Conforto v. Merit Sys. Prot. Bd.

• Decision Date: 18 April 2013
• Docket Number: No. 2012–3119.,2012–3119.
• Citation: 713 F.3d 1111
• Parties: Marie C. CONFORTO, Petitioner, v. MERIT SYSTEMS PROTECTION BOARD, Respondent.
• Court: U.S. Court of Appeals — Federal Circuit

713 F.3d 1111

Marie C. CONFORTO, Petitioner,

v.MERIT SYSTEMS PROTECTION BOARD, Respondent.

No. 2012–3119.

United States Court of Appeals,Federal Circuit.

April 18, 2013.

Scott L. Zielinski, Grady and Associates, of San Diego, CA, argued for petitioner.

Katherine M. Smith, Attorney, Office of the General Counsel, Merit Systems Protection Board, of Washington, DC, argued for respondent. With her on the brief were James M. Eisenmann, General Counsel, and Keisha Dawn Bell, Deputy General Counsel.

Before DYK, BRYSON, and MOORE, Circuit Judges.

Opinion for the court filed by Circuit Judge BRYSON.

Dissenting opinion filed by Circuit Judge DYK.

BRYSON, Circuit Judge.

Marie C. Conforto seeks review of the Merit Systems Protection Board's dismissal of her appeal for lack of jurisdiction. Although she sought review in this court, Ms. Conforto now challenges this court's jurisdiction to hear her appeal in light of the Supreme Court's recent decision in Kloeckner v. Solis, ––– U.S. ––––, 133 S.Ct. 596, 184 L.Ed.2d 433 (2012). For the reasons explained below, we conclude that we have jurisdiction over this appeal, and we affirm the Board's decision.

I

Ms. Conforto worked for the Department of the Navy until she retired on December 31, 2010. At the time of her retirement, she had worked in the Department for 39 years and held the position of Supervisory Contract Specialist in the Material Management Department.

Ms. Conforto alleges that she was forced to retire at the end of 2010 because of a series of events that occurred at her workplace during the previous year. She contends that those events were motivated by age and sex discrimination, as well as retaliation for her prior equal employment opportunity (“EEO”) activity. The particular incidents about which she complained are the following: in December 2009, her parking space was taken away; in March 2010, one of her subordinates was promoted to a vacated position instead of her; in April 2010, she was denied permission to attend a training session; and in July 2010, she felt pressured into canceling a training session that she had planned to attend. In September 2010, following those events, Ms. Conforto advised her agency's human resources office that she wished to retire as of December 31 of that year.

In the months after Ms. Conforto submitted her retirement papers but before her retirement became effective, several more events occurred that she alleges were the products of discrimination or retaliation. In October 2010, her supervisor criticized her work progress by email and then issued her a formal letter of reprimand. In November 2010, Ms. Conforto alleges, her supervisor denied her request for sick leave, and in December he issued her a notice proposing to suspend her for seven days. Finally, she complains that after her retirement the agency issued her a letter charging her with improperly copying materials from her work computer, gave her a negative interim appraisal for the year 2010, and did not give her a bonus or raise for that year.

As these events unfolded, Ms. Conforto filed an EEO complaint with her agency in June 2010, alleging discrimination based on age and sex as well as reprisal for prior EEO activity. She later amended her EEO complaint to allege that she had been forced to retire because of harassment. In October 2011, the agency issued its decision on Ms. Conforto's EEO complaint. Following a detailed factual analysis of her claims, the agency concluded that Ms. Conforto had not been subjected to discrimination or retaliation and that she had retired voluntarily, not because of discriminatory or retaliatory conduct by agency personnel.

Ms. Conforto appealed the agency's decision to the Board in December 2011. The administrative judge who was assigned to her case issued an order advising her that the Board might not have jurisdiction over her appeal because retirement is presumed to be a voluntary act. Under this court's en banc decisions in Cruz v. Department of the Navy, 934 F.2d 1240, 1248 (Fed.Cir.1991), and Garcia v. Department of Homeland Security, 437 F.3d 1322, 1328 (Fed.Cir.2006), the Board lacks jurisdiction over an employee's voluntary decision to resign or retire. In response to the administrative judge's order, Ms. Conforto replied that the Board had jurisdiction over her appeal because her retirement was the product of coercion by the agency. As such, she contended, her involuntary retirement constituted a constructive removal and thus fell within the Board's jurisdiction. See5 U.S.C. §§ 7512(1); 7513(a), (d); 7701(a); Garcia, 437 F.3d at 1328–30.

