UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD

FRANK J. SILVA, Appellant,

v. DEPARTMENT OF JUSTICE, Agency. DOCKET NUMBER AT-0752-15-0028-I-1

DATE: June 5, 2015



### THIS FINAL ORDER IS NONPRECEDENTIAL *

Frank J. Silva, Yazoo C ity, Mississippi, pro se. Jenifer Grundy Hollett, Esquire, Wash ington, D.C., fo r the agency.

BEFORE Susan Tsui Grundmann, Chairman Mark A. Robbins, Member

FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed his involuntary demotion appeal fo r lack of jurisdicti on. Generally, we grant petitions such as this one only when : the initial decision contains erroneous findings of material fac t; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to

* A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions.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

the facts of the case; the judge’s rulings dur ing 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 erro r affected the outcome of the case; or new and material evidence or legal argument is avai lable that, despite the petitioner’s due diligence , was not available when the record closed. See Title 5 of the Code of Federal Re gulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, and based on the following points and authorities , 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 initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b). ¶2 The appellant worked for the agency ’s Bureau of Prisons (BOP) from 1987 to 1992 and beginning again in 1997. See Initial Appeal File (IAF), Tab 1 at 14. In June 2011, he accepted a position as a GS-13 Comp lex Captain at the BOP facility in Yazoo City, Mississippi. See id ., IAF, Tab 7 at 52 . Approximately 4 months later, the appellant requested reassignment to the GS-12 Unit Manager position at the same facil ity. IAF, Tab 7 at 112. The agency approved and effectuated that request. Id . at 114. ¶3 In January 2012, the appellant file d a discrimination complaint with the

agency. Id . at 52-53. After investigating his allegations, in August 2014, the agency issued a final decision, conc luding that the appellant was neither subjected to a hostile work environment nor constructively de moted to the GS-12 Unit Manager position based on race. Id . at 13, 24-40. ¶4 In September 2014, the a ppellant filed the instan t Board appeal. IAF, Tab 1. The administrative judge dism issed the appeal without holding the requested hearing. IAF, Ta b 12, Initial Decision (ID); see IAF, Tab 1 at 2 (hearing request). The admini strative judge concluded th at the appellant was not entitled to a hearing on ju risdiction because he failed to present a nonfrivolous allegation that his demotion wa s involuntary. ID at 7.3

¶5 The appellant has filed a petition fo r review. Petition for Review (PFR) File, Tab 3. The agency ha s filed a response, to which the appellant has replied. PFR File, Tabs 5, 9. The administrative ju dge properly dismissed the appeal for lack of jurisdiction. ¶6 The appellant disputes the administrative judge ’s conclusion that his demotion was voluntary and outside the Boar d’s jurisdiction. PFR File, Tab 3 at 15-32. We find no merit to his arguments. ¶7 The Board lacks jurisdiction over appe als of employees’ voluntary actions. Bean v. U.S. Postal Service , 120 M.S.P.R. 397 , ¶ 7 (2013). However, the Board has always recognized that employee-initiated actions that appear voluntary on their face are not always so. Id . The Board may have jurisdiction over such actions under 5 U.S.C. chapter 75 as “constructive” adverse actions. Bean , 120 M.S.P.R. 397 , ¶ 7. For example, even if an employee applies for and accepts a reduction in grade, that action may neve rtheless be appealable to the Board if the employee can show that the agency depr ived him of any meaningful choice in the matter. Id . (citing Jones v. Department of Agriculture , 117 M.S.P.R. 276 , ¶ 15 (2012); Goodwin v. Department of Transportation , 106 M.S.P.R. 520 , ¶ 15 (2007)). ¶8 One way of overcoming the presumption of voluntariness is by showing that a requested action was the produc t of coercion by the agency. See Staats v. U.S. Postal Service , 99 F.3d 1120 , 1124 (Fed. Cir. 1996). Howe ver, “the doctrine of coercive involuntarines s is a narrow one.” Id . “[T]he fact th at an employee is faced with an unpleasant situat ion or that his choice is limited to two unattractive options does not make the employee’s decision any less voluntary.” Id . In addition, the test for involuntariness is an objective one, requiring that a reasonable employee in the same circumstances would have felt coerced into acting similarly. See generally Conforto v. Me rit Systems Protection Board ,4

713 F.3d 1111 , 1121 (Fed. Cir. 2013) (noting that the standard is an objective one in the context of an alleged resi gnation). ¶9 Jurisdiction is established in cons tructive adverse action appeals by showing: (1) the employee lacked a mean ingful choice in the matter; and (2) it was the agency’s wrongful ac tions that deprived the em ployee of that choice.
Bean , 120 M.S.P.R. 397 , ¶¶ 8-11. If an appellant ma kes a nonfrivolous allegation casting doubt on the voluntarines s of his action, he is entitled to a hearing at which he must prove jurisdiction by a preponderance of the evidence. See Harris v. Department of Veterans Affairs , 114 M.S.P.R. 239 , ¶ 9 (2010). To meet the nonfrivolous standard, an appe llant need only plead allega tions of fact that, if proven, could show jurisdiction. Id . However, merely pr o forma allegations are insufficient to me et the standard. Id

