Hearing Ordered in Involuntary Resignation Case

The MSPB recently reversed an initial decision, found that it had jurisdiction over an appeal by an investigative analyst who resigned after being informed that he would be terminated, and remanded the case for a hearing. Gibeault v. Dept. of the Treasury, 2010 MSPB 195 (9/23/10). The appellant alleged that he was told that if he did not resign within 24 hours, any request for reconsideration would be denied and he would be foreclosed from any future employment opportunities with the government due to having an adverse action recorded in his personnel file. While conceding that he had failed to perform certain job tasks, the appellant contended that termination was excessive.

The administrative judge ruled that the appellant had failed to make a non-frivolous allegation that his retirement was involuntary based on duress, coercion, or misrepresentation and thus was not entitled to a hearing. The AJ held that because the agency did not issue a notice of proposed removal, the appellant could not argue that the agency knew it would not prevail on such an action. On appeal, the appellant argued that the AJ erred in finding that a resignation would make it easier for him to find subsequent employment and in not finding that the agency provided misleading information and failed to provide him with accurate information regarding his recourse if the removal occurred.

The Board noted that an employee-initiated resignation is presumed to be voluntary and not appealable "unless the employee presents sufficient evidence to establish that the action was obtained through duress or coercion or shows that a reasonable person would have been misled by the agency." Searcy v. Dept. of Commerce, 114 MSPR 281 (2010). Furthermore, "an employee-initiated action is considered involuntary if it resulted from the employee's reasonable reliance on the agency's misleading statements, or from the agency's failure to provide the employee with adequate information on which to make an informed choice." Smitka v. USPS, 66 MSPR 680, 689 (1993), aff'd, 78 F.3d 605 (Fed. Cir. 1996) (Table). The Board went on to find that while an employee who is removed may not be viewed favorably for future government employment, he is not ineligible. Moreover, appellant was not informed that he had could challenge the proposed action and had the right to appeal to the Board.

Therefore, the Board concluded that the appellant has alleged that "the agency provided him with, if not incorrect, then at least misleading or incomplete, information as to his options . . . regardless of whether the agency was aware that its statements were misleading." Covington v. HHS, 750 F.2d 937, 942 (Fed. Cir. 1984). After finding that the appellant was a long-time employee who had never been disciplined and that he reasonably relied upon the statements in concluding that he had no real choice but to resign, the Board decided that the appellant "raised a nonfrivolous allegation that his resignation was involuntary based on misleading statements, and that he is therefore entitled to a hearing."

* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com.