                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     ANDREW WELHOUSE,                                DOCKET NUMBER
                Appellant,                           CH-0752-12-0387-I-2

                  v.

     DEPARTMENT OF AGRICULTURE,                      DATE: August 19, 2014
                 Agency.



                       THIS ORDER IS NONPRECEDENTIAL 1

           John Durishan, Esquire, Atlanta, Georgia, for the appellant.

           Patricia Ann McNamee, Washington, D.C., for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice Chairman
                                 Mark A. Robbins, Member


                                     REMAND ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     dismissed his involuntary retirement appeal for lack of jurisdiction.         For the
     reasons discussed below, we GRANT the appellant’s petition for review.             We
     VACATE the initial decision, except to the extent that we AFFIRM the


     1
        A nonprecedential order is one that the Board has determined does not add
     significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
     but such orders have no precedential value; the Board and administrative judges are not
     required to follow or distinguish them in any future decisions. In contrast, a
     precedential decision issued as an Opinion and Order has been identified by the Board
     as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
                                                                                            2

     administrative judge’s finding that the appellant failed to nonfrivolously allege
     that he was coerced into retirement because the agency discriminated against him
     based on sex and age, and REMAND the case to the Central Regional Office for
     further adjudication in accordance with this Order.

                        DISCUSSION OF ARGUMENTS ON REVIEW
¶2            On December 15, 2009, the agency advised the appellant that he would be
     permanently reassigned from his GS-11 Farm Loan Officer position in Juneau,
     Wisconsin, to the same position and pay grade in Viroqua, Wisconsin, effective
     January 31, 2010. Initial Appeal File, MSPB Docket No. CH-0752-12-0387-I-1
     (IAF I-1), Tab 8 at 12-13. According to the appellant, Viroqua is approximately
     145 miles from Juneau. IAF I-1, Tab 1 at 8. The agency advised the appellant
     that he may be separated from federal service if he declined the reassignment, but
     that, under those circumstances, he may be entitled to a discontinued service
     retirement. IAF I-1, Tab 8 at 12. On December 17, 2009, the appellant e-mailed
     agency management officials indicating that he would not be 50 years old, and
     would therefore be ineligible for a discontinued service retirement, until
     approximately 6 months after his reassignment.             Initial Appeal File, MSPB
     Docket No. CH-0752-12-0387-I-2 (IAF I-2), Tab 4 at 24. He stated that he was
     “giv[ing] serious consideration to declining [the] reassignment” because it
     imposed a “significant hardship,” and asked whether it would be possible to delay
     the effective date of his reassignment so that he would be eligible to collect “an
     immediate (reduced) annuity.”          Id.   Then, on January 7, 2010, the agency
     cancelled the December 15, 2009 directed reassignment notice. IAF I-1, Tab 8
     at 16.
¶3            On June 10, 2010, the agency issued a new letter, advising the appellant
     that he would be permanently reassigned from Juneau to Viroqua, effective
     August 15, 2010. 2 Id. at 17-18. The appellant failed to report for duty in Viroqua

     2
         The appellant reached age 50 on July 26, 2010. See IAF I-1, Tab 8 at 29 (Box 3).
                                                                                     3

     on the date specified, so the agency charged him with being absent without leave
     and thereafter proposed his removal for refusing the directed reassignment. IAF
     I-1, Tab 1 at 12-13, Tab 11 at 37. On October 19, 2010, the agency approved the
     appellant’s retirement, retroactive to August 15, 2010, before issuing a decision
     on the proposed removal. IAF I-1, Tab 8 at 29.
¶4        The appellant subsequently filed an appeal with the Board, alleging that his
     retirement was involuntary. IAF I-1, Tab 1. He requested a hearing. Id. at 2. He
     did not dispute the agency’s contention that his reassignment was necessary
     because the Juneau office was closed pursuant to a reorganization; however, he
     asserted that the agency had no legitimate business reason to reassign him to
     Viroqua and could have instead reassigned him to its office in Fond du Lac,
     Wisconsin, which was within his commuting area. Id. at 8-11. He contended that
     the agency’s failure to reassign him to Fond du Lac constituted discrimination
     based on age and sex. Id.; IAF I-2, Tab 4 at 11.
¶5        The administrative judge dismissed the appellant’s appeal for lack of
     jurisdiction, without holding the requested hearing, finding that the appellant
     failed to make a nonfrivolous allegation that his retirement was involuntary. IAF
     I-2, Tab 5, Initial Decision (ID). The administrative judge made no finding as to
     the timeliness of the appellant’s appeal, although the agency moved to dismiss the
     appeal as untimely filed. ID at 7.
¶6        The appellant has filed a petition for review, again alleging that the
     agency’s decision to reassign him was motivated by age and sex discrimination
     and was not based on bona fide management considerations. Petition for Review
     File, MSPB Docket No. CH-0752-12-0387-I-2 (PFR File), Tab 1.
     The appellant has not shown that he was coerced into retirement because the
     agency allegedly engaged in discriminatory conduct.
¶7        At the jurisdictional stage, the Board may only consider allegations of
     discrimination under Title VII in connection with an involuntary retirement
     appeal, insofar as they relate to the issue of voluntariness. Markon v. Department
                                                                                           4

