date of said
resignation, that the resignation was invalid under Inter-
nal Revenue Manual (hereinafter “IRM”) § 0715.4(3)
because it was conditional, that the Agency forced him to
resign because of his quality initiative program, and that
the Agency failed to provide him with his appeal rights
to the MSPB regarding his resignation and therefore good
cause existed for his delay in filing his appeal. (A-31.)
10
On September 10, 1990, a full evidentiary trial was
conducted before Arthur Joseph, the Administrative
Judge of the MSPB in New York City.
On October 25, 1990, the Administrative Judge issued
his MSPB Initial Decision declaring, inter alia, that the
petitioner’s resignation had been rendered involuntary
by actions of the Agency and ordering the petitioner’s
reinstatement. (A-27-76.) Post-hearing submissions and
petitions for review were filed before the MSPB Opinion
and Order was issued on December 20, 1991, reversing
the Initial Decision. (A-10-20.) There was also a dissent to
said Opinion and Order filed by the Vice-Chairman of the
MSPB. (A-21-25.)
A timely appeal was filed by the petitioner in the
United States Court of Appeals for the Federal Circuit.
On December 18, 1992, after full briefing and oral
argument, the U.S. Court of Appeals for the Federal
Circuit entered judgment affirming the decision of the
MSPB. (A-3-9.) The petitioner filed a timely Petition for
Rehearing which was denied on February 23, 1993.
(A-1-2.)
The opinion below, and subsequent denial of the
Petition for Rehearing, have created a new immunity for
federal employees that effectively denies the petitioner
any remedy and for which there is absolutely no prece-
dent established by Congress, this Court or any Court of
Appeals. Furthermore, the lower court has failed to
address other vital substantive issues raised by the peti-
tioner.
11
ARGUMENT FOR GRANTING OF THE WRIT
I. THE UNITED STATES COURT OF APPEALS FOR
THE FEDERAL CIRCUIT ERRED WHEN IT CRE-
ATED, OUT OF WHOLE CLOTH, AN IMMUNITY
FOR FEDERAL EMPLOYEES WHO BREACH A
VOLUNTARY RESIGNATION AGREEMENT.
The Court below had jurisdiction to review the find-
ings and conclusions of the Merit Systems Protection
Board (hereinafter referred to as “MSPB”) pursuant to 5
U.S.C. § 7703(c). The standard of review that the lower
Court should have employed on the instant matter had
been previously determined by said Court in the recent
case of Gromo v. Office of Personnel Management, 944 F.2d
882 (Fed.Cir. 1991).
The United States Court of Appeals for the Federal
Circuit stated in Gromo that when reviewing a decision of
the MSPB, said decision would be affirmed unless it is
found to be:
(1) arbitrary, capricious, abusive discretion or
otherwise not in accordance with law;
(2) obtained without procedures required by
law, rules or regulations having been followed;
or
(3) unsupported by substantial evidence. (cita-
tions omitted).
Gromo v. Office of Personnel Management, supra, at 884; 5
U.S.C. § 7703(c).
Thus, the Court below was given significant discre-
tion when reviewing a decision of the MSPB to look at the
12
entire record before the MSPB in order to make a deter-
mination as to whether or not the decision was arbitrary,
an abuse of discretion or contrary to existing law.
Furthermore, the lower Court had discretion to take
into consideration all relevant factors so as to assure that
the MSPB, when making its determination, did not ignore
existing precedent or overlook vital legal issues. Steger v.
Defense Investigative Service Department of the Department of
Defense, 717 F.2d 1402 (Fed.Cir. 1983).
Turning to the facts of the instant case, the Court
below was asked to make a legal determination as to
whether or not the resignation of the petitioner was “vol-
untary,” as that term has been defined by both the MSPB
and the Federal Circuit. The criteria for voluntariness is
quite simple. The Court below, in previous decisions, had
already stated that “freedom of choice” of the employee
is the guiding principle in determining whether or not a
resignation is indeed “voluntary.” Scharf v. Department of
the Air Force, 710 F.2d 1572, 1574 (Fed.Cir. 1983). As the
Lower Court stated in Scharf, the voluntariness of a resig-
nation is determined by whether or not the employee, (a)
resigned under duress brought about by government
action; (b) unsuccessfully tried to withdraw the resigna-
tion before its effective date; (c) submitted a resignation
under time pressure; (d) failed to understand the situa-
tion due to mental incompetency; or (e) the resignation
was obtained by the Agency’s misrepresentation or
deception. Scharf v. Department of the Air Force, supra at
1574 (citations omitted).
In the instant matter, the lower Court found that the
resignation of the petitioner remained voluntary even
13
after a breach of said agreement by Mr. Matthews.
(A-3-9.) The sole ground for said determination was that
the District Director, Gary Matthews, the chief antagonist
of the petitioner, and the Director of Practice of the Inter-
nal Revenue Service, Leslie Shapiro, were both employees
of the Internal Revenue Service, and that therefore their
communications, even if in violation of the resignation
agreement, were “an internal communication from within
the agency from one officer to another as part of the
routine and ongoing business of the agency,” which could
not render the resignation legally “involuntary.” (A-9.)
This astonishing determination, in light of the rest of
the opinion of the Court of Appeals, and in light of the
egregious actions of Mr. Matthews to not only discredit
but to destroy Mr. Goodwin (A-81, 82), clearly violates
the previous precedents of that same Court as to the
standard of review necessary to determine the voluntari-
ness of a resignation.2 Furthermore, the opinion was writ-
ten in a total vacuum, as there was absolutely no citation
to any precedent for carving out this new immunity for
Federal employees who commit wrongdoing while in the
course of their employment. (A-3-9.)
The lawful standard of review for a voluntary resig-
nation settlement is to review all of the surrounding
circumstances in order to test whether or not the
? It can not be overemphasized that the petitioner’s liveli-
hood has literally been destroyed by Mr. Matthews’ interference
with the petitioner’s Application to the Director of Practice. Not
only was this area the only one where the petitioner could earna
living, but Mr. Matthews’ memorandum literally held said
application in abeyance for over 4-1/2 years.
14
employee (the petitioner herein) was able to exercise free
choice when he entered into the resignation agreement.
Scharf v. Department of the Air Force, supra.
This “free choice” or “informed choice” requires that
the petitioner show that a “reasonable person” would
have been misled by the Agency’s statements or omis-
sions. This is an objective test, not a test which relies
upon the subjective opinions of either party or the
employment status of the parties involved. This test
requires that the lower Court analyze all of the facts and
circumstances surrounding the resignation and the
actions taken by the Agency subsequent to that resigna-
tion. Scharf v. Department of the Air Force, supra.
As is noted in the opinion of the Administrative
Judge (A-27-76) and the dissenting MSPB member
(A-21-26), it is clear that the petitioner, as a “reasonable
person,” was overtly misled by the Agency when it prom-
ised his resignation would be with a “clean record” and
then when the promising party, Gary Matthews, pro-
ceeded to write the extraordinary memorandum (A-81,
82) to Mr. Shapiro which held-up the petitioner’s practice
application for years. A “clean record” is a “clean record”
and this means no derogatory, defamatory or speculative
tirades by fellow employees about the petitioner. (See
A-27-76 and 21-26 for opinions of Administrative Judge
and dissenting MSPB member, respectively.)
The opinion of the lower Court, however, erro-
neously relies upon the status of Mr. Shapiro and Mr.
Matthews as employees of the same Agency as the deter-
mining factor when deciding whether or not the volun-
tary resignation settlement agreement between the
15
petitioner and the Agency was breached by the Agency,
thus rendering the resignation involuntary. (A-9.) There is
absolutely no settled law of any sort, nor is there any
citation in the lower Court’s opinion, that would distin-
guish whether or not the negative, derogatory and false
communications about the petitioner from Mr. Matthews
to Mr. Shapiro (A-81, 82) attained any different luster,
identity or legal status by virtue of the fact that the
parties who communicated these harangues happened to
be working for the same Agency.
It is undisputed in this matter that the parties entered
into a resignation agreement in which the petitioner
resigned in exchange for a “clean personnel record.”
(A-S.) It is also undisputed that Mr. Matthews wrote a
laudatory letter of reference for the petitioner as part of
his obligations under the settlement agreement. (A-83.)
There is also no dispute about the fact that Mr. Mat-
thews communicated with Mr. Shapiro about ten (10)
months after writing the laudatory reference letter about
the petitioner, stating, inter alia, that he strongly opposed
Mr. Goodwin’s application for a treasury practice card
and that Mr. Goodwin had resigned, “in the face of an
administrative investigation which would likely have
resulted in adverse action against Mr. Goodwin.” (A-81,
82.) This statement by Mr. Matthews clearly states that, in
his opinion, the petitioner did not resign with a clean
record. This statement breached the original voluntary
retirement, thus rendering it involuntary. (A-64.)3 These
* The comments of Mr. Matthews, as pointed out repeat-
edly to the lower Court, were totally speculative, at best, and
16
facts were established in the original administrative hear-
ing and are, in fact, undisputed by the parties. (A-64.)
When this letter is juxtaposed against the original refer-
ence letter (A-83), this further highlights the deception of
the petitioner by Mr. Matthews.
However, the lower Court’s opinion, while implicitly
admitting the same with regards to the breach of the
agreement by Mr. Matthews, simply ignores the “reason-
able person” standard of review and the issue of “free
choice” with regards to the resignation. Instead, out of
whole cloth, the lower Court carves out for Mr. Matthews
and the Agency an immunity from wrongdoing which
never existed in Federal law before this lower Court
opinion. This immunity seemingly attaches to Federal
employees, acting in their capacity as Federal officials,
when the wrongdoing is communicated between officials
of the same department.
There is simply no legal logic for this type of deter-
mination. The lawlessness that could ensue in an Agency
if this type of immunity is allowed to stand is dangerous,
at best. Furthermore, such a judicially created immunity
clearly has no legal precedent.
The fact scenario in the instant matter has been a
horrifying spectacle of Agency abuse committed by one
who appears to have a specific vendetta against the peti-
tioner. The lower Court, in its opinion, has given license
intentionally misrepresentative of the truth, since no charges
were ever proffered against Mr. Goodwin. Thus, Mr. Matthews’
pronouncement of “guilt” of some charge has absolutely no
basis in fact. (A-64.) It appears this destructive statement was
merely hysterical hyperbole.
SS
17
and sanction to said actions which have destroyed the
petitioner’s life. This decision gives the go-ahead to fed-
eral employees to falsely accuse other employees and
even “blackball” them for life without any fear of legal
reprimand or sanction. This unfettered federal invin-
cibility should not have been created by the lower Court
nor should it be sanctioned by this Court. It is undis-
puted in the instant matter that the statements that had
been made by Mr. Matthews in his memorandum to Mr.
Shapiro (A-81, 82) were pure speculation, as there is
nothing in the record and no information that was before
Mr. Matthews at the time that he wrote the memo that
would even suggest or hint that the conclusions that he
had made were true, since no charges were ever proffered
against the petitioner and no action was ever taken
against him. (A-61.)
The standard that the lower Court should have uti-
lized when reviewing the resignation settlement agree-
ment, and the subsequent involuntariness of that
agreement, in light of the actions of Mr. Matthews after
the agreement was reached, is whether or not a “reason-
able person” would have been misled by promises that
were made by the Agency and the subsequent actions
that were taken by said Agency. Covington v. Department
of Health and Human Services, 750 F.2d 937 (Fed.Cir. 1984).
The lower Court implicitly admits that a “reasonable
person” such as the petitioner in this matter, would have
indeed, been misled by the Agency’s actions when Mr.
Matthews sent the derogatory memo to anyone outside of
the Agency. (A-8.) Then the lower Court dips into a new
area by establishing a new criteria for immunity from
18
liability, to wit: the employment status of the recipient of
the wrongful communication. (A-9.) This deviates sub-
stantially from previous case law in this area.
It is incomprehensible and inconceivable that so-
called “internal communications” and communications
by someone in an Agency to a third party could really be
different, as a matter of law. The lower Court's interpreta-
tion of the settlement agreement between the parties is a
question of law, Greco v. Department of the Army, 852 F.2d
558 (Fed.Cir. 1988), and this new immunity created by the
lower Court is a new judicially created anomaly that must
be stricken.
The lower Court simply ignored the established stan-
dards created by the Federal Circuit in previously
decided cases and cast aside the “free choice” require-
ment or the “reasonable person” standard. Now, any
deceptive action that a federal employee wishes to take in
violation of a lawfully-agreed-to settlement can be abro-
gated by a so-called “internal communications” exception
to liability, even if the communications are false, mislead-
ing and clearly in violation of a resignation agreement.
This unprecedented stray from established law and
ensuing creation of immunity from liability where none
previously existed is a very dangerous departure from
accepted judicial practice and raises a serious issue of
federal law that should be settled by this Court.
|
19
Il. THE LOWER COURT IGNORED THE ALLEGA-
TIONS OF VIOLATIONS OF THE PETITIONER’S
RIGHTS OF DUE PROCESS, WHICH VIOLA-
TIONS WOULD REQUIRE REVERSAL OF THE
M.S.P.B. ORDER.
In addition to deceiving the petitioner into resigning,
the Agency also denied him his rights to due process of
law by failing to notify him of his right to appeal to the
MSPB the actions taken against him by the Agency.4
These denials were “harmful errors” warranting reversal
of the Agency’s decision. On at least three (3) undisputed
occasions, the Agency failed to provide the petitioner
with any of his appeal rights to the MSPB after the
Agency had taken adverse action against him. (A-70, 71.)
This Court has stated, and the MSPB and the Federal
Circuit Court of Appeals have held that, where there is a
failure to provide a Federal employee with his appeal
rights as guaranteed by 5 C.F.R. § 1201.21, this, in itself,
requires reversal of the Agency’s decision that was
appealable and for which no right of appeal was ever
provided. Cleveland Board of Education v. Loudermill, 470
U.S. 532 (1985).
The failure to provide a Federal employee, the peti-
tioner in this case, with his appeal rights, in writing,
“.. . constitutes an abridgement of his constitutional
right to minimum due process of law.” Stephen v. Depart-
ment of the Air Force, 47 MSPR 672 (1991). Where such
i 4 These issues, while briefed and argued extensively, were
; never addressed by the MSPB or by the lower Court. The
Administrative Judge, however, did briefly touch on these
issues in his opinion. (A-71.)
20
harmful procedural error likely had a harmful effect upon
the outcome of the case, the reversal of the Agency’s
action is mandatory. Shiflett v. U.S. Postal Service, 839 F.2d
669 (Fed.Cir. 1988).
It is undisputed that the petitioner in the instant
matter gave notice of the breach of the original resigna-
tion settlement agreement to the Agency as early as
March of 1987 when he notified the then regional counsel
that the investigative files that had been generated and
agreed to be kept confidential were admittedly given to
another Agency employee, Mr. Grubka. Then the peti-
tioner attempted to rescind his resignation and had volu- _
minous correspondence with the Agency about the
breach of the Agreement. (A-70, 71, 86-88.) It is uncon-
troverted that the Agency never provided the petitioner
with his appeal rights to the MSPB after the Agency had
denied the petitioner’s request for relief. (A-70, 71.)
The Agency’s failure to provide the petitioner with
his rights as guaranteed by 5 C.FR. § 1201.21 is, in fact,
“harmful error” under 5 U.S.C. § 7701(c)(2)(A). This type
of “harmful error” has been defined by this Court as
being that type of error that “substantially prejudiced”
the petitioner’s rights effecting the Agency’s decision.
