NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-3069
GEORGE L. BROOKS,
Petitioner,
v.
DEPARTMENT OF THE AIR FORCE,
Respondent.
George L. Brooks, of Meridian, Mississippi, pro se.
Robert C. Bigler, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With him on
the brief were Peter D. Keisler, Assistant Attorney General; Jeanne E. Davidson,
Director, and Bryant G. Snee, Assistant Director. Of counsel was Major Erin Bree
Wirtanen, Air Force Legal Services Agency, General Litigation Division, United States
Air Force, of Arlington, Virginia.
Appealed from: United States Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-3069
GEORGE L. BROOKS,
Petitioner,
v.
DEPARTMENT OF THE AIR FORCE,
Respondent.
___________________________
DECIDED: May 14, 2007
___________________________
Before MICHEL, Chief Judge, BRYSON, and DYK, Circuit Judges.
PER CURIAM.
DECISION
George L. Brooks seeks review of the final decision of the Merit Systems
Protection Board, Docket No. DA-0752-06-0260-I-1, dismissing, for lack of jurisdiction,
his appeal from an alleged involuntary retirement. We affirm.
BACKGROUND
Mr. Brooks was employed by the Air Force as a GS-6 Mail Supervisor at
Sheppard Air Force Base in Texas. In 2002, his position was eliminated due to a
reduction in force. As a result, Mr. Brooks was initially transferred to a GS-4 position as
a Transportation Clerk. As his handwritten notes on the transfer documentation
indicate, Mr. Brooks accepted that position “under duress.” Shortly thereafter the Air
Force located another GS-6 position for Mr. Brooks, this time as a Contract Services
Monitor.
On June 15, 2003, all Contract Services Monitor positions at Sheppard Air Force
Base, except for Mr. Brooks’s position, were upgraded to GS-7 or GS-8 positions. Mr.
Brooks filed a discrimination complaint with the Equal Employment Opportunity
Commission (“EEOC”) challenging the fact that his position was left as a GS-6 position.
The agency responded that Mr. Brooks’s position was not upgraded because Mr.
Brooks was not performing at a GS-6 level. The record reflects that Mr. Brooks
received an unacceptable performance rating for the period between April 1, 2003, and
March 31, 2004, and that he was placed on a Performance Improvement Plan (“PIP”)
on July 13, 2004.
On August 9, 2004, before the completion of his PIP, Mr. Brooks submitted his
retirement application and requested that his retirement begin on September 30, 2004.
He did not actually retire until October 31, 2004. When submitting his retirement
paperwork, Mr. Brooks indicated that he was retiring voluntarily “to collect retirement
benefits.”
Following his retirement, Mr. Brooks amended his EEOC complaint to add a
constructive discharge claim. He alleged that he had retired involuntarily and that his
retirement was the result of discriminatory actions by the agency. Because the EEOC
has no jurisdiction over “mixed cases” involving both adverse agency action and
discrimination claims, the EEOC sent the matter back to the Air Force for a final
decision. The Air Force subsequently dismissed Mr. Brooks’s constructive discharge
2007-3069 2
claim as well as his discrimination claims. Mr. Brooks appealed that decision to the
Board.
On May 2, 2006, the administrative judge to whom the case was assigned held a
hearing. Mr. Brooks testified that after he was placed on the PIP his supervisors and
co-workers watched his work closely and that he was assigned work he could not
complete within the time allotted. He indicated that he felt it was only a matter of time
before his supervisor would find something on which to base a removal action, and Mr.
Brooks therefore felt the best thing for him to do was to retire. He stated that “If you can
retire, then retirement is your best bet, though you may feel it was a forced retirement.”
He also stated that having not been upgraded to a GS-7 and being placed on a PIP
factored into his decision to retire, but that he believed that those actions were
motivated by discrimination. Mr. Brooks also conceded that he had difficulty performing
some of the duties of his position, that he felt that “this job was not for him,” and that he
thought it was “highly unlikely” that he could sustain one year of acceptable
performance even if he successfully completed the PIP. Mr. Brooks testified that those
factors also affected his decision to retire.
An agency personnel officer stated that the retirement forms gave employees the
opportunity to make comments, and that other employees had noted that their
retirements were involuntary. Mr. Brooks claimed that he was not aware of that option.
The personnel officer stated that if Mr. Brooks had been unsuccessful on his PIP the
agency would have looked for positions in which he could be successful. The agency
did not do that, the personnel officer said, because Mr. Brooks opted to retire instead of
completing his PIP.
2007-3069 3
The administrative judge evaluated the evidence and concluded that Mr. Brooks
had failed to show that his working conditions had become so intolerable that a
reasonable person in his position would have felt compelled to retire. The
administrative judge further noted that the fact that an employee is confronted with the
choice of retiring or waiting for a possible removal does not mean that the decision to
retire is involuntary. Finding that Mr. Brooks had failed to show that his retirement was
involuntary, the administrative judge held that the Board lacked jurisdiction over Mr.
Brooks’s case. The administrative judge further held that, lacking jurisdiction over the
discharge claim, the Board could not address the merits of the discrimination claims.
The administrative judge dismissed the case for lack of jurisdiction, and that decision
became final when the full Board denied review.
DISCUSSION
Mr. Brooks argues that the Board erred when it concluded that it lacked
jurisdiction because he failed to show that his retirement was involuntary. He also
claims that he suffered discrimination (1) when his position was subjected to a reduction
in force, (2) when he was the only Contract Services Monitor left at the GS-6 level, and
(3) when he was placed on a PIP. Last, he claims that he was unlawfully denied certain
procedural notices after the Board dismissed his case for lack of jurisdiction.
