Rushed Resignation Not Coercive

On March 12, 2008, the U.S. Court of Appeals for the Federal Circuit issued its decision in Parrott v. Merit Systems Protection Board, Case No. 2007-3119. The Federal Circuit affirmed the Merit Systems Protection Board (MSPB) dismissal of Parrott's appeal for lack of MSPB jurisdiction over his constructive removal claims.

Parrott, the petitioner, was the assistant federal security director for the Transportation Security Administration (TSA) office at Raleigh-Durham Airport (RDU). Security breaches at RDU prompted a TSA management inquiry in early 2005, an inquiry in which Parrott participated. In April 2005, the TSA Professional Review Board (PRB) met to consider a possible adverse action against Parrott. At 10:00 a.m. on Friday, May 27, 2005, Parrott was notified by TSA officials that the PRB had decided to issue a notice of proposed removal later that day. The officials verbally described the charges to appear in that notice of proposed removal with particularity. Parrott requested to see the notice of proposed removal at that time, but the TSA officials refused.

The TSA officials told Parrott that he had three options: (a) resign immediately for "personal reasons" prior to service of the notice of proposed removal, (b) resign in lieu of termination after service the notice of proposed removal, or (c) attempt to respond to the notice of proposed removal before the deciding official. The TSA officials gave Parrott one hour to respond. Parrott unsuccessfully attempted to contact his attorney during that hour. Parrott requested additional time beyond that hour to contact his attorney, but the TSA officials denied his request. Parrott then opted to resign immediately for "personal reasons," signing a settlement agreement and resignation letter at or before 2:00 p.m. that day.

Parrott appealed to the MSPB on the basis of constructive removal. The administrative judge (AJ) found that Parrott had made nonfrivolous allegations of constructive removal sufficient to warrant a jurisdictional hearing. After that hearing, the AJ found that Parrott had failed to prove constructive removal and dismissed his case for lack of jurisdiction. In Parrott v. Department of Homeland Security, 104 M.S.P.R. 171 (2006), a divided Board affirmed the dismissal. Member Sapin dissented, finding that the one-hour time period afforded Parrott was so short as to be coercive, especially in light of his inability to contact his attorney and the lack of a strong TSA rationale for denying Parrott's request for additional time to contact his counsel. Chairman McPhie wrote a concurring opinion, reasoning that Parrott had received constructive advance notice of the possible adverse action from the TSA formal investigation, that he had no right to advance notice of the proposed adverse action, and that the TSA's refusal to show Parrott the notice of proposed removal was consistent with OPM regulations requiring that the circumstances of the removal be noted in the official personnel folder if the employee had received written notice of the proposed removal.

The Federal Circuit affirmed the dismissal, finding no coercive act by TSA such as to convert the resignation into a constructive removal. The Federal Circuit found the limited time provided to Parrott to not be coercive, as under statute the TSA was not required to provide Parrott with any advance notification of the proposal to remove. Instead, the Federal Circuit reasoned that giving Parrott this advance notice actually benefited him by providing a more attractive option than those accorded by statute: the opportunity to resign for "personal reasons" instead of resigning in lieu of termination. While Parrott might have desired additional time to contemplate that option before making his decision, the Federal Circuit held that the TSA's failure to grant such additional time did not constitute coercion. Finding no coercive act, the Federal Circuit deemed the resignation voluntary, excluding the matter from MSPB jurisdiction.

* 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/.

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