Cornelius v. North, 472 U.S. 648 (1985). Reversal of an
action taken by the Agency for “harmful error” is war-
ranted where the “procedural error” likely had a harmful
effect upon the outcome of the case before the Agency.
See, Shiflett v. U.S. Postal Service, supra. Nothing could be
more harmful than the fact that the errors of the Agency
herein resulted in the petitioner’s removal from the Inter-
nal Revenue Service without remedy for many years.
21
The lower Court simply ignored these due process
issues.
By failing to address these issues and allowing them
to remain unresolved, the lower Court, and the MSPB
have deviated from appropriate legal standards and have
simply ignored existing legal precedent regarding protec-
tion of the petitioner’s rights to due process under law.
This is especially true where the facts are undisputed by
the Agency with regards to their utter failure to provide
the petitioner with any advice or notice, under law, after
taking adverse action against him or when he gave speci-
fic oral and written notice that he felt that the retirement
agreement had become involuntary, as a matter of law.
(A-71.)
The fact that the Court below has ignored this vital
constitutional and statutory issue of due process is
exactly the type of special and important reason why this
Court should grant the petitioner’s Petition for Writ of
Certiorari.
Ill. THE LOWER COURT IGNORED THE LEGAL
IMPACT OF THE PETITIONER’S ATTEMPT TO
RESCIND HIS RESIGNATION BEFORE THE
EFFECTIVE DATE OF THE SAME.
Upon realizing that the resignation agreement had
been breached by the Agency, the petitioner gave written
notice to rescind said resignation prior to the effective
date thereof. (A-84.) While the Agency responded (A-85),
said response was not in compliance with the specific
requirements of 5 C.E.R. § 715.202(b) which states that an
22
Agency must accept said rescission so long as it is ten-
dered prior the effective date. The only exception is if the
Agency has a valid reason not to accept the same and
explains that to the employee. 5 C.F.R. § 715.202(b). The
Agency utterly failed to do this, thus depriving the peti-
tioner of his right to return to work. (A-85.)
Numerous letters were exchanged between the peti-
tioner and various authorities at the Agency. (A-84-88.)
After the petitioner submitted his rescission letter (A-84)
to Mr. Matthews, however, Mr. Matthews responded
(A-85) by simply stating that since the post-dated resig-
nation agreement was already on record, no rescission
would be accepted. (A-85.) This abrupt response was
wholly inadequate and unlawful under the requirements
noted in 5 C.F.R. § 715.202(b). Said regulation requires that
Mr. Matthews not only have a valid reason for not accept-
ing said rescission, but that he explain it as well. Mr.
Matthews ignored this regulation entirely in his letter.
(A-85.)
This failure requires that said rescission be accepted
retroactive to June 14, 1987.
.
23
CONCLUSION
For the foregoing reasons, this Court should grant
Certiorari and determine the issues noted above so as to
correct the departure from established precedent by the
Court below.
Respectfully submitted,
Petitioner,
By his attorney,
Burton A. Nap er
BBO# 366340
Petrucetty & Napier, PC.
One Court Street, Suite 1000
Boston, MA 02108
(617) 720-1717
Dated: May 21, 1993
APPENDIX
Order denying Petition for Rehearing from U.S.
Court of Appeals for the Federal Circuit........ A-1
Judgment of the United States Court of Appeals
CE | A-3
Opinion and Order of the Merit Systems Protec-
EE eee eee Te ee eee A-10
Initial Decision of Administrative Judge of Merit
Co . Sr A-27
eee eee w Sib 4si 605 64 FS tees neseew es A-77
A-1
Unitep States Court or APPEALS FOR THE FeperAL CIRCUIT
92-3207
DAVID A. GOODWIN,
Petitioner,
Vv.
DEPARTMENT OF THE TREASURY,
Respondent.
ORDER
A combined petition for rehearing and suggestion for
rehearing in banc having been filed by the PETITIONER,
and the petition for rehearing having been referred to the
panel that heard the appeal, and thereafter the suggestion
for rehearing in banc having been referred to the circuit
judges who are in regular active service,
UPON CONSIDERATION THEREOF, it is
ORDERED that the petition for rehearing be, and the
same hereby is, DENIED, and it is further
ORDERED that the suggestion for rehearing in banc
be, and the same hereby is, DECLINED.
FOR THE COURT,
FRANCIS X. GINDHART,
CLERK
Dated: February 23, 1993 By /s/ Diane M. Frye
Diane M. Frye
Chief Deputy Clerk
A-2
cc: BURTON A. NADLER
BRAD FAGG
GOODWIN V TREASURY, 92-3207
(MSPB — NY07529010477)
A-3
Unitep States Court or APPEALS FOR THE FEepeRAL CircuIt
92-3207
DAVID A. GOODWIN,
Petitioner,
v.
DEPARTMENT OF THE TREASURY,
Respondent.
JUDGMENT
ON APPEAL from the MERIT SYSTEMS PROTECTION
BOARD
in CASE NO(S). NY07529010477
This CAUSE having been heard and considered, it is
ORDERED and ADJUDGED:
AFFIRMED
ENTERED BY ORDER OF
THE COURT
DATED DEC 18 1992 /s/ Francis X. Gindhart
Francis X. Gindhart, Clerk
COSTS: Against, Peti-
tioner.
PRINTING ------------ $342.48
TOTAL ----------------- $342.48
ISSUED AS A MANDATE: January 8, 1993
A-4
Unitep States Court oF APPEALS FOR THE FEDERAL CIRCUIT
92-3207
DAVID A. GOODWIN,
Petitioner,
V.
DEPARTMENT OF THE TREASURY,
Respondent.
DECIDED: December 18, 1992
Before MICHEL, Circuit Judge, SKELTON, Senior Circuit
Judge, and CLEVENDER, Circuit Judge.
SKELTON, Senior Circuit judge.
Appellant David A. Goodwin petitions for judicial
review of the decision of the Merit Systems Protection
Board (the board) dated December 20, 1991, Docket No.
NY07529010477, in which the board held that it did not
have jurisdiction of appellant’s appeal because he had
voluntarily resigned from his position of Chief, Examina-
tion Branch, GM-15, with the Internal Revenue Service
(the agency) in Buffalo, New York, effective June 16, 1987.
We affirm for reasons set forth below.
Soon after appellant’s attendance at an off-site, off-
duty, after-hours Halloween party with some agency
trainees, an anonymous report was made to the Buffalo
District Director, Gary Matthews, regarding alleged mis-
conduct of appellant at the party. Appellant was placed
A-5
on special assignment by Matthews at the ager.cy’s Ham-
burg, N.Y. post of duty on or about December 8, 1986,
pending an investigation into the allegations of appel-
lant’s misconduct.
On or about December 23, 1986. Matthews told
appellant that the agency intended to propose appellant’s
demotion for misconduct unless he agreed to choose a
voluntary demotion. From that date to January 29, 1987,
appellant and his then attorney Philip Abramowitz nego-
tiated with the agency to determine whether a settlement
agreement could be reached whereby appellant would
resign in exchange for a “clean record”. These negotia-
tions culminated in an oral agreement as follows:
(1) The appellant would resign after exhausting his
accumulated sick leave:
(2) The agency would provide him with a “clean
personnel record”;
(3) The parties would agree on a letter of reference
from the IRS District Director Gary Matthews; and
(4) The agency would publish in its local employee
newspaper the appellant’s stated personal reason for
resigning.
Pursuant to this agreement, appellant submitted his
resignation dated January 29, 1987, as follows:
1, David Goodwin, Chief Examination Division,
Buffalo District, hereby resign from the Internal
Revenue Service unconditionally and irrevoca-
bly upon termination of my accrued sick leave
but no later than July 1, 1987.
A-6
The District Director Gary Matthews furnished a letter of
reference to appellant in accordance with the agreement,
and Standard Form (SF) 50, Notification of Personnel
Action, showing that appellant had resigned effective
lune 14, 1987, was issued by the agency. We assure that
the publication was made in the employee newspaper as
required by provision (4) of the agreement, although
there is nothing in the record about it. In any event,
appellant has not raised any issue regarding it.
The agency filled appellant’s vacant position on
March 2, 1987. Notwithstanding this fact, the appellant
wrote a letter, dated June 4, 1987, to Matthews attempting
to rescind his resignation before it became effective on
June 16, 1987. Matthews denied the request in a letter
dated June 15, 1987. The board held that this denial was
proper since appellant’s position had been filled, citing 5
C.F.R. § 715.202(b) and two prior board decisions.
After his resignation, appellant obtained a position in
the private sector working in a real estate firm. In the
meantime, appellant submitted an application for enroll-
ment to practice tax matters before the agency to Leslie A.
Shapiro, the Director of Practice of the agency whose
duty was to adjudicate such applications, and by so doing
either allow or disallow them. Shapiro inquired of Mat-
- thews on November 10, 1987, as to appellant’s fitness to
practice before the agency, and Matthews responded on
December 9, 1987, in a memorandum which stated:
In response to your November 10, 1987, inquiry
concerning Mr. Goodwin’s application, |
strongly oppose his proposed enrollment. |
think it is important to understand that Mr.
PR Bs
A-7
Goodwin resigned in the face of an administra-
tive investigation which would have likely
resulted in an adverse action against Mr. Good-
win.
At the time of the initial hearing of this case, Mr. Shapiro
had not issued a decision on the application. It is clear
that both Shapiro and Matthews were employees and
officials of the agency.
In his appeal, appellant alleged, inter alia: (1) that he
lacked the mental capacity due to intoxication to submit
his resignation; (2) that the agency obtained his resigna-
tion through coercion and duress; and (3) that the agency
breached the terms of the oral settlement agreement and
extracted appellant’s resignation through deception when
Matthews sent Shapiro the December 9, 1987, memoran-
dum strongly recommending against appellant’s applica-
tion for enrollment to practice before the agency, thereby
rendering the agreement invalid. Appellant requested the
board to declare the settlement agreement void, and that
he be restored to his former position with back pay and
other benefits to which he should be entitled.
The case was assigned to an administrative judge
(AJ) who conducted a trial and at its conclusion made
certain findings, and entered a judgment in favor of the
appellant, as described below.
The AJ found, inter alia, that the parties had made
the oral settlement agreement in exchange for appellant's
resignation; that appellant had the mental capacity to
make the agreement; that the agency did not obtain
appellant’s resignation through coercion or duress; that
A-8
the agency breached the terms of the settlement agree-
ment and obtained appellant’s resignation through
deception when Matthews sent Shapiro the memorandum
recommending that the appellant’s application for enroll-
ment be denied because appellant had resigned in the
face of an investigation which would likely have resulted
in an adverse action, thereby indicating that appellant
resigned with pending charges against him; that the Mat-
thews memorandum breached the terms of the agreement
that provided that the agency would provide appellant
with a “clean personnel record”; and that because of this
breach of the agreement by the agency, appellant’s resig-
nation was involuntary. Based on these findings, none of
which were contested or objected to by the appellant, the
AJ rendered judgment for appellant reversing the
agency’s action, and ordering that appellant be retroac-
tively restored to his position with back pay and other
benefits to which he was entitled.
Both parties petitioned the full board for review. The
board, with one member dissenting, denied appellant's
petition, and granted the petition of the agency. The
board then reviewed the decision of the AJ, and held that
it did not have jurisdiction over the appeai because
appellant failed to show that the agency intended not to
fulfill or breached the terms of the settlement agreement,
thereby making his resignation involuntary. Implicit in
this holding is that appellant’s resignation was voluntary,
which deprived the board of jurisdiction. The board held
further that no error was committed by the agency when
Matthews sent his memorandum to Shapiro.
The appellant has appealed to this court. Appellant
says that the settlement agreement was breached when
iO Bal STi a 5 la ent ile
A-9
Matthews sent his memorandum to Shapiro recommend-
ing that appellant not be enrolled to practice tax matters
before the agency. Appellant argues that he was promised
a “clean personnel record” and that Matthews’ memoran-
dum was contrary to that promise, and therefore the
agreement was breached and no longer valid and, conse-
quently, his resignation was involuntary. We do not agree.
Matthews was the district director and participated in
both the settlement and the investigation. Shapiro was
the agency’s Director of Practice. Because Matthews and
Shapiro were both employees and officers of the agency,
we conclude that the memorandum to Shapiro was an
internal communication within the agency from one offi-
cer to another as a part of the routine and on-going
business of the agency. The contents of the memorandum
were not revealed nor made known by the agency to
anyone outside of the agency. Under these circumstances,
it is our view that it was proper for Matthews to send the
memorandum to Shapiro, and that the agency did not
breach the terms of the settlement agreement based on
Matthews’ statement. We have considered the other argu-
ments raised on appeal by appellant and find them to be
without merit. Accordingly, we hold that the settlement
agreement was valid and binding on the parties, was
complied with and performed by the agency, appellant's
resignation was voluntary, and the board did not have
jurisdiction of his appeal. The decision of the board is
AFFIRMED.
A-10
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DAVID A. GOODWIN,
DOCKET NUMBER
Appellant,
)
)
NY07529010477
V.
DEPARTMENT OF THE DATE: DEC. 20, 1991
TREASURY, )
Agency. )
)
Burton A. Nadler, Esquire, Petrucelly & Nadler,
P.C., Boston, Massachusetts, for the appellant.
Eileen P. Collins, Esquire, New York, New York,
for the agency.
BEFORE
Daniel R. Levinson, Chairman
Antonio C. Amador, Vice Chairman
Jessica L. Parks, Member
Vice Chairman Amador issues a dissenting opinion.
OPINION AND ORDER
This case is before the Board upon the appellant’s
petition for review and the agency’s petition for review of
the October 25, 1990 initial decision that found that the
appellant’s separation could not be sustained. For the
reasons discussed below, the Board DENIES the appel-
lant’s petition for failure to meet the criteria for review
set forth at 5 C.F.R. § 1201.115. The Board GRANTS the
agency’s petition for review under 5 C.F.R.
A-11
§ 1201.115(c)(2), REVERSES the initial decision, and DIS-
MISSES the petition for appeal for lack of jurisdiction.
BACKGROUND
Until his resignation effective June 16, 1987, the
appellant was employed as Chief of the Internal Revenue
Service’s Enforcement Division in Buffalo, New York. On
May 16, 1990, the appellant filed with the Board’s New
York Regional Office a petition for appeal in which he
alleged that his resignation was involuntary. In a July 3,
1990 initial decision, the administrative judge, pursuant
to the parties’ stipulation, dismissed the appeal without
prejudice subject to the appellant's refiling of his appeal
within 30 days of the date of the initial decision. See
Initial Decision at 1 n.1, 32; Goodwin v. Department of the
Treasury, MSPB Docket No. NY07529010327 (Initial Deci-
sion, July 3, 1990).
The appellant refiled his petition for appeal on July
26, 1990. See Appeal File, Tab 1. In his petition for appeal
and supporting submissions, the appellant challenged the
validity of his resignation. He contended, inter alia,’ that
1 Because he found that the appellant’s resignation was
involuntary based on other grounds, the administrative judge
declined to address the appellant’s contentions that the agency
improperly refused to allow him to withdraw his resignation
before its effective date, and that the resignation was invalid
because it was ‘conditional. See Initial Decision at 30 n.8. The
appellant has not pursued these contentions on review.
