Schultz v. U.S. Navy, 86-1195

• Citation: 810 F.2d 1133
• Decision Date: 29 January 1987
• Docket Number: No. 86-1195,86-1195
• Parties: Margaret J. SCHULTZ, Petitioner, v. UNITED STATES NAVY, Respondent. Appeal
• Court: United States Courts of Appeals. United States Court of Appeals for the Federal Circuit

Page 1133

810 F.2d 1133

Margaret J. SCHULTZ, Petitioner, v. UNITED STATES NAVY, Respondent.

Appeal No. 86-1195.

United States Court of Appeals Federal Circuit.

Jan. 29, 1987.

Susan C. Rosen, of Rosen, Rosen & Hagood, Charleston, S.C., for petitioner.

Linda T. Maramba, of the Commercial Litigation Branch, Dept. of Justice, Washington, D.C., for respondent.

Before MARKEY, Chief Judge, and DAVIS and NIES, Circuit Judges.

NIES, Circuit Judge.

Petitioner Margaret J. Schultz appeals from the decision of the Merit Systems Protection Board, Case No. AT07528510366, 29 M.S.P.R. 186 (1985), dismissing her appeal from a termination of her employment on the grounds that the board lacked jurisdiction. Specifically, the board held that petitioner failed to establish that her resignation from her position was involuntary and, thus, that she was removed by an adverse action. We reverse.

Background

Petitioner Schultz accepted a transfer of position to the Department of the Navy, Naval Weapons Station, Charleston, South Carolina, on June 19, 1983, as the housing manager on the base. In connection with her transfer, she was advanced over $3,300 in moving expenses on the condition that she remain in the position for twelve months.

There is no assertion by the agency that Ms. Schultz performed less than satisfactorily in her position. Indeed, her difficulties arose from her strenuous efforts to reduce waste, inefficiency, and health hazards which she perceived in the maintenance of housing on the base. As a result of extreme frustration in her efforts to that end, Ms. Schultz felt it necessary to consult her By notarized letter dated March 6, 1984, the physician whom Ms. Schultz consulted informed the agency that he had examined her on February 17, 1984. It was his opinion that, if she continued in her present position, the work would cause her harm mentally and emotionally and that he believed his patient to be "totally disabled for her present position."

                physician in February, 1984.  Following the advice of her physician, in late February she pursued the possibility of a transfer to a different position in the agency and, in early March, submitted a formal request for thirty days' leave from February 29 until March 30 for "rest for mental and health considerations."    Ms. Schultz also, on or about that date, advised the agency that, if she were unable to transfer to a different position, she intended to resign on March 31, 1984, and to seek a disability retirement
                

On March 8, 1984, Ms. Schultz' supervisor notified her that her request for leave was denied because of lack of a medical certificate, that she was being carried since March 1 in an unauthorized absence status, and that her request for reassignment could not be granted. The supervisor enclosed a resignation form and advised that, if Schultz wished to resign earlier than March 31, the resignation should be returned as soon as possible. The supervisor stressed the importance of Schultz returning to work immediately or resigning immediately, since Schultz' "excessive" unauthorized absence (more than five days) constituted sufficient reason for disciplinary action up to removal. The supervisor acknowledged receipt of certain documents associated with her disability retirement, which were being forwarded to another office, and acknowledged Schultz' request for a waiver of repayment of relocation expenses, which would be discussed upon Schultz' return to work.

On March 13, 1984, Ms. Schultz submitted her resignation stating: "I cannot force myself to return to my position to expose myself to further deterioration of my health.... Since my request for annual leave to rest for health considerations has been disapproved, my only alternative is immediate resignation."

Ms. Schultz' resignation was accepted retroactive to March 1, 1984. On May 10, 1984, the agency demanded reimbursement of the $3,300 advanced for her relocation.

Schultz continued to pursue her disability retirement claim which was denied by the Office of Personnel Management on February 20, 1985. Following that denial, Schultz pro se immediately appealed to the MSPB seeking reinstatement on the ground that her resignation was coerced and that she had not been given the advice and assistance which she sought so that she resigned without understanding her rights. Further, she asserts she was given misleading advice that she would not have to repay the $3,300 if she resigned.

The presiding official ruled that appellant had failed to establish the board's jurisdiction over her appeal because appellant's resignation was voluntary under the applicable standard of Fruhauf Southwest Garment Co. v. United States, 126 Ct.Cl. 51, 111 F.Supp. 945, 951 (1953). The presiding official reasoned that Ms. Schultz was faced with a "tough choice to return to work where she felt she could not function, resign, or face an adverse action for absence without leave." The difficulty of her decision, per the presiding official, did not make her choice involuntary under the Fruhauf standard. The full board dismissed her petition for review. Schultz, again pro se, filed suit in the district court for South Carolina which, upon motion of the government, transferred the case to this court.

The determinative underlying facts of this case are not in dispute. Thus, the sole issue is whether, under the correct legal test for coercion, petitioner proved that her resignation was in fact involuntary.

OPINION

A retirement request initiated by an employee is presumed to be a voluntary act, Christie v. United States, 207 Ct.Cl 333, 518 F.2d 584, 587 (1975). By its nature a voluntary action does not implicate the procedures and rights of an employee associated with an adverse action. However, an ostensibly voluntary resignation which was submitted as a result of agency coercion or because of improper advice on its consequences must be treated the same as an adverse action. Perlman v. United States, 203 Ct.Cl. 397, 490 F.2d 928, 933 (1974).

As has been noted before in our decisions, the board's jurisdiction and the merits of an alleged involuntary separation are inextricably intertwined. Dumas v. Merit Systems Protection Board, 789 F.2d 892, 894 (Fed.Cir.1986). Thus, if it is established that a resignation is involuntary, the board not only has jurisdiction, but also the employee wins on the merits and is entitled to reinstatement. See Covington v. Department of Health and Human Services, 750 F.2d 937, 943 (Fed.Cir.1984).

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. See Edgerton v. Merit Systems Protection Board, 768 F.2d 1314, 1317 (Fed.Cir.1985); Scharf v. Department of the Air Force, ...