Wimper v. Merit Systems Protection Board

NOTE: This disposition is nonprecedential.

United States Court of Appeals
for the Federal Circuit
______________________

DWIGHT WIMPER,
Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________

2015-3061
______________________

Petition for review of the Merit Systems Protection
Board in No. DC-0752-14-0617-I-1.
______________________

Decided: December 2, 2015
______________________

KELLY LYNN BURCHELL, BGM Law PLLC, Washing-
ton, DC, for petitioner.

STEPHEN FUNG, Office of the General Counsel, Merit
Systems Protection Board, Washington, DC, for respond-
ent. Also represented by BRYAN G. POLISUK.
______________________
2 WIMPER v. MSPB

Before O’MALLEY, TARANTO, Circuit Judges, and STARK,
District Judge. *
O’MALLEY, Circuit Judge.
Dwight Wimper (“Wimper”) seeks review of the Merit
Systems Protection Board (“the Board”) decision dismiss-
ing his appeal for lack of jurisdiction without a hearing.
Wimper v. Dep’t of the Army, No. DC-0752-14-0617-I-1,
2014 MSPB LEXIS 7383 (M.S.P.B. Oct. 20, 2014). Specif-
ically, the Board found that Wimper failed to nonfrivo-
lously allege that his resignation was involuntary. For
the reasons explained below, we affirm.
BACKGROUND
Wimper was employed as a Human Resource Special-
ist with the Department of the Army (“the agency”) from
February 22, 2005, until his resignation in April 2014. As
a condition of his employment, Wimper was required to
maintain a top-secret security clearance and pass random
drug tests.
On August 14, 2013, the agency randomly selected
Wimper for a drug test. Pursuant to its regulations, the
agency conducted urinalysis to test for drug use, using a
split-specimen collection procedure, meaning one portion
of the specimen was tested while the other was reserved
for follow-up testing, if needed. On August 29, 2013, the
medical review office reported that Wimper’s urine sam-
ple tested positive for cocaine. Given the initial positive
result, the agency sent the second portion of the split-
sample to an approved third-party laboratory for verifica-
tion of the initial result. That test confirmed the positive
result for cocaine.

*The Honorable Leonard P. Stark, Chief District
Judge, United States District Court for the District of
Delaware, sitting by designation.
WIMPER v. MSPB 3

On October 23, 2013, Wimper reported for a second
drug test, which came back negative for cocaine. In
December 2013, Wimper took a separate, independent
drug test which tested his body hair instead of urine.
That test showed that Wimper tested negative for cocaine
for a time frame of “approximately 12 month[s].” Joint
Appendix (“JA”) 10.
By memorandum dated December 11, 2013, the agen-
cy issued a Notice of Proposed Removal for “unauthorized
use of a controlled substance and failure to maintain a
condition of employment.” JA 5. Wimper submitted a
written response, through counsel, denying drug use and
requesting “a full complete copy of all drug test materials
from all laboratories and names and designations of all
personnel who had [his] sample in their custody.” JA 12.
Wimper also requested that he have access to the initial
urine sample to conduct a DNA analysis. Wimper sub-
mitted a separate document requesting that the agency
conduct a DNA test of his urine specimen and asking the
agency to provide chain of custody documentation.
On January 14, 2014, the deciding official—Colonel
Twanda Young—completed a “Douglas Factor Checklist,”
which included findings of fact and an assessment of the
appropriate penalty. Therein, Colonel Young found that,
based on the evidence of record and Wimper’s response,
Wimper was guilty of drug use. She explained that
Wimper’s “Body Hair Analysis” drug test was not credible,
because it “is unknown if the 12 month span report in-
cluded the period found positive.” JA 16. Based on her
findings, and her analysis of the Douglas factors, Colonel
Young decided to sustain the proposed removal.
Colonel Young subsequently responded to Wimper’s
request for additional information and explained how
Wimper could have his August 14, 2013 urine sample
retested at his expense at an approved laboratory. She
explained that Wimper’s October 23, 2013 test was not a
4 WIMPER v. MSPB

