UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD

SALVADORE GENDUSA, 1 Appellant,

v.
DEPARTMENT OF VETERANS AFFAIRS, Agency. DOCKET NUMBER DA-0752-14-0444-I-1

DATE: June 8, 2015



### THIS FINAL ORDER IS NONPRECEDENTIAL 2

Terrence J. Johns, New Orleans, Louisiana, for the appellant. Brandi M. Powell, New Orleans, Louisiana, for the agency.

1 The appellant died on Decem ber 29, 2014, before the initia l decision was issued. The appellant’s spouse filed a petition for revi ew, followed by a timely motion for the Board to accept her as a substitute party. Petition for Review (PFR ) File, Tabs 1, 4-5, 7. We grant her motion. The appellant’s inte rests were not extinguished by his death. See 5 C.F.R. § 1201.35 (a). Although he cannot be rein stated to employment, issues such as back pay for the period between his resignation and his death and attorney fees are either pending or may arise from this appeal. See Estate of Kravitz v. Department of the Navy , 110 M.S.P.R. 97 , ¶ 2 n.1 (2008). Because the appellant’s spouse has been substituted in this matter, we refer to all as sertions and arguments made by her as made by “the appellant.”

2 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future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

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

FINAL ORDER ¶1 The appellant has filed a petition for re view of the initial decision, which dismissed for lack of jurisdiction the a ppellant’s constructiv e removal appeal. Generally, we grant petitions such as this one only wh en: the initial decision contains erroneous fi ndings of material fact; the in itial decision is based on an erroneous interpretation of statute or re gulation or the errone ous application of the law to the facts of the case; the judge’s rulings duri ng either the course of the appeal or the initial deci sion were not consis tent with require d procedures or involved an abuse of discre tion, and the resulting erro r 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. See Title 5 of the Code of Federa l Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, and based on the following points and author ities, 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 revi ew and AFFIRM the initial decision, which is now the Boar d’s final decision. 5 C.F.R. § 1201.113 (b). ¶2 The appellant filed this appeal afte r resigning from the agency, effective February 15, 2013. Initial Appeal File (IAF), Tab 1. He alleged that his resignation was involuntary and t hus a constructive removal. Id. After a hearing, the administrative judge dismissed the a ppeal for lack of ju risdiction. IAF, Tab 30, Initial Decisi on (ID) at 1, 11. ¶3 On review, the appellant generally asserts that the administrative judge “misrepresented the evidence and testimony. ” PFR File, Tab 1 at 4. However, the administrative judge correctly found that the appeal is not within the Board’s3

jurisdiction. The Board’s ju risdiction is limited to matt ers over which it has been given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems Protection Board , 759 F.2d 9 , 10 (Fed. Cir. 1985). The Board does not have jurisdiction over all actions that are alleged to be incorrect. Weyman v. Department of Justice , 58 M.S.P.R. 509 , 512 (1993). An appellant bears the burden of proving by preponder ant evidence th at his appeal is within the Board’s jurisdiction. 5 C.F.R. § 1201.56 (a)(2)(i). ¶4 An employee-initiated ac tion such as a resigna tion or retirement is presumed to be voluntary and, as such , outside of the Board’s jurisdiction. Putnam v. Department of Homeland Security , 121 M.S.P.R. 532 , ¶ 21 (2014). A resignation that is involuntar y, however, is equivalent to a forced removal and falls within the Boar d’s jurisdiction. Id. An appellant w ho claims that his retirement was involuntary may rebut th e presumption of voluntariness in a variety of ways, including by showing that the retire ment was the result of intolerable working conditions. Id. Here, the appellant was a Clerk, GS-0303-03, with the Police Service at the agency’s New Orleans Veterans Affairs Medical Center. IAF, Tab 1 at 2, 7, Tab 10 at 46, 63. He alleged that the facility director, J.C., met with him in the presence of his union repr esentative on February 15, 2013. IAF, Tab 1 at 7. He alleged th at she advised him th at the agency no longer needed his services a nd that he had no choice but to retire or resign his position. Id. The appellant asserted that he had been harassed and discriminated against for more than a year by management officials, including R.K., chief of the Police Service. IAF, Tab 4 at 4. He e xplained that agency managers repeatedly told him that he was too old to be working. Id. He further explained that the union had to force management to allow him to attend treatm ent appointments for his service-connected post-traumatic stre ss disorder (PTSD) and, on several occasions, he was denied opportuni ties to see his physician. Id. The appellant additionally asserted that he suffered a mild heart at tack on September 10, 2012,4

