Thomas Latham v. United States Postal Service

909 F.2d 500, 1990 U.S. App. LEXIS 11888, 1990 WL 97967
CourtCourt of Appeals for the Federal Circuit
DecidedJuly 17, 1990
Docket90-3134
StatusPublished
Cited by22 cases

This text of 909 F.2d 500 (Thomas Latham v. United States Postal Service) 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
Thomas Latham v. United States Postal Service, 909 F.2d 500, 1990 U.S. App. LEXIS 11888, 1990 WL 97967 (Fed. Cir. 1990).

Opinion

MICHEL, Circuit Judge.

Thomas Latham appeals the order of the Merit Systems Protection Board dismissing his petition for lack of jurisdiction based on its finding that his resignation was voluntary. Latham v. United States Postal Serv., Docket No. CH07528910446 (MSPB Aug. 1, 1989). The Administrative Judge’s (AJ’s) initial decision became final December 13, 1989, upon denial of review by the full Board, 42 M.S.P.R. 489, and this appeal followed. Because substantial evidence supports the AJ’s finding that Latham resigned voluntarily, the Board lacked jurisdiction. Accordingly, we affirm.

BACKGROUND

Latham was employed as a Bulk Mail Clerk with the United States Postal Service (agency) in Chicago, Illinois, for over sixteen years. On December 8, 1987, Latham did not report to work. Six days later Latham submitted a note from a physician which stated that Latham’s condition “was such that he will need an indefinite leave of absence from his job.” Periodically thereafter, Latham submitted similar statements from the same doctor. He also submitted a request for leave without pay, for his continuous absence from duty starting December 8, 1987. Based on assertions in the request and the supporting physician’s note, Latham’s unpaid leave was approved. Latham, slip op. at 2.

Unknown to the agency when it approved Latham’s leave, he had accepted employment with the Chicago Police Department as a probationary police officer and on December 7, 1987, had begun training in its Police Academy. Later, when the Postal Service became aware that Latham was employed by the Police Department, it assigned Postal Inspector Muraski to investigate the circumstances surrounding La-tham’s apparent performance of another full-time job while on approved Postal Service leave. Id. at 2-3.

First, the Postal Service verified, by correspondence with the Chicago Police Department, Latham’s employment with them. See Respondent’s Appendix, Latham v. United States Postal Serv., No. 90-3134, at 18 (Fed.Cir. filed Apr. 10, 1990) [hereinafter Respondent’s App.]. Then, approximately two weeks later, Muraski interviewed Latham at the Chicago Police Academy. Latham, slip op. at 3. The record reflects the interview began in the presence of a detective from the Chicago Police Department. Respondent’s App. at 12 & 20. Muraski questioned Latham about the medical statements he periodically submitted, while attending the sixteen-week course at the Academy, to substantiate his leave without pay status. Muraski also questioned his instructor who found Latham physically fit and able to pass all physical requirements of academy training, including one-on-one combat. Id. at 12.

Latham alleges that during the interview Muraski threatened him with removal if he did not resign, but the AJ found to the *502 contrary. Latham, slip op. at 4. The AJ accepted the Inspector’s testimony that she made no such threat. The AJ also noted that Muraski lacked authority to demand or accept a resignation. Id.

Latham also alleges that Muraski asked the detective what the Police Department intended to do about the situation. The AJ found that even if Muraski asked about the Police Department’s intentions, that did not coerce Latham into resigning from his Postal Service job. Id. at 4-5. The AJ further found that Muraski did not have authority to, nor did she, recommend that the Police Department take any action against Latham. Id. at 4.

Thirteen days after the questioning, La-tham submitted his resignation from the Postal Service. On the resignation form he wrote he was resigning “to pursue other employment which I hope to be more rewarding and fullfilling [sic].” Id. at 3. Two Personnel Assistants who were present for the exit interview and accepted Latham’s resignation advised Latham that the decision to resign must be a voluntary one that only he could make. Id. The record also reflects they told him that even after signing it he was free to tear up the resignation form rather than submit it. Respondent’s App. at 28. Finally, Latham waited a full year before asserting that his resignation had been coerced. Latham, slip op. at 1.

Latham argued before the Board and now argues here that his resignation was involuntary, the result of coercion during the Academy interrogation, and thus the Board has jurisdiction to hear his case. The AJ found the resignation was not coerced but voluntary. Central to his appeal is a challenge to that finding.

OPINION

This court reviews a decision of the Board to determine if it is arbitrary, capricious, an abuse of discretion, procedurally defective, or unsupported by substantial evidence. 5 U.S.C. § 7703(c) (1988). Factual findings may only be reversed if unsupported by substantial evidence. Id.; Bradley v. Veterans Admin., 900 F.2d 233, 234 (Fed.Cir.1990).

As a general rule, “resignations are presumed to be voluntary.” Christie v. United States, 518 F.2d 584, 587, 207 Ct.Cl. 333 (1975). A voluntary employee action simply does not invoke the procedures and rights that the Civil Service Reform Act mandates for an adverse agency action. Schultz v. United States Navy, 810 F.2d 1133, 1136 (Fed.Cir.1987). If however, the employee can demonstrate that the resignation was involuntary, then it must be treated as an adverse action, which invokes the Act, allowing the employee to appeal to the Board (and ordinarily entitling him to reinstatement and back pay). Id. A resignation is “not voluntary where an agency imposes the terms of an employee’s resignation, the employee’s circumstances permit no alternative but to accept, and those circumstances were the result of improper acts of the agency.” Id.

I.

Latham contends that during the interview Muraski demanded his resignation under the threat that he would be fired from his postal job if he did not resign. The AJ found that Muraski “credibly testified that she did not demand [Latham’s] resignation.” Latham, slip op. at 4. The AJ found that the Inspector did not even have the authority to accept Latham’s resignation or to fire him. Id. Latham’s own testimony was not credited. That Latham waited a year before claiming coercion did not bolster his credibility. Latham has failed to present any persuasive basis for this court to reverse these credibility determinations. See Hambsch v. Department of Treasury, 796 F.2d 430, 436 (Fed.Cir.1986).

II.

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Bluebook (online)
909 F.2d 500, 1990 U.S. App. LEXIS 11888, 1990 WL 97967, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thomas-latham-v-united-states-postal-service-cafc-1990.