1. A decision to retire is presumed to be voluntary, and the Board lacks
jurisdiction over cases involving voluntarily retirements. Cruz v. Dep’t of the Navy, 934
F.2d 1240, 1244 (Fed. Cir. 1991) (en banc). To establish Board jurisdiction, the
employee must prove, by a preponderance of the evidence, that his retirement was
involuntary and thus was tantamount to a forced removal. Garcia v. Dep't of Homeland
2007-3069 4
Sec., 437 F.3d 1322, 1330 (Fed. Cir. 2006) (en banc). Employees have sought to show
that retirements were involuntary by showing that that the retirement was the product of
misinformation, deception, or coercion by the agency. Staats v. United States Postal
Serv., 99 F.3d 1120, 1124 (Fed. Cir. 1996). Mr. Brooks alleges coercion.
The proper test for evaluating allegations of coercion is an objective one that
considers the totality of the circumstances. Garcia, 437 F.3d at 1330. “The employee
must establish that a reasonable employee confronted with the same circumstances
would feel coerced into resigning.” Id. “In applying this objective test, our case law has
also emphasized that freedom of choice is a central issue.” Id. If an employee decides
to retire because “he does not want to accept a new assignment, a transfer, or other
measures that the agency is authorized to adopt, even if those measures make
continuation in the job so unpleasant for the employee that he feels that he has no
realistic option but to leave,” that decision is still voluntary. Id., quoting Staats, 99 F.3d
at 1124. To prove coercion, the employee must show “(1) the agency effectively
imposed the terms of the employee's resignation or retirement; (2) the employee had no
realistic alternative but to resign or retire; and (3) the employee's resignation or
retirement was the result of improper acts by the agency.” Id., quoting Shoaf v. Dep't of
Agric., 260 F.3d 1336, 1341 (Fed. Cir. 2001).
In this case, the Board had ample evidence from which it could conclude that the
agency did not create circumstances that would cause a reasonable employee in Mr.
Brooks’s position to feel coerced to retire. Mr. Brooks relies on the agency’s failure to
upgrade his position and his treatment while on the PIP to establish his coercion claim.
The agency asserts that these actions were the results of Mr. Brooks’s poor job
2007-3069 5
performance. Mr. Brooks’s testimony about his performance provided support for that
assertion. During the Board hearing, Mr. Brooks said (1) that he thought it was only a
matter of time before his supervisor could show that he should be removed, (2) that he
had difficulty performing some of the duties of his position, (3) that he felt his “job was
not for him,” and (4) that he felt he could not sustain acceptable performance for a year.
In light of that evidence, the Board could conclude that it was proper for the agency to
leave Mr. Brooks in a GS-6 position and place him on a PIP. The fact that Mr. Brooks
found the situation to be sufficiently unpleasant that he preferred to retire does not make
his retirement legally involuntary. See Garcia, 437 F.3d at 1330.
Additionally, there was evidence that the agency would not have removed Mr.
Brooks even if he had failed to adequately perform his job. The personnel officer stated
that in the event Mr. Brooks continued to perform unsatisfactorily the agency would
have sought other positions for him. Mr. Brooks preempted that option when he retired
rather than choosing to “stand pat and fight.” Garcia, 437 F.3d at 1330, quoting Christie
v. United States, 518 F.2d 584, 587 (Ct. Cl. 1975). Accordingly, Mr. Brooks failed to
show that that he had no realistic alternative but to retire or to demonstrate that the
agency took any improper actions. The Board was therefore correct to hold that it had
no jurisdiction over this mixed case. Because “the Board may not reach discrimination
issues in mixed cases unless jurisdiction is established with respect to the adverse
action alleged,” the Board was also correct to refrain from addressing any of Mr.
Brooks’s discrimination claims. Garcia, 437 F.3d at 1325.
2. Mr. Brooks asserts that he was not given notice that he could have the EEOC
or a district court review the Board’s decision under 5 U.S.C. § 7702 and 5 C.F.R.
2007-3069 6
§ 1201.151. Mr. Brooks, however, was not entitled to such notice. Where, as here, the
Board did not have jurisdiction because there was never an appealable adverse agency
action, there is no requirement that the Board give notice regarding EEOC or district
court review of the decision under section 7702. Cruz, 934 F.2d at 1244.
Mr. Brooks also argues that the agency failed to notify him, as required by 29
C.F.R. § 1614.302, of his right to renew his discrimination case. That regulation states,
in pertinent part:
If a person files a mixed case appeal with the MSPB instead of a mixed
case complaint and the MSPB dismisses the appeal for jurisdictional
reasons, the agency shall promptly notify the individual in writing of the
right to contact an EEO counselor within 45 days of receipt of this notice
and to file an EEO complaint, subject to § 1614.107. The date on which
the person filed his or her appeal with MSPB shall be deemed to be the
date of initial contact with the counselor.
The problem with that argument is that this is not the proper proceeding in which to
complain about the agency’s failure to provide such a notice. That issue would become
ripe only if Mr. Brooks sought to pursue further review of his discrimination claim and
were denied the right to do so because of an untimely filing. In such event, any failure
by the agency to give him the mandated notification of his review rights could be
addressed in the new review proceeding. The notification requirement has no effect on
the Board’s decision in this case, which is all that is before us in this appeal. For the
foregoing reasons, we affirm the Board’s decision dismissing Mr. Brooks’s appeal.
2007-3069 7