. ¶10 In determining whether the appellan t has made the requisite nonfrivolous allegation, the administrative judge ma y consider the agen cy’s documentary submissions. Id . Yet, to the extent that the agency’s evidence constitutes mere factual contradiction of the appellant’s otherwise ad equate prima facie showing of jurisdiction, the administrative judge may not weigh evidence and resolve conflicting assertions of the parties, and the agen cy’s evidence may not be dispositive. Id

. ¶11 Here, the appellant’s init ial pleading implicated coercion, alleging that his demotion was involuntary due to the agency ’s “constant harassm ent and berating” of him over the 4 months leading up to his request for a reduction in grade because he is not an African American. IA F, Tab 1 at 3. With the allegation, the appellant included the fina l agency decision on his co mplaint of discrimination finding that the record did not support his claim that he was subjected to a hostile work environment or c onstructively demoted be cause of his race. Id . at 12-29. ¶12 The agency disputed the appellant’s allegati ons and submitted the statements made by releva nt parties during the afor ementioned discrimination investigation. IAF, Tab 7. Subsequently, the admini strative judge informed the5

appellant of the applicable standards for a constructive adverse action appeal and ordered him to file evidence and argument to meet his burden. IAF, Tab 8. In response, the appellant cl aimed that one supervisor warned him of possible discipline or demotion if he continued to make mistak es, and another supervisor asked him if he had ever considered taking a demotion, s uggesting it might be better for him. IAF, Tab 10 at 2-3. Th e appellant indicated that he feared what might happen if he did not ta ke the reduction in grade. Id . at 3. He described his interactions with superv isors as including “constant and daily barrages and ranting . . . with the constant threat of demotion” to the Unit Manager position he ultimately requested. Id

. ¶13 Considering the evidence before him, the administrative judge concluded that, even if the events tran spired exactly as the appella nt alleged, su ch facts did not amount to nonfrivolous allega tions of involuntariness. ID at 5-6. Instead, the administrative judge found that the alle gations described, at most, unpleasant circumstances. ID at 6. We agree. ¶14 The appellant argues that the administ rative judge failed to consider his claims of discrimination a nd reprisal as affirmative defenses. PFR File, Tab 3 at 15. However, when disc rimination and reprisal are alleged in connection with a determination of voluntarin ess, it is well settled th at such allegations may only be addressed insofar as they relate to the issue of voluntariness. Markon v. Department of State, 71 M.S.P.R. 574 , 578 (1996). The administrative judge noted that standard in his show cause or der, IAF, Tab 8 at 3, and properl y applied it in concluding that the appellant fail ed to nonfrivolously allege that his demotion was involuntary, ID at 4-6. ¶15 Next, the appellant allege s that the admini strative judge’s decision contains erroneous findings of material facts. PFR File, Tab 3 at 17. Specifically, he disputes the administrative judge’s notation that, before coming to the Board, the appellant filed a formal equal employmen t opportunity complain t and the agency concluded that no discrimination had occurred. Id . We are unable to discern any6

error in the fact the appellant has identified as incorrect. Compare id

. (referencing ID at 2 (noting that the agency issued a final decision on the appellant’s discrimination compla int finding no discrimination)), with IAF, Tab 1 at 12-29 (the final agency decision, finding no discrimination). Moreover, even if the notation did include an erro r, it is of no consequence. See 5 C.F.R. § 1201.115 (a) (the Board may grant a petition for review for a factual error of sufficient weight to warrant an outcome different from that of the initial decision). We find that the fact at issue here was me rely background information, provided in the decision as part of an introduction to the case. See ID at 2. ¶16 Finally, the appellant’s petition generally recounts allegations of what he found to be difficult or unpleasant work ing conditions leading up to his request for a demotion. PFR File, Tab 3 at 16-32. He suggests that the administrative judge failed to consider the totality of the circumstances and erroneously accepted the agency’s witness st atements as fact. Id . at 16, 20. We disagree. ¶17 As discussed above, alt hough the appellant allege d that his demotion was involuntary, the information he provide d merely describes a stressful and unpleasant situation, in which he felt unfairly criticized and worried that he might be subjected to fu ture discipline. See IAF, Tab 1, Tab 10 at 2-3. We agree with the administrative judge’s co nclusion that those claims, even if true, are not the type that would cause a re asonable employee in the same circumstances to feel forced into requesting a demotion. See ID at 6; see generally Miller v. Department of Defense , 85 M.S.P.R. 310 , ¶ 32 (2000) (an employee is not guaranteed a working environment free of stress, unfair criticism, or unpleasant working conditions). Therefore, the appellant’s claims do not amount to nonfrivolous allegations of involuntariness. Compare Baldwin v. Department of Veterans Affairs , 109 M.S.P.R. 392 , ¶¶ 18-20 (2008) (appellan t’s allegations that the agency unjustifiably threatened hi m with discipli ne and conducted unwarranted investigations targeti ng him did not amount to nonfrivolous allegations that he was coerced into resigning), with Harris , 114 M.S.P.R. 239 , ¶7

