Shirley Muhleisen v. Department of Veterans Affairs ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SHIRLEY MUHLEISEN, DOCKET NUMBER
Appellant, DE-1221-13-0345-B-1
v.
DEPARTMENT OF VETERANS DATE: February 28, 2023
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Shirley Muhleisen, Marrero, Louisiana, pro se.
Johnston B. Walker, Jackson, Mississippi, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the remand initial decision,
which found that her individual right of action (IRA) appeal concerning an
alleged involuntary resignation was barred based on the doctrine of collateral
estoppel. Generally, we grant petitions such as this one only in the following
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the remand initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2 The appellant filed the instant IRA appeal, alleging that the agency took a
number of actions against her in reprisal for whistleblowing. Muhleisen v.
Department of Veterans Affairs, MSPB Docket No. DE-1221-13-0345-W-1,
Initial Appeal File (IAF), Tab 1. The administrative judge dismissed the appeal
for lack of jurisdiction. IAF, Tab 15, Initial Decision (ID). On review, the Board
affirmed in part. Muhleisen v. Department of Veterans Affairs, MSPB Docket
No. DE-1221-13-0345-W-1, Remand Order (RO), ¶¶ 6-7 (Nov. 10, 2014).
However, based on a new argument first presented on review, the Board found
that the appellant had presented nonfrivolous allegations that she made a
protected disclosure that was a contributing factor in her allegedly involuntary
resignation in 1999. RO, ¶¶ 8-9. Therefore, the Board remanded that lone
remaining claim and instructed the administrative judge to give the appellant an
opportunity to establish that her resignation was involuntary and recognizable as
a personnel action within the Board’s jurisdiction over IRA appeals. RO,
¶¶ 10-11.
3
¶3 On remand, the agency argued that the appellant should be collaterally
estopped from further pursuing her involuntary resignation claim before the
Board. Muhleisen v. Department of Veterans Affairs, MSPB Docket
No. DE-1221-13-0345-B-1, Remand File (RF), Tab 20, Tab 27, Remand Initial
Decision (RID) at 3-4. In support of that argument, the agency presented
evidence of a lawsuit the appellant pursued against the agency many years ago in
Federal court. Muhleisen v. Principi, 73 F. App’x 320 (10th Cir. 2003); RF,
Tab 14 at 83-89, Tab 20 at 6-40. After holding a jurisdictional hearing, the
administrative judge dismissed the appellant’s involuntary resignation claim
based on collateral estoppel. RID at 7-12. The appellant has filed a petition for
review. Muhleisen v. Department of Veterans Affairs, MSPB Docket
No. DE-1221-13-0345-B-1, Remand Petition for Review (RPFR) File, Tab 3. The
agency has filed a response. 2 RPFR File, Tab 5.
¶4 Under the doctrine of collateral estoppel, once an adjudicatory body has
decided a factual or legal issue necessary to its judgment, that decision may
preclude relitigation of the issue in a case concerning a different cause of action
involving a party to the initial case. Hau v. Department of Homeland Security,
123 M.S.P.R. 620, ¶ 13 (2016), aff’d sub nom. Bryant v. Merit Systems Protection
Board, 878 F.3d 1320 (Fed. Cir. 2017). Collateral estoppel, or issue preclusion,
is appropriate when: (1) the issue is identical to that involved in the prior action;
(2) the issue was actually litigated in the prior action; (3) the determination of the
issue in the prior action was necessary to the resulting judgment; and (4) the party
2
Long after the time allotted for her to submit a reply brief, the appellant filed two
motions. The first, which she titled as a motion to strike, contains a lengthy list of
alleged improprieties on the part of the agency and adjudicators to her various appeals,
ranging from fraud to violations of due process and the Privacy Act of 1974. RPFR
File, Tab 8 at 2-9. The second, which she titled as a motion to add new information and
exhibits, ambiguously refers to a recent email from the Office of Personnel
Management as a “very important piece of information,” before providing another
lengthy list of alleged wrongdoings. RPFR File, Tab 9 at 2 -5. These motions are
denied.
4
against whom issue preclusion is sought had a full and fair op portunity to litigate
the issue in the prior action, either as a party to the earlier action or as one whose
interests were otherwise fully represented in that action. Id. As further detailed
below, we find no basis for disturbing the administrative judg e’s decision to
dismiss the appellant’s remaining IRA claim based on collateral estoppel.
¶5 According to the August 2002 recommendations of the presiding Magistrate
Judge, the appellant’s prior lawsuit against the agency included allegations that
she was subjected to gender discrimination, resulting in a number of
improprieties, including her constructive discharge. RF, Tab 20 at 6. The
Magistrate Judge recognized that “[a]n employee is constructively discharged
when her working conditions are so intolerable that a reasonable person would
feel compelled to resign.” Id. at 29. The Magistrate Judge observed that it was
the appellant’s burden of proving that her “employment conditions were
‘objectively intolerable,’ such that she ‘had no other choice but to q uit.’” Id.
at 30 (quoting Sanchez v. Denver Public Schools, 164 F.3d 527, 534 (10th Cir.