after receiving a September 5, 2012 decisi on letter informing him of his removal for conduct unbecoming a federal employee. Id. ; see IAF, Tab 10 at 60-62. ¶5 On September 19, 2012, ma nagement offered the a ppellant an abeyance agreement in lieu of removal. 3 IAF, Tab 10 at 56-59. He was transferred to the medical center’s Am bulatory Procedure Unit to work as a Medical Support Assistant, GS-0679-03, and he agreed not to incur any validated patient complaints within the 1-year term of the agreement. Id. at 56-57. The appellant alleged that, on December 20, 2012, manageme nt denied his reque st for light duty to accommodate knee injuries he sustained in military combat. IAF, Tab 4 at 4. Three patient complaints were filed against the appellant, and, though he contended that they lacked meri t, management validated them. Id. ; see IAF, Tab 10 at 48-49, 52-55. Accordingly, the agency found that he had breached the agreement and placed him on paid admi nistrative leave effective January 23, 2013. IAF, Tab 10 at 48-51. During this time, th e agency’s Offi ce of Inspector General investigated threat s that the appellant allege dly made on R. K.’s life. IAF, Tab 4 at 4; see IAF, Tab 16, Subtabs C8, C22. ¶6 The appellant alleged th at he met with J.C. on February 15, 2013, accompanied by a union represen tative. IAF, Tab 4 at 4. He averred that J.C. “seemed to indicate that she didn’t have enough evidence to substantiate any of the charges levied ag ainst [him],” but that neither she nor R.K. wanted him back, “so he would have no choice but to resign his position.” Id. He asserted that he accompanied his union represen tative to Human Resource s, where a Supervisory Human Resources Specialis t, D.R., prepared hi s resignation letter. Id. ; see IAF,

3 The agreement provided, in part, that th e agency would hold the September 5, 2012 removal decision in abeyance fo r 1 year from the date it was executed. IAF, Tab 10 at 56-57. The appellant agr eed that any validated patien t complaint received during the 1-year period following execution of the agr eement would be considered a breach of the agreement that would eff ectuate his removal. Id. at 57. He also agreed to waive his right to appeal the September 5, 2012 removal decision. Id.5

Tab 10 at 47. He asserted that he believ ed at the time that he had to sign the letter but later learned th at his resignation was unnecess ary. IAF, Tab 4 at 4. ¶7 On May 14, 2013, the appellant file d an equal employment opportunity (EEO) complaint alleging that his re signation was involunt ary and claiming several bases fo r discrimination. 4 IAF, Tab 1 at 7, Tab 10 at 40-44, Tab 16, Subtab A4. This appeal ar ose from the mixed-case elem ents of his complaint. See IAF, Tab 10 at 43-45, Tab 16. Th e Report of Investigation includes interrogatories and documen tary evidence showing that the agency was unaware that the appellant had re quested any accommodation. 5 See IAF, Tab 16, Subtabs B2 at 6, B4 at 3, B5 at 4, C17 at 1, 4-5. ¶8 Although the appellant proffe red D.R. as a witness to “speak to whether [he] was forced” to resign, see IAF, Tab 23, she testifie d that she did not prepare the resignation letter and that he did not sign it in front of her. Hearing Compact Disc. Instead, she testifie d that A.F., the appellant’ s union representative, told her that she would prepare the le tter and witness his signature. Id. D.R. testified that she received the signed letter by email from A.F. Id. D.R. also testified that J.C. asked her to assist th e appellant with preparing hi s retirement application. Id. In the process, she discovered that he was not yet eligible to retire. Id. She testified that she told A.F. and the appellant that he wa s not yet eligible to retire and researched whether his military service could be considered in determining his eligibility. Id.

4 The appellant claimed discrimination based on age (70), race (Caucasian), color (olive), national origin (Sicilian and German), mental disability (PTSD), physical disability (a heart condition and injuries sustained during the Korean War). IAF, Tab 16, Subtab A4. He claimed that: (1) he was subjected to ongoing harassment and ridicule regarding his age; (2) he resigned involuntarily after falsely being accused of misconduct; and (3) the agency failed to accommodate his physical condition when it required him to transport patient s weighing up to 300 pounds. Id.

5 The appellant also did not file a medical release that would have allowed his medical information to be used in the EEO proceeding. See IAF, Tab 16, Subtab C19 at 2.6

