Timothy Coan v. Department of Veterans Affairs ( 2022 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TIMOTHY COAN, DOCKET NUMBER
Appellant, NY-0752-14-0300-C-1
v.
DEPARTMENT OF VETERANS DATE: July 27, 2022
AFFAIRS,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Timothy Coan, Patchogue, New York, pro se.
Jack P. DiTeodoro, Esquire, Brooklyn, New York, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
ORDER
¶1 The agency has filed a petition for review of the compliance initial
decision, which granted the appellant’s petition for enforcement. For the reasons
set forth below, we GRANT the agency’s petition for review with respect to the
relief granted to the appellant, VACATE the compliance initial decision’s
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
compliance order, and AFFIRM the compliance initial decision as MODIFIED by
this Order finding that: (1) the agency failed to restore the appellant to the status
quo ante because the agency did not show a strong overriding in terest or
compelling reason to assign the appellant to a position other than the one he
encumbered at the time of his indefinite suspension; and (2) the appellant was
entitled only to reinstatement to his former position from the effective date of his
reassignment until the date of his resignation. We refer the petition for
enforcement to the Board’s Office of General Counsel to obtain compliance with
the parties’ settlement agreement and issuance of a final decision. See 5 C.F.R.
§ 1201.183(c). We FORWARD the appellant’s claim of involuntary resignation
to the Board’s New York Field Office for docketing as a separate appeal .
BACKGROUND
¶2 In June 2014, the appellant timely filed an appeal contesting the agency’s
decision to indefinitely suspend him from his position as a Police Officer based
on a criminal charge pending against him. MSPB Docket No. NY-0752-14-0300-
I-1, Initial Appeal File (IAF), Tab 1. In August 2014, the parties executed a
settlement agreement, which provided that in exchange for the appellant’s
withdrawing his appeal and any other causes of action pending against the
agency, the agency agreed to rescind the indefinite suspension, expunge all
references regarding the indefinite suspension from his personnel file, restore him
to the status quo ante with no break in service, and pay him back pay and adjust
his benefits in accordance with Office of Personnel Management (OPM)
regulations. IAF, Tab 8; MSPB Docket No. NY-0752-14-0300-C-1, Compliance
File (CF), Tab 1 at 2-4. Also in August 2014, the administrative judge issued an
initial decision incorporating the settlement agreement into the record for
enforcement purposes in accordance with the terms of the agreement a nd
dismissing the initial appeal. IAF, Tab 9, Initial Decision (ID). In dismissing the
appeal, the administrative judge found that the Board had jurisdiction over the
3
initial appeal, the settlement agreement was lawful, and the parties understood the
terms of the agreement and had freely entered into the agreement. Id.¶3 In May 2015, the appellant timely filed a petition for enforcement alleging
that the agency had breached the settlement agreement. 2 CF, Tab 1 at 1. The
appellant asserted that the parties had agreed that he would be placed in an
administrative leave status until the disposition of his pending criminal charge,
and at that time he would either be returned to full duty or remain in an
administrative leave status. 3 Id. The appellant also alleged that in January 2015,
he notified the agency that his criminal charge was resolved through an
adjournment in contemplation of dismissal, but the agency did not return him to
duty as a Police Officer, GS-0083-06, in the Police Service. Id. at 1, 5, 11.
Instead, the agency notified him in May 2015, that it was reassigning him to the
position of Secretary, GS-0318-06, in the Emergency Management Service,
effective May 17, 2015. Id. at 1, 5. The appellant argued that, because he was
not found guilty of the criminal charge, he should have been returned to full duty
rather than reassigned. Id. at 1.
¶4 The agency filed a response disputing that it had breached the settlement
agreement. CF, Tab 3. The agency argued that it had reinstated the appellant to
his Police Officer position as of the effective date of the settlement agreement
and completed its other obligations under the agreement, and that the agreement
did not bar a later reassignment. Id. at 2. The agency further alleged that in
February 2015, the agency’s Law Enforcement Training Center (LETC) issued a
decision revoking the appellant’s badge and credentials, and because the ability to
hold a badge and credentials are a required qualification for a police officer, the
2
The administrative judge found that the appellant’s petition for enforcement was
timely filed, the agency has not challenged that finding, and we see no reason to disturb
it. CF, Tab 17, Compliance Initial Decision at 1.