1998)). Using that legal standard, the Magistrate Judge concluded that the
appellant’s resignation was not, in fact, involuntary. Id. at 30-32. Among other
things, she considered the appellant’s allegations that she had been denied
promotions, step increases, favorable work assignments, and leave requests. Id.
at 30. She found that the appellant had been looking for employment elsewhere
in the years leading up to her resignation and had applied for early retirement
months before her resignation. Id. In addition, the Magistrate Judge found that
the appellant had applied for admission to a paralegal school scheduled to begin
the same month as her resignation and actually began attending that program as a
day student just days after her resignation. Id. According to the Magistrate
Judge, the appellant thus failed to establish “a genuine material fact issue about
the objective reasonableness of her working conditions.” Id. at 32.
¶6 The Chief Judge for the U.S. District Court for the District of Colorado
reviewed the Magistrate Judge’s recommendations and concluded that they were
5
correct. Id. at 35-36. Therefore, he granted the agency’s motion for summary
judgment and dismissed the appellant’s complaint. Id. at 36-39. The U.S. Court
of Appeals for the Tenth Circuit affirmed that decision in July 2003. Muhleisen,
73 F. App’x at 320; RF, Tab 14 at 83-89. Among other things, the court held that
the appellant’s subjective expectations had not been met and she had personal
conflicts with both supervisors and coworkers, but she did not establish
objectively unreasonable working conditions. Muhleisen, 73 F. App’x at 325-26;
RF, Tab 14 at 89.
¶7 We agree with the administrative judge’s conclusion that the dispositive
issue in the instant IRA appeal, the voluntariness of the appellant’s resignation in
1999, is identical to that which was adjudicated in her prior lawsuit. RID at 8 -9.
Although she reasserts various allegations about her working conditions on
review, and suggests that the issues are not identical, we discern no meaningful
distinction between the allegations and legal principles in her prior lawsuit and
those in this IRA appeal, even though the former relied on a theory of gender
discrimination and the latter relied on a theory of whistleblower retaliation. E.g.,
RPFR File, Tab 3 at 2-3, 10, 19-20; see Tanner v. U.S. Postal Service,
94 M.S.P.R. 417, ¶ 11 (2003) (recognizing that before a party can invoke
collateral estoppel, the legal matter raised in the subsequent proceeding must
involve the same set of events or documents and the same bundle of legal
principles that contributed to rendering the first judgment). It is also evident, as
the administrative judge found, that whether the appellant’s resignation was
voluntary was actually litigated in her prior lawsuit and the finding of
voluntariness was necessary to the resulting judg ment. RID at 9; RF, Tab 20
at 29-32; see Miller v. Department of the Army, 121 M.S.P.R. 189, ¶ 20 (2014)
(finding that the “actually litigated” element and all others were met for purposes
of collateral estoppel when an issue raised in a Board appeal previously was
disposed of in District Court via summary judgment). On review, the appellant
seems to implicate the fourth element of collateral estoppel, arguing that she was
6
provided poor representation during a portion of her lawsuit and proceeded pro se
during the remainder. E.g., RPFR File, Tab 3 at 21-22. Nevertheless, we agree
with the administrative judge’s conclusion that the appellant had a full and fair
opportunity to litigate the issue in the prior action. RID at 9-11; see McNeil v.
Department of Defense, 100 M.S.P.R. 146, ¶¶ 13-15 (2005) (clarifying that the
fourth element of collateral estoppel does not require that the appellant have been
represented in the earlier action, but instead requires that the appellant had a full
and fair opportunity to litigate the issue).
¶8 Although we have reviewed the appellant’s remaining arguments, including
attacks on the validity of the judgment in her prior lawsuit and complaints
concerning the timing of the agency’s assertion of collateral estoppel in this
appeal, we find no basis for reaching a different result. See generally RPFR File,
Tab 3 at 2-25.
¶9 Accordingly, we find that the administrative judge properly determined that
the appellant’s involuntary resignation claim was barred under the doctrine of
collateral estoppel. 3
NOTICE OF APPEAL RIGHTS 4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
3
We have reviewed the relevant legislation enacted during the pendency of this appeal
and have determined that none impact the outcome.
4
Since the issuance of the remand initial decision in this matter, the Board may have
updated the notice of review rights included in final deci sions. As indicated in the
notice, the Board cannot advise which option is most appropriate in any matter.
7
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
8
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination. This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims—by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court-appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
9
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or a ny court of appeals of
competent jurisdiction. 5 The court of appeals must receive your petition for
5
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdicti on expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Cour t of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
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review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.