     of State, 71 M.S.P.R. 574, 578-80 (1996).         That is, the Board may consider
     evidence of discrimination to the extent that it demonstrates that an agency’s
     discriminatory conduct created working conditions which were so difficult that
     any reasonable employee would have felt coerced to resign or retire. Id. For the
     reasons discussed below, we find the appellant’s discrimination argument wholly
     insufficient to constitute a nonfrivolous allegation that his retirement was
     involuntary because he was coerced to retire.
¶8         In support of his argument, the appellant notes that a younger female
     employee was assigned to the Farm Loan Officer position in Fond du Lac,
     although he repeatedly expressed interest in, and was qualified for, the position.
     PFR File, Tab 1 at 13. The appellant also states that Viroqua is within the other
     employee’s commuting area 3 and that Fond du Lac is outside her commuting area,
     suggesting that the agency’s choice to reassign both of them outside of their
     respective local commuting areas was illogical and, therefore, a pretext for
     discrimination. Id. at 9; IAF I-1, Tab 5 at 12. Like the appellant, the employee
     was reassigned to a position outside her commuting area when the agency closed
     the office where her duty station was located. IAF I-2, Tab 4 at 45. The fact that
     a younger female was treated similarly to the appellant negates his discrimination
     claim.   See Russell v. Department of Justice, EEOC App. No. 0120064049,
     2006 WL 3697905 at *1 (Dec. 5, 2006) (affirming a finding of no discrimination
     where the individual the complainant cited as a comparator was not similarly-
     situated to her and the record contained evidence that individuals outside of the
     complainant’s protected class were treated similarly under like circumstances). 4



     3
       This appears to be in dispute. The younger female employee states that Viroqua is
     “approximately 90 to 120 minutes” away from her former duty station. IAF I-2, Tab 4
     at 46. For the purpose of this decision, we assume, without deciding, that the appellant
     is correct.
     4
      In addressing the appellant’s discrimination claim, we have cited to EEOC decisions.
     This is proper because the Board may defer to the EEOC concerning issues of
                                                                                       5

¶9         The appellant also argues that the agency’s explanation for his reassignment
      to Viroqua—that the Fond du Lac office was better suited for the aforementioned
      younger female employee, who had fewer years of experience than the appellant,
      because it had a strong on-site management team—is a pretext for age and sex
      discrimination because the agency initially “informally offered” the position to an
      employee with 25 years of experience. PFR File, Tab 1 at 14. This employee is a
      male and is approximately 10 years older than the appellant. IAF I-2, Tab 4
      at 35. Thus, the appellant’s reliance on him also negates his discrimination claim
      because if, as the appellant contends, the agency offered the Farm Loan Officer
      position in Fond du Lac to an older male, this would suggest the absence of any
      discriminatory animus towards older and/or male employees. See McCreary v.
      Defense Logistics Agency, EEOC App. No. 0120070257, 2008 WL 1847390 at *4
      (Apr. 14, 2008) (complainant’s citing to an individual within his protected class
      who received more favorable treatment than he did created an inference that his
      protected class did not play a role in the agency action he alleged was
      discriminatory). We also note that the appellant has not disputed evidence in the
      record indicating that the agency (1) reassigned a Program Technician who was
      approximately 55 years old to the Fond du Lac office, which was within her local
      commuting area, and (2) reassigned two additional employees who were
      significantly younger than the appellant, one of whom was female, outside of
      their commuting areas, all of which further negates the appellant’s discrimination
      claims. IAF I-2, Tab 4 at 20, 36; see McCreary, 2008 WL 1847390 at *4.
¶10        Based on the foregoing, we AFFIRM the administrative judge’s finding that
      the appellant’s argument that his retirement was involuntary because he was
      coerced to retire due to age and sex discrimination does not constitute a
      nonfrivolous allegation of Board jurisdiction. See ID at 6.



