UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOSE I. SANTANA, DOCKET NUMBER
Appellant, SF-0752-14-0801-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: April 14, 2015
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL 1
Guillermo Mojarro, Upland, California, for the appellant.
Jeremy M. Watson, Esquire, San Francisco, California, for 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 the appeal for lack of jurisdiction. Generally, we grant petitions such
as this one only when: 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
1
A nonprecedential order is one that the Board has determined does not add
sign ificantly 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 Parties may cite nonprecedential orders,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
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. 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, 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 retired from the EAS-17 position of Supervisor, Customer
Services, on January 31, 2014, under a Voluntary Early Retirement (VER)
program. Initial Appeal File (IAF), Tab 5 at 29. On March 6, 2014, the appellant
filed an equal employment opportunity (EEO) complaint alleging that his
retirement was involuntary because of intolerable working conditions and that the
agency discriminated against him on the bases of age and disability, and retaliated
against him for filing prior EEO complaints. Id. at 9-15. On September 11, 2014,
the appellant timely filed this appeal alleging that his retirement was
involuntary. 2 IAF, Tab 1. The appellant requested a hearing. Id. The
administrative judge issued an acknowledgment order informing the appellant of
what he must show to establish a nonfrivolous allegation of jurisdiction and be
entitled to the hearing that he requested. IAF, Tab 2.
¶3 Based on the record submitted by the parties, the administrative judge found
that the appellant failed to make a nonfrivolous allegation that the agency made
2
The appellant filed his Board appeal in accordance with 5 C.F.R. § 1201.154(b)(2),
which provides that, if the agency has not resolved an EEO complaint or issued a final
decision on the appellant’s formal EEO complaint and more than 120 days have
elapsed, the appellant may file a mixed-case appeal with the Board. See IAF, Tab 1.
3
his working conditions so difficult that a reasonable person in his position would
have felt compelled to resign or retire. IAF, Tab 11, Initial Decision (ID). She
found that the appellant provided no specific facts to support his claims of age
and disability discrimination, and she did not consider them as going to the
ultimate question of coercion. ID at 3-4. She further found that the only incident
referenced by the appellant that could be found to have affected his decision to
take early retirement was a September 9, 2013 proposed Letter of Warning in
Lieu of 7-Day Suspension for failure to follow instructions. ID at 5. She found
that the fact that the appellant was faced with the unpleasant choice of retiring or
opposing a proposed disciplinary action did not rebut the presumed voluntariness
of his ultimate choice of retirement. ID at 5. The administrative judge did not
decide the appellant’s allegations of discrimination in the absence of an
appealable action. ID at 6.
¶4 In his petition for review, the appellant contends that the agency failed to
submit relevant documents and the administrative judge erred in denying the
appellant’s motion to compel discovery. Petition for Review (PFR) File, Tab 3.
The Board’s regulations regarding discovery in Board appeals are set forth
at 5 C.F.R. § 1201.71-.75. The Board will not reverse an administrative judge’s
rulings on discovery matters absent an abuse of discretion. Wagner v.
Environmental Protection Agency, 54 M.S.P.R. 447, 452 (1992), aff’d, 996 F.2d
1236 (Fed. Cir. 1993) (Table).
¶5 An appellant may request discovery of relevant materials to help him meet
his burden of establishing the Board’s jurisdiction. See, e.g., Trotter v. U.S.
Postal Service, 91 M.S.P.R. 282, ¶ 14 (2002), overruled on other grounds by
Deida v. Department of the Navy, 110 M.S.P.R. 408 (2009); Russo v. Department
of the Navy, 85 M.S.P.R. 12, ¶ 8 (1999). Here, the appellant filed a motion to
compel and attached the discovery request that he had submitted to the agency.
IAF, Tab 8. The proper procedure to address the appellant’s concerns about the
discovery process would have been for the agency to respond to the appellant’s
4
discovery request with objections, as appropriate, and then, if necessary, for the
appellant to file a motion to compel. See 5 C.F.R. § 1201.73(b)-(c). However,
the appellant failed to supply a copy of the agency's responses to his discovery
requests, as required by the Board’s regulation, only asserting that the responses
were deficient. 5 C.F.R. §§ 1201.73(e)(1), 1201.74(a). Under 5 C.F.R.
§ 1201.74(a), an administrative judge may deny a motion to compel discovery if a
party fails to comply with the requirements of 5 C.F.R. § 1201.73(e)(1). The
administrative judge did not abuse her discretion in denying the appellant’s
motion to compel the agency to provide extensive information concerning how
the appellant’s supervisor treated other employees, 3 where, as here, the appellant
failed to comply with the Board’s regulations regarding discovery by not
submitting the agency’s responses to his discovery requests. 4 See Lee v.
Environmental Protection Agency, 115 M.S.P.R. 533, ¶ 12 (2010).
