Shoaf v. Department of Agriculture , 158 F. App'x 267 ( 2005 )


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  •               NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
    Is not citable as precedent. It is a public record.
    United States Court of Appeals for the Federal Circuit
    04-3409
    WILLIAM R. SHOAF,
    Petitioner,
    v.
    DEPARTMENT OF AGRICULTURE,
    Respondent.
    ___________________________
    DECIDED: October 14, 2005
    ___________________________
    Before CLEVENGER, RADER, and DYK, Circuit Judges.
    RADER, Circuit Judge.
    The Merit Systems Protection Board (Board) held that it lacked jurisdiction
    to hear Mr. Shoaf’s appeal because his resignation was not involuntary. Shoaf v.
    Dep't of Agric., 
    97 M.S.P.R. 68
     (2004) (Shoaf III). Because the Board’s decision
    is supported by substantial evidence, this court affirms.
    BACKGROUND
    Mr. Shoaf resigned from the United States Forest Service (the agency) in
    1995. In 1996, Mr. Shoaf appealed to the Board. He alleged that his resignation
    was involuntary and that he was constructively discharged in retaliation for
    making disclosures protected under the Whistleblower Protection Act, 
    5 U.S.C. § 2302
    (b)(8) (1994). The Board determined that it lacked jurisdiction over Mr.
    Shoaf's appeal because his separation was neither a constructive removal action
    taken by the agency nor a “personnel action” under the Whistleblower Protection
    Act. Shoaf v. Dep't of Agric., 
    84 M.S.P.R. 524
     (1999) (Shoaf I). On appeal, this
    court held that the administrative judge had mistakenly limited his analysis to
    events that occurred after September 1993, when Mr. Shoaf voluntarily
    transferred within the agency to the position from which he ultimately resigned.
    Thus, in determining whether Mr. Shoaf was constructively discharged, the
    administrative judge failed to consider "the totality of the circumstances,"
    including alleged retaliation against Mr. Shoaf's whistle-blowing activities that
    took place before the 1993 transfer. This court vacated and remanded, with
    instructions to consider events that occurred after 1990, when Mr. Shoaf
    transferred into the position in which his troubles with the agency began, through
    the 1993 transfer. Shoaf v. Dep't of Agric., 
    260 F.3d 1336
     (Fed. Cir. 2001)
    (Shoaf II). On remand, the Board again held that it had no jurisdiction because
    Mr. Shoaf had not met “his burden of proving by preponderant evidence that his
    resignation was involuntary because he did not prove that a reasonable person in
    his position would have felt compelled to resign, effective March 31, 1995, under
    the totality of the circumstances in this appeal.” Shoaf III at 79.
    Shoaf II summarizes the facts of this case. In brief, Mr. Shoaf worked for
    the agency as a Forestry Systems Analyst and had performance ratings of “fully
    successful” or “outstanding” from 1978 through 1990.             In April 1990, he
    transferred to the Tongass National Forest (the Tongass) to help prepare for the
    sale of timber in old-growth forest. In July 1991 Mr. Shoaf began to criticize,
    04-3409                                   2
    both within the agency and publicly, the Forest Service’s timber management
    practices. As a result, Mr. Shoaf was publicly reprimanded, prohibited from
    speaking to the media, and lost some of the responsibilities of his position. On
    July 6, 1993, Mr. Shoaf filed a whistle-blower disclosure with the Office of
    Special Counsel (OSC), alleging that he was the victim of retaliation and
    discrimination as a result of his criticism of the Forest Service.
    In September, 1993, the Forest Service eliminated Mr. Shoaf's position,
    and he voluntarily accepted a new position as a “Special Projects Forester” with
    the Timber staff in Ketchikan, Alaska. This non-supervisory position did not
    exist prior to Mr. Shoaf’s tenure and was abolished when he left it. Mr. Shoaf
    was busy only approximately sixty per cent of the time from January 1994
    through August 1994, and had virtually no work for the remainder of the year. In
    February 1995, Mr. Shoaf resigned, accepting $25,000 as part of an incentive
    program offered by the Government for early retirement.
    On September 21, 1995, Mr. Shoaf wrote to OSC, alleging that he was
    "forced out" of his job with the Forest Service as a result of the whistle-blowing
    disclosures. On May 8, 1996, the OSC issued a notice of termination of its
    inquiry into Shoaf's complaint.     On October 31, 1996, Mr. Shoaf requested
    corrective action by the Board. Mr. Shoaf’s appeal to the Board was based on
    the assertion that the agency had made his working conditions so intolerable
    through “deliberate idling” that any reasonable employee in his situation would
    have felt compelled to resign. Shoaf v. Dep't of Agric., No. SE-0752-96-0462-I-2
    p. 8 (M.S.P.B. Sept. 11, 1998). The administrative judge held that the agency’s
    04-3409                                   3
    actions did not constitute circumstances under which a reasonable person would
    be “forced” to resign, and that Mr. Shoaf had not shown that his separation was
    either a constructive removal action or a “personnel action” under the
    Whistleblower Protection Act. Consequently, the Board lacked jurisdiction over,