“retest”—but rather a separate test—particularly given
that cocaine generally “only persist[s] in urine at detecta-
ble concentrations for a period of 2-4 days.” JA 25-26.
Colonel Young further indicated that, because urine was
the “only approved specimen matrix to be collected in the
drug testing program[,]” she was authorized to render a
decision based solely on the results of Wimper’s urinaly-
sis. JA 25. After additional correspondence between
Wimper and Colonel Young, the agency issued its Notice
of Decision to Remove Wimper from the federal service on
April 8, 2014. The Notice informed Wimper that he had
the right to appeal his removal to the Board and ex-
plained how to file that appeal.
In a response to the agency’s Notice of Decision to
Remove dated April 15, 2014, Wimper alleged that, while
at the agency on April 8, 2014 for the sole purpose of
entering sick time into the attendance system, Colonel
Young tried to make him sign a document without con-
sulting his lawyer and embarrassed and humiliated him
when he declined to do so. 1 Wimper asserted that this
“despicable” behavior by Colonel Young was in retaliation
for an earlier-filed equal employment opportunity (“EEO”)
complaint and was, thus, retaliatory. JA 63.
By letter dated April 14, 2014, Wimper resigned from
his position, effective April 17, 2014. In that letter,
Wimper did not provide any information regarding his
reason for resigning. Nor did he assert that his resigna-
tion was involuntary. Accordingly, the agency processed
his resignation with an adjusted effective date of April 17,
2014.
Wimper timely appealed to the Board, arguing that he
was forced to resign from his position to “keep from being

1 It is unclear from the record when this response
was delivered to the agency.
WIMPER v. MSPB 5

fired due to allegations that are not true.” Wimper, 2014
MSPB LEXIS 7383, at *3. Wimper submitted a number
of documents with his appeal, including correspondence
regarding the removal decision and a copy of an EEO
complaint. Id.
On May 14, 2014, the agency moved to dismiss
Wimper’s appeal for lack of jurisdiction, arguing that
Wimper “does not and cannot refute that he voluntarily
resigned effective April 17, 2014.” JA 75. The adminis-
trative judge (“AJ”) ordered Wimper to respond to the
agency’s motion and directed him to “file a response to
include nonfrivolous allegations of fact to support a find-
ing that his resignation was somehow coerced or involun-
tary.” Wimper, 2014 MSPB LEXIS 7383, at *4. Wimper
timely responded, citing cases explaining involuntary
resignations, constructive removals, and coercion.
Wimper asserted that, based on this authority, it was
clear that his resignation was involuntary because he had
already been informed he was being terminated. Wimper
then concluded that he “made nonfrivolous allegations
that, if proven, entitle him to a jurisdictional hearing.”
JA 90. Notably, Wimper did not allege that his unpleas-
ant encounter with Colonel Young on April 8, 2014 caused
his resignation.
On October 20, 2014, the AJ issued an initial decision
dismissing Wimper’s appeal for lack of jurisdiction. Given
the “unrefuted facts,” the AJ found Wimper’s resignation
voluntary. Wimper, 2014 MSPB LEXIS 7383, at *8.
Because Wimper “failed to nonfrivolously allege facts to
support a finding that his resignation was coerced and/or
otherwise involuntary,” the AJ dismissed his appeal for
lack of jurisdiction without a hearing. Id. at *10.
The AJ’s initial decision became the final decision of
the Board on November 24, 2014, when Wimper did not
file a petition for review by the full Board. Wimper timely
6 WIMPER v. MSPB