We find that the appellant’s resignation was not involun-
tary because of the agency’s refusal to permit him to withdraw
it before its effective date and that the resignation was not
conditional. The record indicates that the agency filled the
A-12
the agency breached the terms of the parties’ oral agree-
ment that the appellant would resign from his position in
exchange for a “clean personnel record,” by disclosing to
another employee under investigation and to the
agency’s Director of Practice (DOP), to whom the appel-
lant had subsequently applied for enrollment to practice
before the IRS, that the appellant had resigned under
cloud of an investigation into certain acts of misconduct
he had allegedly committed. The appellant also con-
tended that good cause existed for the untimely filing of
his petition for appeal because the agency failed to notify
him of his right to appeal to the Board from the alleged
involuntary resignation. See Initial Decision at 4-5.
appellant’s position on March 2, 1987, prior to his June 4, 1987
request for withdrawal. See, e.g., Appeal File, Tab 6, Subtabs 1,
4M, and Tab 10, Subtabs C, D. Thus, the agency acted properly
in refusing the appellant’s request to withdraw his resignation.
See 5 C.F.R. § 715.202(b); Einstein v. Department of the Army, 26
M.S.P.R. 404, 407-08 & n.1 (1985); see also Greene v. Department of
Health and Human Services, 48 M.S.P.R. 161, 165-66 (1991).
Because the appellant’s resignation was not involuntary based
on the agency’s refusal to allow him to withdraw it, the Board
lacks jurisdiction over the appellant’s appeal on this ground. See
Einstein, 26 M.S.P.R. at 407-08 & n.1. We further find that the
appellant’s resignation was not conditional and, thus, invalid
under agency regulation IRM (Internal Revenue Manual)
0715.4(3), which provides that a resignation based on an
employee’s statement of conditions is unacceptable. See Appeal
File, Tab 34. Rather, the appellant’s resignation states that he
resigned “unconditionally and irrevocably upon termination of
[his] accrued sick leave but no later than July 1, 1987.” See id.,
Tab 6, Sub 4N. Therefore, the appellant’s resignation was also
not involuntary and within the Board’s jurisdiction based on
this contention.
SMARTER NS Me dt Slings Mu
Be AN A big et LIL ARS SNE BNR Pin atts A IES SOO
© plain ab
A-13
The administrative judge found that the parties had
entered into an oral agreement. He reviewed the terms of
the agreement for the limited purpose of determining
whether the Board had jurisdiction over the appeal
because of any agency action that rendered the resigna-
tion involuntary.2 The administrative judge found, inter
alia, that, in January 1987, the parties entered into an oral
agreement that provided that: (1) The appellant would
resign after exhausting his accumulated sick leave; (2) the
agency would provide him with a “clean personnel
record”; (3) the parties would agree on a letter of refer-
ence from IRS District Director Gary Matthews; and (4)
the agency would publish in its local employee news-
paper the appellant’s state reason for resigning. Initial
Decision at 24-25.
Contrary to the appellant’s contention, the adminis-
trative judge found that the agency did not agree to
destroy the investigative file in the appellant’s case. In
this regard, the administrative judge relied on testimony
that the agency needed the investigative file in connec-
tion with a demotion action involving another employee
who was allegedly involved in the same misconduct as
the appellant. Id. at 25-26. Nevertheless, the administra-
tive judge found that the agency breached the terms of
the parties’ oral agreement because Mr. Matthews sent to
the DOP a memorandum “strongly” recommending
2 The Board has held that it lacks the authority to enforce
the terms of a settlement agreement that was not submitted into
the record for enforcement purposes in a matter over which the
Board has jurisdiction. See Gaither v. Department of Justice, 444
M.S.P.R. 221, 223 (1990); Danelishen v. United States Postal Service,
43 M.S.P.R. 376, 379-80 (1990).
A-14
against granting the appellant’s application for enroll-
ment to practice before the IRS based on the investiga-
tion, which Mr. Matthews stated would likely have
resulted in an adverse action against the appellant had he
not resigned. Id. at 26-27. The administrative judge con-
cluded that the agency obtained the appellant’s resigna-
tion through deception because it had agreed that, in
exchange for the resignation, it would provide the appel-
lant with a clean record, which the administrative judge
found required the appellant’s personnel records to
reflect that he resigned for personal reasons without ref-
erence to pending charges of misconduct. The administra-
tive judge determined that, even if Mr. Matthews
honestly believed that providing a clean record to the
appellant did not preclude him from making the state-
ment in his memorandum, the agency’s promise to pro-
vide the appellant with a clean record was a
misrepresentation because the agency withheld material
information from the appellant by not revealing to him
that it could disclose the circumstances of his resignation.
Id. at 29-30. Thus, the administrative judge determined
that the Board had jurisdiction over the appeal. Id. at 30.
The administrative judge then waived the time limit
for filing the petition for appeal. He found that there was
good cause for the untimeliness under Shiflett v. United
States Postal Service, 839 F.2d 669, 674 (Fed. Cir. 1988), as
well as under Ricci v. Veterans Administration, 40 M.S.P.R.
113, 116 (1989), and other Board decisions, because the
agency failed to inform the appellant of his right of
appeal to the Board after the appellant placed it on
notice, as early as March 1987, and also on subsequent
occasions, that he considered his resignation to be
A-15
invalid. Initial Decision at 34-35. The administrative
judge did not sustain the appellant’s resignation. Id. at
35-36.
The appellant has filed a “limited” petition for
review of the initial decision.> The agency has also filed a
petition for review,4 contending, inter alia, that the
administrative judge erred by exceeding his authority in
-modifying the terms of the parties’ oral agreement. The
appellant has responded to the agency’s petition for
review.°
3 The appellant’s petition for review does not challenge any
of the administfative judge’s findings of law or fact. Rather, it
merely points out certain typographical errors in the initial
decision, i.e., that the administrative judge stated that “the
appeal,” rather than the agency action was “reversed,” and that,
on page 29 of the initial decision, the administrative judge used
the word “representation” rather than “resignation.” A review
of these errors shows that they are merely technical and do not
constitute a basis for granting the appellant’s petition for
review. See 5 C.F.R. § 1201.115(c).
4 The agency asserts that it has not afforded the appellant
interim relief because his resignation became effective on June
16, 1987 (prior to the July 9, 1989 effective date of the Whis-
tleblower Protection Act (WPA) of 1989, that provides for
interim relief). See 5 C.F.R. § 1201.115(b). The appellant has not
asserted his entitlement to interim relief, and we agree that he is
not entitled to such relief under the WPA.
5 In December 5, 1990 notices, the Board informed the par-
ties that the record would close when the time for filing
responses to the petitions for review, or cross-petitions for
review, had passed, and that additional submissions would not
be considered absent a showing that they were based on new
and material evidence that was not available before the record
closed. See Petition for Review (PFR) File, Tab 3. In a December
28, 1990 letter to the Board, the agency requested an extension of
A-16
ANALYSIS
The Board lacks jurisdiction over the appeal because the
appellant has not shown that his resignation was involun-
tary.
A settlement agreement is a contract, and, in constru-
ing it, the Board must first examine the agreement itself
to determine the parties’ intent. The Board cannot uni-
laterally modify the material terms of a settlement agree-
ment. Harrison v. Veterans Administration, 44 M.S.P.R. 594,
599 (1990); see also Putnam v. Department of Housing and
time to January 7, 1991, within which to reply to the appellant's
response to its petition for review. Id. at Tab 5. It filed its reply
on January 4, 1991. Id. at Tab 7. By letter dated December 31,
1990, the appellant requested that the Board deny the agency's
request. Id. at Tab 6. The appellant subsequently moved to strike
the agency’s reply and requested sanctions against the agency
in the form of $1,000.00 in attorney fees. Id. at Tab 8. The agency
responded to the appellant’s motion for sanctions, contending
that its submission of the reply to the appellant’s response did
not violate Board regulations and that there is no basis on which
to grant the sanctions requested by the appellant. Id. at Tab 10.
We DENY the agency’s request to reply to the appellant’s
response to its petition for review. Because the agency filed its
December 28, 1990 and January 4, 1991 submissions after the
deadline set forth in the Board’s December 5, 1990 notice, it was
required to show that its submissions were based on new and
material evidence that was not available when the record
closed. See 5 C.F.R. § 1201.114(i); PFR File, Tab 3. We find that the
agency has not made this showing inasmuch as a review of the
agency’s submissions indicates that they merely expand on pre-
vious arguments. Therefore, we will not consider them.
As to the appellant’s request for sanctions in the form of
attorney fees, we DENY this request in view of our finding that
the Board lacks jurisdiction over the appeal.
A-17
ones A SIS
Urban Development, 44 M.S.P.R. 533, 535 (1990). Further-
more, a resignation, predicated on an agency promise
that it actually did not intend to fulfill, is involuntary,
and the Board has jurisdiction over it. See Wobschall v.
Department of the Air Force, 43 M.S.P.R. 521, 523, aff'd, 918
F.2d 187 (Fed. Cir. 1990) (Table); Danelishen v. United
States Postal Service, 43 M.S.P.R. 376, 380 (1990). We find,
however, that the Board lacks jurisdiction over the instant
appeal because the appellant has failed to show that the
agency intended not to fulfill or breached the terms of the
settlement agreement, thereby making his resignation
involuntary.
The agency contends that, in agreeing that the appel-
lant would resign with a “clean personnel record,” or a
“clean record,” the agency meant that the appellant’s
official personnel file would not reflect that he resigned
pending charges of misconduct. Petition for Review (PFR)
at 8-9, PFR File, Tab 2. The agency argues that the admin-
istrative judge erred by interpreting that the term of the
agreement to mean that the agency was precluded from
ever disclosing the circumstances surrounding the appel-
lant’s resignation, even within the agency. It contends
that the administrative judge’s interpretation is inconsis-
tent with his findings that the parties’ agreement did not
require destruction of the investigative file and that the
agency’s release of the investigative file to the other
employee involved in the same alleged misconduct did
not violate the settlement agreement. Id. at 12-13.
We agree with the administrative judge’s finding that
the agency did not breach the terms of the settlement
agreement when it released information regarding the
investigation to the other employee who was allegedly
t
A-18
involved with the appellant in the misconduct being
investigated. The employee would have already been
aware of the circumstances surrounding the appellant’s
resignation. Furthermore, because the agency was
involved in a demotion action against that employee
based on the same investigation, both the agency and the
employee would have required access to the investigative
file.
As to the alleged breach of the settlement agreement
by Mr. Matthews, the agency contends that the appellant
did not assert in his prehearing submissions that Mr.
Matthews improperly disclosed in his memorandum to
the DOP the circumstances of his resignation and that,
rather, he contended that the agency breached the parties’
agreement by disclosing the investigative file to the other
employee concerned and to the DOP. The administrative
judge found that the appellant raised the issue of Mr.
Matthews’s memorandum in his pleadings and at the
hearing. See Initial Decision at 27-28. Our review of the
record indicates that, while the appellant did not speci-
fically raise the issue of Mr. Matthews’s memorandum in
his pleadings and prehearing submissions, he alleged, in
a June 20, 1990 prehearing submission, that the agency
breached the settlement agreement “by allowing Mr. Mat-
thews to give not only negative, but, in fact, slanderous
opinions about the appellant to other parties in the Inter-
nal Revenue Service.” See MSPB Docket No.
NY07529010327, Appeal File, Tab 10.
We find, however, that the appellant has failed to
show that the agency breached the terms of the settle-
ment agreement based on Mr. Matthews’s statements. Mr.
Matthews’s statements to the DOP were not based on the
Pha ett AP ac Salt
A-19
appellant’s personnel record but, rather, were based on
his own memory. We note that Mr. Matthews was directly
involved with the settlement negotiations and perhaps
should have been more cautious in disclosing information
regrading the appellant’s employment. We also note,
however, that the other employee who was allegedly
involved with the appellant in the misconduct knew the
allegations of misconduct against the appellant and could
have shared the information with anyone. Likewise, any-
one having access to the investigative file could have
disclosed the information. There is no indication that the
parties agreed to terms to avoid such disclosure, e.g., that
a specific person, identified by name or title, was desig-
nated to handle all employment inquiries regarding the
appellant, or that only precise agreed-upon language
would be used in responding to requests for such
inquiries. See, e.g., Miller v. Department of Health and
Human Services, 41 M.S.P.R. 385, 386-88, 391-92 (1989). A
mere reference to a “clean personnel record” does not
require an agency “to guarantee non-disclosure in any
form.” Fuller v. United States Postal Service, 45 M.S.P.R.
611, 614 (1990).
Under these circumstances, the agency could not
have prevented an intra-agency disclosure even if it had
wanted to do so. To adequately advise someone that he is
not to disclose certain information, that individual must
be made aware of the information that is not to be dis-
closed. See Miller, 41 M.S.P.R. at 386-88, 391-92. Because,
in the instant appeal, Mr. Matthews was not apprised of
the specific information he was not to disclose, his state-
ments to the DOP did not constitute an agency breach of
the settlement agreement.
A-20
Accordingly, the Board lacks jurisdiction over this
appeal.
ORDER
This is the Board’s final order in this appeal. 5 C.F.R.
§ 1201.113(c).
NOTICE TO APPELLANT
You have the right to request the United States Court
of Appeals for-the Federal Circuit to review the Board’s
final decision in your appeal if the court has jurisdiction.
See 5 U.S.C. § 7703(a)(1). You must submit your request to
the court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later
than 30 calendar days after receipt of this order by your
representative, if you have one, or receipt by you person-
ally, whichever receipt occurs first. See 5 U.S.C.
§ 7703(b)(1).
FOR THE BOARD: /s/ Robert E. Taylor
Robert E. Taylor
Clerk of the Board
Washington, D.C.
A-21
DISSENTING OPINION OF
VICE-CHAIRMAN AMADOR
I would find that the appellant’s resignation was
involuntary because the settlement agreement was
invalid, having been obtained through the agency’s
deception. Assuming, arguendo, however, that the parties
entered into a valid settlement agreement, I would find in
the alternative that the appellant’s resignation was invol-
untary because the agency breached a material term of
that agreement.
The Board has held that it may examine the circum-
stances surrounding a settlement agreement, not entered
into the record, when considering whether the appellant's
resignation was involuntary. See, e.g., Danelishen v. United
States Postal Service, 43 M.S.P.R. 376, 380 (1990). A resigna-
tion need not be coerced to be involuntary it is also
involuntary if it is obtained by agency misinformation or
deception. The touchstone is whether the employee made
an informed choice. See Covington v. Department of Health
& Human Services, 750 F.2d 937, 942 (Fed. Cir. 1984). There
is no requirement that an employee be deceived inten-
tionally about his employment options, it being sufficient
that the employee shows that a reasonable person would
have been misled by the agency’s statements. Id., citing
Scharf v. Department of the Air Force, 710 F.2d 1572 (Fed.
Cir. 1983).
The terms of the oral settlement agreement provided
that the appellant would resign effective June 16, 1987,
after exhausting his accrued sick leave; the agency, in
turn, would furnish the appellant with a “clean record”
and a positive letter of reference from Mr. Matthews, the
A-22
Buffalo District Director for the Internal Revenue Service,
and it would permit the appellant to publish in the local
employee newspaper his stated reasons for resigning.
When one considers these terms, it is clear that the par-
ties intended to give the appellant a clean record, pre-
serving his professional reputation, in order to facilitate
his job search by providing favorable information regard-
ing his employment with the agency. See, e.g., Miller v.
Department of Health and Human Services, 41 M.S.P.R. 385,
391 (1989). I would find that the parties reasonably
understood that the intent of the oral settlement agree-
ment was to preclude disclosure of the circumstances
leading to the appellant’s resignation and to facilitate his
ability to obtain other employment.