3
As discussed below, see infra ¶ 13, this particular agreement is not reflected in the
executed settlement agreement.
4
appellant could no longer occupy his position, and the agency reassigned him to a
different position. Id. at 3. The administrative judge subsequently ordered the
agency to submit evidence of compliance with the agreement. CF, Tab 4. The
agency submitted a copy of the appellant’s electronic official personnel file to
show that his record did not mention the indefinite suspension. CF, Tab 7. The
agency also acknowledged that it had placed the appellant in an administrative
leave status pending the outcome of the criminal charge, but that upon resolution
of the charge, the agency reassigned him to another position, and that the
settlement agreement did not preclude the agency from placing him in an
administrative leave status or reassigning him. Id. at 1.
¶5 In June 2016, the appellant asked the administrative judge about the status
of his petition for enforcement and notified her that he had resigned from the
Secretary position as a result of the financial burden of losing his night pay,
weekend pay, and 12-hour shifts, which had allowed him to work at a second job.
CF, Tab 11 at 1-2. Also in June 2016, the appellant submitted a letter to the
administrative judge in which he requested reinstatement to his Police Officer
position, back pay, and reimbursement for the leave he had taken from
May 17-August 8, 2015. 4 CF, Tab 14.
¶6 The administrative judge issued a compliance initial decision granting the
appellant’s petition for enforcement. CF, Tab 17, Compliance Initial Decision
(CID). She found that the settlement agreement required the agency to return the
appellant to the status quo ante, which required the agency to reinstate him to the
position he occupied before the adverse action or to a substantially equivalent
4
The appellant appeared to allege that his last day with the agency was August 8, 2015.
CF, Tab 14. On review, the agency submitted a July 28, 2015 letter from the appellant
tendering his resignation and a Standard Form 50 effecting the appellant’s resignation
on July 28, 2015, in support of the agency’s argument that the administrative judge
erred in restoring the appellant after his July 28, 2015 resignation. Petition for Review
(PFR) File, Tab 1 at 7, 19-20. The appellant has not disputed the agency’s evidence
showing that his resignation was effective on July 28, 2015. PFR File, Tab 3.
5
position. CID at 5-7. The administrative judge then found that the agency had
reassigned the appellant to a different position than the one he previously had
held. CID at 6-7. She also found that the agency did not articulate the specific
concerns underlying the request for the return of the appellant’s badge and
credentials, which led to his disqualification from his former position and then
reassignment to the Secretary position. CID at 6-7. The administrative judge
further found that, even if she were to find that the agency had a strong overriding
interest or compelling reason to reassign the appellant to a different position, the
agency nevertheless failed to reassign him to a position that was substantially
similar to that of a Police Officer, as the positions of Police Officer and Secretary
were in different job classification series and agency divisions, and the
reassignment resulted in the loss of the appellant’s pay differential. CID at 7-8.
Thus, the administrative judge concluded that the agency had materially breached
the settlement agreement and ordered the agency to reinstate the appellant to the
Police Officer position, or to reassign him to a position that is substantially
similar to that of a Police Officer, effective May 17, 2015. Id.¶7 The agency has timely filed a petition for review of the compliance initial
decision, and the appellant has responded in opposition to the agency’s petition.
Petition for Review (PFR) File, Tabs 1, 3. As set forth below, we affirm the
administrative judge’s finding that the agency failed to demonstrate compliance
with the settlement agreement; we affirm the compliance initial decision to find
that the agency breached the settlement agreement when it reinstated the
appellant to a position other than the one he encumbered at the time of his
indefinite suspension. We further find that the appellant is entitled to
reinstatement to the Police Officer position only from the effective date of the
reassignment until the date he resigned from the agency and refer this matter to
the Office of General Counsel to obtain compliance. We also find that the
appellant has raised a claim of involuntary resignation and forward the claim to
the New York Field Office for docketing as a separate appe al.
6
DISCUSSION OF ARGUMENTS ON REVIEW
The agency has failed to demonstrate its compliance with its obligation under the
settlement agreement to restore the appellant to the status quo ante.
¶8 The Board has the authority to enforce a settlement agreement that has been
entered into the record in the same manner as any final Board decision or order.
