Brooks v. Social Security Administration

97 F. App'x 301
CourtCourt of Appeals for the Federal Circuit
DecidedApril 13, 2004
DocketNo. 03-3311
StatusPublished
Cited by1 cases

This text of 97 F. App'x 301 (Brooks v. Social Security Administration) is published on Counsel Stack Legal Research, covering Court of Appeals for the Federal Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brooks v. Social Security Administration, 97 F. App'x 301 (Fed. Cir. 2004).

Opinion

DECISION

PER CURIAM.

Brenda T. Brooks petitions for review of the final decision of the Merit Systems Protection Board (“Board”) that dismissed her appeal for lack of jurisdiction. Brooks v. Social Sec. Admin., No. DC-3443-02-0706-I-1, 2003 WL 22248732, 95 M.S.P.R. 293 (M.S.P.B. June 26, 2003). The Board dismissed Ms. Brooks’ appeal after it determined that she had failed to make a non-frivolous allegation that her retirement from the Social Security Administration (“agency”) was involuntary. We affirm.

DISCUSSION

I.

Ms. Brooks was employed as a Claims Development Clerk, GS-0998-5, at the M Street Field Office of the agency in Washington, D.C. By memorandum dated April 16, 2001, the agency offered early retirement to all of its employees beginning on June 1, 2001. Ms. Brooks retired under the early out program on September 21, 2001.

On July 22, 2002, Ms. Brooks filed an appeal with the Board. In it, she alleged that her resignation was involuntary because it was the product of duress in the form of intolerable working conditions. In an initial decision dated October 9, 2002, the administrative judge (“AJ”) to whom the appeal was assigned dismissed the appeal after determining that Ms. Brooks had failed to make a non-frivolous allegation that her retirement was involuntary. Brooks v. Social Sec. Admin., No. DC-3443-02-0706-1-1, (M.S.P.B. Oct. 9, 2002) (“Initial Decision”). The AJ’s initial decision became the final decision of the Board on June 26, 2003, after the Board denied Ms. Brooks’ petition for review for failure to meet the criteria for review set forth at 5 C.F.R. § 1201.115. This appeal followed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).

II.

Our scope of review in an appeal from a decision of the Board is limited. Specifically, we must affirm the Board’s decision unless we find it to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; obtained without procedures required by law, rule, or regulation having been followed; or unsup[303]*303ported by substantial evidence. 5 U.S.C. § 7703(c); see Kewley v. Dep’t of Health & Human Servs., 153 F.3d 1357, 1361 (Fed. Cir.1998).

Absent evidence to the contrary, a retirement is presumed voluntary and is beyond the Board’s jurisdiction. See Covington v. Dep’t of Health & Human Servs., 750 F.2d 937, 941 (Fed.Cir.1984). However, an involuntary retirement is tantamount to a removal, an adverse action over which the Board has jurisdiction pursuant to 5 U.S.C. § 7512. See Staats v. United States Postal Serv., 99 F.3d 1120, 1123 (Fed.Cir.1996). In order to overcome the presumption of voluntariness and demonstrate that a retirement was involuntary, an appellant must show either (1) that the retirement was the product of misinformation or deception by the agency, id. at 1124 (citing Covington, 750 F.2d at 942), or (2) that the retirement was the product of coercion by the agency, id. (citing Dumas v. Merit Sys. Prot. Bd., 789 F.2d 892, 894 (Fed.Cir.1986)). The test for involuntariness is an objective one; it is not measured by the appellant’s subjective evaluation of his or her situation. Middleton v. Dep’t of Defense, 185 F.3d 1374, 1379 (Fed. Cir.1999). Involuntariness may be established by a showing that an appellant’s working conditions were made so intolerable that a reasonable person in the appellant’s position would have felt compelled to resign. Id.

We held in Dick v. Dep’t of Veterans Affairs that “[a]n employee need not prove coercion by preponderant evidence to invoke the Board’s jurisdiction and warrant a hearing to determine voluntariness on the merits. Rather, if an employee has made a non-frivolous allegation that, if proven, could establish that his resignation was coerced, that is all that is required to trigger the Board’s jurisdiction at this threshold stage.” 290 F.3d 1356, 1362 (Fed.Cir.2002) (citations omitted). “The Board has jurisdiction over an appeal if the government employee makes non-frivolous allegations of jurisdiction supported by affidavits and other evidence.” Id. at 1361. ‘Whether allegations are non-frivolous is determined on the basis of the administrative record.” Spencer v. Dep’t of Navy, 327 F.3d 1354, 1356 (Fed.Cir. 2003) (citing Dick, 290 F.3d at 1361). If an appellant makes a non-frivolous allegation that a retirement was involuntary, he or she has a right to a hearing on involuntariness. Dick, 290 F.3d at 1362 (citing Burgess v. Merit Sys. Prot. Bd., 758 F.2d 641, 643 (Fed.Cir.1985)). On the record before us, it appears that Ms. Brooks did not substantiate her allegations with admissible evidence as required by our decision in Dorrall v. Dep’t of Army, 301 F.3d 1375, 1380 (Fed.Cir.2002). In any event, we find her allegations to be insufficient.

III.

In her appeal to the Board Ms. Brooks asserted (1) that she had been harassed by Albertha Mitchell, her first level supervisor, and by Katie I. Smith, her second level supervisor; (2) that from November of 1998 to January of 1999 an individual by the name of Pierre DuBois had stalked her at the urging of Ms. Smith; (3) that in April of 2000, she was held in her office against her will by Ms. Mitchell; (4) that Ms. Smith denied her request for a reassignment in 1998; and (5) that the agency ignored pertinent medical evidence recommending her reassignment to a less stressful job.

The AJ determined that Ms. Brooks had failed to make a non-frivolous allegation of involuntariness after reviewing the documents that Ms. Brooks submitted concerning her employment at the agency from 1990 to 2001. The AJ stated that although [304]*304Ms. Brooks had described working conditions that she perceived to be intolerable,

she has not identified specific actions by management that were coercive or explained why the unpleasant working conditions she described were so difficult that a reasonable person would be compelled to retire. Finally, the circumstances described by the appellant do not support a finding that she was effectively deprived of free choice.

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Related

Brooks v. Social Security Administration
543 U.S. 934 (Supreme Court, 2004)

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