appealed to this court, and we have jurisdiction pursuant
to 28 U.S.C. § 1295(a)(9).
DISCUSSION
The scope of our review in an appeal from a decision
of the Board is limited. We must affirm the Board’s
decision unless it is “(1) arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law;
(2) obtained without procedures required by law, rule, or
regulation having been followed; or (3) unsupported by
substantial evidence.” 5 U.S.C. § 7703(c); Fields v. Dep’t
of Justice, 452 F.3d 1297, 1301 (Fed. Cir. 2006). Whether
the Board has jurisdiction to adjudicate an appeal is a
question of law, which we review de novo. Parrott v.
Merit Sys. Prot. Bd., 519 F.3d 1328, 1334 (Fed. Cir. 2008).
We review findings of fact underlying the Board’s jurisdic-
tional decision for substantial evidence. Id.
The Board’s jurisdiction is not plenary, but is limited
to those matters over which it has been given jurisdiction
by law, rule, or regulation. Johnston v. Merit Sys. Prot.
Bd., 518 F.3d 905, 909 (Fed. Cir. 2008). Resignations are
presumed voluntary, and an employee who voluntarily
resigns has no right to appeal to the Board. Garcia v.
Dep’t of Homeland Sec., 437 F.3d 1322, 1329 (Fed. Cir.
2006) (en banc). The Board has jurisdiction where the
employee proves, by a preponderance of the evidence, that
his resignation was involuntary and thus “tantamount to
forced removal.” Shoaf v. Dep’t of Agric., 260 F.3d 1336,
1341 (Fed. Cir. 2001). We have recognized that “an
involuntary resignation constitutes a constructive remov-
al that is appealable to the [Board].” Id.
We have also recognized that, in constructive removal
cases, the Board’s “jurisdiction and the merits of an
alleged involuntary separation are ‘inextricably inter-
twined.’” Id. (quoting Schultz v. United States Navy, 810
F.2d 1133, 1136 (Fed. Cir. 1987)). “If it is established that
a resignation . . . is involuntary, the [Board] not only has
WIMPER v. MSPB 7

jurisdiction, ‘but also the employee wins on the merits and
is entitled to reinstatement.’” Id. (quoting Schultz, 810
F.2d at 1136)).
Employees typically seek to show that their resigna-
tions were involuntary on grounds that the agen-
cy: “proposed or threatened an adverse action against the
employee,” “misinformed or deceived the employee,” or
coerced the employee to retire by creating intolerable
working conditions. Id. (internal citations omitted). To
establish involuntariness on the basis of coercion, an
employee must show that: “(1) the agency effectively
imposed the terms of the employee’s resignation or re-
tirement; (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.”
Garcia, 437 F.3d at 1329 (quoting Shoaf, 260 F.3d at
1341); see also Fruhauf Sw. Garment Co. v. United States,
111 F. Supp. 945, 951 (Ct. Cl. 1953). The test for involun-
tariness is “an objective one” that “considers the totality of
the circumstances.” Garcia, 437 F.3d at 1329 (internal
citations omitted). In applying this test, we have stated
that coercive involuntariness:
does not apply to a case in which an employee de-
cides to resign or 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. As
this court has explained, the fact that an employ-
ee 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. (quoting Staats v. U.S. Postal Serv., 99 F.3d 1120,
1124 (Fed. Cir. 1996)). The Board will find an employee’s
8 WIMPER v. MSPB

resignation involuntary where the employee shows that
he resigned to avoid an adverse action that the agency
was not entitled to take. Terban v. Dep’t of Energy, 216
F.3d 1021, 1026 (Fed. Cir. 2000). But where “an employee
is faced merely with the unpleasant alternatives of resign-
ing or being subject to removal for cause, such limited
choices do not make the resulting resignation an involun-
tary act.” Schultz, 810 F.2d at 1136. 2
When an employee makes a nonfrivolous allegation of
Board jurisdiction, he is entitled to a hearing where he
must prove jurisdiction by a preponderance of the evi-
dence. Garcia, 437 F.3d at 1344; see also Kahn v. Dep’t of
Justice, 528 F.3d 1336, 1341 (Fed. Cir. 2008) (“If the
employee successfully makes nonfrivolous allegations of
jurisdiction, the Board then conducts a hearing on the
merits.”). On appeal, Wimper argues that he made a
sufficient showing that his resignation was involuntary
and that this court should remand back to the AJ for an
evidentiary hearing. Specifically, Wimper contends that
the AJ failed to consider certain documents which showed
that the agency: (1) engaged in improper conduct when it
removed him without a reasonable basis; and
(2) “inappropriately used misinformation, deceit, and
force throughout the administrative process.” Appellant’s
Br. 10-11. According to Wimper, the agency left him with
no choice but to resign.
In response, the government argues that we should
affirm the Board’s decision to dismiss Wimper’s appeal for
lack of jurisdiction because he failed to make a nonfrivo-