      substantive discrimination law.     See,   e.g.,   Wingate v. U.S. Postal Service,
      118 M.S.P.R. 566, ¶ 7 (2012).
                                                                                           6

      The appellant has nonfrivolously alleged that his reassignment outside of his
      commuting area was not based on bona fide management considerations.
¶11         When a retirement involves a directed reassignment, the Board has held that
      the involuntariness of the retirement may be established by showing that the
      reassignment had no solid or substantial basis in personnel practice or principle.
      Caveney v. Office of Administration, 57 M.S.P.R. 667, 670 (1993).                    A
      reassignment must be “properly ordered due to bona fide management
      considerations in the interest of promoting the efficiency of the service.” Miller
      v. Department of the Interior, 120 M.S.P.R. 426, ¶ 11 (2013).            Although an
      agency may exercise its management discretion to reassign its employees as
      necessary for the efficiency of the service, it may not use its discretionary
      reassignment authority as a veil to improperly pressure an employee to retire or
      resign. Caveney, 57 M.S.P.R. at 670; see McClelland v. Andrus, 606 F.2d 1278,
      1291 (D.C. Cir. 1979) (an agency must establish that a reassignment promotes the
      efficiency of the service, and the fact that an agency articulates a rational basis
      for a reassignment “does not eliminate the possibility that the transfer was a sham
      way of achieving a predetermined result”).
¶12         The appellant alleges that his reassignment to Viroqua was not based on
      bona fide management considerations, but rather, on agency management’s desire
      to make his reassignment as “difficult as possible.” PFR File, Tab 1 at 15. He
      contends that the agency “intentionally inconvenienced and badgered [him] by
      reassigning him to an office outside of his commuting area to coerce him into
      retirement.” Id. at 16. In support of this claim, he references the affidavit 5 of his

      5
        Although the former second-level supervisor affirms that the information contained in
      his affidavit is “true and complete,” it is not made under penalty of perjury. IAF I-1,
      Tab 11 at 38. However, we have considered it as documentary evidence which supports
      the appellant’s allegation of Board jurisdiction. See Alford v. Department of the Army,
      47 M.S.P.R. 271, 274 (1991) (the appellant submitted documentary evidence to support
      her allegation of Board jurisdiction and the Board thus found that the administrative
      judge erred in making factual findings concerning the weight of the evidence submitted
      by both parties because such determinations should not have been made until after a
      hearing).
                                                                                         7

      former second-level supervisor, who was “present at meetings where relocations
      were discussed.” IAF I-1, Tab 11 at 35-36. The former second-level supervisor
      states his belief that agency officials “did not transfer the [appellant] to the Fond
      du Lac office because they wanted to make [his] transfer as difficult as possible”
      and that the appellant “could have been transferred within his local commuting
      area if [agency officials] wanted to work with him.” Id. at 36-37. He further
      states that the Farm Loan Manager in Fond du Lac, “had a personality conflict
      with” the appellant, noting that this should not constitute “an adequate
      justification to force the [appellant] to retire.” Id. at 38.
¶13         We find that the foregoing constitutes a nonfrivolous allegation of Board
      jurisdiction over the appellant’s involuntary retirement appeal and that the
      appellant is therefore entitled to a jurisdictional hearing if his appeal was timely
      filed. See Coufal v. Department of Justice, 98 M.S.P.R. 31, ¶ 23 (2004). We
      therefore remand this appeal for further adjudication.

                                              ORDER
            For the reasons discussed above, we REMAND this case to the Central
      Regional Office for a jurisdictional hearing, and further adjudication if
      appropriate, in accordance with this Remand Order.                On remand, the
      administrative judge should address the agency’s motion to dismiss the
      appellant’s appeal as untimely filed. See IAF I-1, Tab 8 at 10-11.




      FOR THE BOARD:                              ______________________________
                                                  William D. Spencer
                                                  Clerk of the Board
      Washington, D.C.
