UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD

ANTHONY W. BROUSSARD , Appellant,

v

. UNITED STATES POSTAL SERVICE, Agency

. DOCKET NUMBER AT

- 0351

- 15

- 0673

- I

- 1

DATE: August 26, 2016



### THIS FINAL ORDER IS NONPRECEDENTIAL 1

Anthony W. Broussard , Columbia, South Carolina, pro se

. Greg Allan Ribreau , Charlotte, North Carolina, for the agency

.

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

FINAL ORDER ¶1 The appella nt has filed a petition for review of the initial decision, which dismissed his alleged involuntary reduction

- in

- grade appeal for lack of jurisdiction . Generally, we grant petitions such as this one only when: the initial
decision contains erroneous find ings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application

1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future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

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 dilig ence, was not available when the record
closed. See 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 initial decision, wh ich is now the Board ’ s final decision. 5 C.F.R. § 1201.113 (b).

DISCUSSION OF ARGUME NTS ON REVIEW ¶2 The appellant was employed as an EAS

- 21 Vehicle Maintenance Facilit y (VMF) Manager at the Columbia, South Carolina VMF. Initial Appeal File (IAF), Tab 1 at 7, Tab 9 at 68

. During the first week of May 2015, the agency
announced that it would be restructuring its VMF organization and that a reduction in force (RIF) might be necessary

. I AF, Tab 9 at 4 8

- 49, 51

- 52, 58,
70

- 99. T he appellant ’ s position was one of the positions proposed to be
eliminated

. Id. at 89. On May 22, 2015 , the appellant requested a noncompetitive re assignment to the posted EAS

‐ 19 VMF Manager position at the Columbia, South Carolina VMF

. Id. at 68. Effective May 30, 2015, the agency processed the appellant ’ s noncompetitive placement in the EAS

- 19 VMF Manager position. 2 Id. at 66. ¶3 On July 6, 2015, the appellant app ealed the reduction in grade to the Board and requested a hearing. IAF, Tab 1. The administrative judge informed the

2 Although the appellant was reassigned to the lower

- graded position, he received saved grade and pay for 2 ye ars. IAF, Tab 9 at 64, 66, 91. Thus, his Postal Service Form 50 reflects that he occupies an EAS

- 21 level position. Id. at 64, 66.3

appellant that an employee ’ s acceptance of a lower

- graded position generally is considered to be voluntary and not subject to the Board ’ s jurisdiction , and ordered the appellant to submit evidence and argument establishing Board jurisdiction over his appeal . IAF, Tab 1 0

. In response, the appellant contended
that his acceptance of the lower

- graded position was involuntary because he was
forced to choose between accepting a reduction in grade or facing a “RIF that affected only [his] position in [his] very limited career field

. . . with no chance of placement for over a hundred miles, and with an inevitable di smissal from the
Postal Servi ce. ” IAF, Tab 15 at 1

- 2. He also asserted that his decision to request a reassignment to a lower

- graded position was based on erroneous or misleading information by agency management. Id. ; IAF, Tab 19 at 1

‐ 3. Without holding the requested hearing, the administrative judge dismissed the appeal for lack of jurisdiction, finding that the appellant failed to establish t hat his acceptance of
the lower

‐ graded position constituted an appealable involuntary reduction in grade. IAF, Tab 21, Initial Decision (ID )

. ¶4 The appellant has filed a petition for review of the initial decision, and the

agency has responded in opposition to his petition for review. Petition for Review (PFR) File, Tabs 1, 3. ¶5 To constitute an appealable action, a reduction in grade or pay must be involuntary. Goodwin v. Department of Transportation
, 106 M.S.P.R. 520
, ¶ 12 (2007). The Board will grant a hearing to determine whether an appellant
involu ntarily accepted a lower

- graded position only if the appellant nonfrivolously alleges that his acceptance was the result of duress, coercion, or misrepresentation by the agency. See i d. Nonfrivolou s allegations of Board jurisdiction are allegations of fact that , if proven, could establish a prima facie case that the Board has jurisdiction over the matter at issue. Id. To meet the nonfrivolous standard, an appellant need only plead allegations of f act that , if4

proven, could show jurisdiction , though mere pro forma allegations are
insufficient to sati sfy the nonfrivolous standard. Id

. ¶6 As noted above, one way of overcoming the presumption of voluntariness is by showing that the appellant ’ s acceptan ce of the lower

- graded position was the product of coercion by the agency. See Staats v. U.S. Postal Service
, 99 F. 3d
1120 , 1124 (Fed. Cir. 1996) (discussing the standard in the context of an alleged involuntary resignation or retirement)

. To establish involuntariness on the basis of coercion, an employee must show that the agency effectively imposed the terms of the employee ’ s acceptance of the lower