2 While Wimper claims that this court has never
addressed constructive discharge due to inevitable termi-
nation, we have stated that a resignation to avoid removal
for cause is not involuntary. See Schultz, 810 F.2d at
1136. The non-binding cases Wimper cites to the contrary
do not alter that conclusion.
WIMPER v. MSPB 9

lous allegation that his resignation was involuntary. The
government further argues that there is no factual or
legal support to Wimper’s argument that his resignation
was coerced. Finally, the government maintains that
Wimper’s due process rights were not violated and his
hostile work environment claims lack merit. For the
reasons explained below, the government’s arguments are
well-taken.
A. The Reasonableness of the Agency’s Actions
As the AJ indicated, “unless the appellant can demon-
strate that the agency lacked ‘reasonable grounds for
threatening to take the adverse action,’ the ‘resulting
resignation cannot be considered . . . involuntary.’”
Wimper, 2014 MSPB LEXIS 7383, at *6 (quoting Terban,
216 F.3d at 1026). The AJ explained that Wimper “does
not allege that his resignation was the product of intoler-
able working conditions, misinformation, misrepresenta-
tion, or deception, nor does he claim that the agency knew
it would not prevail if the action was challenged or that it
lacked reasonable grounds to support its decision to
terminate his employment.” Id. at *9. Instead, Wimper’s
allegations were simply that his resignation was involun-
tary because he was forced to resign “to keep from being
fired.” Id. Because Wimper failed to nonfrivolously allege
facts to support a finding that his resignation was coerced
or otherwise involuntary, the AJ dismissed his appeal for
lack of jurisdiction.
Wimper argues that his resignation was based on the
agency’s improper conduct in: (1) predetermining his guilt
without addressing inconsistencies in the drug tests;
(2) failing to consider exculpatory evidence; and
(3) misleading him throughout the process. In particular,
Wimper claims that he “raised the issues of the initial
cutoff concentration level for cocaine in both the initial
test and the split level test and the lack of evidence re-
garding the complete chain of custody for the August 14,
10 WIMPER v. MSPB

2013 drug test.” Appellant’s Br. 23-24. Wimper further
alleges that the agency erred in refusing to consider his
“Body Hair Analysis”—which indicated that he tested
negative for cocaine. Finally, Wimper alleges that, when
he sought DNA testing of his August 14, 2013 urine
sample, the agency responded that it would render its
decision without reviewing those results.
Wimper’s allegations are unsupported in the record,
and, in any event, do not establish that he resigned invol-
untarily. As to the initial cutoff concentration level for
cocaine, the government explains that the agency provid-
ed Wimper with information as to where he could obtain
more specific, scientific detail about the nature of the
testing. And, “the agency’s failure to provide the petition-
er with the cutoff concentration levels for his drug tests in
no way shows that the agency could not reasonably be-
lieve in the accuracy of the drug test.” Respondent’s Br.
20. Although Wimper alleges that the agency refused to
consider his body hair drug test, the record reveals that
Colonel Young did review that test, but “did not find the
results creditable.” JA 16. Accordingly, Colonel Young
relied solely on the agency’s own urine test results, which
was permitted under the agency’s regulations. See Army
Reg. 600-85 at ¶ 4-1 (2012) (“The Army’s drug testing
policy is dependent on an aggressive and thorough urinal-
ysis program . . . .”).
Applying the Terban standard, the AJ correctly dis-
missed Wimper’s appeal because the record demonstrated
that the agency had a reasonable basis to believe the
removal would be sustained. 216 F.3d at 1026. Wimper
violated the terms of his employment when he tested
positive for cocaine during a random drug test adminis-
tered pursuant to agency policy. Wimper, 2014 MSPB
LEXIS 7383, at *1. The record reveals that the agency
followed its procedures in obtaining the drug test results,
including verification by a third-party laboratory. Accord-
ingly, the record supports the AJ’s finding that Wimper
WIMPER v. MSPB 11