The agency claims, however, that the scope of the
settlement agreement was limited by regulatory require-
ments, specifically 31 C.F.R. § 0.735.55. The agency con-
tends that the regulation obligated the appellant’s former
supervisor to disclose all facts concerning the appellant's
resignation to its Director of Practice (DOP) after the
appellant had applied to practice before him. See
Agency’s Petition for Review (PFR) at 15-17; IAF, Tab 27.
the agency also maintains that the appellant was aware of
the limited scope of the agreement, i.e., that the plain
meaning of a “ciean record” did not encompass any infor-
mation disclosed to agency officials. PFR at 13-14.
! would disagree. There is no evidence that the appel-
lant was aware of the agency’s alleged lack of authority
to comply with the settlement agreement in response to
an intra-agency inquiry or of the agency’s professed
belief that the agreement did not apply to such inquiries.
Assuming arguendo that its regulations required the-
a Oe ak A ces wilt aineon etic *
ee ee eee ee ee
Pe I Re AO Rag hte CA Slt CERES OR IN hg a aS
i tas Khan gila ee
PE hn ct, ite ae ent Kaa ineghiie Tar RE tee AR ee ots ee be wl er
A-23
agency to inform the DOP of the circumstances behind
the appellant’s resignation, | would find that the agency
deceived the appellant when it entered into the settle-
ment agreement because it did not inform the appellant
of this limitation.
It is well settled, of course, that a settlement agree-
ment is a contract which may be invalidated by evidence
of coercion, wrongful conduct, fraud, misrepresentation,
or mutual mistake in arriving at the agreement. See, ¢.g.,
Moran v. Veterans Administration, 43 M.S.P.R. 547, 552
(1990); Hightower v. Department of Trasnportation [sic], 39
M.S.P.R. 538, 541 (1989). The agency’s deception, even if
unintentional, thus rendered involuntary the appellant’s
resignation which was submitted in reliance upon the
agency’s promise of a “clean record.” See Covington, 750
F.2d at 942.
Even if we assume, however, that the settlement
agreement here was a valid contract, | would find that the
appellant’s resignation was involuntary because the
agency did not honor the terms of the settlement agree-
ment. See Wobschall v. Department of the Air Force, 43
M.S.P.R. 521, 523-24 (1990). Thus, I find without merit the
agency’s claim that it complied with terms of the oral
settlement agreement and gave the appellant a “clean
personnel record” when it merely gave the appellant two
clean personnel documents - a form SF-50 stating that he
had given no reason for his resignation and a personal
letter of recommendation signed by the Buffalo District
Director. See Initial Appeal File (IAF), Tab 6, Subtab 4H,
40. In fact, later than year, Mr. Matthews, in response to
the intra-agency inquiry from the DOP about the appel-
lant’s professional qualifications, did not conform to the
A-24
contents of the agreement but responded with a critical
memorandum in which he disclosed the circumstances
behind the appellant’s resignation. Since Mr. Matthews
was a party to the settlement negotiations and was the
author of both the letter of recommendation and the
memorandum, his was not an unintentional or inadver-
tent oversight to the negotiated terms. Not only did Mr.
Matthews not conform to the contents of the agreement
but, as the administrative judge found, he speculated that
the agency was likely to bring an adverse action against
the appellant. Initial Decision at 27. In so speculating, |
would find that Mr. Matthews went beyond providing
accurate background information and substituted his per-
sonal opinion. Thus, I would find that the agency
breached the plain, unambiguous terms of the settlement
agreement upon which the appellant relied. See Miller, 41
M.S.P.R. at 391-92. Since the appellant resigned in reliance
upon the agency’s statements, his resignation is deemed
involuntary. See Scharf, 710 F.2d at 1574-75.
Having determined that the Board has jurisdiction
over this appeal, | would next find that the administra-
tive judge correctly applied the Federal Circuit’s decision
in Shiflett v. U.S. Postal Service, 839 F.2d 669, 670-74 (Fed.
Cir. 1988), when he concluded that the appellant had
shown good cause for his delay and for waiver of the
filing deadlines. Initial Decision at 33-36.
For the above reasons, | respectfully dissent.
DEC 20 1991 /s/ Antonio C. Amador
(Date) Antonio C. Amador
Vice-Chairman
A-25
i CERTIFICATE OF SERVICE
| I certify that this OPINION AND ORDER was sent
today: By certified mail to:
Burton A. Nadler, Esquire
Petrucelly & Nadler, P.C.
One Court Street, Suite 1000
Boston, MA 02108
By regular mail to:
David A. Goodwin
177 Mast Road
| Dover, NH 03820
Eileen P. Collins, Esquire
: Department of the Treasury
Internal Revenue Service
7 World Trade Center, 25th Floor
New York, NY 10048
Marjorie Marks
. Employee Relations Division
Office of Personnel Management
1900 E Street, N.W., Room 7412
Washington, DC 20415
New York Regional Office
Merit Systems Protection Board
26 Federal Plaza, Suite 3137-A
New York, NY 10278
By hand to:
;
Office of Special Counsel
1120 Vermont Avenue, N.W.
: Washington, DC 20419
A-26
DEC 20 1991 /s/ Barbara Satcher
(Date) for Robert E. Taylor
Washington, D.C. Clerk of the Board
;
j
3
:
1 Li NS INE Tat I in tal NE A Ce ne A TD
A-27
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
NEW YORK REGIONAL OFFICE
) DOCKET
DAVID A. GOODWIN, ) aie
Appellant, ' N'Y07529010477
V.
) DATE:
DEPARTMENT OF THE )
TREASURY, October 25, 1990
Agency. )
)
Burton A. Nadler, Esquire, Boston, Massachusetts, for
the appellant.
Eileen P. Collins, Esquire, New York, for the agency.
BEFORE
Arthur Joseph
Administrative Judge
INITIAL DECISION
INTRODUCTION
Appellant refiled his appeal’, alleging that he invol-
untarily resigned from the competitive service position of
Program Manager (Chief, Examination Division), GM-15,
at the Internal Revenue Service’s Buffalo, New York Dis-
trict Office, and requesting a hearing. Because he was not
serving a probationary period and raised a nonfrivolous
1 Appellant's initial appeal was dismissed without preju-
dice pursuant to the parties’ joint stipulation. Goodwin v. Depart-
ment of the Treasury, MSPB Docket No. NY07529010327, slip op.,
at 2 (Initial Decision, Jul. 3, 1990). Appellant refiled his appeal
within the time limits set forth in the parties’ joint stipulation.
A-28
claim that resignation was involuntary, a hearing was
held on September 10, 1990. See Dumas v. Merit Systems
Protection Board, 789 F.2d 892, 894 (Fed. Cir. 1986). For the
reasons below, the appeal is REVERSED.
BACKGROUND
Appellant had about nineteen years of more than
satisfactory service with the Internal Revenue Service
before resigning from the position of Chief, Examination
Branch, GM-15, effective June 16, 1987. Indeed, he
received an overall outstanding rating in his last perfor-
mance appraisal in or about October 1986, as well as a
cash performance award.
On or about December 8, 1986, the then Buffalo dis-
trict Director Gary Matthews,? orally informed appellant
the [sic] he was being placed on special assignment at the
agency’s Hamburg, New York post-of-duty (POD), pend-
ing the completion of an investigation into allegations
that appellant engaged in misconduct during a Hal-
loween party in 1986. On or about December 23, 1986, Mr.
Matthews orally informed appellant that the agency
intended to propose appellant’s demotion for misconduct
unless appeliant agreed to chose a voluntary demotion.
From late 1986 through early 1987, Philip
Abramowitz, Esquire, represented appellant and was
authorized to determine whether a settlement agreement
2 Mr. Matthews was reassigned from his position at the
agency’s Buffalo District Office to the position of District Direc-
tor with the agency’s Philadelphia District Office sometime after
appellant’s resignation was effectuated.
NAS rela te Pen REESE ar UL LS ea nadie abe Dees
A-29
could be reached whereby appellant would resign in
exchange for, inter alia, a “clean record” During that
period, the parties engaged in settlement negotiations,
culminating in appellant’s submission of a written resig-
nation dated January 29, 1987, based on the parties’ belief
that they had reached an oral agreement. In his resigna-
tion, appellant stated the following:
I, David Goodwin, Chief, Examination Division,
Buffalo District, hereby resign from the Internal
Revenue Service unconditionally and irrevoca-
bly upon termination of my accrued sick leave
but no later than July 1, 1987.
As part of the agreement, Mr. Matthews provided
appellant with a letter of recommendation dated January
29, 1987. The agency subsequently issued a Standard
Form (SF) 50, Notification of Personnel Action, docu-
menting that appellant had resigned, effective June 16,
1987. That document, which was placed in appellant’s
official personnel file, contains no reference to any pend-
ing investigation into allegations that appellant engaged
in misconduct.
By letter dated June 4, 1987, addressed to Mr. Mat-
thews, appellant attempted to rescind his resignation and
requested six days advance sick leave. In response, Mr.
Matthews issued a June 15, 1987 letter, denying appel-
lant’s request and stating that the effective date of the
resignation would not be postponed. Enclosed with that
letter was a copy of the SF-50 documenting appellant's
resignation.
Appellant subsequently wrote letters to the agency
concerning the agency’s refusal to permit appellant's
A-30
rescission of his resignation. He alleged that Mr. Mat-
thews had acted improperly in obtaining and refusing to
accept the withdrawal of the former’s resignation. In
response, the agency informed appellant that it believed
that the agency’s action was proper. It did not, however,
inform appellant that he had a right to appeal the Board
if he believed his resignation was involuntary.
After his resignation, appellant filed an application
with the agency’s Director of Practice seeking authoriza-
tion to practice before the agency. In an April 4, 1988
letter, appellant informed the Director of Practice that he
was the subject of an “administrative review” concerning
a conduct-related matter before his resignation but that
he resigned “strictly for personal enhancement reasons.”
He also stated that his attorney was preparing a law suit
against Mr. Matthews.
Appellant subsequently retained, Burton Nadler,
Esquire, his current representative to file a civil suit. On
or about December 28, 1988, Mr. Nadler filed a civil
action in United States District Court for the District of
New Hampshire, claiming, inter alia, that appellant was
constructively and wrongfully terminated due to Mr.
Matthews’s refusal to grant appellant’s request to rescind
his resignation. Agency File, Tab 5C. By motion to dismiss
dated May 3, 1989, the United States Attorney’s Office for
the District of New Hampshire, argued, in relevant part,
that those counts of the complaint relating to appellant’s
allegation of wrongful termination should be dismissed
because appellant had failed to file an appeal exhausting
his administrative remedies before the Board. Id. at Tab
5B, Memorandum in Support of Motion to Dismiss. The
documents submitted to the court contain a certificate of
— ———_— — —~
1
10 ce RP eas we a
|
|
:
a
A-31
service certifying the motion was served on Mr. Nadler.
Incorporated into the motion to dismiss was a declaration
under penalty of perjury from Elliot Carlin, an attorney
in the agency’s Regional Counsel’s Office, stating that
appellant’s claim that his resignation was involuntary is a
matter that should be determined by the Board and that
appellant has failed to file an appeal with the Board. Id. at
5b. On or about June 7, 1989, Mr. Nadler filed an
amended complaint eliminating his original counts relat-
ing to his constructive and wrongful termination claims
and included a new count alleging constitutional viola-
tions relating, in part, to Mr. Matthews’s decision not to
permit appellant to rescind his resignation. Id. at Tab 5A.
On May 16, 1990, appellant filed his appeal with the
Board alleging, inter alia: (1) that appellant lacked the
mental capacity to submit his resignation; (2) that the
agency obtained his resignation through coercion and
duress; (3) that the agency violated the terms of the
parties’ oral settlement agreement by providing one
James Grubka with the unsanitized investigation file in
appellant’s case and, thus, obtained appellant’s resigna-
tion through deception; (4) that agency violated 5 C.F.R.
§ 715.202(b) (1987) by denying appellant’s request to
withdraw his resignation before the effective date; (5)
that the resignation was invalid under Internal Revenue
Manual (IRM) § 0714.4(3) (1980) because it was condi-
tional; (6) that the agency forced appellant to resign
because of his quality initiative program; and (7) that the
agency failed to provide him with appeal rights to the
Board regarding his resignation and, therefore, good
cause exists for his delay in filing his appeal.
— —-— =~
A-32
ANALYSIS AND FINDINGS
Appellant must prove by preponderant evidence that
his resignation was involuntary to establish the
Board's jurisdiction over his appeal and to prevail on
the merits.
ia
As a general rule, a resignation is presumed to be a
voluntary action and, thus, not appealable to the Board.
See Latham v. U.S. Postal Service, 909 F.2d 500, 503 (Fed.
Cir. 1990); Christie v. United States, 518 F.2d 584, 587 (Ct.
Cl. 1975). However, an ostensibly voluntary resignation
obtained by agency through coercion, duress, or decep-
tion or appellant’s lack of mental capacity is tantamount
to a removal action over which the Board has jurisdiction
under 5 U.S.C. § 7513 (d) (West Supp. 1990). Id. The
Board’s jurisdiction and the merits of an alleged involun-
tary resignation are intertwined in that if appellant
proves his resignation was involuntary, the Board has
jurisdiction and the agency’s action must be reversed
because the agency failed to accord appellant his statu-
tory procedural entitlements under 5 U.S.C. § 7513(b)
(West. Supp. 1990). See Schultz v. Department of the Navy,
810 F.2d 1133, 1136 (Fed. Cir. 1987); Beaty v. Department of
Agriculture, 24 M.S.P.R. 658, 662 (1984). Appellant bears
the burden of proving by preponderant evidence that his
resignation was involuntary. Id.
2. Appellant failed to demonstrate by preponderant evi-
dence that he lacked the mental capacity to resign
when he submitted his resignation.
Appellant maintained in his pleadings and at the
hearing that he lacked the mental capacity to resign when
es
PARAL AE ie alt sale et eg ARPS oA Aes ans CN OG
A-33
he tendered his resignation January 29, 1987. To substan-
tiate his claim, he provided testimony about the events
which occurred between October 1986 and June 1987, as
well as his state of mind during that period. That testi-
mony is summarized below.
In October 1986, he attended a Halloween party at a
local hotel during off-duty hours with James Grubka, a
subordinate supervisor,? and several other agency
employees, including female trainees. During the party,
appellant consumed alcohol, but he denied being drunk
or engaging in sexual harassment.
On or about November 29, 1986, Personnel Officer
Robert Doering, of the agency’s Buffalo District Office,
notified appellant by telephone that the latter was being
placed on administrative leave until further notice and
should not report for duty. Mr. Doering declined to dis-
close the reason for the agency’s action. Appellant sus-
pected that the agency’s action signified that the agency
3 The agency took a demotion action Mr. Grubka based on
charges of alleged misconduct, stemming from events occurring
during the Halloween party. On appeal, the Board issued a
decision sustaining the demotion, but the United States Court of
Appeals for the Federal Circuit subsequently reversed the
Boards’s decision and ordered that the agency cancel the demo-
tion. See Grubka v. Department of the Treasury, 858 F.2d 1570, 1576
(Fed. Cir. 1988). The Federal Circuit’s decision contains a
detailed account of the events occurring during the party and
also makes reference to evidence about appellant's activities
during the party. Id. at 1571-75. It is unnecessary to reiterate the
court’s findings in this case since appellant was not a party to
that case. As such, he is not collaterally estopped from disputing
the court’s factual findings. See, e.g., Mortensen v. Department of
the Army, 27 M.S.P.R. 433, 437 (1985).
a i
A-34
believed he had committed serious misconduct possibly
involving a crime.
On or about December 4, 1986, appellant met with
Mr. Doering at the agency’s Buffalo District Office and
was told that he was being assigned to a “special project”
at the agency’s Hamburg POD until further notice and
that he should not discuss the matter with anyone.
