Edward v. Perplies v. Department of Labor ( 2014 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
EDWARD V. PERPLIES, DOCKET NUMBER
Appellant, SF-0752-14-0200-I-1
v.
DEPARTMENT OF LABOR, DATE: September 19, 2014
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Edward V. Perplies, Esquire, Arleta, California, pro se.
Andrew J. Schultz, San Francisco, California, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed this involuntary retirement appeal for lack of jurisdiction. Generally,
we grant petitions such as this one only when: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the judge’s rulings during either the course of the appeal or
the initial decision were not consistent with required procedures or involved an
abuse of discretion, and the resulting error affected the outcome of the case; or
new and material evidence or legal argument is available that, despite the
petitioner’s due diligence, was not available when the record closed. See Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, and based on the following
points and authorities, we conclude that the petitioner has not established any
basis under section 1201.115 for granting the petition for review. Therefore, we
DENY the petition for review and AFFIRM the initial decision, which is now the
Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2 The Board’s jurisdiction is not plenary; it is limited to those matters over
which it has been given jurisdiction by law, rule, or regulation. Maddox v. Merit
Systems Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). The appellant bears
the burden of proving, by a preponderance of the evidence, that the Board has
jurisdiction over his appeal. 5 C.F.R. § 1201.56(a)(2)(i). An appellant is entitled
to a hearing on the issue of Board jurisdiction over an appeal of an alleged
involuntary resignation or retirement only if he makes a nonfrivolous allegation
casting doubt on the presumption of voluntariness. Burgess v. Merit Systems
Protection Board, 758 F.2d 641, 643 (Fed. Cir. 1985). To meet the nonfrivolous
standard, an appellant need only plead allegations of fact that, if proven, could
show jurisdiction. Pariseau v. Department of the Air Force, 113 M.S.P.R. 370,
¶ 14 (2010). Mere pro forma allegations, however, are insufficient to meet this
standard. Id.¶3 In actions like the one at issue here, i.e., a retirement initiated by an
employee in a situation where there has been no threat of an adverse action, such
as a removal, the appropriate test for voluntariness is whether, under all of the
circumstances, working conditions were made so difficult by the agency that a
3
reasonable person in the appellant's position would have felt compelled to resign
or retire. See, e.g., Markon v. Department of State, 71 M.S.P.R. 574, 577 (1996).
In cases where intolerable working conditions are alleged, both the courts and the
Board will find an action involuntary only if the employee demonstrates that the
employer or agency engaged in a course of action that made working conditions
so difficult or unpleasant that a reasonable person in that employee’s position
would have felt compelled to resign or retire. Id. at 577-78. When an appellant
raises allegations of discrimination or reprisal in connection with an
involuntariness claim, evidence of discrimination may be considered only in
terms of the standard for voluntariness in a particular situation—not whether such
evidence meets the test for proof of discrimination or reprisal established under
Title VII. Id. at 578. Thus, evidence of discrimination or retaliation goes to the
ultimate question of coercion, i.e., whether under all of the circumstances
working conditions were made so difficult by the agency that a reasonable person
in the employee’s position would have felt compelled to resign or retire. Id.¶4 The appellant filed an appeal in which he alleged that he involuntarily
retired from his position as a GS-12 Investigator for the agency’s Employee
Benefits Security Administration. Initial Appeal File (IAF), Tab 1. The
administrative judge subsequently informed the appellant of the elements and
burdens of establishing jurisdiction over an involuntary retirement. IAF, Tab 2
at 2-3. The appellant responded, arguing that his physical and emotional health
was impacted by his placement on a performance improvement plan (PIP) in
August 2012, and the agency’s subsequent enforcement of that PIP. IAF, Tab 6
at 2. The appellant asserted that the PIP was vague and overbroad and that the
agency intentionally scheduled weekly PIP meetings such as to interfere with his
regular mealtimes, 2 which he contended affected the blood-sugar regimen that he
2
The appellant argued that the agency “compelled [his] attendance during required
meals,” but he also cited the agency’s failure under the PIP “to regularly schedule
4
had implemented upon his physician’s advice and that was necessitated by his
known diabetic condition. Id. at 2-3. The appellant also asserted that the agency
failed to disclose that he could not receive his full retirement annuity at age 58
until after he had already accepted his position. 3 Id. The agency moved to
dismiss the appeal for lack of jurisdiction, IAF, Tab 8, and the administrative
judge granted the agency’s motion, finding that the appellant failed to make
nonfrivolous allegations that the agency created working conditions so intolerable
that a reasonable person in the appellant’s position would have felt compelled to
retire, IAF, Tab 10, Initial Decision (ID) at 7-8.
¶5 With his timely-filed petition for review, the appellant seeks to introduce
new evidence, a letter from a coworker concerning one of the individuals that the
appellant alleges was responsible for the hostile work environment that compelled
him to retire. Petition for Review (PFR) File, Tab 1 at 1, 7-8; Tab 4. The
appellant claims that, although the letter is dated October 4, 2013, it was made
available to him on February 20, 2014, PFR File, Tab 1 at 1, and he states that he
weekly meetings with any predictability or regularity” as evidence that his subsequent
retirement was involuntary. IAF, Tab 6 at 2.