Vance v. Department of the Interior, 114 M.S.P.R. 679, ¶ 6 (2010). A settlement
agreement is a contract, and the Board will therefore adjudicate a petition to
enforce a settlement agreement in accordance with contract law. Id. In a
compliance action based on a settlement agreement, the burd en of proving
noncompliance rests with the party asserting that the agreement has been
breached. Raymond v. Department of the Navy, 116 M.S.P.R. 223, ¶ 4 (2011).
The appellant, as the party asserting the breach, must show that the agency failed
to abide by the terms of the settlement agreement. Id. The agency nonetheless is
required to produce evidence that it has complied with the settlement agreement.
Id.¶9 The administrative judge agreed with the appellant that the agency was in
noncompliance with the settlement agreement because the agency did not return
him to his former position or to a substantially similar position . CF, Tab 1 at 1;
CID at 5-8. On review, the agency argues that it complied with the settlement
agreement because the revocation of the appellant’s badge and credentials, which
was a condition of his employment as a Police Officer, was a compelling reason
to reassign him to a different position than the one he occupied before the
decision to indefinitely suspend him, and it was not feasible to reassign him to a
substantially similar position because no other position in the agency performed
similar duties. PFR File, Tab 1 at 7.
¶10 The settlement agreement in this case requires the agency to, among other
things, “rescind the June 16, 2014 indefinite suspension of the appellant from his
position as a police officer at the VA Medical Center in Northport, New Yo rk,”
and “restore the appellant to the status quo ante.” CF, Tab 1 at 2. When a term
7
of art, such as “status quo ante,” is used in a settlement agreement, the Board will
apply the ordinary meaning of that term found in case law, statute, or regulation,
unless it is shown that the parties intended otherwise. Sweet v. U.S. Postal
Service, 89 M.S.P.R. 28, ¶ 11 (2001). The settlement agreement does not define
“status quo ante,” and there is no indication that the parties intended to afford the
term any meaning other than its ordinary meaning. CF, Tab 1 at 2. Notably, the
settlement agreement provides that the appellant is “entitled to all benefits and
privileges of employment that he would have received had he not been
indefinitely suspended,” which is reminiscent of the status quo ante analysis
applied by the Board, as set forth below. Id. The Board also has held that a
status quo ante analysis applies if a settlement agreement includes a term
specifying that the employee should be returned to the “status quo ante.”
Kuykendall v. Department of Veterans Affairs, 68 M.S.P.R. 314, 321 n.3 (1995).
Accordingly, we apply the ordinary meaning of “status quo ante” to ascertain the
extent of the agency’s obligation to reinstate the appellant to his former position
under the settlement agreement.
¶11 Placing the appellant in the status quo ante means restoring him, as nearly
as possible, to the situation he would have been in had the personnel action that
formed the basis of the Board appeal not occurred. Tubesing v. Department of
Health & Human Services, 112 M.S.P.R. 393, ¶ 5 (2009). A return to the status
quo ante requires that the agency place the appellant in a position with all the
essential privileges of his previous position. Black v. Department of Justice,
85 M.S.P.R. 650, ¶ 6 (2000). In particular, the agency must reinstate the
appellant to his former position and duties absent a strong overriding interest or
compelling reasons for not doing so. Tubesing v. Department of Health & Human
Services, 115 M.S.P.R. 327, ¶ 5 (2010). When a compelling reason exists for
reassigning an appellant to a position other than the one he encumbered at the
time of the adverse action at issue, the agency must establish that the duties and
responsibilities of the position to which the appellant has been assigned are
8
substantially equivalent in scope and status to those of the position the appellant
previously held. Id., ¶ 7. In determining whether the duties and responsibilities
of the appellant’s pre- and post-reinstatement positions are substantially
equivalent, the Board looks beyond the title and grade of the positions involved
and conducts an assessment comparing the scope of the duties and responsibilities
of the post-reinstatement position with those of the pre-reinstatement position.