failed to show that the agency “lacked reasonable grounds
to support its decision to terminate his employment.” Id.
at *9.
Although Wimper argues that the AJ ignored certain
documents in rendering his decision, the AJ recognized
that Wimper “attached a number of other random docu-
ments relating to the agency’s removal action.” Wimper,
2014 MSPB LEXIS 7383, at *3. After considering these
submissions, the AJ found that Wimper “completely failed
to respond with any allegations of fact to support a find-
ing that his resignation was involuntary.” Id. at *8. In
reaching this conclusion, the AJ noted that Wimper
provided “a 15-page summary of the law relating to
constructive removals and concluded, without any sup-
porting allegations, that it ‘should be perfectly clear that
[he] made nonfrivolous allegations that, if proven, entitle
him to a jurisdictional hearing[].” Id.
Based on the “unrefuted facts,” the AJ concluded that
Wimper’s resignation was voluntary. Wimper, 2014
MSPB LEXIS 7383, at *8. That the AJ did not mention
all of the specific documents in reaching this conclusion
does not mean that he did not consider them. See Charles
G. Williams Constr., Inc. v. White, 326 F.3d 1376, 1380
(Fed. Cir. 2003) (“The Board’s failure to discuss the evi-
dence upon which Williams relies does not mean that it
did not consider it.”) This is especially true given that an
administrative judge has broad discretion to decide the
contents of his opinion, including what it should contain
and in what detail. Lowder v. Dep’t of Homeland Sec., 504
F.3d 1378, 1383 (Fed. Cir. 2007); see Terban, 216 F.3d at
1024 (recognizing that giving “little weight to” certain
events is “well within the Board’s discretion”). And the
fact that the AJ referred to the documents Wimper sub-
mitted as “random” indicates that he reviewed them, but
found the documents were not relevant to demonstrating
that Wimper’s resignation was involuntary. That decision
12 WIMPER v. MSPB

was within the AJ’s discretion, and we decline to disturb
it on appeal.
B. Deception
Next, Wimper argues that the agency’s deceptive ac-
tions forced him to resign. We have recognized that a
“resignation or retirement is involuntary if it is obtained
by agency misinformation or deception.” Covington v.
Dep’t of Health & Human Servs., 750 F.2d 937, 942 (Fed.
Cir. 1984). In Covington, for example, the appellant was
informed that his agency was being abolished, his position
was therefore being abolished, and he had no right of
assignment to another position. Id. at 939. It turned out
that notice was incorrect, however, because certain em-
ployees had the right to compete for positions within the
successor agency. Id. at 940. After receiving the notice,
and relying on the incorrect information contained there-
in, the appellant elected to retire through a discontinued
service retirement prior to the separation date dictated by
the reduction in force. Id. at 939. On appeal, we held
that the appellant’s retirement was involuntary because
the agency’s notice was “misleading and erroneous in
material ways.” Id. at 942. We explained that, the “mis-
leading information can be negligently or even innocently
provided; if the employee materially relies on the misin-
formation to his detriment, his retirement is considered
involuntary.” Id.
Here, the record is devoid of any evidence that
Wimper relied on any misrepresentation to his detriment.
Wimper points to the following as evidence of deception:
(1) the agency found him guilty and decided to remove
him in January 2014, but he was not removed until April
2014; (2) the agency led him to believe he could access his
DNA sample for testing, but later denied him access; and
(3) the agency required Wimper “to report to work to
personally enter his sick leave, as a ruse to issue its
removal decision.” Appellant’s Br. 25. None of these
WIMPER v. MSPB 13

