Unara v. MSPB , 656 F. App'x 1002 ( 2016 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
DONATUS U. UNARA,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
DEPARTMENT OF VETERANS AFFAIRS,
Intervenor
______________________
2016-1417
______________________
Petition for review of the Merit Systems Protection
Board in No. CH-3443-15-0404-I-1.
______________________
Decided: August 4, 2016
______________________
DONATUS U. UNARA, Ypsilanti, MI, pro se.
KATRINA LEDERER, Office of the General Counsel,
Merit Systems Protection Board, Washington, DC, for
respondent. Also represented by BRYAN G. POLISUK.
REBECCA SARAH KRUSER, Commercial Litigation
Branch, Civil Division, United States Department of
2 UNARA v. MSPB
Justice, Washington, DC, for intervenor. Also represent-
ed by REGINALD T. BLADES, JR., ROBERT E. KIRSCHMAN,
JR., BENJAMIN C. MIZER.
______________________
Before NEWMAN, LOURIE, and O’MALLEY, Circuit Judges.
PER CURIAM.
Donatus U. Unara (“Unara”) appeals from the final
order of the Merit Systems Protection Board (“the Board”)
dismissing his appeal for lack of jurisdiction. See Unara
v. Dep’t of Veterans Affairs, No. CH-3443-15-0404-I-1
(M.S.P.B. Nov. 4, 2015) (“Final Order”); Unara v. Dep’t of
Veterans Affairs, No. CH-3443-15-0404-I-1 (M.S.P.B. June
30, 2015) (“Initial Decision”). Because the Board correctly
concluded that it lacked jurisdiction over Unara’s appeal,
we affirm.
BACKGROUND
Unara was previously employed as a Medical Tech-
nologist, GS-9, at the Harry S. Truman Medical Center of
the Department of Veterans Affairs (“the Agency”).
Initial Decision at 1. After not being selected for a GS-10
vacancy in April 2014, Unara filed a formal Equal Em-
ployment Opportunity (“EEO”) complaint of age and race
discrimination at the Agency’s Office of Resolution Man-
agement, alleging that a series of events created a hostile
work environment beginning in July 2013. Id. at 1, 4–6.
He detailed incidents of not being provided appropriate
training; unequal treatment of his compensation request;
a manager’s hostile response to his report of a workplace
problem; and his nonselection for the GS-10 position.
Intervenor’s App. (“I.A.”) 50.
In September 2014, Unara suffered a stroke at work
and was hospitalized. Initial Decision at 6. Unara subse-
quently amended his EEO complaint to assert allegations
of harassing actions by the Agency after his complaint
UNARA v. MSPB 3
was filed, including scheduling meetings for times when
he was scheduled to be off-duty; falsely accusing him of
being unresponsive to managerial requests and disruptive
in the workplace; issuing him a written counseling; as-
signing him additional job duties; taking no action to
ensure that his assistant was helping him perform his job
duties; and calling him while he was hospitalized to
request that he return to work. I.A. 50–51.
While on medical leave, he received a letter from the
Agency explaining his responsibility to submit medical
documentation to support his continued leave of absence.
I.A. 37. Instead of submitting such documentation, Unara
resigned from his position on November 17, 2014. Final
Order at 2. In January 2015, Unara again amended his
EEO complaint, adding an allegation that the hostile
work environment forced him to resign. Id.
The Office of Resolution Management accepted his
forced resignation claim for investigation as independent-
ly actionable, making it a “mixed case” appeal. Id.; I.A.
51–52. As a result, the investigation and a final agency
decision were required to be completed within 120 days of
the amendment being accepted. Final Order at 2. Before
that period ended, however, the Office sent Unara a notice
with a copy of the investigative file to inform him of his
available options for processing his complaint, including
requesting a final agency decision within 30 days. Id. at
3; I.A. 54–55. Instead, Unara appealed to the Board.