Id.¶12 Here, it is undisputed that the appellant occupied the Police Officer position
before the agency’s decision to effect the indefinite suspension that formed the
basis of his initial appeal. CF, Tab 1 at 1; PFR File, Tab 1 at 5. The parties agree
that, after the settlement agreement was executed in August 2014, the agency
placed the appellant in an administrative leave status, pending the outcome of his
criminal case, until reassigning him to Secretary position in May 2015. CF,
Tab 1 at 1, Tab 7 at 1; PFR File, Tab 1 at 6. Although the agency alleges that it
complied with the settlement agreement by reinstating the appellant to his Police
Officer position and retaining him in a paid, non-duty status, placing an appellant
in an administrative leave status following the cancellation of an adverse action
does not constitute complete rescission of the agency action and thus a return to
the status quo ante. PFR File, Tab 1 at 6; see De Luca v. U.S. Postal Service,
76 M.S.P.R. 487, 488 (1997) (determining that the agency’s explanation that it
had placed the appellant in an administrative leave sta tus and had not returned
him to his position because it was contemplating reinstating charges against him
was not a legitimate basis for its refusal to return him to duty). Thus, we find that
the agency did not return the appellant to the status quo ante when it placed him
in an administrative leave status.
¶13 Nevertheless, the appellant did not allege below that his placement in an
administrative leave status constituted a breach of the settlement agreement;
rather, he alleged that upon ending his administrative leave status, the agency
9
breached the settlement by failing to reinstate him to his Police Officer position. 5
CF, Tab 1 at 1. The agency does not dispute that, upon ending the appellant’s
placement in an administrative leave status, it did not place him in the position he
occupied at the time of his indefinite suspension. PFR File, Tab 1 at 6 -7.
However, the agency argues that it had a compelling reason to reassign the
appellant to a different position, as the agency’s LETC revoked the appellant’s
badge and credentials, which is a condition of his employment as a police officer,
so he was no longer qualified to hold that position. Id. at 7.
¶14 If an outside event or determination has rendered the appellant incapable of
performing the duties of his former position, as long as that incapacity exists, the
agency is not obligated to reinstate the appellant to his former position. Doe v.
Department of Justice, 95 M.S.P.R. 198, ¶ 13 (2003). For example, the Board has
held that an agency had a compelling reason not to reinstate an appellant to his
former position when he lost the security clearance required for the job he held
prior to the adverse action at issue. LaBatte v. Department of the Air Force,
58 M.S.P.R. 586, 594 (1993). Similarly, the Board has held that an agency
demonstrated a compelling reason to not return an appellant, a criminal
investigator, to the same work assignments he formerly performed when the two
U.S. Attorneys’ Offices in the districts in which the appellant would routinely
operate had informed the agency that they would not call him as a witness absent
exceptional circumstances, and neither the Board nor the agency had authority
over the U.S. Attorneys’ Offices. Doe, 95 M.S.P.R. 198, ¶¶ 8-9, 15-17.
However, the Board may reach a different conclusion when the agency exercises
5
In his petition for enforcement, the appellant asserted that he and the agency had
agreed that he would be placed in an administrative leave status until his criminal
charge was resolved, and that upon receiving a decision in that matter, he would be
returned to duty or remain in an administrative leave status. CF, Tab 1 at 1. The
settlement agreement does not reflect this agreement, nor do we consider it as a
potential modification of the settlement because the agreement provides that it may not
be modified “except by a writing signed by all of the parties,” and there is no such
writing in the record. Id. at 3.
10
its own discretion in altering the appellant’s duties. For example, the Board has
held that an agency did not restore the appellant to the status quo ante when the
agency did not restore the appellant’s special agent badge and credentials, and the
grant of those items was within the agency’s District Director’s discretion. See
Black, 85 M.S.P.R. 650, ¶¶ 6-8.
¶15 In this case, the agency did not base its decision not to return the appellant
to his former position and duties on an event or determination external to the
agency. Rather, the Director of the LETC, a division internal to the agency,
issued a decision requesting the return of the appellant’s badge and credentials
based on a January 28, 2015 letter from one of the appellant’s supervisors . 6 CF,
Tab 1 at 6. The agency argues that this action was taken in accordance with the
agency policy set forth in VA Handbook 0730, section 7(b)(4)(a), which provides
that “Directors are authorized to suspend the arrest authority of any VA police
officer whose judgment or professional competence is in doubt .” PFR File, Tab 1
at 7; VA Handbook 0730 § 7(b)(4)(a) (2000), https://www.va.gov/vapubs/search
_action.cfm?dType=2 (last visited July 26, 2022). 7 The policy leaves the
suspension of an officer’s arrest authority to the discretion of the appropriate
director, who is under the agency’s authority. Thus, the agency exercised its own
discretion in suspending the appellant’s arrest authority and declining to reinstate
him to his former position on that basis.