Shortly thereafter, Mr. Grubka informed appellant by
telephone that he too had been indefinitely assigned to
the Hamburg POD and that the action was based on
allegations that they had engaged in sexual harassment
during the off-duty Halloween party in October 1986. The
Hamburg POD had about five employees whereas Buffalo
District Office had about 850 employees. At that point,
appellant, believing that he been sent into “exile” without
any justification, began keeping a diary of the events that
occurred regarding his status with the agency.
On December 8, 1986, he met with Mr. Matthews, Mr.
Doering, and Assistant District Director Curtis Jenkins.
During their meeting, Mr. Matthews informed appellant
that he was conducting an independent investigation into
allegations contained in an anonymous letter that appel-
lant had been drinking and engaging in sexual harass-
ment during the Halloween party. Mr. Matthews directed
appellant to report to the Hamburg POD until further
notice and not to discuss the matter with anyone. He did
not inform appellant who had made the allegations nor
afford him an opportunity to provide his account of the
matter. Appellant, who had been taking tranquilizers and
was “emotionally upset,” requested and was granted sick
leave beginning that date. Appellant then remained at
home and began drinking alcohol. Shortly thereafter,
-— ——— —_-
A! De ten ee
A-35
Barry Weinstein, M.D., an internist, treated appellant for
stress and emotional problems by prescribing that he take
certain medication. Appellant did not, however, inform
the physician that he had been drinking.
On December 11, 1986, Mr. Doering notified appel-
lant by telephone to report to the agency’s Buffalo Dis-
trict Office where an agency investigative team would
question him about the allegations that he was intoxi-
cated and sexually harassed female employees during the
Halloween party. On December 12th, appellant was ques-
tioned about those allegations by an investigative team
consisting of Eileen P. Collins, the agency’s current repre-
sentative and an attorney in its Regional Counsel’s Office,
another attorney in its District Counsel’s office, and Mr.
Jenkins. That team questioned appellant about the allega-
tions but did not reveal who had allegedly accused him
of wrongdoing. Appellant specifically denied any allega-
tions that he engaged in any wrongdoing. He was
requested but declined to give a written statement.
On December 23, 1986, appellant met with Mr. Mat-
thews, Mr. Jenkins, and Mr. Doering, during which Mr.
Matthews announced that after completing his investiga-
tion he had lost confidence in appellant’s ability as a
manager and would formally propose his demotion to a
revenue agent position, but Mr. Matthews did not dis-
close any specific findings. Mr. Matthews indicated that
in conducting his investigation, he had spoken with only
some of the witnesses at the party. He offered appellant
the option of taking a voluntary demotion and warned
that if appellant fought the proposed action, the penalty
would be harsher and everyone would learn about his
“disgraceful conduct” during the party. He further stated
ED EI ee
— —<—_— =.
A-36
that he would charge appellant with being intoxicated
but not sexual harassment. Appellant conceded on cross-
examination that during the meeting, Mr. Doering
informed appellant of his rights concerning a demotion,
including his right to submit a reply to a proposal notice
and to appeal a demotion action to the Board. At the end
of the meeting, appellant requested and was granted
continued sick leave.
Following the December 23th [sic] meeting, appellant
decided to resign because he was “upset, devastated,
drinking and not thinking clearly.” He then hired an
attorney, Mr. Abramowitz, to represent him by negotiat-
ing a settlement agreement whereby the former would
resign with a “clean record.” Beginning in January 1987,
Mr. Abramowitz entered into settlement negotiations
with then Assistant Regional Counsel Robert Hermann.
During that period, appellant continued drinking and
consulted with Dr. Weinstein, who provided him with a
January 22, 1987 note, stating that appellant could not
work until July 1, 1987 due to job-related stress. Appel-
lant conceded on cross-examination that he was not
intoxicated when he contemplated resigning.
On January 29, 1987, Mr. Matthews, Mr. Doering, Mr.
Abramowitz met in Mr. Abramowitz’s office after reach-
ing an oral agreement whereby appellant would resign
with a “clean record,” i.e., with “no charges regarding the
Halloween party,” to be effective June 16, 1987. The
agency agreed to permit appellant to exhaust his accrued
sick leave and Mr. Matthews provided him with a posi-
tive letter of reference.
Joie sitet Landsat ——
A-37
In March or April 1987, appellant was residing in
New Hampshire where he was offered work with a real
estate firm that his spouse’s family owned. He heard
rumors that the agency had fired him for sexual harass-
ment and drinking on the job. Thereafter, Mr. Grubka,
who had filed appeal of his demotion based on allega-
tions that he had committed misconduct during the Hal-
loween party, informed appellant that in early 1987, the
former had received the unsanitized investigation file in
appellant’s case. Appellant became angry because he
believed that his professional reputation had been ruined
and that the agency had violated the oral settlement
agreement.
Appellant introduced into evidence a copy of his
diary, which contained detailed entries for meetings or
conversations occurring on November 29, December 4, 8,
11, 12, and 23, 1986 and January 1987. Appellant’s Hear-
ing Exhibit 2. Those entries demonstrate that appellant
understood and recalled what transpired during the
meetings and conversations. Id. They also show that he
asked relevant questions about the reasons for the
agency’s actions as well as his rights should the agency
take a demotion action against him. Additionally, they
confirmed that appellant understood the terms of the
parties’ oral settlement agreement pursuant to which he
tendered his resignation. !d.
Concerning events occurring after appellant submit-
ted his resignation, the agency’s file contains a May 4,
1987 letter from appellant to then agency Commissioner
Gibbs, stating, inter alia, that the appellant believed that
Mr. Matthews’s actions in threatening to propose the
former’s demotion and the agency’s release of his
EE
_—_— ——— — =
A-38
unsanitized investigation file to Mr. Grubka were
improper. He further stated that his “nerves were shot”
because of the manner in which he was treated and that
he “did not wish to stay with the agency.” He did, how-
ever, insist that the agency investigate his allegations that
Mr. Matthews committed improper actions.
On June 4, 1987, appellant informed Mr. Matthews
that he was “postponing my resignation pending the
results of the investigation I requested” from Commis-
sioner Gibbs, adding that he requested an additional six
days sick leave based on his doctor’s recommendation.
Agency File, Tab C. He further stated that his “post-dated
resignation” is “null and void.” In response, Mr. Mat-
thews informed appellant, by letter dated June 15, 1987,
that appellant’s request for advanced sick leave and to
postpone his resignation was denied because his resigna-
tion was “unconditional” and “irrevocalbe.” Id. at Tab D.
By letters dated June 15 and 26, 1987 to Robert
Hilgen, the agency’s then Executive Secretary, appellant
stated that he believed that Mr. Matthews’s decision to
separate appellant by resignation was improper and
requested an agency investigation. Id. at Tabs F and G. In
a written response dated September 23, 1987, Mr. Hilgen
informed appellant that after review of the entire matter,
his office concluded that the agency’s action regarding
appellant’s separation were appropriate. Id. at Tab K.
On appeal to the Board, appellant submitted a June
20, 1990 affidavit from Dr. Weinstein, to support the
former’s claim that the circumstances surrounding his
resignation had caused him to lack the mental capacity to
resign. Case File, Tab 11. In his affidavit, Dr. Weinstein
A-39
stated that during the end of calendar year 1986 and
through the beginning of calendar year 1987, he treated
appellant for what he considered to be “severe depres-
sion.” Id. He recalled writing a January 22, 1987 note,
stating that appellant was being treated for job-related
stress and was so disabled that he could not return to
work until July 1, 1987. Id. He further stated that in his
opinion, appellant was so depressed during the latter
part of January 1987, that he was “irrational and unable
to make a rational decision,” adding that appellant could
not even make a logical decision about “retirement” even
if that decision was made in the presence of counsel. Id.
He therefore concluded that appellant lacked the mental
capacity to resign in January 1987. Id. In reaching that
conclusion, he did not, however, cite the results any
objective findings or relate any specific examples of irra-
tional thinking or actions which would support his diag-
nosis of severe depression of his conclusion that
appellant lacked the mental capacity to resign. Also, he
failed to explain why he did not refer appellant to a
psychiatrist if appellant’s mental capacity deteriorated to
the point where he was irrational.
To rebut Dr. Weinstein’s affidavit, the agency elicited
live testimony from Daniel W. Schwartz, M.D., a board-
certified psychiatrist, who is the director of forensic psy-
chiatry at the Kings County Medical Center in Brooklyn,
New York and an associate professor of psychiatry at the
New York Health Science Center, Brooklyn, New York.
Dr. Schwartz testified that although he has never exam-
ined appellant, he found that there was insufficient medi-
cal evidence to support a finding that appellant was
severely depressed or lacked the mental capacity to
—) —_——— =
A-40
resign in January 1987. He based his conclusion on his
review of appellant’s diary, Dr. Weinstein’s treatment
notes, Dr. Weinstein’s January 22, 1987 medical note, and
his June 20, 1990 affidavit. He testified that Dr. Weins-
tein’s treatment notes for the period between November
29, 1986 through January 22, 1987, which the agency
introduced into evidence, agency’s hearing exhibit 3,
indicate that Dr. Weinstein prescribed minimal dosages of
xanax and librium, and such medication is used to allevi-
ate stress and anxiety rather that severe depression. He
explained that in treating severe depression, the physi-
cian must be concerned with the possibility that the
patient may be suicidal. Thus, the physician would not
prescribe medications such as librium and xanax which
reduces the patient’s anxiety, because the patient then
loses his fear of committing suicide. Dr. Schwartz noted
that Dr. Weinstein did not prescribe any medication for
psychotic or irrational thought such as lithium. He also
noted that Dr. Weinstein’s notes contain entries on
December 26, 1986 and January 22, 1987 indicating appel-
lant’s condition improved in contrast to Dr. Weinstein’s
June 20, 1987 affidavit which states that appellant’s men-
tal condition continued to deteriorated [sic] through the
end of January 1987. He testified on cross-examination
that appellant’s diary entries do not reflect irrational or
delusional thinking, but rather exhibit clear and rational
thought, i.e., “a process of logical thought” about the
events that transpired during the relevant period. In that
regard, he noted that appellant asked specific and appro-
priate questions during meetings about the agency’s
actions and his rights. He further testified that appellant
Sb ne Ne OO Na Ne TD A ML a let Rl NO.
A-41
may have used poor judgment in tendering his resigna-
tion pursuant to a settlement, but such action alone was
not indicative of irrational thought. When asked on cross-
examination about whether appellant’s drinking during
the relevant period could have affect [sic] his mental
capacity, Dr. Schwartz testified that Dr. Weinstein’s
records contained no indication that appellant had
slurred speech or unsteady gait that would suggest that
appellant had been intoxicated. He pointed out that Dr.
Weinstein gave no reasoning or clinical findings support-
ing his prognosis that appellant’s medical disability
would last until July 1, 1987. Finally, he noted that Dr.
Weinstein did not refer appellant for psychiatric treat-
ment.
The agency also elicited live testimony from Mr. Mat-
thews and Mr. Hermann as well as affidavits from Mr.
Doering and Mr. Jenkins dated August 13 and 28, 1990,
respectively, indicating that appellant appeared capable
of rationale [sic] decision-making during the relevant
period. ror example, Mr. Matthews recalled that although
appellant appeared nervous during the December 8 and
23, 1986 meetings, appellant was alert, appeared to com-
prehend the information that the agency provided, and
actively participated by asking pertinent questions about
the agency’s actions and his appeal rights should the
agency take a demotion action. Mr. Doering and Mr.
Jenkins gave similar accounts in their affidavits which
tend to corroborate Mr. Matthews’s testimony. Mr. Mat-
thews and Mr. Doering also revealed that during the
January 29, 1987 meeting, appellant appeared to under-
stand what transpired and told them that he was resign-
ing to pursue a family business in New Hampshire rather
COE O_O ee
A-42
than because he feared a proposed demotion. Mr. Her-
mann, who did not attend that meeting, testified that he
had a meeting with appellant and Mr. Abramowitz on
January 21, 1987, during which they discussed settlement
terms and appellant actively participated by asking var-
ious questions about his health benefits, retirement
rights, and leave balances. He noted that during the
negotiations, Mr. Abramowitz did not express any con-
cern about appellant’s state of mind.
Finally, I note that in a July 31, 1990 affidavit from
Mr. Abramowitz, which appellant submitted to establish,
inter alia, that the parties entered into an oral settlement
agreement on January 29, 1997 [sic], Mr. Abramowitz did
not indicate that appellant appeared uncommunicative or
irrational. Case File, Tab 12. Rather, he asserted that
appellant appeared to suffer from “a great deal of emo-
tional stress.” Id. He added that he is not competent to
make a medical determination as to whether appellant
could understand the terms of the settlement agreement.
Id. He did not, however, indicate that appellant’s words
or behavior caused him to believe that appellant had
acted irrationally and, thus, was unable to enter into an
agreement or resign.
The test for determining whether a resignation was
involuntary based on an alleged lack of mental capacity is
whether, at the time of the resignation, the employee is
capable of making a rational decision to resign. See Savage
v. Department of the Air Force, 30 M.S.P.R. 665, 668 (1986).
That test does not require total incompetency or hospital-
ization, but rather focuses on whether the employee has
the ability to make a rational decision. See Lewis v. United
States Postal Service, 39 M.S.P.R. 236, 239 (1988); cf. French
A-43
v. Office of Personnel Management, 810 F.2d 1118, 1120 (Fed.
Cir. 1987) (in determining whether an individual is
incompetent, thereby requiring waiver of the one-year
filing deadline for disability retirement applications
under 5 U.S.C. § 8337(b) (West Supp. 1990), the statute
may be satisfied by one having some minimal capacity to
manage his own affairs, and not needing to be commit-
ted.)
Applying that standard here, I find that appellant
failed to prove by preponderant evidence that he lacked
the mental capacity to resign. In reaching that finding, |
note that Dr. Weinstein, an internist, did not provide a
reasoned explanation nor any clinical findings supporting
his diagnosis that appellant was severely depressed and,
thus, lacked the capacity to resign. Rather, he gave con-
clusory assertions that appellant had a mental disability
that was expected to last until July 1, 1987, without
providing examples of appellant’s supposedly irrational
thought patterns or indicating why appellant was not
referred for psychiatric treatment if his condition was so
severe. This significantly reduces the probative weight of
Dr. Weinstein’s opinion. See Chavez v. Office of Personnel
Management, 6 M.S.P.R. 404, 423 (1981). Conversely, Dr.
Schwartz, who admittedly did not examine appellant,
gave a reasoned explanation for his opinion that there is
insufficient evidence to establish that appellant lacked
the mental capacity to resign. For example, he pointed
out that appellant’s diary entries between November 1986
and January 1987, showed that appellant demonstrated
rational thought during that period. He also noted that
Dr. Weinstein’s medical notes indicate that appellant’s
condition showed signs of improvement on December 26,
-—— —-_<— —-
A-44
1986 and January 22, 1987, and that Dr. Weinstein pre-
scribed minimal dosages of xanax and librium used for
treating anxiety rather [sic] severe depression. Further-
more, he pointed out that Dr. Weinstein did not provided
[sic] any clinical findings to support his conclusion that
appellant’s mental disability would last until July 1, 1987
or refer appellant for psychiatric treatment as might be
expected if appellant suffered from severe depression. In
addition to the medical evidence, the agency introduced
live testimony from Mr. Matthews and Mr. Hermann and
affidavits from Mr. Jenkins and Mr. Doering, indicating
that appellant actively participated at meetings between
December 1986 and January 29, 1987, including asking
pertinent questions about agency actions as well as his
rights. Although appellant testified that he was emo-
tionally devastated and drank during the relevent period,
his contemporaneous notes in his diary display rational
thought. Mr. Abramowitz noted in his affidavit that
appellant appeared to suffer from emotional stress, but he
did not note that appellant appeared irrational through
his words or actions. Accordingly, the record fails to
establish that appellant lacked the mental capacity to
resign.