11 (appellant was entitled to a jurisdictional hearing ba sed upon an allegation that she accepted a reduction in grade under th e threat of a rem oval action that the agency knew or should have known could not be substantiated); Swinford v. Department of Transportation , 107 M.S.P.R. 433 , ¶ 15 (2007) (appellant was entitled to a jurisdictional hearing base d upon an allegation th at he retired only after his supervisor threatened to abolis h his job, threatened to make things difficult if he did not re tire, placed him on a perform ance improvement plan 2 weeks after becoming eligible for retirem ent, and denied his requested sick leave). ¶18 In reasserting that his demotion was involuntary, th e appellant has submitted a large amount of evidence that he did not submit below. See PFR File, Tab 3, Subtabs A-O. Generally, the Board will not consider evidence submitted for the first time with th e petition for review, absent a showing that it was unavailable before the record was clos ed despite the party’s due diligence. Avansino v. U.S. Postal Service , 3 M.S.P.R. 211 , 214 (1980); 5 C.F.R. § 1201.115 . The Board, however, may consider such evidence if it implicates the Board’s jurisdiction and warr ants an outcome different from that of the initial decision. Schoenig v. Department of Justice , 120 M.S.P.R. 318 , ¶ 7 (2013). After reviewing the appellant’s eviden ce, we find nothing that warrants a different outcome. The evidence fails to establis h that his requested demotion was involuntary or even nonfri volously alleges the same. See, e.g ., PFR File, Tab 3, Subtab A (the Equal Employment O pportunity Commission’ s dismissal of the appellant’s complaint), Subtab B (cor respondence regarding the exchange of pleadings between the appe llant, the agency, and th e administrative judge), Subtab C (documents related to the appellant’s 2011 promotion), Subtab D (organizational charts and pos ition descriptions), Subtab E (salary tables), Subtab F (forms documenting the appellant’s de motion), Subtab G (information about Pacific Islanders). Accordingly, we find that dismis sal for lack of jurisdiction, without a hearing, re mains appropriate.8

The administrative judge did not exhib it any bias or prejudice against the appellant. ¶19 The appellant alleges that the administrative judge wa s biased against him. PFR File, Tab 3 at 11 -14. We disagree. ¶20 There is a presumption of honest y and integrity on the part of administrative judges that can only be overcome by a substantial showing of personal bias, and the Board will not infer bias based on an administrative judge’s rulings on issues. Williams v. U.S. Postal Service , 87 M.S.P.R. 313 , ¶ 12 (2000). In addition, an administ rative judge’s conduc t during the course of a Board proceeding warrants a new adjudication only if the administrative judge’s comments or actions eviden ce a deep-seated fa voritism or antagonism that would make fair judgmen t impossible. Simpkins v. Office of Personnel Management , 113 M.S.P.R. 411 , ¶ 5 (2010). ¶21 Among other things, the appellant alle ges that the admi nistrative judge’s bias is evidenced by his accep tance of the agency’s untim ely jurisdictional reply. PFR File, Tab 3 at 11-14; see IAF, Tab 8 at 1-4 (juris dictional order setting December 2, 2014, as the deadline for filing the ag ency’s response), Tab 11 (agency’s response dated D ecember 4, 2014). He also alleges that the administrative judge characte rized him as “not being cooperative” regarding the exchange of pleadings. PFR File, Tab 3 at 12. We find that, even if accepted as true, the appellant’s allega tions fail to overcome the presumption of honesty and integrity affo rded administrative judges.

NOTICE TO THE APPELLANT REGARDING YOUR FURTHER REVIEW RIGHTS You have the right to request review of this final de cision by the United States Court of Appeals for the Federal Ci rcuit. You must su bmit your request to the court at the following address:9

United States Court of Appeals for the Federal Circuit 717 Madison Place, N.W.

Washington, DC 20439

The court must receive your request for review no later than 60 calendar days after the date of this order. See 5 U.S.C. § 7703 (b)(1)(A) (as rev. eff. Dec. 27, 2012). If you choose to file, be very car eful to file on ti me. The court has held that normally it does not have the authority to wa ive this statutory deadline and that filings that do not comply wi th the deadline must be dismissed. See Pinat v. Office of Personnel Management , 931 F.2d 1544 (Fed. Cir. 1991). If you need further information about your right to appeal this decision to court, you should refer to the federal law that gives you th is right. It is found in Title 5 of the United St ates Code, section 7703 ( 5 U.S.C. § 7703 ) (as rev. eff. Dec. 27, 2012). You may read this law as well as other sect ions of the United States Code, at our we bsite, http://www.mspb.gov/ appeals/uscode.htm. Additional information is av ailable at the cour t's website, www.cafc.uscourts.gov. Of particular rele vance 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, and 11. If you are interested in securing pro bono representation fo r your appeal to the Court of Appeals for the Federal Circuit, you ma y visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before th e Federal Circuit. The10

Merit Systems Protection Board neither endorses the servic es provided by any attorney nor warrants that any attorney will accept repr esentation in a given case.

FOR THE BOARD:

Washington, D.C. ________________ ______________ William D. Spencer Clerk of the Board