3
According to the agency, the appellant served in his position for over 12 years at the
time he retired. IAF, Tab 8 at 1. It appears that the appellant is arguing that the agency
misled him by omission at the time it hired him that he could receive a full annuity after
5 years of creditable service regardless of his age at the date he chose to retire, and that
he relied on that omission to his detriment, see IAF, Tab 6 at 2, but he offers nothing to
support this bare allegation. Moreover, something that occurred 12 years before the
alleged involuntary retirement at issue is most likely too attenuated to have caused a
reasonable person under these circumstances to retire. See, e.g., Miller v. Department
of Defense, 85 M.S.P.R. 310, ¶ 10 (2000) (although other periods are not categorically
excluded, the circumstances existing immediately before the actual date of the action
are the most relevant in determining the voluntariness of that action). Nevertheless,
even if the appellant established this, an employee’s eligibility for a retirement annuity
is fixed by statute and regulation. See 5 U.S.C., chapter 84; 5 C.F.R., parts 841-46.
The government cannot be estopped from denying benefits not otherwise permitted by
law even if the claimant was denied monetary benefits because of his reliance on the
mistaken advice of a government official. Office of Personnel Management v.
Richmond, 496 U.S. 414, 416, 434 (1990).
5
did not supplement the evidence earlier because he had already submitted two
other coworker statements as exhibits in his presentation below, id.; see IAF,
Tab 9, Exhibits 24, 26. Under 5 C.F.R. § 1201.115, the Board generally will not
consider evidence submitted for the first time with the petition for review absent
a showing that it was unavailable before the record was closed despite the party’s
due diligence. Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980). The
appellant does not say why the statement was previously unavailable to him
despite his due diligence, and as noted above, he acknowledges in his petition for
review that the evidence is cumulative. PFR File, Tab 1 at 1; compare PFR File,
Tab 1 at 7-8, with IAF, Tab 9, Exhibits 24, 26. Moreover, the letter does not
show that the administrative judge erred in finding that a reasonable person under
these circumstances would not have felt compelled to retire. See PFR File, Tab 1
at 7-8. The Board will not grant a petition for review based on new evidence
absent a showing that it is of sufficient weight to warrant an outcome different
from that of the initial decision. E.g., Russo v. Veterans Administration,
3 M.S.P.R. 345, 349 (1980).
¶6 The appellant also argues that he would be able to prove his claim at trial,
asserting that a dismissal of his appeal without affording him an opportunity to
supplement his pleadings will cause him irreparable harm. PFR File, Tab 1 at 2.
However, as noted above, an appellant is entitled to a hearing on the issue of
Board jurisdiction over an appeal of an alleged involuntary resignation or
retirement only if he makes a nonfrivolous allegation casting doubt on the
presumption of voluntariness. Burgess, 758 F.2d at 643. The administrative
judge gave the appellant ample notice of the burden he must meet to receive a
hearing on his claim and she set a time for the record on the jurisdictional issue to
close. IAF, Tab 2 at 2-4. That was the time for the appellant to have submitted
his evidence. Having then elected to proceed without attempting to introduce the
evidence he now seeks to submit on review, the appellant, who is an attorney
representing himself pro se in this matter, may not at this stage seek to
6
supplement the record with evidence that was apparently available to him before
the record closed. Cf. Kopp v. Department of the Air Force, 33 M.S.P.R. 624,
629 (1987) (a mistaken litigation strategy does not provide an adequate basis for
reopening the record).
¶7 Ultimately, we agree with the administrative judge that the appellant failed
to nonfrivolously allege that his retirement was involuntary. Applying the
standard set forth in Markon, we find that the appellant failed to nonfrivolously
assert that his daily working conditions were so intolerable that a reasonable
person in his position would have felt compelled to retire. See, e.g., Miller,
85 M.S.P.R. 310, ¶ 32 (dissatisfaction with work assignments, a feeling of being
unfairly criticized, or difficult or unpleasant working conditions are generally not
so intolerable as to compel a reasonable person to resign). Although the appellant
alleged that he was subjected to a discriminatory and hostile workplace,
culminating in his placement on a PIP, and was required to perform unspecified
unethical and unlawful acts in connection with his employment, see, e.g., IAF,
Tab 1 at 8-12, the totality of the circumstances based on the evidence that the
appellant submitted, IAF, Tab 9, does not support his allegations, and instead
reflects, as the administrative judge correctly found, “the common workplace
situations where there is disagreement with the supervisors over work product and
performance deficiencies which resulted in a PIP,” ID at 7.
¶8 Although the appellant clearly believed that he might be subject to
discipline in the future as a result of the PIP, there is no evidence that such an
action was planned, and an employee’s anticipation of an adverse action does not
constitute coercion or duress on the part of an agency. See Holman v. Department
of the Treasury, 9 M.S.P.R. 218, 220 (1981), aff’d, 703 F.2d 584 (Fed. Cir. 1982)
(Table). Although the prospect of facing such an action is an unpleasant choice,
the appellant always had the option of waiting and contesting such an action if he
thought it unjustified. See, e.g., Schultz v. Department of the Navy, 810 F.2d
1133, 1136 (Fed. Cir. 1987); Aurandt v. Department of the Air Force,
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53 M.S.P.R. 591, 595 (1992). The appellant’s decision to retire, in lieu of facing
any potential adverse consequences he anticipated as the result of being placed on
a PIP does not show that his retirement was involuntary. See Sullivan v.
Department of Veterans Affairs, 79 M.S.P.R. 81, 85 (1998); Shaishaa v
Department of the Army, 58 M.S.P.R. 450, 454 (1993) (the prospect of possible
future adverse action as the result of a PIP is speculative and not a proper basis
on which to find jurisdiction over an action not otherwise appealable to the
Board).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. 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 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information is available at the court's website, www.cafc.uscourts.gov.
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Of particular relevance is the court's "Guide for Pro Se Petitioners and
Appellants," which is contained within the court's Rules of Practice, and Forms 5,
6, and 11.
If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.