4 Based on my finding that appellant failed to show that he
lacked the mental capacity to resign, I make no ruling on the
agency’s motion to impose a sanction against appellant for fail-
ing to comply with the August 9, 1990 order granting the
agency’s motion to compel answers to certain interrogatories
and to produce certain documents. The agency sought that
information to show that appellant was making decisions
involving the purchase and disposal of assets and actively
engaged in decisions regarding business and financial accounts
between December 1986 and February 1987. See Agency’s
A-45
3. Appellant failed to prove by preponderant evidence
; that the agency extracted his resignation through
coercion and deception.
To establish that his resignation resulted from coer-
cion and duress, appellant testified that Mr. Matthews
failed to provide him with specific information concern-
ing the alleged charges of wrongdoing for which the [sic]
threatened to propose his demotion. He indicated that the
agency had initiated its investigation of him based on an
anonymous complaint. Notwithstanding the agency’s
lack of specificity concerning the grounds for any future
proposed demotion action, he believed that he had no
alternative but to resign especially since he was “emo-
tionally devastated” at that time. He did, however,
acknowledge in his diary that during the December 23rd
meeting, the agency informed him: (1) that he would
receive “formal charges” in the second week of January
1987; (2) that he would have an opportunity to make an
oral reply before the agency issued its decision; (3) that if
August 27, 1990 motion. The agency argued that such informa-
tion would show that appellant possessed the mental capacity
to resign. Id. Appellant did not comply with the August 9th
order by failing to answer two interrogatories. The agency
therefore requested that I draw an adverse inference against
appellant. See Agency’s September 24, 1990 pleading. Appel-
lant’s attorney attributed his noncompliance due to an oversight
and argued that a sanction was not warranted because the
agency was not prejudiced by his omission because it could
have questioned appellant at the hearing about the information
sought. Because I have already found that appellant had the
mental capacity to resign, it is unnecessary to determine
whether a sanction to further support the agency’s case on that
issue is warranted to serve the ends of justice.
a
A-46
the agency took a demotion action, he could appeal the
action to the Board and request a hearing; and (4) that if
the Board issued an adverse decision, he could appeal to
the Federal Circuit. Appellant’s Hearing Exhibit 2. He
maintained that if he knew then what he knows now he
would not have resigned. In that connection, he pointed
out that Mr. Grubka was demoted based on charges of
alleged wrongdoing stemming from his activities during
and after the Halloween party, but the Federal Circuit
found that the charges were unsupported and ordered
that the agency cancel the action. See Grubka, 858 F.2d at
1576. he conceded that before resigning, he had negoti-
ated, through counsel, an oral settlement containing the
terms of his resignation, including his receipt of a “clean
record,” a letter of reference, and approved sick leave
through the effective date of his resignation.
Mr. Grubka testified that the agency had a meeting
with him similar to appellant’s December 23rd meeting,
but he refused to accept a voluntary demotion. He subse-
quently appealed his demotion action to the Board, and
although the Board upheld the action, the Federal Circuit
reversed it. He also testified that he has been receiving
Office of Workers Compensation Program (OWCP) bene-
fits since the [sic] sometime in 1989 for a mental disorder
developed as a result of the agency’s demotion action
against him. Sometime after the agency canceled his
demotion, he contacted Mr. Hermann, who is now an
attorney with a private law firm, and indicated that cer-
tain supervisors in the agency’s Buffalo District Office
were interested in forming a professional association to
—represent them. He inquired about whether Mr. Hermann
would be interested in representing them despite the fact
A-47
that Mr. Hermann had represented the agency in the
former’s demotion appeal. He further testified that dur-
ing their conversation, Mr. Hermann indicated that he
had “recommended” to the agency that there was “no
case” against Mr. Goodwin or him (Mr. Grubka), adding
that he (Mr. Hermann) was merely discharging his duties
when he represented the agency in Mr. Grubka’s demo-
tion appeal.
Marshall P. Capelleti, a former district director of the
agency’s Buffalo District Office, who retired in 1985, testi-
fied that the agency’s investigation of Mr. Goodwin's
alleged wrongdoing at the Halloween party was unusual!
and not in accordance with standard agency operating
procedures. In that regard, he testified that he would
have referred the anonymous complaint concerning
appellant to the agency’s Inspection Service and have
them conduct their own investigation. He indicated that
agency procedures provide that such a referral should
have been made, but he could not identify those pro-
cedures. I note, however, that section 214.33(1) of the
agency’s IRM provides that allegations of administration
offenses, i.e., “Misconduct which is not criminal in
nature,” are “routinely handled directly by supervisors
without involvement of Inspection.” Appellant’s Closing
Brief, Supplemental Exhibit.
The agency specifically denied that it extracted
appellant’s resignation through coercion or duress. To
support that position, the agency presented testimony
from Mr. Matthews that after receiving an anonymous
complaint on or about November 20, 1986, that appellant
had sexually harassed female employees and appeared
— ome oe ae
‘
A-48
intoxicated during the Halloween party, he placed appel-
lant on administrative leave and later detailed him to the
Hamburg POD, so that the agency could conduct an
investigation into those allegations without the possible
perception that appellant might impede it. He further
testified that before the December 23rd meeting, the
investigation was completed and he had reviewed the
investigation file as well as had interviewed some, but
not all the participants at the Halloween party. Speci-
fically, he recalled that both female trainees and agency
instructors, who had attended the party, had accused
appellant of sexual harassment and public intoxication.
According to him, the information he had received had
convinced him that there was sufficient substance to their
assertions to propose appellant’s demotion. He conceded
that he did not inform appellant of the identities of his
accusers. He did, however, testify that had the agency
issued its notice of proposed demotion rather than appel-
lant submitting his resignation, appellant would have
received the written material that the agency relied on in
proposing the action. He acknowledged offering appel-
lant the option to take a voluntary demotion in lieu of his
issuance of a proposed demotion. He denied informing
appellant that his career was over or his family life would
be ruined if he did not accept a voluntary demotion or
suggesting that appellant resign. He noted that in March
1988, after appellant had resigned, the latter sent him a
letter indicating the “real reason | (appellant) left Buf-
falo” was to pursue a family real estate business.
Agency’s Hearing Exhibit 10.
Mr. Doering and Mr. Jenkins indicated in their affi-
davits that during the December 23rd meeting, Mr. Mat-
thews did not threaten to ruin appellant’s career or
ee
A-49
family life unless appellant accepted a voluntary demo-
tion. Mr. Doering added that after appellant submitted
his resignation he indicated that he “was doing well in
the business in which he was then engaged.”
Mr. Hermann testified that during settlement nego-
tiations, Mr. Abramowitz, who was representing both
appellant and Mr. Grubka at that time, indicated appel-
lant wanted to resign with a “clean personnel record”
because he had another job available. As to his telephone
conversation with Mr. Grubka, he recalled that Mr.
Grubka called him about whether the former would con-
sider representing a professional association of super-
visors at the agency’s Buffalo District Office which Mr.
Grubka was seeking to organize. According to him, he
was surprised to receive the call because he had repre-
sented the agency against Mr. Grubka concerning the
latter’s demotion appeal before the Board. Moreover, he
recalled that at the conclusion of the Board hearing, he
made a conciliatory gesture to Mr. Grubka by offering to
shake his hand, but Mr. Grubka refused. He testified that
during his telephone conversation with Mr. Grubka, he
congratulated Mr. Grubka concerning the Federal Cir-
cuit’s decision in the latter’s appeal. However, he speci-
fically denied stating that the agency had no case against
Mr. Grubka or appellant. He also indicated that his firm
did not subsequently agree to represent Mr. Grubka due
to a possible conflict of interest because his firm special-
izes in tax law.
A resignation is not voluntary where an agency
imposes the terms of an employee’s resignation, the
employee’s circumstances permit no alternative but to
accept, and those circumstances were the result of
A-50
improper agency acts, including coercion or deception.
Schultz, 810 F.2d at 1136. However, where an employee is
faced merely with the unpleasant alternatives of resign-
ing or being subjected to an adverse action, such limited
choices do not render the resignation involuntary. Id. On
the other hand, inherent in that proposition is that the
agency has reasonable grounds for threatening to take an
adverse action. Id. In Schultz, the Federal Circuit held that
if an employee can show that the agency knew that the
reason for threatening the removal could not be substan-
tiated, the threatened action is purely coercive, rendering
the resignation involuntary. Id. There, the court found the
resignation was involuntary because the agency had sug-
gested that the employee resign rather than face a
removal action for unauthorized absence when the
agency knew that appellant was entitled to sick leave. Id.
at 1137. I also note that in determining whether a resigna-
tion resulted from coercion or duress, the court and the
Board have adopted the following tripart test: (1) whether
one side involuntarily accepted the terms of another; (2)
whether the circumstances permitted no other alterna-
tive; and (3) whether the circumstances were the result of
coercive acts on the part of the opposite party. Id. at 1135;
Myslik v. Veterans Administration, 2 M.S.P.R. 69, 71 (1979).
That test is objective; it is not measured by the
employee’s subjective evaluation of the situation. Myslik,
2 M.S.P.R. at 71.
In the instant case, appellant failed to establish by
preponderant evidence that he involuntarily accepted the
agency’s terms for his resignation. Unlike Schultz, the
agency did not suggest to appellant that he consider
resigning in lieu of facing an adverse action. Rather, Mr.
et at ee ae
A-51
Matthews offered appellant the option of taking a volun-
tary demotion rather than receive a notice of proposed
demotion. Appellant, through his then representative, Mr.
Abramowitz, indicated that appellant would be willing to
tender his resignation provided the latter receive a “clean
record.” He then essentially set the condition for appel-
lant’s resignation. As previously noted, appellant agreed
to resign in exchange for, inter alia, a clean record, a
positive letter of reference from Mr. Matthews, and
agency approval for him to exhaust his accumulated sick
leave. Also, appellant’s diary indicated that during the
December 23rd meeting, appellant was informed that the
agency would issue a proposal notice the second week in
January 1987. Thus, appellant was not under extreme
time pressure when he proposed his resignation as an
aiternative to Mr. Matthews’s options that appellant
accept a voluntary demotion or face a proposal notice. See
Robinson v. Department of the Navy, 30 M.S.P.R. 12, 15
(1986). Accordingly, appellant did not involuntarily
accept the agency’s terms when he resigned.
The record also fails to establish that the circum-
stances under which appellant resigned, permitted appel-
lant no alternative, but to resign. In that regard, appellant
was then represented by the same attorney as Mr.
Grubka, who refused to accept a voluntarily demotion
and then successfully fought his demotion. Thus, appel-
lant also had an alternative in that he could have stood
pat and fought his proposed demotion. See Christie, 518
F.2d at 587. Appellant’s claim that his mental condition
precluded him from fighting the demotion action is, for
reasons already discussed, unsupported. The fact that he
may exercised [sic] poor judgment in proposing to resign
A-52
and then tendering his resignation does not render his
resignation involuntary. Id.
Finally, appellant failed to prove by preponderant
evidence that Mr. Matthews knew that he had no basis for
threatening to issue a notice of proposed demotion.
Although Mr. Matthews did not disclose specific details
of the charges or the agency’s proof to appellant, he
testified that he had considered the agency’s investiga-
tion file as well as interviews with agency trainees and
instructors who attended the Halloween party and
asserted that appellant was drunk and sexually harassed
subordinate female employees there. He also testified
that the agency did not provide appellant with the mate-
rial that the agency relied on to support a proposed
demotion action because a proposal notice was not issued
after appellant expressed his willingness to resign as a
settlement proposal. The fact that he did not provide such
information to appellant or disclose at the December 23rd
meeting specific details concerning the basis for the
demotion action, standing alone, does not establish that
Mr. Matthews knew that he had no basis for threatening
to propose a demotion action before appellant tendered
his resignation. See Griessenauer v. Department of Energy,
754 F.2d 361, 364 (Fed. Cir. 1985). also, the fact that Mr.
Grubka prevailed in his appeal before the Federal Circuit,
does not mean that appellant was innocent of all wrong-
doing because each faced separate allegations of wrong-
doing, although the allegations arose from their activities
during the same party. Appellant’s testimony does not
show that Mr. Matthews knew that the [sic] had no argu-
able basis for threatening to propose appellant’s demo-
tion during the December 23rd meeting. Although
A-53
appellant testified that Mr. Matthews indicated that the
proposal notice would include only a charge of intoxica-
ticn, his diary indicated that the agency would also
charge that he made “suggestive comments.” Appellant's
Hearing Exhibit 2. This tends to diminish appellant's
credibility because his testimony was not consistent with
contemporaneous notes. See Hillen v. Department of the
Army, 35 M.S.P.R. 453, 459 (1987). Mr. Grubka testified
that Mr. Hermann had said during their telephone con-
versation that the latter had “recommended that the
agency had no case against Mr. Grubka and appellant. He
conceded that he has been receiving OWCP for a mental
condition resulting from the agency’s demotion against
him. Mr. Hermann gave direct, forthright, and unswerv-
ing testimony in which he specifically denied telling Mr.
Grubka that he had “recommended” that the agency had
no case against appellant or Mr. Grubka, adding the
Board had sustained Mr. Grubka’s demotion, although
the Federal Circuit later reversed it. He also testified that
at the conclusion of Mr. Grubka’s demotion hearing
before the Board, Mr. Grubka had rejected the former’s
conciliatory gesture to shake hands. I credit the testimony
of Mr. Hermann’s testimony over that of Mr. Grubka
because the latter was biased against the agency since it
took an unjustified personnel action against him which
Mr. Grubka indicated affected his mental condition. See
Hillen, 35 M.S.P.R. at 459-60. Mr. Grubka did make an
unsolicited call to Mr. Hermann, but the former previ-
ously betrayed some bitterness toward Mr. Hermann at
the former’s demotion appeal by rejecting Mr. Hermann’s
conciliatory gesture. Mr. Hermann betrayed no bias
against Mr. Grubka or appellant despite a vigorous cross-
A-54
examination. The mere fact the [sic] he currently handles
cases involving tax law does not establish that he fabri-
cated his testimony because of a bias in favor of the
agency. Based on all the foregoing, I find that Mr. Mat-
thews’s threat to propose appellant’s demotion was not a
coercive act which rendered appellant’s resignation invol-
untary.
In summary, I find that appellant failec to prove by
preponderant evidence that the agency extracted his res-
ignation through coercion or duress.
5. The record establishes that the parties entered into an
oral settlement, the terms of which included, appel-
lant’s resignation from his position.
The parties indicated that in January 1987, they
entered into an oral agreement, the terms of which
included appellant’s resignation. They agree on most of
the settlement terms, but disagree on others. Their posi-
tions as to the settlement terms are set both below.
Appellant testified that he entered into an oral agree-
ment to resign in January 1987, in exchange for a “clean
record” with “no charges” stemming from the Halloween
party, a positive letter of reference from Mr. Matthews,
and approved sick leave through the effective [sic] of his
resignation. He further testified that he believed that the
agreement required the agency to destroy its investiga-
tion file concerning charges that he engaged in miscon-
duct during the Halloween party. He also gave
substantially the same account in his diary, but the date
on top that entry was altered. Appellant’s Hearing
Exhibit 2.