¶16 The January 28, 2015 letter, on which the Director’s request for the return
of the appellant’s badge and credentials is based, and which the agency submits
6
The letter is incorrectly dated January 28, 2014. PFR File, Tab 1 at 10. The agency
states that the letter was sent in January 2015, and the letter refers to events occurrin g
as late as September 26, 2014; thus, we conclude, as did the administrative judge, that
the letter was in fact written on January 28, 2015. Id. at 6, 10; see CID at 7.
7
Although the agency did not provide a copy of the policy it cited in support of its
argument, the policy is publicly available online at the link cited above. PFR File,
Tab 1 at 7; see Graves v. Department of Veterans Affairs, 123 M.S.P.R. 434, 443 n.3
(2016) (taking official notice of a publicly available Department of Veterans Affairs
directive).
11
for the first time on review, does not bolster the agency’s argument that it had a
compelling reason to not reinstate the appellant to his form er position. PFR File,
Tab 1 at 10. 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. 5 C.F.R.
§ 1201.115(d); see Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980).
The agency has not asserted that the letter was not available during the pendency
of the compliance proceeding before the administrative judge, and thus we do not
consider it on review. Moreover, the agency has not asserted that the letter
identifies an event or determination, from a source over which the agency did not
have authority that required the return of the appellant’s badge and credentials
and thus rendered him incapable of performing his duties. Accordingly, the
agency has not set forth a compelling reason for why it did not return the
appellant to his former duties as a Police Officer and therefore, it has not returned
the appellant to the status quo ante as required under the settlement agreement. 8
¶17 It is on this basis that we affirm the administrative judge’s finding that the
agency materially breached the settlement agreement. CID at 8. In light of this
finding, we need not reach the issue of whether the agency reinstated the
appellant to a substantially equivalent position to that of his former position. See
Tubesing, 115 M.S.P.R. 327, ¶ 7 (providing that when a compelling reason exists
for reassigning an employee to a position other than the one he encumbered at the
time of his separation, the agency must establish that the duties and
8
Certainly, an agency may institute a second adverse action based on different charges
from those that formed the basis of the adverse action at issue and place the appellant in
a paid, non-duty status pending the resolution of the second action, but here the agency
has not asserted that it had taken such an action. See Nelson v. Veterans
Administration, 27 M.S.P.R. 133, 135 & n.2 (1985) (noting that the agency’s decision
to place the appellant in a paid, non-duty status pending the disposition of another
removal action against him did not, by itself, show the agency had failed to comply
with the Board’s order to reinstate him).
12
responsibilities of the position to which the employee has been assigned are
substantially equivalent to those of his former position).
The appellant is entitled to relief from the date of the agency’s breach of the
settlement agreement until the date of his resignation, and his claim of
involuntary resignation shall be docketed as a separate appeal.
¶18 When an appellant establishes that an agency is in breach of a settlement
agreement, he may elect either enforcement of the agreement or rescission of the
agreement and reinstatement of his claim on appeal. West v. Department of the
Army, 96 M.S.P.R. 531, ¶ 12 (2004); Wonderly v. Department of the Navy,
68 M.S.P.R. 529, 532 (1995). Here, the appellant initially asked that the
administrative judge enforce the agreement by reinstating him to his position as a
Police Officer, and in June 2016, he informed the administrative judge that he had
resigned from his position due to the financial difficulties stemmin g from his
reassignment to the Secretary position and requested reinstatement and
reimbursement for the leave he had taken after his reassignment. CF, Tab 1 at 1,
Tab 11 at 1-2, Tab 14 at 1. Upon finding the agency had breached the settlement
agreement, the administrative judge ordered the agency to reinstate the appellant
to the Police Officer position, or to reassign him to a substantially similar
position, effective May 17, 2015, and to pay the appellant back pay and adjust his
benefits in accordance with OPM regulations. CID at 8. On review, the agency
argues that the administrative judge erred in ordering the appellant’s
reinstatement beyond July 28, 2015, his voluntary resignation date. PFR File,
Tab 1 at 7, 19.