allegations, even if true, provided incorrect information
upon which Wimper relied or could have relied in deciding
to resign.
First, although Colonel Young did make an initial
evaluation of the proposed removal in January 2014, she
did not effectuate the removal at that time because she
gave Wimper an opportunity to gather information and
provide a supplemental response before issuing the re-
moval in April 2014. Second, the record shows that
Wimper requested access to his urine sample for DNA
testing, and in March 2014, the agency gave him specific
instructions as to how he could obtain the specimen for
testing. There is no record evidence that the agency
denied Wimper access. As to his claim of an elaborate
ruse to issue the agency’s removal decision, there is no
evidence that requiring Wimper to come to the office to
enter his sick leave misled him into deciding to resign.
Accordingly, Wimper failed to establish that the agency
forced him to resign through deception or misinformation.
C. Coercion
As noted, to establish involuntariness on the basis of
coercion, an employee must show that the agency “effec-
tively imposed” the terms of the resignation, the employee
had no realistic alternative but to resign, and the employ-
ee’s resignation “was the result of improper acts by the
agency.” Staats, 99 F.3d at 1124. On appeal, Wimper
argues that “the Agency effectively imposed the terms of
[his] resignation through its unwillingness to address
exculpatory evidence, acts of deception, and heavy-
handiness [sic] when serving Appellant with his Notice of
Removal.” Appellant’s Br. 26. According to Wimper, he
had few, if any, options to contest his removal and that
his “only option was resignation.” Id. Wimper also alleg-
es that he was pushed to his breaking point by the agen-
cy’s “coercive actions on April 8, 2014,” which tricked him
into “entering the building on false pretenses, and then
14 WIMPER v. MSPB

having him escorted out by police when he was medically
unable to accept service of their removal.” Id. at 27-28.
Shortly thereafter, Wimper “submitted his resignation in
the face of his inevitable termination.” Id. at 28.
Each of Wimper’s claims lacks foundation in the rec-
ord. First, there is no evidence that the agency imposed
or suggested Wimper’s resignation. The mere fact that
Wimper resigned to avoid his pending removal does not
mean that his resignation was coerced. See Schultz, 810
F.2d at 1136 (“[W]here an employee is faced merely with
the unpleasant alternatives of resigning or being subject
to removal for cause, such limited choices do not make the
resulting resignation an involuntary act.”). Second,
although Wimper claims he had no options to contest his
removal, the agency gave him ample opportunity to do so.
Wimper submitted a written response to the removal
proposal as well as a supplemental response after he
requested and obtained more information. And, although
Wimper claims that he had no choice but to resign “to
ensure a fair, impartial review of his disciplinary matter,”
Appellant’s Br. 27, the agency informed Wimper that he
had the right to appeal his removal to the Board. Accord-
ingly, Wimper failed to show that his resignation was the
product of coercion.
D. Wimper’s Remaining Arguments
Wimper also asserts that: (1) the agency violated his
due process rights by denying him an opportunity to
respond to its Douglas factor analysis; and (2) the agency
created a hostile work environment, which forced him to
resign. Neither argument has merit.
As to the first issue, the “essential requirements of
due process . . . are notice and an opportunity to respond.”
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546
(1985). Here, Wimper was provided notice of the charges
against him, and the agency gave him approximately four
months to provide two separate responses to those charg-
WIMPER v. MSPB 15

es. During that time, the agency gave Wimper an oppor-
tunity to examine the evidence against him, and Colonel
Young did not render her final decision until she reviewed
and considered Wimper’s responses. Accordingly, there
was no due process violation.
As to the second issue, there is no evidence that
Wimper asserted a hostile work environment claim below.
Indeed, the AJ specifically noted that Wimper “does not
allege that his resignation was the product of intolerable
working conditions.” Wimper, 2014 MSPB LEXIS 7383,
at *9. In any event, Wimper’s hostile work environment
claim “fails to recognize that a removal cannot create a
hostile work environment that an employee feels forced to
leave from, because it necessarily forces the employee
from that environment.” Respondent’s Br. 11-12.
CONCLUSION
Wimper failed to establish, by a preponderance of the
evidence, that his resignation was involuntary. Because
Wimper failed to raise a nonfrivolous allegation that, if
proven, could establish the Board’s jurisdiction over his
appeal, he was not entitled to a hearing before the Board.
Accordingly, we affirm the Board’s decision that it lacked
jurisdiction.
AFFIRMED
COSTS
No costs.