4
;
;
Nn BA ik ln eatin
A-55
Mr. Abramowitz, in his affidavit, supported appel-
lant’s testimony as to the settlement terms. Specifically,
Mr. Abramowitz asserted that he recalled in January
1987, that Mr. Matthews came to the former’s office, and
that they reached the following oral agreement: (1)
Appellant would resign, but after being permitted to
exhaust about six months of accumulated sick leave; (2)
Mr. Matthews would provide appellant with a mutually
acceptable letter of reference; and (3) the agency would
destroy all investigation material regarding the charges
and events emanating from the Halloween party, includ-
ing but not limited to, statements made by any third
parties.
The agency presented live testimony and affidavits to
establish that the parties reached an oral settlement,
which did not require the agency to destroy its investiga-
tion file concerning allegations that appellant engaged in
misconduct during the Halloween party. Specifically, Mr.
Matthews testified that the parties had reached an oral
agreement before he appeared in Mr. Abramowitz’s office
on January 27, 1987. According to his testimony, the
parties’ oral agreement provided that: (1) Appellant
would resign after he exhausted his accumulated sick
leave®; (2) he would receive “a clean record,” i.e., appel-
lant’s official personnel record would not reflect that he
resigned in the face of pending charges of misconduct; (3)
> Mr. Mathews testified that the agency agreed to permit
appellant to exhaust his sick leave after appellant submitted a
January 22, 1987 note from Dr. Weinstein indicating that appel-
lant was unable to work until July 1, 1987 due to work-related
stress. Agency File, Tab 4Q.
—~ so ee ee ee eee
A-56
he would receive a letter of reference; and (4) the agency
would place in the Buffalonian, the agency’s local
employee newspaper, appellant’s statement of his reasons
for his resignation. He denied that the agency had agreed
to destroy the investigation file in appellant’s case,
adding that certain documents in that file were necessary
in taking and defending the demotion action against Mr.
Grubka. He testified that after the parties had entered
into an oral agreement, Mr. Doering and he met with Mr.
Abramowitz and appellant in Mr. Abramowitz’s office.
During the meeting, appellant submitted his resignation
and Mr. Matthews gave him a letter of reference. Mr.
Matthews compared that meeting with “a real estate clos-
ing” where the parties met after they had entered into a
contract to comply with the contractual provisions. Mr.
Doering, in his affidavit, corroborated Mr. Matthews’s
account of the agreement as well as the January 27, 1987
meeting.
Mr. Hermann testified that he met with Mr.
Abramowitz and appellant, on January 21, 1987, during
which they had reached an oral agreement. He testified
that their agreement contained the settlement terms
which Mr. Matthews described, including the term that
appellant would receive “a clean personnel record.” He
also indicated that appellant raised concerns about his
health insurance benefits, retirement rights, and accrued
“credit hours,” and that those matters were resolved. He
testified that the agency had not agreed to destroy the
investigation file in appellant’s case because such mate-
rial, such as statements of witnesses, were needed in
defending the agency’s demotion action against Mr.
Grubka. He added that he believed that Mr. Grubka had a
A-57
due process right to the information in that file in pursu-
ing his own appeal. Finally, he asserted that Mr.
Abramowitz had requested that Mr. Matthews have a
perfunctory meeting with appellant and Mr. Abramowitz
because it would enable appellant to undergo a
“catharsis.”
Based on the evidence presented, I find that the
parties entered into an oral agreement in January 1987,
whereby (1) appellant would resign after exhausting his
accumulated sick leave, (2) the agency would provide
him with a “clean personnel record” (3) as well as a
mutually agreeable letter of reference from Mr. Matthews,
and (4) the agency would publish in its local employee
newspaper the reason that he gave for resigning. In that
regard, Mr. Matthews, Mr. Hermann, Mr. Doering, Mr.
Abramowitz, and appellant in their live testimony or
affidavits essentiaily agreed on the first three terms. As to
the fourth provision, Mr. Matthews and Mr. Hermann in
their live testimony as well as in a corroborating affidavit
from Mr. Doering indicated that the agency agreed to
publish in its local employee newspaper the reason
appellant gave for resigning. While appellant and Mr.
Abramowitz failed to refer to that provision in their
account of the agreement, they did not specifically deny
that the agency agreed to publish such information at
appellant’s request if he resigned. Nor does the record
contain any indication that appellant objected to such a
provision. That provision was intended for appellant's
benefit, specifically, to inform other agency employees
that appellant was resigning for personal reasons. I,
therefore, find that it is more likely than not that the
fourth provision was a part of the parties’ oral agreement.
—_——— ae a ete
A-58
The agency did not, however, agree to destroy the
investigation file in appellant’s case concerning allega-
tions that appellant engaged in misconduct during the
Halloween party. In reaching that finding, I credit the live
testimony of Mr. Matthews and Mr. Hermann together
with Mr. Doering’s affidavit over appellant’s testimony
and Mr. Abramowitz’s affidavit. Specifically, | note that
Mr. Hermann gave forthright, detailed, and sincere testi-
mony which was unshaken after vigorous cross-examina-
tion. This tends to enhance his credibility. See Hillen, 35
M.S.P.R. at 458-59, 462. Equally important, he gave a
persuasive reason why the agency did not agree to
destroy the investigation file in appellant’s case. He
explained that the agency needed that material to defend
against Mr. Grubka’s demotion appeal because that case
arose out of circumstances similar to that of appellant and
that the investigation file in appellant’s case contains
statements mentioning both appellant and Mr. Grubka.
He also indicated that the aggency [sic] needed to afford
Mr. Grubka access to the file to protect the latter’s due
process rights. While appellant questioned the need to
retain the file to protect Mr. Grubka’s due process rights,
he failed to present any evidence showing that the file
was unnecessary to the agency’s defense in the Grubka
‘appeal. As a result, this further bolsters Mr. Hermann’s
credibility. Jd. at 460. The mere fact that Mr. Hermann is
currently in private practice specializing in cases involv-
ing tax law does not establish that he would fabricate his
account to maintain a good relationship with the agency.
Mr. Matthews provided detailed testimony consistent
with that of Mr. Hermann. Moreover, Mr. Matthews testi-
mony was corroborated by Mr. Doering’s affidavit.
A-59
Although appellant testified that the agency agreed to
destroy the investigation file in his case, he did not
specifically testify that Mr. Matthews or Mr. Hermann
had agreed to such a provision. As such, his testimony
was less detailed than that of Mr. Hermann and Mr.
Matthews. In his diary, he indicated that the agency
agreed to that provision during a meeting that he
attended with Mr. Abramowitz and Mr. Matthews. How-
ever, the date on top of that entry was altered and, thus,
cannot be accorded significant probative weight. Appel-
lant’s Hearing Exhibit 2. Also, he did not indicate in his
diary entry or testimony whether Mr. Doering was pre-
sent during that meeting. Mr. Abramowitz’s affidavit is
less detailed than that of Mr. Doering or the live testi-
mony of Mr. Hermann. Indeed, Mr. Abramowitz did not
indicate whether Mr. Doering attended the January 1987
meeting with Mr. Matthews or the specific date of the
meeting. For all these reasons, I find that the agency
established by preponderant evidence that it did not
agree to destroy the investigation file in appellant’s case
as part of the parties’ oral agreement.®
© Because the parties’ oral settlement agreement did not
require the agency to destroy the investigation file, it is unnec-
essary to address appellant’s claim at the hearing and in his
pleadings that the agency breached the agreement by providing
Mr. Grubka with the unsanitized file rather than a sanitized file.
In that connection, neither party has asserted that the agreement
contained a provision that the agency could maintain the inves-
tigation file provided that the material was not disclosed to
another individual without appellant’s consent.
A-60
ba
Appellant proved by preponderant evidence that
appellant breached the terms of the oral settlement
and extracted appellant’s resignation through decep-
tion.
In his pleadings and at the hearing, appellant main-
tained that Mr. Matthews breached the parties’ oral
agreement by sending the agency’s Director of Practice’,
Leslie A. Shapiro, a December 9, 1987 memorandum
strongly recommending against appellant’s application
for enrollment to practice before the agency. See Appel-
lant’s Closing Brief at 13-16. Appellant had submitted
such an application after tendering his resignation. Mr.
Matthews submitted his December 9th memorandum in
response to a November 10, 1987 inquiry from the Direc-
tor of Practice regarding appellant’s application. In his
memorandum, Mr. Matthews stated, in pertinent part:
In response to your November 10, 1987 inquiry
concerning Mr. Goodwin’s application, I
strongly oppose his proposed enrollment. I think
it is important to understand that Mr. Goodwin
resigned in the face of an administrative investiga-
tion which would have likely resulted in an adverse
action against Mr. Goodwin.
\ 7 The agency’s Director of Practice is responsible for adju-
dicating applications to practice before the agency from former
agency employees. In adjudicating such an application, he may
seek information from a former employee’s supervisor concern-
ing the employee’s fitness to practice before the agency. He may
then offer the employee an opportunity to respond to the super-
visor’s statement.
A-61
(Emphasis added). Appellant’s Hearing Exhibit 3. Appel-
lant testified that to date, the Director of Practice has still
not issued a decision on his application.
Mr. Matthews conceded on cross-examination that
although he believed that the agency had sufficient evi-
dence to propose appellant’s demotion, he did not know
whether the agency would have demoted appellant. In
that connection, he acknowledged that if he had issued a
proposal notice, Mr. Brennan, the then Regional Commis-
sioner, would have made a decision on the proposal after
considering appellant’s response. He did not indicate that
Mr. Brennan had indicated what decision he would likely
have made.
In response to Mr. Matthews’s memorandum, appel-
lant submitted an April 4, 1988 letter to the Director of
Practice denying Mr. Matthews’s assertions. Agency File,
Tab 4A. He indicated that although the agency had con-
ducted an investigation concerning his conduct before his
resignation, his resignation “was strictly for personal
enhancement reasons.” Id.
The agency maintained that Mr. Matthews’s asser-
tions in his December 9th memorandum do not constitute
a breach of the parties’ oral agreement. Specifically, the
agency argued that the agreement did not prelude the
disclosure to another official within the agency that
appellant resigned during an investigation into his con-
duct. Agency’s Closing Brief at 5. Rather, the agency
maintained that the agreement simply provided that
appellant would receive a “clean personnel record.” Id.
The agency pointed out that the SF 50, in appellant’s
official personnel file, documenting his resignation, does
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not mention the fact that appellant resigned during an
investigation of his conduct. Agency File, Tab 4 H. It also
pointed out that Mr. Matthews provided that information
to its Director of Practice in response to the latter’s
inquiry and that the information was based on Mr. Mat-
thews’s personnel knowledge. Agency’s Closing Brief at
5. The agency also pointed out that appellant’s April 4th
response advised the Director of Practice of the agency's
investigation into appellant’s conduct before appellant
resigned.
A resignation is involuntary if the agency made mis-
leading statements upon which the employee reasonably
relied upon to his detriment. Scharf v. Department of the
Air Force, 710 F.2d 1572, 1574-75 (Fed. Cir. 1983). This is
an objective test and, thus, it is unnecessary to inquire
into an employee’s subjective perceptions or the agency’s
subjective intents. Id., 710 F.2d at 1575. The Board has
held that an agency’s breach of a settlement agreement
that an employee resigns in exchange for a “clean record”
may constitute deception sufficient to render a resigna-
tion. Wobschall v. Department pf [sic] the Air Force, 43
M.S.P.R. 521, 523-24 (1990); Gleaves v. Department of the
Navy, 36 M.S.P.R. 558, 560 (1988); Carter v. Department of
the Navy, 6 M.S.P.R. 95, 96-97 (1981). It is recognized that a
non-breaching party to a settlement agreement, has a
right to rescind the agreement. See McClain v. United
States Postal Service, 40 M.S.P.R. 66, 70 (19898) [sic].
Appellant bears the burden of proving a breach of a
settlement agreement as he alleged. See Fredendall v. Vet-
erans Administration, 38 M.S.P.R. 366, 370 (1988). However,
in construing the settlement terms, I note that the agree-
ment is a contract between the parties, the interpretation
A-63
of which is a question of law. See Greco v. Department of the
Army, 852 F.2d 558, 560 (Fed. Cir. 1988); McCall v. United
States Postal Service, 839 F.2d 664, 669 (Fed. Cir. 1988). As
such, the Board must first look to the parties’ settlement
terms to determine the parties’ intent. See McClain, 40
M.S.P.R. at 70; Miura v. Department of the Navy, 38 M.S.P.R.
663, 668 (1989). Parole evidence is admissible only where
the settlement terms are ambiguous. See Bonner v. Merit
Systems Protection Board, 781 F.2d 202, 206-07 (Fed. Cir.
1986) (the express language of an agreement must be
considered when it is unambiguous).
Applying the aforecited precedent, I find that the
agency breached the terms of the parties’ oral agreement
and obtained appellant’s representation through decep-
tion. In that regard, the plain, unambiguous language of
the agreement provided that the agency in exchange for
appellant’s resignation would, inter alia, provide appel-
lant with a “clean personnel record” and a positive letter
of reference. That required that appellant’s personnel
records reflect that he resigned for personal reasons with-
out any pending charges that he engaged in misconduct
during the Halloween party. The agency argued that it
accomplished this because the SF 50, documenting appel-
lant’s resignation did not contain any comments regar-
ding pending charges. I disagree. Mr. Matthews, a party
to the settlement agreement, issued a December 9th mem-
orandum to the agency’s Director of Practice, stating that
appellant “resigned in the face of an administrative
investigation which would have likely resulted in adverse
action” against appellant. Appellant’s Hearing Exhibit 3.
That statement indicates appellant resigned with pending
charges against him and that the agency probably would
A-64
have taken an adverse action against him had he not
resigned. Yet, Mr. Matthews conceded on cross-examina-
tion that although he had planned to propose appellant’s
demotion, he did not know what action, if any, the
agency’s deciding official would ultimately take. In any
event, Mr. Matthews’s statement in his December 9th
memorandum violated the terms of the oral agreement by
indicating that appellant resigned without a clean record.
Even if Mr. Matthews’s truly believed that the agreement
did not preclude him from making such a statement, the
agency’s promise to provide appellant with a clean record
was a misrepresentation because the agency withheld
material information. Specifically, the agency never
informed appellant that he would receive only “clean
personnel documents” and that the agency would dis-
close that appellant would likely have received an
adverse action for charges of misconduct had he not
resigned. As to appellant’s April 4, 1988 reply to Mr.
Matthews’s memorandum, appellant would not have had
to explain the circumstances leading up to his resignation
and Mr. Matthews complied with the oral agreement.
Accordingly, I find that appellant show by preponderant
evidence that his resignation was involuntary because it
was obtained through a breach of a material term of the
parties’ agreement and deception.®
8 Based on my finding that the resignation was involuntary
due the agency’s breach of the oral agreement and deception, it
is unnecessary to address appellant’s claim that the resignation
was also involuntary because the agency improperly refused his
request to rescind his resignation before the effective date. For
the same reason, I make no ruling on whether the resignation
was invalid as a conditional re ignation under IRM § 0715.5(3)
(1980).
A-65
¥. Appellant failed to show b reponderant evidence
that the agency forced him to resign because he initi-
ated a quality improvement plan.
In his pleadings and at the hearing, appellant main-
tained that the agency forced him to resign because he
initiated a quality initiative improvement plan. He main-
tained that in 1986, he initiated such a program requiring
review of pending agency cases, but the agency discon-
tinued the program after his resignation.