Final Order at 2–3. The Agency ultimately did not issue
a final decision. See id. at 4–5 & n.4.
The Board’s administrative judge (“AJ”) issued an ac-
knowledgment order explaining to Unara that it lacks
jurisdiction over presumptively voluntary actions such as
resignations, and advised him that his appeal would be
dismissed unless he amended his petition to allege that
his resignation was the result of duress, coercion, or
improper acts by the Agency. Final Order at 3–4; I.A. 28–
4 UNARA v. MSPB
29. In response, Unara filed a submission repeating his
allegations of how the Agency forced him to resign by
verbally harassing him and creating a hostile work envi-
ronment as set forth in his EEO complaint. Final Order
at 4; I.A. 33–35.
The AJ subsequently issued an initial decision dis-
missing the appeal for lack of jurisdiction without a
hearing, concluding that Unara failed to make any non-
frivolous allegation that his resignation was involuntary
and thus failed to establish the Board’s jurisdiction over
his appeal. See Final Order at 5; Initial Decision at 8–9.
Unara petitioned for review by the full Board, which
subsequently issued a final order denying the petition and
affirming the AJ’s initial decision to dismiss the appeal.
Final Order at 2.
Unara timely appealed from the Board’s final order.
We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
DISCUSSION
We must affirm the Board’s decision unless we find it
to be “(1) arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law; (2) obtained with-
out procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial evi-
dence.” 5 U.S.C. § 7703(c). We review a determination of
the Board’s jurisdiction de novo as a question of law, and
review underlying factual findings for substantial evi-
dence. See Parrott v. Merit Sys. Prot. Bd., 519 F.3d 1328,
1334 (Fed. Cir. 2008).
“A decision to resign or retire is presumed to be volun-
tary, and an employee who voluntarily retires has no
right to appeal to the Board; the Board assumes jurisdic-
tion over an appeal by an employee who has resigned or
retired only if the employee shows that his resignation or
retirement was involuntary and thus tantamount to
forced removal.” Staats v. U.S. Postal Serv., 99 F.3d 1120,
UNARA v. MSPB 5
1123–24 (Fed. Cir. 1996); see also Garcia v. Dep’t of Home-
land Sec., 437 F.3d 1322, 1328 (Fed. Cir. 2006) (en banc);
Cruz v. Dep’t of Navy, 934 F.2d 1240, 1248 (Fed. Cir.
1991) (en banc). The employee is only entitled to a hear-
ing—at which point jurisdiction must be shown by a
preponderance of the evidence, Garcia, 437 F.3d at 1344—
if nonfrivolous allegations are made that the resignation
was “the product of coercion by the agency.” Conforto v.
Merit Sys. Prot. Bd., 713 F.3d 1111, 1121 (Fed. Cir. 2013)
(citing Dumas v. Merit Sys. Prot. Bd., 789 F.2d 892, 894
(Fed. Cir. 1986).
“The test for involuntariness is objective,” id., and
“the doctrine of coercive involuntariness is a narrow one,”
Staats, 99 F.3d at 1124. To overcome the presumption
that a resignation was voluntary, an employee must show
that “the agency effectively imposed the terms of the
employee’s resignation”; that the employee “had no realis-
tic alternative but to resign”; and that the resignation was
“the result of improper acts by the agency.” Garcia, 437
F.3d at 1329 (quoting Shoaf v. Dep’t of Agric., 260 F.3d
1336, 1341 (Fed. Cir. 2001)) (emphasis added). However,
merely disliking “measures that the agency is authorized
to adopt, even if those measures make continuation in the
job so unpleasant . . . that he feels that he has no realistic
option but to leave,” is insufficient. Conforto, 713 F.3d at
1121–22.
