Blount v. MSPB , 594 F. App'x 987 ( 2014 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
SHARON L. BLOUNT,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
______________________
2014-3156
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-0752-13-0755-I-1.
______________________
Decided: December 9, 2014
______________________
SHARON L. BLOUNT, of Fort Washington, Maryland,
pro se.
STEPHEN FUNG, Attorney, Office of the General Coun-
sel, Merit Systems Protection Board, of Washington, DC,
for respondent. With him on the brief was BRYAN G.
POLISUK, General Counsel.
______________________
Before PROST, Chief Judge, NEWMAN, and TARANTO,
Circuit Judges.
2 BLOUNT v. MSPB
PER CURIAM.
The Merit Systems Protection Board dismissed Sha-
ron Blount’s claim, concluding that it lacked jurisdiction
because she was not removed from her position but in-
stead resigned. The Board rested its conclusion on the
finding that Ms. Blount failed to make non-frivolous
allegations that her resignation was actually involuntary.
We affirm.
BACKGROUND
On April 10, 2013, after working for the government
for about 24 years, Ms. Blount received a notice from the
Department of Health and Human Services (HHS) that it
proposed to remove her from her position as a Consumer
Safety Officer at the Food and Drug Administration
(FDA). The proposal outlined Ms. Blount’s history of
attendance problems, including her failure to follow an
“Attendance Requirements and Leave Restrictions Memo-
randum,” issued on February 10, 2012. The 2012 Memo-
randum set specific requirements for Ms. Blount,
necessitated, her supervisor said, by an “unsatisfactory
pattern of absenteeism and lateness.” Respondent’s
Appendix (“R.A.”) at 148.
HHS held a hearing regarding Ms. Blount’s removal
on April 30, 2013. It issued a decision on May 29, 2013,
sustaining the charges against Ms. Blount and determin-
ing that the charges warranted her removal from her job.
Ms. Blount’s removal was slated to take effect on June 30,
2013. But eight days before June 30, Ms. Blount formally
resigned from her position.
In her resignation letter, Ms. Blount stated that “after
careful review and consideration” of the agency’s removal
decision, she had “decided that it would be to [her] best
interest to resign from [her] government employment
service.” R.A. 65. She claimed that her “decision to
resign [was] solely based on the necessity to uphold [her]
BLOUNT v. MSPB 3
reputation as a hard working [sic] and diligent govern-
ment employee.” Id. She stated that “it would be a
disgrace and disloyalty to allow the management of the
[FDA] to discredit [her] hard working [sic] years of gov-
ernment service through the act of terminating [her] . . .
government service.” Id. Finally, she claimed that she
was “being forced out of [her] employment” and that the
agency’s “decision . . . to terminate [her] government
service [was] based on acts of retaliation and discrimina-
tion with respect to [her] filing [of] previous discrimina-
tion cases and a . . . grievance against [FDA management]
because of the employee abuse, mistreatment, discrimina-
tion, hostile work environment, [and] unfair and unequal
pay.” Id. at 66. She attached a recently filed grievance
“as a testimonial against the unfair, unjust, and unethical
managerial practices that resulted in placing AWOL
charges and time and attendance leave restrictions”
against her. Id.
On June 25, 2013, Ms. Blount filed an appeal with the
Board, challenging the agency’s decision to remove her.
She stated that HHS “was wrong in taking this action
because they used the most vulnerable part of [her] life
which was [her] low annual and sick leave balance after
returning back from giving birth to [her] child in 2009 as
a means to enforce ‘Time and Attendance Leave Re-
striction’ on [her]” and that she had “never abused leave
at all.” R.A. 31. She requested remedies including rein-
statement, “payment for compensatory damage due to
discrimination and reprisal actions,” and “no further
reta[li]ation and/or harassment.” Id. Ms. Blount did not
indicate on these forms that she had submitted a letter of
resignation.
On July 12, 2013, HHS moved to dismiss Ms. Blount’s
appeal on the ground that she was not actually removed
from her job, but instead resigned—taking her appeal
outside the Board’s jurisdiction under 5 U.S.C. § 7512.