To support his claim, he submitted an undated affi-
davit from Ralph J. Dortch, a branch chief in the agency’s
Buffalo District Office in 1986 and 1987. Appellant’s
Hearing Exhibit 1. In his affidavit, Mr. Dortch indicated
that he was instrumental in implementing the quality
initiative program that appellant initiated. Id. He also
stated that the program was successful, but Mr. Matthews
discontinued it after January 1987. Id. Finally, he asserted
that Mr. Matthews told him that Mr. Brennan wanted to
change the program. Id.
Appellant elicited testimony [sic] Mr. Grubka that
Mr. Matthews appeared to have accepted appellant’s
quality initiative program, but Mr. Brennan overruled
him. Mr. Grubka recalled that Mr. Brennan canceled the
program because he wanted the agency's district offices
within his region to adopt the quality initiative program
developed in the agency’s New Hampshire District Office
which involved review of closed cases.
Mr. Matthews provided testimony consistent with
that of Mr. Grubka. In that connection, he testified that
the quality initiative program utilized in the agency’s
Buffalo District Office was altered in late 1986 or early
A-66
1987 at Mr. Brennan’s direction. He testified that he had
no involvement in Mr. Brennan’s decision, adding that
Mr. Brennan had adopted the New Hampshire program
because he wanted uniformity within the region.
After reviewing the record as a whole, | find that
appellant failed to show by preponderant evidence that
the agency forced him to resign because of his quality
initiative program. In that regard, Mr. Grubka and Mr.
Matthews gave uncontroverted testimony that Mr. Bren-
nan canceled the program in the Buffalo District Office
because he wanted the district offices within the region to
uniformly use the New Hampshire District Office’s pro-
gram. Their testimony is consistent with Mr. Dortch’s
affidavit. Appellant presented no evidence showing that
Mr. Brennan was involved in appellant’s decision to
resign. Nor does the record contain any evidence show-
ing that Mr. Matthews had influenced Mr. Brennan’s deci-
sion. Consequently, | reject appellant’s claim as
unsubstantiated.
i”
Appellant established by preponderant evidence
good cause for the delay in filing his appeal with the
Board and for a waiver of the time limit.
This case raises an issue of timeliness.? The Board’s
regulations in effect when appellant resigned provided
that his appeal must be filed within twenty days of the
® The Board in Funk v. Department of the Army, 44 M.S.P.R.
320, 322 (1990) recently held that jurisdiction issues must be
addressed before ruling on the timeliness issue. Having deter-
mined that the Board has jurisdiction over the appeal, | have
now addressed the timeliness issue.
Se ED
A-67
effective date of his resignation. 5 C.F.R. § 1201.22(b)
(1987). That time limit may be waived for good cause
shown. 5 C.F.R. §§ 1201.12 and .22(c) (1987).
Here, appellant’s resignation was effective on June
16, 1987, and his original appeal was filed with the Board
on May 16, 1990, about two years and ten months after
the regulatory deadline. In an acknowledgment order, he
was ordered to present argument and evidence showing
good cause for the delay. In his written response as well
as in his June 20, 1990 prehearing submissions, appellant
attributed the delay to the agency’s failure to provide him
with appeal rights concerning his resignation.
At the hearing, appellant testified that after ten-
dering his resignation on January 29, 1987, he contacted
Mr. Hermann before the effective date of his resignation
and asserted that the agency had breached the terms of
the parties’ agreement by providing the investigation file
to Mr. Grubka. Mr. Hermann acknowledged on cross-
examination that he received such a call from appellant in
March 1987. He also conceded that he did not provide
appellant with appeal rights.
The record further reflects that in a letter dated June
4, 1987 to Mr. Matthews, appellant attempted to rescind
his resignation, i.e., he stated that his resignation “was
null and void,” but Mr. Matthews issued a June 15, 1987
memorandum denying appellant’s request without affor-
ding appellant any appeal rights to the Board. Agency
File, Tabs 41 and K. Appellant subsequently wrote the
agency letters dated June 15 and 26, 1987 and an undated
letter which the agency received on August 26, 1987,
Stating that he believed that Mr. Matthews had acted
A-68
improperly in obtaining and then denying appellant’s
request to rescind his resignation. Id. at Tabs 4C, F and J.
In response, the agency issued an August 13, 1987 letter
from Regional Counsel Agatha A. [sic] Vorsanger and a
September 23, 1987 letter from then Executive Secretary
Hilgen, stating that the agency found no impropriety or
illegality concerning appellant’s resignation. Id. at Tab 4B
and D. Those letters did not, however, advise appellant
that he could file an appeal with the Board if he believed
his resignation was involuntary. Id.
The agency argued that the appeal should be dis-
missed for untimely filing because appellant failed to
exercise due diligence in pursuing his appeal rights. See
Agency File, Tab 1; Agency Closing Brief at 16-20. Speci-
fically, the agency pointed out that on December 28, 1988,
appellant’s attorney of record filed a civil action in
United States District Court for the District of New
Hampshire, alleging that appellant was constructively
and wrongfully terminated due to Mr. Matthews’s denial
and appellant’s request to rescind his resignation. Agency
File, Tab 5C. In response, the Department of Justice filed a
motion to dismiss the civil action, stating, inter alia, that
the proper place for filing an appeal of an alleged invol-
untary resignation was the Board. Id. at 5B. Incorporated
into the motion was a declaration from an Internal Reve-
nue Service attorney, Mr. Carlin, stating that the Board
has jurisdiction to decide whether a resignation was
involuntary. Id. The motion contains a certificate showing
that a copy was sent to appellant’s attorney. Id. Finally,
the agency pointed out that Mr. Doering in his affidavit
stated that he informed appellant at the December 23,
1987 meeting of appellant’s right to appeal a demotion
A-69
action to the Board. Agency’s Hearing Exhibit 2. That
Statement is consistent with appellant’s account in his
diary. Appellant’s Hearing Exhibit 2.
Shiflett v. U.S. Postal Service, 839 F.2d 669, 674 (Fed.
Cir. 1988), the Federal Circuit held that where an agency
has a duty to provide an employee with appeal rights to
the Board and failed to do so, the regulatory time limit
must be waived. In that case, the appellant filed a late
appeal of an agency decision denying her request for
restoration after he recovery from a compensable injury
without providing her with appeal rights to the Board. Id.
at 670. Before filing her appeal, she filed a grievance, with
the agency denied. Id. In its grievance decision, the
agency stated that 5 C.F.R. Part 353 “via the MSPB
remains the appropriate means of appeal regarding rein-
statement rights of individual who incurred an occupa-
tional-illness but who is now employable.” Id. at 574. The
court found that the agency had a duty under 5 C.ER.
§ 353.308(a) to provide appellant with notice of appeal
rights in its decision, and that notice must contain the
information required under the Board’s regulations at 5
C.F.R. § 1201.21. Id. The court also found that the general
information about appeal rights in a separate grievance
was insufficient to meet the requirement of § 1201.21. Id.
It held that because the agency committed harmful error
in violating § 353.808(a) and 1201.21 it was unnecessary
to determine whether appellant exercised due diligence
in pursuing her appeal rights.!°
10 The agency in its closing brief cited the Board’s decision
in Hamilton v. Tennessee Valley Authority, 30 M.S.P.R. 57, 59-60
(1986) where the Board dismissed an appeal as untimely, in part,
A-70
Applying Shiflett to a case involving an alleged
adverse action, the Board in Ricci v. Veterans Administra-
tion, 40 M.S.P.R. 113, 116 (1989) held that appellant must
place the agency on notice that he considers the action
involuntary before there “is a triggering of a duty on the
part of the agency to provide notice of appeal rights.”
The Board reaffirmed in Schrum v. Department of the Treas-
ury, 42 M.S.P.R. 103, 106 (1989), a case involving an
alleged involuntary demotion, that the agency is under
no duty to provide appeal rights, unless the action
would, on its face, have been appealable to the Board or
the employee placed the agency on notice that he consid-
ered the action involuntary before the agency issued its
decision. In Michaels v. United States Postal Service, 44
M.S.P.R. 205, 208 (1990), the Board recently held that
where the agency was on notice that the employee was
claiming his resignation was involuntary, it [sic] failure to
provide him with appeal rights to the Board was good
cause for the employee’s late filing of his appeal.
Here, appellant during a March 1987 conversation
with Mr. Hermann and in June 4 and 15, 1987 letters to
the other agency officials as well as in subsequent corre-
spondence placed the agency on notice that appellant
believed that his resignation was involuntary and that he
desired to rescind it. Specifically, he informed the agency
that he believed that the agency violated the parties’ oral
because the Department of Justice’s motion in a related civil
action in federal district court had put appellant and his attor-
ney on notice of appeal rights to the Board eight months before
the appeal was filed. That case, however, was decided before the
Federal Circuit’s decision in Shiflett. Therefore, I find that Shif-
lett is the controlling precedent.
A-71
agreement and that Mr. Matthews and [sic] obtained his
resignation through improper means. Moreover, he
informed Mr. Matthews that he considered his resigna-
tion “null and void.” At that point, the agency was under
an affirmative duty to provide appellant with appeal
rights to the Board. See Michaels, 44 M.S.P.R. at 208; Ricci,
40 M.S.P.R. at 116; see also Yuni v. Merit Systems Protection
Board, 784 F.2d 381, 386 (Fed. Cir. 1986); McCormack v.
United States, 204 Ct. Cl. 371, 378 (1974). While the agency
may have believed that appellant’s resignation was vol-
untary and irrevocable, this did not relieve it of its affir-
mative duty to provide appellant with appeal rights once
it had reason to believe that appellant considered his
resignation involuntary. The Department of Justice’s
motion to dismiss and the attached affidavit from Mr.
Carlin are insufficient to provide appellant with proper
notice of appeal rights to the Board. Those submissions
were part of a different proceeding from the subject
appeal and were limited to show that the federal district
court lacks jurisdiction over appellant’s civil action. They
do not comply with 5 C.E.R. § 1201.21 because they fail to
inform appellant of the time limit and appropriate board
address for filing an appeal with the Board. They also do
not provide appellant with a copy of the Board’s, regula-
tions for a printed appeal form with instructions on how
to use it. Under similar circumstances, the Federal Circuit
in Shiflett found that the information which the agency
Provided in its grievance decision was insufficient to
constitute proper notice of appeal rights under § 1201.21.
Id. at 674. I also note that he [sic] agency’s information
about appellant’s appeal rights regarding a demotion
A-72
action does provide appellant with appeal right concern-
ing his resignation. Because the agency failed to provide
appellant with proper appeal rights, it is unnecessary to
determine whether appellant exercised ordinary pru-
dence in pursuing his appeal. Id. Accordingly, I find that
appellant has established good cause for the delay and
for a waiver of the regulatory time limit. See Michaels, 44
M.S.P.R. at 208.
In summary, appellant’s resignation was involuntary;
the Board has jurisdiction over the appeal; the agency’s
action cannot be sustained because the agency committed
harmful error by failing to provide appellant with the
statutory procedures required by 5 U.S.C. Chapter 75;
and appellant showed good cause for the delay in filing
his appeal and for a waiver of the regulatory time limit.
DECISION
The agency’s action is REVERSED.
ORDER
The agency is ORDERED to cancel appellant’s resig-
nation and to retroactively restore appellant effective
June 14, 1987. This action must be accomplished no later
than 20 calendar days after the date this initial decision
becomes final.
The agency is also ORDERED to issue a check to
appellant for the appropriate amount of back pay, with
interest, and to adjust benefits with appropriate credits
and deductions in accordance with the Office of Person-
nel Management’s regulations, no later than 60 calendar
A-73
days after the date this initial decision becomes final.
Appellant is ORDERED to cooperate in good faith with
the agency’s efforts to compute the amount of back pay
and benefits due and to provide all necessary information
requested by the agency to help it comply.
If there is a dispute about the amount of back pay
due, the agency is ORDERED to issue a check to appel-
lant for the undisputed amount no later than 60 calendar
days after the date this initial decision becomes final.
Appellant may then file a petition for enforcement with
this office to resolve the disputed amount.
The agency is further ORDERED to inform appellant
in writing of all actions taken to comply with the Board’s
Order and the date on which it believes it has fully
complied. If not notified, appellant should ask the agency
about its efforts to comply.
FOR THE BOARD: /s/ Arthur Joseph
Arthur Joseph
Administrative Judge
NOTICE TO APPELLANT
This initial decision will become final on November
29, 1990, unless a petition for review is filed by that date
or the Board reopens the case on its own motion. This is
an important date because it is the last day on which you
can file a petition for review with the Board. The date on
| Because appellant’s resignation was effective June 16,
1987, the interim relief provisions under the Whistleblower Pro-
tection Act of 1989, Pub. L. 101-12, codified at 5 U.C.S. [sic]
§ 7701(b) (West Supp. 1990) do not apply here. See Herring v.
Department of the Treasury, 44 M.S.P.R. 673, 675-76 (1990); Mar-
shall v. Department of Veterans Affairs, 44 M.S.P.R. 28, 32 (1990).
A-74
which the initial decision becomes final also controls
when you can file a petition for review with the Court of
Appeals for the Federal Circuit. The paragraphs that fol-
low tell you how and when to file with the Board or the
federal court. These instructions are important because if
you wish to file a petition, you must file it within the
proper time period.
BOARD REVIEW
You may request Board review of this initial decision
by filing a petition for review. Your petition for review
must state your objections to the initial decision, sup-
ported by references to applicable laws, regulations, and
the record. You must file your petition with:
The Clerk of the Board
Merit Systems Protection Board
1120 Vermont Avenue, NW., Suite 802
Washington, DC 20419
Your petition must be postmarked or hand-delivered no
later than the date this initial decision becomes final. If
you fail to provide a statement with your petition that
you have either mailed or hand-delivered a copy of your
petition to the agency, your petition will be rejected and
returned to you.
JUDICIAL REVIEW
If you are dissatisfied with the Board’s final decision,
you may file a petition with:
The United States Court of Appeals
for the Federal Circuit
717 Madison Place, NW
Washington, DC 20439
A-75
You may not file your petition with the court before this
decision becomes final. To be timely, your petition must
be received by the court no later than 30 calendar days
after the date this initial decision becomes final.
ATTORNEY FEES
If no petition for review is filed, you may ask for the
payment of attorney fees and costs by filing a motion
with this office no later than 20 calendar days after the
date that this initial decision becomes final. Any such
motion must be prepared in accordance with the provi-
sions of 5 U.S.C. § 7701(g), 5 C.F.R. § 1201.37(a) and
applicable case law.
ENFORCEMENT
If, after the agency has informed you that it has fully
complied with this decision, you believe that there has
not been full compliance, you may ask the Board to
enforce its decision by filing a motion with this office no
later than 30 calendar days after the date of the agency’s
notification of compliance.
NOTICE TO AGENCY/INTERVENOR
The agency or intervenor may file a petition for review of
this initial decision in accordance with the Board’s regu-
lations.
A-76
CERTIFICATE OF SERVICE
I certify that the attached Document(s) was (were)
sent by regular mail this day to each of the following:
Appellant
David A. Goodwin
66 Mast Road
Dover, NH 03820
Appellant’s Representative
Burton A. Nadler, Esquire
Petrucelly and Nadler
6 Beacon Street, Suite 720
Boston, MA 02108
Agency’s Representative
Eileen P. Collins, Esquire
Department of Treasury
Internal Revenue Service
7 World Trade Center, 25th Floor
New York, NY 10048
Other
Marjorie Ma
This text is long and has been trimmed here. Open the source document for the complete record.
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