¶6 As noted, in the initial decision, the administrative judge found that,
because the appellant signed an Acknowledgement of Irrevocability for VER on
October 25, 2013, any incident or event after that date would not have affected
his decision to retire. ID at 4-5. However, the record shows that the appellant’s
VER election became irrevocable on November 29, 2013. IAF, Tab 5 at 29.
3
The information that the appellant sought in discovery appears to be relevant to his
allegations that he was treated disparately on the bases of age and disability. The
administrative judge denied the motion to compel because the information that the
appellant sought in discovery was irrelevant to the issue of the voluntariness of his
retirement. ID at 6 n.2. We can discern no reason to disturb that determination, as the
interrogatories in question appear irrelevant to the jurisd ictional issue central to th is
appeal, i.e., whether the agency coerced the appellant’s retirement. See Piercy v.
Department of Transportation, 42 M.S.P.R. 73, 76 n.* (1989).
4
To the extent that the appellant is asserting that the administrative judge erred in
denying his motion to compel because the agency did not provide him with a copy of
the report of investigation made pursuant to his EEO complaint, h is assertion is
unavailing. An appellant may seek d iscovery of purportedly relevant and material
documents in the agency’s possession. See Embree v. Department of the Treasury,
70 M.S.P.R. 79, 86 (1996). Here, the record establishes that the appellant was provided
with a copy of the report of investigation, IAF, Tab 9, and he could have submitted it
into the record.
5
Thus, the administrative judge erred in considering only the agency’s issuance of
the September 9, 2013 proposed Letter of Warning in Lieu of a 7-Day Suspension
to determine whether the appellant made a nonfrivolous allegation of jurisdiction
over his alleged involuntary resignation. The appellant alleged that the agency’s
issuance of the November 5, 2013 Notice of Proposed Letter of Warning in Lieu
of a 14-Day Suspension, and the November 18, 2013 scheduling of the appellant
for an investigative interview were also actions that rendered his retirement
involuntary. IAF, Tab 1. The administrative judge also should have considered
these agency actions in determining if the appellant had nonfrivolously alleged
that his retirement was involuntary.
¶7 We find, however, considering all of the agency’s actions identified by the
appellant as rendering his retirement involuntary, that he has failed to make a
nonfrivolous allegation of involuntariness. As the administrative judge correctly
found, the appellant’s allegations reflect no more than disagreement with his
supervisor over discipline and other directives. ID at 5. The mere fact that an
employee is faced with the unpleasant choice of either resigning or retiring, or
opposing potential disciplinary actions and complying with agency directives,
does not rebut the presumed voluntariness of his ultimate choice to retire. See
Lloyd v. Small Business Administration, 96 M.S.P.R. 518, ¶ 3 (2004). Thus, we
find that the administrative judge’s error did not harm the appellant’s substantive
rights and provides no basis to reverse the initial decision. See Panter v.
Department of the Air Force, 22 M.S.P.R. 281, 282 (1984).
¶8 Attached to the appellant’s petition for review is a decision by the
California Unemployment Insurance Appeal Board that finds that he is entitled to
unemployment benefits. PFR File, Tab 3. The unemployment benefits decision
was issued after the initial decision in this case, and therefore it is new evidence.
See Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980). Also, while
unemployment compensation decisions are worthy of consideration, they are not
dispositive. Cirella v. Department of the Treasury, 108 M.S.P.R. 474, ¶ 19, aff’d,
6
296 F. App’x 63 (Fed. Cir. 2008). The California agency decision granting
employee unemployment benefits is of little probative value in this case because
the standard applied by the state agency, whether a reasonable, good faith and
honest fear of harm to one’s health or safety from the work environment and
conditions of employment constitutes good cause for quitting, differs from that
applicable to proving an involuntary retirement before the Board. PFR File, Tab
3. The Board has held that the doctrine of coercive involuntariness is a narrow
one, requiring that the employee satisfy a demanding legal standard. See Putnam
v. Department of Homeland Security, 121 M.S.P.R. 532, ¶ 22 (2014). An
employee’s dissatisfaction with the options that an agency has made available to
him is not sufficient to render his decision to resign or retire involuntary. Id.
Coerced involuntariness does not apply if the employee resigns or retires because
he does not like agency decisions that the agency is authorized to adopt, even if
those measures make continuation in the job unpleasant. Id. Moreover, under
this test for involuntariness, the coercion must be the result of improper acts by
the agency, and the appellant has failed to make a nonfrivolous allegation of such
acts. Id. Accordingly, we find that the appellant’s new evidence is not of
sufficient weight to warrant an outcome different from that of the initial decision.
See Russo v. Veterans Administration, 3 M.S.P.R. 345, 349 (1980).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit 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
7
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 the 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 your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.