On July 17, 2013, the Board administrative judge issued
4 BLOUNT v. MSPB
an “Order on Jurisdiction and Proof Requirements,” which
informed Ms. Blount that “[t]he Board may not have
jurisdiction over [her] appeal . . . [because] resignations
and retirements are presumed to be voluntary, and volun-
tary actions are not appealable to the Board.” R.A. 89.
The Order directed Ms. Blount “to file evidence and/or
argument amounting to a nonfrivolous allegation that
[her] claim of involuntary resignation or retirement is
within the Board’s jurisdiction,” R.A. 90, and gave details
on what was needed, R.A. 89–90.
Ms. Blount did not respond to the Order with any evi-
dence or detailed factual allegations as directed by the
Order, although the administrative judge received a
request for a hearing in her case on July 18, 2013, which
Ms. Blount may have sent before even receiving the
mailed July 17 Order, and that request included some
evidence. On August 5, 2013, the agency again moved to
dismiss, and on August 14, 2013, the administrative judge
issued an Initial Decision dismissing the case. The ad-
ministrative judge found that Ms. Blount’s resignation
was not involuntary because “the agency appears to have
had reasonable and supportable grounds for proposing
and then deciding to remove” her, and because Ms. Blount
had not “described any other event which r[ose] to the
level of coercion necessary to overcome the presumption”
that she resigned voluntarily. R.A. 15.
Ms. Blount petitioned the Board for review of the ad-
ministrative judge’s initial decision. In her petition, Ms.
Blount reiterated that she was appealing her “wrongful
termination” and that she believed her resignation was
not the issue before the judge and should not be a reason
to dismiss her appeal. R.A. 93. Ms. Blount outlined her
receipt of the proposal of removal and the decision to
remove, and she asserted that those documents, as well as
other exhibits attached to her appeal, “demonstrate a
BLOUNT v. MSPB 5
pattern of retaliation . . . that led to [her] being forced out
of” her employment. R.A. 94. 1
On May 16, 2014, the Board denied Ms. Blount’s peti-
tion for review. The Board recounted Ms. Blount’s plead-
ings and noted that she did not respond to the July 17,
2013, Jurisdictional Order. But the Board specifically
considered the submission Ms. Blount had made to the
administrative judge in her July 18, 2013, request for a
hearing—which it found did “not affect the oucome in this
appeal.” R.A. 4 n.2.
In finding no basis for Ms. Blount’s contention that
her resignation was involuntary, the Board reiterated
that resignations are not involuntary merely because they
are made in the face of removal. R.A. 4 (citing Adams v.
U.S. Postal Serv., 108 M.S.P.R. 250, ¶ 15 (2008), aff’d, 309
F. App’x 413 (Fed. Cir. 2009)). The Board next considered
Ms. Blount’s claims of discrimination and retaliation to
the extent that those claims bore on the voluntariness of
her resignation. 2 The Board found that Ms. Blount did
1 Ms. Blount also claimed that the agency did not
notify her Union representative of the decision to remove
her from government service, but she does not reiterate
this claim in her appeal to this court.
2 The Board culled allegations of discrimination
from the copy of a grievance Ms. Blount submitted. Ms.
Blount alleged race- and sex-based disparate treatment
evidenced by HHS’s (1) leaving Ms. Blount a large
amount of work to do upon returning from maternity
leave, by failing to assign Ms. Blount’s duties to another
employee during that leave, (2) failure to hire another
employee to assist Ms. Blount with an excessive workload,
(3) retaliation from her supervisor for speaking with the
office director about the need for additional employees, (4)
placement of Ms. Blount under a “leave restriction” de-
spite knowledge that her low balance of available leave
6 BLOUNT v. MSPB
not allege that “she resigned because of discrimination
that made her work environment intolerable.” R.A. 6.
Ms. Blount now appeals to this court, “reiterat[ing]”
that she “was forced out of the U.S. government based on .
. . retaliation on the part of FDA.” Appellant’s Br., Con-
tinuation p. 2. We have jurisdiction under 28 U.S.C. §
1295(a)(9). See Conforto v. Merit Sys. Prot. Bd., 713 F.3d
1111, 1116, 1121 (Fed. Cir. 2013) (Board’s jurisdiction
reviewable in this court even if “discrimination” alleged as
part of claim that resignation was involuntary); see also
supra n.2.