¶19 Enforcing the terms of the settlement agreement would normally require
that the Board issue an order directing the agency to cancel the appellant’ s
reassignment, reinstate him to the position of Police Officer, and pay him back
pay and benefits retroactive to the date of reassignment . See Gullette v. U.S.
Postal Service, 77 M.S.P.R. 459, 467 (1998) (ordering the agency to cancel the
appellant’s reassignment when the Board found the agency had reassigned her in
13
violation of the settlement agreement). However, the appellant resigned from the
agency prior to the issuance of the compliance initial decision, and we find that
he is not entitled, as part of the compliance process, to reinstatement after the
date of his resignation. See Collier v. Office of Personnel Management,
29 M.S.P.R. 38, 41-42 (1985) (stating that the appellant’s voluntary retirement
was a discrete, intervening factor limiting the appellant’s right to rei nstatement
similar to a subsequent resignation or to an agency action that constitutes an
independent basis for an appeal to the Board and is not cancelled by a Board
order reversing a preceding agency action), aff’d, 795 F.2d 1019 (Fed. Cir. 1986)
(Table), superseded by statute as recognized in Paula v. Social Security
Administration, 119 M.S.P.R. 138, 141-42 (2013); cf. Armstrong v. Department of
Justice, 107 M.S.P.R. 375, ¶ 13 (2007) (determining that the administrative judge
erred in ordering interim relief upon granting the appellant’s request for
corrective action, as the Board lacked the authority to order th e appellant’s
reinstatement on a permanent or interim basis when he had resigned his position
by the time the initial decision was issued and did not claim that his resignation
was involuntary or raise such a claim before the Office of Special Counsel),
overruled on other grounds by Edwards v. Department of Labor , 2022 MSPB 9.
¶20 The appellant is not entitled to be placed in a better positio n than he would
have enjoyed had the breach of the settlement agreement not occurred. Sink v.
Department of Energy, 110 M.S.P.R. 153, ¶ 19 (2008); see White v. Delta
Construction International, Inc., 285 F.3d 1040, 1043 (Fed. Cir. 2002) (stating
that a corollary of the principle that the primary objective of damages for breach
of contract is to place the non-breaching party “in as good a position pecuniarily
as he would have been by performance of the contract” is that the non-breaching
party is “not entitled to be put in a better position by the recovery than if the
[other party] had fully performed the contract”). Here, the administrative judge’s
order to reinstate the appellant to his former position did not take into account the
effect of his resignation, which separated him from Federal employment. CID
14
at 8; see Collier, 29 M.S.P.R. at 41-42. Thus, the administrative judge erred in
ordering the appellant’s reinstatement to his former position without limitation,
and we vacate the compliance initial decision’s compliance order and order the
agency to cancel the appellant’s reassignment and reinstate him with appropriate
back pay and other benefits from the date of the reassignment at issue to the date
of his resignation.
¶21 We further find that the appellant’s claim that he was forced to resign could
constitute a constructive removal claim. Ordinarily, an employee-initiated action,
such as a resignation, is presumed to be voluntary and thus outside the Board’s
jurisdiction. Searcy v. Department of Commerce, 114 M.S.P.R. 281, ¶ 12 (2010).
An involuntary resignation, however, is tantamount to a removal an d is thus
within the Board’s jurisdiction. Adams v. U.S. Postal Service, 108 M.S.P.R. 250,
¶ 9 (2008), aff’d, 309 F. App’x 413 (Fed. Cir. 2009) (Table). An appellant may
overcome the presumption of voluntariness by presenting sufficient evidence to
establish that the action was obtained through duress or coercion or show that a
reasonable person would have been misled by the agency. Searcy, 114 M.S.P.R.
