Resignation Reversed Due to Misinformation

In Aldridge v. Dept. of Agriculture, MSPB Doc. No. DC-0752-07-0821-I-1 (Sept. 10, 2008), the agency proposed to remove Ms. Aldridge on various allegations of misconduct. Prior to the issuance of a decision on the proposed termination, Ms. Aldridge retired under a voluntary early retirement program. Subsequently, Ms. Aldridge filed an EEO complaint alleging that her retirement was really involuntary as a result of the agency's failure to accommodate her disabilities. In responding to the MSPB judge's order to present evidence showing her resignation was involuntary, Ms. Aldridge provided a sworn declaration that her supervisors and the Human Resources official told her that if she did not resign, and was instead fired, she would lose her retirement benefits. Although Ms. Aldridge's supervisor said that she had written the decision letter terminating Ms. Aldridge, the supervisor refused to allow Ms. Aldridge to see the letter before requiring her to make the decision to retire or not. In order to preserve her retirement benefits after more than 28 years of government employment, which benefits Ms. Aldridge was told she would lose if terminated, Ms. Aldridge submitted her resignation.

After Ms. Aldridge filed her MSPB appeal, the agency moved to dismiss the appeal on the grounds that the Board lacked jurisdiction over a voluntary resignation. Citing well-established Board law, the agency argued that merely because Ms. Aldridge faced a choice between retirement and removal, it did not convert her voluntary retirement into an involuntary one. Notwithstanding the fact that the agency never issued a decision to remove Ms. Aldridge, the MSPB administrative judge (AJ) nevertheless held that the agency had removed Ms. Aldridge based on the charges contained in the proposal letter. The AJ then conducted a hearing on the merits of the removal action as proposed, and sustained most of the charges therein. The AJ also found that Ms. Aldridge did not prove her defense of disability discrimination. Consequently, the AJ affirmed Ms. Aldridge's "removal" as reasonable.

On appeal, the Board reversed. The Board held that the agency never issued the decision letter or effectuated Ms. Aldridge's removal. Consequently, it was error for the AJ to address the merits of the proposed removal. Instead, the case should have been considered under the legal analysis for an alleged involuntary retirement case, which was, in fact, the way Ms. Aldridge and the agency had initially approached the case.

The Board reiterated the long-standing principle that retirement decisions are presumed to be voluntary and outside the Board's jurisdiction. The retired employee bears the burden of showing that the retirement was involuntary and thus tantamount to a forced removal. Once an employee makes a "non-frivolous" allegation casting doubt on the presumption that the retirement was voluntary, she is entitled to a hearing on the issue. One way in which an employee can overcome the presumption of voluntariness is to show that her retirement was the product of misinformation or deception. In this case, Ms. Aldridge provided a sworn statement that she was informed by agency officials that if she was terminated, she would lose her retirement benefits. That information was, of course, false. Therefore, Ms. Aldridge presented evidence that she based her decision to retire, rather than to accept the termination with its right of appeal, on this false information. Consequently, the Board held that Ms. Aldridge made a nonfrivolous allegation that her retirement was involuntary.

The Board remanded the case for a hearing on the issue of whether her retirement was the result of agency misinformation and therefore involuntary within the Board's jurisdiction. Under well-established precedent, if Ms. Aldridge proves at hearing that her retirement was involuntary, she is entitled to reinstatement with full back pay and benefits. In doing so, the Board will never reach the issue of whether the original allegations against her, as stated in the proposed removal, were meritorious or not.

* 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 https://www.passmanandkaplan.com.

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