DISCUSSION
Our review of the Board’s decision is limited by stat-
ute. We must affirm the decision of the Board unless it is
“(1) arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with law; (2) obtained without
procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial evi-
dence.” 5 U.S.C. § 7703(c); see also Terban v. Dep’t of
Energy, 216 F.3d 1021, 1024 (Fed. Cir. 2000). We review
was due to her pregnancy, (5) removal of Ms. Blount’s
scientific duties, leaving her with only administrative
work, and (6) failure to renew an accommodation that
HHS had granted her.
When Ms. Blount submitted her appeal to this court,
she indicated that “[n]o claim of discrimination by reason
of race, sex, age, national origin, or handicapped condition
has been or will be made in this case” and that any such
claim of discrimination “raised before and decided by the
[Board] or arbitrator has been abandoned or will not be
raised or continued in this or any other court.” Appel-
lant’s Federal Circuit Form 10 (signed July 30, 2014; filed
August 5, 2014).
BLOUNT v. MSPB 7
the Board’s jurisdictional dismissal de novo. Fields v.
Dep’t of Justice, 452 F.3d 1297, 1301 (Fed. Cir. 2006).
Ms. Blount bears the burden of establishing that the
Board has jurisdiction over her appeal. 5 C.F.R.
§ 1201.56(a)(2)(i); Garcia v. Dep’t of Homeland Sec., 437
F.3d 1322, 1328 (Fed. Cir. 2006). She is entitled to a
hearing on Board jurisdiction only if she has made non-
frivolous allegations that, if proven, would demonstrate
that the Board has jurisdiction. Staats v. U.S. Postal
Service, 99 F.3d 1120, 1125 (Fed. Cir. 1996).
Because a voluntary resignation is not a “removal”
under 5 U.S.C. § 7512, the Board’s jurisdiction depends on
whether Ms. Blount has overcome the presumption that
her resignation was voluntary, Terban, 216 F.3d at 1024,
to establish that it actually was a “constructive removal”
over which the Board does have jurisdiction, Braun v.
Dep’t. of Veterans Affairs, 50 F.3d 1005, 1007 (Fed. Cir.
1995). To prove that her resignation was the product of
“coercive involuntariness,” Ms. Blount must demonstrate
“that a reasonable employee confronted with the same
circumstances would feel coerced into resigning.” Confor-
to, 713 F.3d at 1121 (internal quotation marks omitted).
This objective standard is a “demanding” one, id. (internal
quotation marks omitted), and it is not satisfied simply by
showing discrimination, including retaliation—to qualify,
discrimination must be “so serious as to compel the em-
ployee to resign.” Id. at 1120.
We conclude that the Board properly determined Ms.
Blount failed to make nonfrivolous allegations of coercion,
under the applicable demanding standard, that entitled
her to a jurisdictional hearing or to a finding of jurisdic-
tion.
A
In her resignation letter, Ms. Blount asserted that she
was “forced out” of her employment and that her removal
8 BLOUNT v. MSPB
was an act of “retaliation and discrimination.” R.A. 66.
In her Petition for Review of the administrative judge’s
decision, Ms. Blount made similarly conclusory allega-
tions of “a pattern of retaliation . . . that led to [her] being
forced out of the US government,” reiterating this pattern
“is the basis for [her] stance that [she] had no other choice
but to resign.” R.A. 94. Neither those broad assertions
nor, more generally, her arguments to the Board allege
specific facts that support her claims of coercion based on
retaliation and discrimination under the demanding
standard—even if, despite her Form 10 disclaimers (supra
n.2), all such claims remain in the case.