The administrative judge dismissed Ms. Conforto's appeal for lack of jurisdiction. According to the administrative judge, Ms. Conforto had failed to make a nonfrivolous allegation that her retirement was involuntary, and thus she was not entitled to a hearing on the issue of jurisdiction. Analyzing Ms. Conforto's allegations, the administrative judge found that even the most serious actions of which she complained—the letter of reprimand and the proposed seven-day suspension—could not support a claim of coerced retirement becausethey did not leave her without any reasonable alternative but to retire. In addition, the administrative judge noted that Ms. Conforto had not alleged any facts suggesting that the agency knew it could not justify those actions.

The administrative judge pointed out that the agency had provided a detailed analysis of Ms. Conforto's allegations and had concluded that there was a legitimate basis for each of the actions of which she complained. According to the administrative judge, Ms. Conforto had “not made any specific factual allegations to call these conclusions into question.” Moreover, the administrative judge noted that the most serious actions—the letter of reprimand and the proposed suspension—occurred after September 2010, when Ms. Conforto advised the agency that she would retire as of the end of the year. The timing of those incidents, according to the administrative judge, “undercut [ ] any assertion that her retirement was prompted by” those events. In sum, the administrative judge concluded that while Ms. Conforto alleged that she felt subjectively that she had no choice but to retire, “the circumstances she alleges would not make a reasonable person believe that she had no realistic alternative but to resign or retire.” The administrative judge ruled that Ms. Conforto had failed to make a non-frivolous showing that the agency had coerced her into retiring and thus that she had failed to satisfy her burden of showing that her retirement was involuntary.

After the administrative judge's initial decision became final, Ms. Conforto appealed to this court.

II

The first issue we must address is whether this court has jurisdiction to review the Board's ruling under the Civil Service Reform Act of 1978, 5 U.S.C. § 1101 et seq. Resolving that question requires a brief discussion of the options open to a federal employee complaining of discrimination in the workplace. First, the employee may file an EEO complaint with the employing agency; if the employee does so, the agency is obligated to investigate and take final action on the complaint. 29 C.F.R. §§ 1614.101–110. If dissatisfied with the agency's resolution of the complaint, the employee may bring an action in a United States district court. Id. § 1614.407. In the case of discrimination based on race or sex, that action would be brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e–16(c). In the case of age discrimination, that action would be brought under the Age Discrimination in Employment Act, 29 U.S.C. § 626(c). Alternatively, the employee may appeal the agency's decision to the Equal Employment Opportunity Commission (“EEOC”), and then to a district court. 29 C.F.R. §§ 1614.401–405. In certain cases, the employee has a third option—to file an appeal from the employing agency's final action to the Merit Systems Protection Board. Id.§ 1614.302.

An appeal to the Merit Systems Protection Board is available only in cases in which the adverse action in question falls within the Board's jurisdiction, such as in the case of removal or suspension for more than 14 days. 5 U.S.C. § 7512; see id. §§ 7513(a), (d), 7701(a). If the Board has jurisdiction to review an agency action against an employee, Congress has also authorized it to adjudicate the employee's claims of discrimination that would otherwise fall outside the Board's jurisdiction. Id. § 7702(a)(1); 29 C.F.R. § 1614.302; see Garcia, 437 F.3d at 1335. Such a case is referred to as a “mixed case appeal.” 29 C.F.R. § 1614.302(a)(2). By alleging forced retirement in addition to her discrimination claims, Ms. Conforto sought to bring her case before the Board as a mixed case appeal in which the Board would review both the adverse employment action and the related discrimination claims.

If an employee loses her mixed case appeal on the merits of her discrimination claim, she may obtain further review of the adverse decision, either from a district court or from the EEOC and then (if necessary) a district court, but not from this court. 5 U.S.C. §§ 7702(a)(3), 7703(b)(2); see29 C.F.R. 1614.303–310. That much is clear from the statutes and regulations pertaining to mixed case appeals.

It is now equally clear that the district court's jurisdiction would also extend to review of a mixed case appeal that the Board dismissed on procedural grounds, such as untimeliness. That is the holding of the Supreme Court's recent decision in Kloeckner v. Solis. As a result, the district court, and not this court, is charged with jurisdiction over any mixed case appeal that the Board resolves either on the merits or on procedural grounds. That in effect means that any case in which the Board exercises its jurisdiction to decide a discrimination claim, and in which the employee seeks review of that decision, is not appealable to this...