Kibler v. MSPB , 669 F. App'x 560 ( 2016 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
CURTIS KIBLER,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2016-2218
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-0752-15-0915-I-1.
______________________
Decided: October 6, 2016
______________________
CURTIS KIBLER, Stafford, VA, pro se.
KATRINA LEDERER, Office of the General Counsel,
Merit Systems Protection Board, Washington, DC, for
respondent. Also represented by BRYAN G. POLISUK.
______________________
Before DYK, O’MALLEY, and STOLL, Circuit Judges.
2 KIBLER v. MSPB
PER CURIAM.
Curtis Kibler petitions for review of a final order of
the Merit Systems Protection Board dismissing Kibler’s
appeal for lack of jurisdiction. We affirm.
BACKGROUND
Kibler was employed as a Human Resources Special-
ist with the Department of the Army from May 5, 2014,
until his resignation on May 11, 2015. He subsequently
appealed to the Board, contending that his resignation
was involuntary and generally alleging that he had been
forced to resign due to a hostile work environment and
because of “discrimination,” “retaliation,” and “disparate
treatment.” J.A. 7.
In particular, Kibler alleged that during his employ-
ment, the agency improperly handled his leave requests
by requiring him to request leave by email instead of text
message, denied him annual leave and leave without pay
(LWOP), and forced him to take one day of administrative
leave. He further alleged that he was not provided with
performance standards until after he filed a successful
grievance, and that a performance appraisal rating him
as “Needs Improvement” on May 8, 2015, was erroneous.
Finally, he alleged that his supervisor unilaterally can-
celed two of his client meetings, instructed him to take
actions that he did not agree with, and assigned him work
that was not properly his responsibility.
The administrative judge dismissed Kibler’s appeal
for lack of jurisdiction after concluding that Kibler’s
resignation was not involuntary. Kibler petitioned the
Board for review, but the Board denied his petition in a
final order and affirmed the administrative judge’s de-
termination of no jurisdiction. Kibler then petitioned this
court for review. We have jurisdiction under 28 U.S.C.
§ 1295(a)(9).
KIBLER v. MSPB 3
DISCUSSION
Although the Board has jurisdiction to review an em-
ployee’s removal under 5 U.S.C. §§ 7701 and 7512, its
jurisdiction does not extend to an employee’s resignation,
unless the resignation was involuntary and, therefore,
tantamount to a constructive removal. See Garcia v. Dep’t
of Homeland Sec., 437 F.3d 1322, 1324 (Fed. Cir. 2006)
(en banc). The employee bears the burden of proving
involuntariness by a preponderance of the evidence and
must, as a threshold matter, assert non-frivolous allega-
tions that, if proven, would establish the Board’s jurisdic-
tion. See id. at 1344; see also 5 C.F.R. § 1201.56(b)(2)(i)(A).
We review the Board’s jurisdictional determinations de
novo, but are bound by its factual determinations if sup-
ported by substantial evidence. See Bolton v. Merit Sys.
Prot. Bd., 154 F.3d 1313, 1316 (Fed. Cir. 1998).
The dispositive question in this petition is whether
Kibler’s allegations, taken as true, were sufficient to
demonstrate that his resignation was involuntary. We
examine involuntariness using an objective standard that
asks “whether working conditions were made so intolera-
ble by the agency that a reasonable person in the employ-
ee’s position would have felt compelled to resign.” Shoaf v.
Dep’t of Agric., 260 F.3d 1336, 1341 (Fed. Cir. 2001). The
employee must show that: “(1) the agency effectively
imposed the terms of . . . resignation . . . ; (2) the employee
had no realistic alternative but to resign . . . ; and (3) the
employee’s resignation . . . was the result of improper acts
by the agency.” Id. (citing Fruhauf Sw. Garment Co. v.
United States, 111 F. Supp. 945, 951 (Ct. Cl. 1953)).
Kibler argues that he “provided . . . clear and convinc-
ing evidence[] in support of the unbearable working
conditions the agency effectively imposed” on him, and
that his allegations were non-frivolous. The Board exam-
ined each of Kibler’s allegations and found that, even if
4 KIBLER v. MSPB
proven, they would not have established a work environ-
ment so hostile that a reasonable person in Kibler’s
position would have been forced to resign.
We agree with the Board. With respect to Kibler’s al-
legations concerning LWOP, for instance, Kibler concedes
that LWOP is granted entirely at the agency’s discretion.
The denial of Kibler’s request for LWOP was therefore not
improper, much less an act that would have compelled a
reasonable person to resign. Similarly, although Kibler
was dissatisfied with the agency’s failure to provide him
with timely performance standards, his dissatisfaction
was open to a grievance procedure—which in fact Kibler
successfully pursued. 1 The Board also correctly deter-
mined that Kibler’s conclusory allegations of “retaliation,”
“discrimination,” and “disparate treatment” were insuffi-
cient to satisfy the standard for involuntariness. J.A. 7.
Thus, we agree that Kibler failed to assert a non-frivolous
allegation that the agency made working conditions so
difficult that a reasonable person would have felt com-
pelled the resign. As such, the Board correctly determined
that it had no jurisdiction over this case.
AFFIRMED
COSTS
No Costs.
1 Kibler also argues that he lacked an alternative to
resignation because the agency denied his within-grade
increase. But as he concedes, the agency did not do so
until after he tendered his resignation, and the question
of whether a resignation was involuntary is assessed at
the time it was submitted. Cruz v. Dep’t of Navy, 934 F.2d
1240, 1244 (Fed. Cir. 1991) (en banc).