- graded position , that the employee had no realistic alternative but to accept the lower

- graded position , and that his acceptance was the result of improper acts by the agency. See id. However, “the doctrine of coercive involuntariness is a narr ow one.” Id. “[T]he fact that an employee is faced with an unpleasant situation 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 obj ective one, requiring that a reasonable employee in the same circumstances would have felt coerced into acting similarly. See generally Conforto v. Merit Systems Protection
Board
, 713 F.3d 1111 , 1121 (Fed. Cir. 2013)

. ¶7 The appellant argues on review that, due to the agency ’ s “decision to severely limit the competitive area” and its “callous disregard” of Office of Personnel Management (OPM) guid elines, he had “no reasonable choice other than to take a downgrade, or be released from service on the date specified in the

agency ’ s General RIF notice.” PFR File, Tab 1 at 4

- 5. He further argues that “being forced to ‘ compete ’ for a similar level position hundreds of miles out of state and at great personal expense

. . . is also not a ‘ reasonable ’ option in accordance with OPM guidelines.” Id. at 6. As the administrative judge correctly determined, however, the appellant has failed to allege facts that, if proven, would establish that the agency acted improperly in setting the competitive area
for the RIF. ID at 5

‐ 6. Furthermore, a s stated above , a choice between5

unpleasant alternatives does not render an employee’s choice a ny less involuntary. Staats , 99 F. 3d at 1124 ; Soler

‐ Minardo v. Department of Defense , 92 M.S.P.R. 100 , ¶ 9 (2002) ( finding that the fact that the appellant was
faced with either a demotion or a possible removal did not render her acceptance of the agency ’ s proposal involuntary). Here, the fact that the appellant chose to accept the lower

- graded position to avoid the potential impact of a RIF does not render his decision to accept the lower

- graded position prior to the RIF period involuntary

. See Staats , 99 F.3d at 1124

. ¶8 An employee also may rebut the presumption of voluntariness by showing
that his acceptance of the lower

- graded position resulted from reasonable reliance on the agency ’ s misinformation. Herrin v. Department of the
Air Force , 95 M.S.P.R. 536 , ¶ 10 (2004). A reduction in grade will be considered involuntary if the employee materially relied on the agency ’ s misinformation, to his detriment, based on an objective evaluation of the surrounding
circumstances

. Id. ¶9 T he appellant asserted below that his decision to request a reassignment to a
lower

‐ graded position was based on erroneous or misleading information because a senior management official assured him that he would be promoted to a higher

- graded position and that accepting the lower

- graded position was merely a formality to allow him to stay on the agency rolls while the selections for the higher

- graded positions were finalized . IAF, Tab 19 at 1

- 3. The administrative judge found, however, that the appellant failed to nonfrivolously allege that his acceptance of the lower

- graded position was involuntary due to misinformation
because he did not allege that the agency ever informed him that his chances for receiving a promotion following the reorganization were contingent upon his accept ance of a lower

- graded position or that he would be separa ted if he remained in his former position rather than accepting the lower

- graded positio n. ID at 6. The administrative judge also found that, e ven if the appellant had6

remained in his former position and had been released from his competitive level
durin g the RIF, he would have had reassignment rights that might have resulted in his being reassigned to a position that would have allowed him to remain on the

agency ’ s rolls to compete for the higher

- graded positions. Id. Additionally, the administrative judge noted that, by the appellant’s own admission, the agency
offer ed the appellant one of the higher

- graded positions resulting from the reorganization, but he rejected the offer because he refused to relocate from
South Carolina to Gaithersburg, Maryland. ID at 6; see IAF, Tab 19 at 2

. ¶10 The appellant argues on review that the administrative judge erred in finding that his acceptance of the lower

- graded position was not involuntary due
to misinformation because the RIF t imeline indicated that employees in his position would be released by a specific date if they did not find a new position by then, and because, as a retired military veteran, he was not entitled to RIF protections and had no reassignment rights

. 3 PFR File
, Tab 1 at 6. As the administrative judge noted, however, the appellant admitted that the agency
offered him one of the EAS

- 25 positions, which he declined. ID at 6; see IAF,
Tab 19 at 2. Thus, even if , as the appellant alleged, the agency assured him t hat he would receive a promotion after he accepted the lower

- graded position, he has failed to nonfrivolously allege that the agency provided him incorrect information

3 The appellant submitted a copy of the June 2, 2015 General RIF Notice, which was not entered into the record below, sh owing that he was not eligible for veterans ’ preference rights for RIF purposes. PFR File, Tab 1 at 13. The appellant explained that he did not submit this document below because he was “under the assumptions that the Board was fully aware of the appellant ’ s RIF status, to include rights, and protections, or in the case of a ‘ retired ’ Veteran, the lack of RIF protections
, ” and asked that the document be entered into the record. Id. at 6