Unara argues that the Board did not take into ac-
count the facts presented regarding the incidents of
discrimination that he experienced, which made his
working conditions so intolerable that the Agency’s ac-
tions constituted a constructive removal. Pet’r’s Br. 2. He
also asserts that the Board inadequately dealt with his
motions to compel, in which he sought discovery for his
EEO claims. Id. Unara further contends that the Board
failed to consider the improper acts of the Agency in
interfering with his medical leave by sending him a letter
6 UNARA v. MSPB
that demanded his resignation before the amount of leave
that he was entitled to had ended. Id.
The government responds that the Board properly
considered all relevant facts and correctly concluded that
it lacked jurisdiction over Unara’s appeal. Resp’t’s Br. 10.
The government notes that because the Board only con-
sidered the jurisdictional allegation, it did not evaluate
the merits of Unara’s appeal. Id. Specifically, the gov-
ernment asserts that the Board correctly considered,
under the totality of the circumstances, whether Unara’s
working conditions were objectively intolerable such that
his resignation was involuntary. Id. at 12. The govern-
ment argues that the Board found that even assuming his
allegations of the hostile work environment were true,
they would not have compelled a reasonable person to
resign because several of the issues could have been
resolved in other ways, they only existed for short periods
of time, or they were actions that the Agency was author-
ized to undertake. Id. at 13–14. The government also
contends that Unara’s claim that the Agency improperly
applied or calculated his medical leave time was not
before the Board and is thus waived. Id. at 14.
The Agency, as intervenor in the present appeal, simi-
larly asserts that the Board examined all of the facts
presented and addressed whether they evidenced improp-
er agency actions and how they would affect a reasonable
person in Unara’s position. Intervenor’s Br. 15, 17–18.
The Agency further responds that Unara did not identify
any specific facts that the Board failed to consider. The
Agency also contends that the Board properly treated
Unara’s motions to compel because they did not comply
with the Board’s regulations, and thus the AJ’s failure to
rule on the first motion was not prejudicial. Id. at 15–16,
23. The Agency further asserts that the full Board’s
rejection of the second motion was also proper. Id. at 16–
17, 23. The Agency lastly agrees with the government
that Unara waived the argument that the letter that he
UNARA v. MSPB 7
received during his medical leave forced him to resign,
and moreover asserts that the letter on its face did not
demand his resignation. Id. at 24–25.
We agree that the Board did not err in dismissing
Unara’s appeal for lack of jurisdiction. The Board consid-
ered his assertions of harassment and discrimination and
found that, although the described incidents showed “an
unpleasant and inconvenient working environment,” none
of the alleged actions were improper or would suffice to
compel a reasonable person to resign. The Board ana-
lyzed the individual allegations and found them to be
legitimate Agency decisions that it is authorized to make,
see Staats, 99 F.3d at 1124; or otherwise not so oppressive
as to force Unara’s resignation. There were reasonable
explanations for the Agency’s actions or realistic alterna-
tives to resigning. See Garcia, 437 F.3d at 1329; Conforto,
713 F.3d at 1122. The Board also considered Unara’s
arguments concerning the motions to compel and found
that any alleged errors were not prejudicial and would not
have changed the outcome of the appeal. Final Order at 6
n.7. Moreover, we do not find anything in the record
indicating that Unara raised to the Board the issue of the
letter received during his medical leave, as he instead
focused on his manager’s statements to him shortly after
his stroke; regardless, the letter does not support a non-
frivolous allegation of involuntary resignation.
The Board thus properly considered the totality of the
circumstances and found that Unara did not demonstrate
that any Agency actions would have effected a construc-
tive removal. Accordingly, Unara failed to meet his
burden to nonfrivolously allege that his resignation was
objectively coerced and thus involuntary. Without such
allegations, the Board correctly held that it lacked juris-
diction over Unara’s appeal.
We have considered Unara’s remaining arguments,
but find them unpersuasive. For the foregoing reasons,
8 UNARA v. MSPB
we affirm the Board’s decision dismissing Unara’s appeal
for lack of jurisdiction.
AFFIRMED
COSTS
No costs.