281, ¶ 12. In particular, to establish involuntariness on the basis of coercion, an
employee must show that the agency effectively imposed the terms of his
resignation, he had no realistic alternative but to resign, and his resignation was
the result of improper acts by the agency. Brown v. U.S. Postal Service,
115 M.S.P.R. 609, ¶ 10, aff’d, 469 F. App’x 852 (Fed. Cir. 2011). If an
employee’s working conditions are so intolerable that he is forced to resign, his
resignation is involuntary and constitutes a constructive removal. Id.¶22 An appellant must receive explicit information on what is required to
establish an appealable jurisdictional issue. Burgess v. Merit Systems Protection
Board, 758 F.2d 641, 643-44 (Fed. Cir. 1985). The administrative judge did not
provide the appellant with information concerning what was required to establish
Board jurisdiction over a constructive removal claim. Accordingly, we forward
the appellant’s potential constructive removal claim to the New York Field Office
15
for docketing as a separate appeal. See Searcy v. Department of Agriculture,
115 M.S.P.R. 260, ¶ 15 (2010) (forwarding the appellant’s alleged involuntary
resignation claim to the appropriate regional office). After the claim is forwarded
to the field office, the administrative judge shall inform the appellant of his
burden of proof to establish that his July 28, 2015 resignation, raised before the
Board for the first time on June 27, 2016, was involuntary and of his burden to
prove that his claim of involuntary resignation was timely raised or that good
cause existed for the delay in raising the claim. Id.; see also Porter v.
Department of Defense, 98 M.S.P.R. 461, ¶ 17 (2005) (setting forth the
appellant’s burden to show good cause for an untimely filing) .
¶23 Because we have found the agency in noncompliance, the agency is being
directed to file evidence of compliance with the Clerk of the Board, and the
appellant will be afforded the opportunity to respond to that evidence. The
agency’s petition for enforcement will be referred to the Board’s Office of
General Counsel, and, depending on the nature of the submissions, an attorney
with the Office of General Counsel may contact the parties to further discuss the
compliance process. The parties are required to cooperate with that individual in
good faith. Because the purpose of the proceeding is to obtain compliance, when
appropriate, an Office of General Counsel attorney or paralegal may engage in ex
parte communications to, among other things, better understand the evidence of
compliance and any objections to that evidence. Thereafter , the Board will issue
a final decision fully addressing the agency’s petition for review of t he
compliance initial decision 9 and setting forth the parties’ further appeal rights and
the right to attorney fees, if applicable.
9
The subsequent decision may incorporate the analysis and findings set forth in this
Order.
16
ORDER
¶24 We ORDER the agency to submit to the Clerk of the Board within 60 days
of the date of this Order satisfactory evidence of compliance. This evidence shall
adhere to the requirements set forth in 5 C.F.R. § 1201.183(a)(6)(i), including
submission of evidence and a narrative statement of compliance. The agency’s
submission shall demonstrate that it properly cancelled the appellant’s
reassignment to the position of Secretary, GS-0318-06, and reinstated him to the
position of Police Officer, GS-0083-06, for the period from May 17, 2015 to
July 28, 2015, and paid the appellant the correct amount of back pay, interest on
back pay, and other benefits under the Office of Personnel Management’s
regulations. The agency must serve all parties with copies of its submission.
¶25 The agency’s submission should be filed under the new docket number
assigned to this compliance referral matter, MSPB Docket No. NY-0752-14-
0030-X-1. All subsequent filings should refer to the compliance referral docket
number set forth above and should be faxed to (202) 653-7130 or mailed to the
following address:
Clerk of the Board
U.S. Merit Systems Protection Board
1615 M Street, N.W.
Washington, D.C. 20419
Submissions may also be made by electronic filing at the Board’s e-Appeal site
(https://e-appeal.mspb.gov) in accordance with its regulation at 5 C.F.R.
§ 1201.14.
¶26 The appellant may respond to the agency’s evidence of compliance within
20 days of the date of service of the agency’s submission.
5 C.F.R. § 1201.183(a)(8). If the appellant does not respond to the agency’s
evidence of compliance, the Board may assume that he is satisfied with the
agency’s actions and dismiss the petition for enforcement.
¶27 The agency is reminded that, if it fails to provide adequate evidence of
compliance, the responsible agency official and the agency’s representative may
17
be required to appear before the General Counsel of the Merit Systems Protection
Board to show cause why the Board should not impose sanctions for the agency’s
noncompliance in this case. 5 C.F.R. § 1201.183(c). The Board’s authority to
impose sanctions includes the authority to order that the responsible agency
official “shall not be entitled to receive payment for service as an employee
during any period that the order has not been complied with.” 5 U.S.C.
§ 1204(e)(2)(A).
¶28 This Order does not constitute a final order and therefore is not subject to
judicial review under 5 U.S.C. § 7703(a)(1). Upon the Board’s final resolution of
the remaining issues in the petition for enforcement, a final order shall be issued,
which then shall be subject to judicial review.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.