- 7. Generally, the Board 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. 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 Boar d ’ s jurisdiction and warrants 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 evidence, we find no thing that warrants a different outcome.7

because the agency in fact offered him a promotion less than 2 months after he requested reassignment to the lower

- graded position. 4 IAF, Tab 9 at 66. Moreover, the appellant’s contentions on review provide no basis to disturb the administrative judge’s findings that the appellant has not nonfrivolously alleged
that he reasonably relied on the agency’s misinformation to his detriment

. Even
if his contentions on review are true

— namely, that employees in his position would be released by a specific date if they did not find a new position by then
and that he was not e ntitled to RIF protections or reassignment rights

— he has failed to nonfrivolously allege that he is in a worse position than he would have been absent the agency’s alleged misinformation regarding when he would receive a promotion. 5 PFR File, Tab 1. Thus , we agree with the administrative judge that the appellant’s acceptance of the lower

‐ graded positi on was not involuntary based on misinformation

. ¶11 An appellant ’ s acceptance of a lower

- graded position also may be considered involuntary if he did not hav e sufficient time to reflect about his
alter native course of action before he was required to make his decision.
Soler

‐ Minardo
, 92 M.S.P.R. 100 , ¶ 7. Unreasonable time constraints have been
found to constitute coercion. Id. The appellant appears to argue that the agency imposed an unreasonable time constraint of 21 days on him to either accept a
lower

- graded position or to be separated from service. PFR File, Tab 1 at 7.

4 Although the agency offered the appellant an EAS

- 25 position in Gaithersburg, Maryland, in July 2015, the appellant alleged that, when he applied for it, it was “posted as D omicil ed within the A rea selected. ” IAF, Tab 19 at 2. He stated that he later learned that “the requirements of the job changed after [it was] posted” and he would be required to relocate if he accepted the position. Id .; see IAF, Tab 19, Subtab E. The appel lant has not nonfrivolously alleged, however, that agency management assured him that he would receive a higher

- graded position at any particular duty station . IAF, Tab 15 at 1

- 2, Tab 19 at 1

- 3.

5 The RIF timeline provided by the appellant reflects that the deadline to accept a reclassification downgrade with 2

- year saved pay was June 5, 2015. IAF, Tab 19, Subtab A.8

Even if the appellant ’ s factual assertion is true, however, a 21

- day period to consider his alternative course of action before he was required to make his
decision is not an unreasonable time constraint. See, e.g. , Soler

Minardo
, 92 M.S.P.R. 100 , ¶ 10 (finding that a 10

‐ day period to decide between accepting a demotion or facing possible removal was not an unreasonable
time constraint )

. ¶12 Finally, the appellant appears to argue on review that the administrative judge erred by failing to address his contention that the agency violated OPM ’ s guidelines, which require Federal agencies to “make every effort to find similar leve[l] employment within comm uting distance when Agency reorganizations are made.” PFR File, Tab 1 at 8

- 9. Contrary to the appellant ’ s assertion, the administrative judge considered the appellant ’ s argument to the extent it pertained to the dispositive jurisdictional issue, i.e., wh ether the agency acted improperly as to render his acceptance of the lower

- graded position involuntary

. ID at 5. As discussed above, the administrative judge correctly determined that the appellant failed to nonfrivolously allege that his acceptance of t he
lower

- graded position was involuntary, and therefore, the Board lacks jurisdiction over his appeal. ID at 5

- 6. We find that, a bsent an appealable action, the Board lacks jurisdiction to consider the appellant ’ s challenges to the agency ’ s reorganizatio n

. See Maddox v. Merit Systems Protection Board
, 759 F. 2d 9 , 10 (Fed. Cir. 1985) (explaining that the Board ’ s jurisdiction is limited to those

mat ters over which it has been given jurisdiction by law, rule, or regulation)

.

NOTICE TO THE APPELL ANT REGARDING YOUR FURTHER REVIEW RIGHTS You have the right to request review of this final decision by the U .S. Court of Appeals for the Federal Circuit. Y ou must submit your reques t 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 careful to file on time. The court has held that normally it does not have the authority to waive this statutory deadline and that filings that do not comply with 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 this right. It is found in
title 5 of the United States Code, section 7703 ( 5 U.S.C. § 7703 ) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of th e United States Code, at our website, http://www.mspb.gov/appeals/uscode.htm

. Additional information 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, and 11

. If you are interested in securing pro bono representation for an appeal to
the U .S. Court of Appeals for the Federal Circui t, 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. The10

Merit Systems Prote ction Board neither endorses the services provided by any attorney nor warrants that any attorney will a ccept representation in a given case.

FOR THE BOARD:

Washington, D.C. ______________________________ Jennifer Everling Acting Clerk of the Board