    and thus dismissed, Mr. Shoaf's appeal.
    On appeal, this court held that the Board had abused its discretion “by
    completely failing to consider the pre-transfer activities concerning Shoaf on the
    Tongass . . . events occurring from the time period commencing on the date of
    Shoaf's transfer to the Tongass in April 1990, including actions and inactions by
    his supervisors during the relevant time period and his transfer to the timber
    unit.” Shoaf II at 1343.
    DISCUSSION
    A. Standard of Review
    This court must affirm a Board decision unless it is: “(1) arbitrary or
    capricious, an abuse of discretion, or otherwise not in accordance with the law;
    (2) obtained without procedure required by law, rule, or regulation having been
    followed; or (3) unsupported by substantial evidence.”       
    5 U.S.C. § 7703
    (c)
    (1996); Hayes v. Dep’t of Navy, 
    727 F.2d 1535
    , 1537 (Fed. Cir. 1984).
    To prevail on the merits of a constructive discharge case, the petitioner
    must show by preponderant evidence that his resignation was involuntary. See
    Shoaf II, 260 F.3d at 1341 (where an employee shows by preponderant evidence
    that his resignation was involuntary, he prevails on jurisdiction and the merits).
    However, we need not resolve the issue of whether, in such cases, the Board's
    04-3409                                 4
    jurisdiction attaches upon a non-frivolous allegation by the petitioner that the
    resignation was involuntary, or upon a showing by preponderant evidence. See
    Garcia v. Dep’t of Homeland Security, 
    412 F.3d 1330
     (Fed. Cir. 2005). If, after
    an evidentiary hearing, Mr. Shoaf cannot show by preponderant evidence that his
    resignation was involuntary, then his case fails, either for lack of jurisdiction or on
    the merits.
    B. “Involuntary” Dismissal
    In its decision on remand, the Board listed several factors which led the
    administrative judge to find that pre-transfer (pre-1993) events did not lend
    “significant support” to Mr. Shoaf’s claim of involuntary resignation in 1995.
    Shoaf III at 9-10. In this list, of special import are the facts that that claim was
    based on alleged deliberate idling in his post-transfer position, and that there was
    a nineteen-month delay between the transfer and Mr. Shoaf’s resignation. See
    Terban v. Dep't of Energy, 
    216 F.3d 1021
    , 1024 (Fed. Cir. 2000) (the most
    probative evidence of involuntariness “will usually be evidence in which there is a
    relatively short period of time between the employer's alleged coercive act[s] and
    the employee's retirement”). The Board also noted the administrative judge’s
    comparison of Mr. Shoaf’s pre-transfer position with his post-transfer position, in
    which Mr. Shoaf’s duties, supervisor, and contacts with his pre-transfer
    colleagues were different. The administrative judge pointed out that the agency’s
    pre-transfer activities, e.g., in limiting Mr. Shoaf’s responsibilities and public
    exposure, were not related to the working conditions in his new, post-transfer
    position. Shoaf III at 10. In essence, the Board, on remand, considered pre-
    04-3409                                   5
    transfer events and found that they did not provide sufficient evidence that Mr.
    Shoaf had been coerced into involuntarily resigning due to deliberate idling in his
    post-transfer position.
    On the other hand, the Board found substantial evidence to support its
    decision that no coercion in the form of deliberate idling had occurred at all. That
    evidence included the testimony of Mr. Shoaf’s post-transfer supervisor,
    presented before the administrative judge; the lack of adverse influence on Mr.
    Shoaf’s work load by Mr. Shoaf’s second-level supervisor, who had been
    implicated in the pre-transfer events; Mr. Shoaf’s lack of initiative in finding
    additional work on his own; and the presence of work opportunities in an airborne
    mapping program that became available to Mr. Shoaf before his resignation.
    Shoaf III at 11.
    In considering, as directed by this court, events which occurred prior to
    1993, the Board found that these events may have “contributed to his
    dissatisfaction, but did not provide significant support” for his claim of involuntary
    resignation in 1995, i.e., that they were not so intolerable that a reasonable
    person in the employee's position would have felt compelled to resign.           See
    Middleton v. Dep't of Defense, 
    185 F.3d 1374
    , 1379 (Fed. Cir. 1999). Thus, even
    though the pre-transfer activities of both Mr. Shoaf and the agency may have
    resulted in an environment in which Mr. Shoaf found it unpleasant to work, the
    allegedly retaliatory actions in the pre-transfer period combined with the alleged
    "deliberate idling" in the post-transfer period did not result in a situation where a
    04-3409                                   6
    reasonable person in Mr. Shoaf's position would have felt compelled to resign.
    For this reason, this court affirms.
    04-3409                                7
    

Document Info

Docket Number: 2004-3409

Citation Numbers: 158 F. App'x 267

Judges: Clevenger, Dyk, Rader

Filed Date: 10/14/2005

Precedential Status: Non-Precedential

Modified Date: 8/3/2023