¶9 An appellant may prove a claim of involuntary resignation by showing that his working conditions were made so difficult by the agency that a reasonable person in his position would have felt compelled to resign, and hi s resignation was the result of imprope r acts by the agency. Axsom v. Department of Veterans Affairs , 110 M.S.P.R. 605 , ¶ 12 (2009); see also Miller v. Department of Defense , 85 M.S.P.R. 310 (2000). As the U.S. Court of Appeals for the Federal Circuit has observed, “The doctrine of coercive involuntariness is a narrow one, requiring that the employee satisfy a demanding legal standard.” Conforto v. Merit Systems Protection Board , 713 F.3d 1111 , 1121 (Fed. Cir. 2013). In Conforto , the court further stated, “An employee’s dissatisfaction with the opt ions that an agency has made available to him is not sufficient to render his decision to resign or retire involuntary.” Id. Accordingly, the court expl ained, “coerced involuntariness does not apply if the employee resigns or retires because he does not like agency decisions such as ‘a new as signment, a transfer, or othe r measures that the agency is authorized to adopt, even if those measures make continuation in the job so unpleasant . . . that he fe els he has no realistic op tion but to leave.’” Id. at 1121-22 (quoting Staats v. U.S. Postal Service , 99 F.3d 11 20, 1124 (Fed. Cir. 1996)). Moreover, the coercion must aris e from improper acts by the agency. Id. at 1122. ¶10 It is undisputed that th e appellant was serving unde r an abeyance agreement in lieu of removal for an earlier disciplinary action. See IAF, Tab 10 at 56-59. It is also undisputed that he was notified that he was in breach of the agreement and that he subsequently si gned a resignatio n letter. Id. at 47-51. Based in part on her assessments of witness credibility, see Hillen v. Department of the Army , 35 M.S.P.R. 453 , 458-62 (1987) (factors to be considered in assessing a witness’s credibility), th e administrative judge found D. R.’s testimony regarding the circumstances of his resignati on to be more credible th an that of the appellant himself. ID at 9-10. Notably, the appellan t withdrew his request for A.F. to testify at his hearing. IAF, Tab 21 at 2. The administrativ e judge thus properly7

credited D.R.’s version of events. ID at 10. The administ rative judge also credited the testimony of R.K. and K.R ., a Captain in the Police Service, regarding harassment that the appellant allegedly expe rienced while assigned to the Police Service. See id. . The administrative judge found it undisputed that the appellant did not have cont act with these witnesses after October 2012 and they were not immediately involved in the events leading to his resignation. Id. ; see IAF, Tab 16, Subtabs B3 at 4-11, B5 at 4-13. The admini strative judge thus properly found that, although the appellant experienced difficulties, he did not show that his working conditions were ma de so difficult by the agency that a reasonable person in his positio n would have been compelled to resign. ID at 11. Likewise, the record does not suggest that the ag ency acted improperly. ¶11 An employee is not guaranteed a work ing environment fr ee of stress. Dissatisfaction with work assignments, a feeling of be ing unfairly criticized, or difficult and unpleasant work ing conditions are generally not so intolerable as to compel a reasonable person to resign or retire. Miller , 85 M.S.P.R. 310 , ¶ 32. Although the appellant may have learned that he had in curred validated patient complaints and thus breach ed the abeyance agreement, credible testimony showed that his decision to resign was made with his union representative. Although he may have been under investigation for alle gedly making threatening statements, it is well-settled that the f act that an employee is con fronted with the unpleasant choice of resigning or facing disciplinary action does not affect the voluntariness of his ultimate choice to resign or retire. See Schultz v. United States Navy , 810 F.2d 1133 , 1136 (Fed. Cir. 1987). The administ rative judge c onsidered the evidence as a whole, dr ew appropriate inferenc es, and made reasoned conclusions, dismissing the appeal for lack of jurisdiction. Broughton v. Department of Health & Human Services , 33 M.S.P.R. 357 , 359 (1987). Because the appeal was dismissed for lack of primary jurisdiction, the administrative judge properly declined to consider the appellant’ s mixed-case claims of8

discrimination. See ID at 11; see also Wren v. Department of the Army , 2 M.S.P.R. 1 , 2 (1980), aff’d , 681 F.2d 867 , 871-73 (D.C. Cir. 1982). ¶12 Finally, the appellant argue s that the administrative judge did not allow the appellant to call J.C. as a witness. PFR File, Tab 1 at 3. The agency representative indicate d in the prehearing discussion th at J.C. had left the service but that the agency was considering issuing a subpoe na for her testimony. Id. ;

see IAF, Tab 21 at 2. The agency ultimat ely declined to do so. The appellant alleges that the administra tive judge “rudely” told the appellant’s representative that he could pay to subpoena J.C., but “acted . . . as though it was too expensive.” PFR File, Tab 1 at 3. Th e appellant has not shown, however, that the administrative judge denied the re quest to issue a subpoena for J.C.’s testimony. Accordingly, we find that the appellant’s argum ent is unavailing.

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: 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 in9

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 availa ble at the court’s website, www.cafc.uscourts.gov. Of pa rticular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained with in 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. The Merit Systems Protection Board neither endorses the servic es provided by any attorney nor warrants that a ny attorney will accept repres entation in a given case.

FOR THE BOARD:

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