Some documents demonstrate that Ms. Blount be-
lieved that she was experiencing “disparate treatment,”
“discrimination,” and retaliation for her complaints to
management regarding her workload. R.A. 105–07 (Step
1 Grievance); Pre-Removal Hearing Tr. at 13–14, 16, 18–
19, (Apr. 30, 2013) (page numbers counted from beginning
of hearing transcript, supplied to this court as Br. of
Appellant, Tab 9, Attachment 8). Ms. Blount has stressed
a matter of timing: Ms. Blount’s supervisor did not place
her under a “leave restriction” until after she “reported
him to the Center Director” with respect to [her] poor
quality of work life.” Pre-Removal Hearing Tr. at 19; see
also R.A. 106. Ms. Blount has also asserted that she had
never received a poor performance rating until her last
supervisor gave her one, and she has suggested the poor
rating was given in reprisal for her complaints. Pre-
Removal Hearing Tr. at 22.
This minimal factual support, if credited, would not
demonstrate that Ms. Blount’s resignation was involun-
tary. As Conforto confirms, some on-the-job discrimina-
tion, including retaliation, though wrongful, is not grave
enough in its effects to compel an employee to resign. 713
F.3d at 1120. Indeed, the distinction is reflected in the
fact that, even where discrimination is involved, Congress
has given the Board jurisdiction only over some wrongful
BLOUNT v. MSPB 9
employer actions that harm an employee—e.g., removals,
suspensions for more than 14 days, etc., 5 U.S.C. § 7512—
not all. Ms. Blount’s allegations do not “rise[ ] to the level
of coercion necessary to overcome the presumption of
voluntariness.” Terban, 216 F.3d at 1025.
Ms. Blount was “faced with the unpleasant alterna-
tive of resigning or being subjected to an adverse action,”
but she has not shown “that the agency lacked reasonable
grounds for threatening to take the adverse action.” See
Terban, 216 F.3d at 1026. As the administrative judge in
this case determined, the agency had “reasonable and
supportable” grounds for removing Ms. Blount. R.A. 15.
HHS supplied ample documentation of Ms. Blount’s
problematic tardiness and absenteeism both when propos-
ing and when deciding to remove her from her job. 3 Ms.
Blount admits that she struggled with attendance and on-
time arrivals. Pre-Removal Hearing Tr. at 15, 23, 33–35.
Ms. Blount thus has not shown either a lack of reasonable
grounds for the proposed removal or any other basis
sufficient to make her resignation coerced.
3 HHS proposed to remove Ms. Blount only after
Ms. Blount’s supervisor issued an “Attendance Require-
ments and Leave Restrictions” memorandum, which
states that it was issued in response to her late arrival or
total absence on 50 workdays within a specific period.
R.A. 148. After the leave restriction was issued, Ms.
Blount received a “Letter of Reprimand” from her super-
visor for failing to arrive on time and often leaving too
early. R.A. 153–55. Ms. Blount received a five-day sus-
pension after her supervisor noted her tardiness on at
least 30 occasions between August 21, 2012, and Novem-
ber 13, 2012. R.A. 46–49.
10 BLOUNT v. MSPB
B
Ms. Blount makes several new arguments on appeal,
including that the “condition[s] in [her] work place envi-
ronment [were] intolerable” and that any “ordinary[,] non-
saintly employee would quit under the same intolerable
circumstances, because of the continual . . . abuse and
mistreatment.” Br. of Appellant, Continuation p. 2. Ms.
Blount also claims that this stressful environment made
her “fearful of not being able to manage [her] [vestibular
migraine] medical condition” and that the decision to
remove her from service improperly failed to consider the
mitigating evidence of her medical condition. Id. at
Continuation p. 3. Finally, she notes that the denial of
her previously granted medical accommodation exacer-
bated her ability to deal with this condition. Id. at Con-
tinuation p. 3–4. But to the extent that these claims
contain factual allegations that differ from those we have
already discussed, Ms. Blount did not make arguments to
the Board based on such allegations, and we decline to
consider them. Frank v. Dep’t of Transp., 35 F.3d 1554,
1559 (Fed. Cir. 1994) (“[W]e do not consider issues that
were not raised in the proceedings below.”); Synan v.
Merit Sys. Prot. Bd., 765 F.2d 1099, 1101 (Fed. Cir. 1985)
(“Petitioner cannot raise before this court an issue which
could have been raised below but which was not.”).
CONCLUSION
For the foregoing reasons, the decision of the Board is
affirmed.
No costs.
AFFIRMED