                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     JOHN A. STOLARCZYK,                             DOCKET NUMBER
                   Appellant,                        DC-1221-10-0875-B-2

                  v.

     DEPARTMENT OF HOMELAND                          DATE: September 23, 2014
       SECURITY,
                 Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Nicholas Woodfield, Esquire, and R. Scott Oswald, Esquire, Washington,
             D.C., for the appellant.

           Daniela Murch, Joseph Rieu, and Michael W. Gaches, Esquire, Arlington,
             Virginia, for the agency.


                                           BEFORE

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


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the remand initial decision,
     which dismissed his individual right of action (IRA) appeal for lack of


     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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     jurisdiction. Generally, we grant petitions such as this one only when: the initial
     decision contains erroneous findings of material fact; the initial decision is based
     on an erroneous interpretation of statute or regulation or the erroneous application
     of the law to the facts of the case; the judge’s rulings during either the course of
     the appeal or the initial decision were not consistent with required procedures or
     involved an abuse of discretion, and the resulting error affected the outcome of
     the case; or new and material evidence or legal argument is available that, despite
     the petitioner’s due diligence, was not available when the record closed.       See
     Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
     § 1201.115). After fully considering the filings in this appeal, and based on the
     following points and authorities, we conclude that the petitioner has not
     established any basis under section 1201.115 for granting the petition for review.
     Therefore, we DENY the petition for review and AFFIRM the initial decision,
     which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2         This IRA appeal is before the Board on petition for review of a remand
     initial decision dismissing it for lack of jurisdiction. In its prior Opinion and
     Order, the Board found that the appellant made nonfrivolous allegations that he
     made protected disclosures concerning misuse of government credit cards and
     that the agency subjected him to at least one covered personnel action (a
     probationary termination).      Stolarczyk v. Department of Homeland Security,
     119 M.S.P.R. 343, ¶¶ 13-22 (2012).          We also found that the circumstances of
     these events would be sufficient to establish through the knowledge/timing test of
     5 U.S.C. § 2302(a)(2)(A), that the appellant’s disclosures were a contributing
     factor to his termination. Id., ¶¶ 23-24.
¶3         On remand, the administrative judge scheduled a hearing on the merits of
     the appeal. MSPB Docket No. DC-1221-10-0875-B-1 (B-1), Remand File (RF),
     Tab 1. Subsequently, the appellant confirmed that the agency did not terminate
     him; rather, he resigned when the agency presented him with a termination letter
     and provided him the option to resign in lieu of termination. MSPB Docket No.
                                                                                        3

     DC-1221-10-0875-B-2 (B-2), RF, Tab 9 at 1-2. The administrative judge notified
     the appellant of how to show that his resignation was involuntary and ordered him
     to file evidence and argument on the issue. Id. at 2-3. The administrative judge
     also notified the appellant that, if he made a nonfrivolous allegation that his
     resignation was involuntary, then the Board would have jurisdiction to adjudicate
     that personnel action in the context of the instant IRA appeal. Id. at 3-4.
¶4         In accordance with the administrative judge’s order, the appellant filed
     evidence and argument on the issue of voluntariness.         B-2, RF, Tab 10. The
     administrative judge then notified the parties that “the record plainly
     demonstrates that the appellant resigned from his position in order to avoid the
     consequences of a formal termination action” and that he therefore did not intend
     to take any further evidence on the issue at the hearing. B-2, RF, Tab 12 at 2.
     Nevertheless, because the appellant had established IRA jurisdiction with respect
     to other personnel actions, i.e., a nonselection for appointment and a change in
     duties, responsibilities, and official title, the administrative judge would render a
     decision on whether the resignation was voluntary after a hearing on the merits.
     B-2, RF, Tab 12 at 1-2, Tab 24 at 2.
¶5         Subsequently, the appellant filed a “Notice of Voluntary Dismissal and
     Request for Jurisdictional Order.” B-2, RF, Tab 25. He withdrew his claims
     regarding the nonselection and change in duties, responsibilities and official title,
     so that the only personnel action remaining was the alleged constructive
     termination. Id. at 4-5. Given the administrative judge’s intention not to accept
     testimony at the hearing regarding the constructive termination, the appellant
     requested that the administrative judge issue an initial decision on the written
     record so that he could petition for review to the full Board. 2 Id. at 4-5.



     2
       The appellant reserved his right to a hearing should the Board remand the appeal a
     second time on a finding that he made a nonfrivolous allegation that he was
     constructively terminated. B-2, RF, Tab 25 at 5.
                                                                                         4

¶6        The administrative judge issued a remand initial decision dismissing the
     appeal for lack of jurisdiction. B-2, RF, Tab 27, Remand Initial Decision (RID)
     at 1, 12. He found that the appellant did not allege that his resignation was the
     product of intolerable working conditions, misinformation, misrepresentation, or
     deception; nor did he claim that the agency knew that it would not prevail if the
     action was challenged or that it lacked reasonable grounds to support its decision
     to terminate his probationary employment. RID at 10-11. Rather, he appeared to
     rely on a “fundamental misunderstanding” of controlling legal authority when he
     claimed that his decision to resign in order to avoid the consequences of a
     removal for cause was coercive as a matter of law.              RID at 11.      The
     administrative judge found that the appellant was forced to choose between two
     unpleasant alternatives—termination and resignation—but that his choice of
     resignation was nevertheless voluntary. RID at 10.
¶7        The appellant has filed a petition for review, arguing that the agency lacked
     reasonable grounds to terminate him because its termination was in retaliation for
     protected whistleblowing. B-2, Petition for Review (PFR) File, Tab 1 at 12. He
     argues that the remand initial decision is contrary to Board and U.S. Court of
     Appeals for the Federal Circuit precedent regarding constructive removals. Id. at
     13-16. Specifically, he argues that the administrative judge presupposed that the
     agency would have met its burden of showing by clear and convincing evidence
     that it would have terminated him notwithstanding his whistleblowing and that he
     required the appellant to show in advance of the hearing that his resignation was
     involuntary in order to obtain a hearing on that very issue. Id. at 16. Finally, the
     appellant argues that the administrative judge failed to follow the Board’s
     instruction to resolve on remand the issue of termination on the merits. Id. at
     16-17. The agency has filed a response to the petition for review, PFR File, Tab
     3, and the appellant has filed a reply to the agency’s response, PFR File, Tab 4.
¶8        As an initial matter, we disagree with the appellant that the administrative
     judge failed on remand to follow the Board’s instructions. In our Opinion and
                                                                                        5

      Order, as quoted in the petition for review, the Board found that the appellant
      made a nonfrivolous allegation that he was terminated, and we directed the
      administrative judge to resolve on the merits the issue of whether the appellant
      was, in fact, terminated. Stolarczyk, 119 M.S.P.R. 343, ¶ 13. In making this
      finding, we perceived a factual dispute concerning whether the agency terminated
      the appellant or whether he resigned.       Id.   Ultimately, however, it proved
      unnecessary for the administrative judge to decide this issue because the appellant
      conceded on remand that he separated from service by resignation. B-2, RF, Tab
      9 at 1-2.   He clarified that he was claiming that his resignation constituted a
      constructive termination. Id. Our Opinion and Order did not address the issue of
      whether the appellant made a nonfrivolous allegation that he was subjected to a
      constructive termination.
¶9         As for the appellant’s argument that he resigned in the face of an improper
      termination action, the administrative judge stated below that he did not perceive
      any such argument by the appellant. RID at 10-11. Moreover, this argument
      appears to be inconsistent with the appellant’s stipulation during the prehearing
      conference that there was no dispute of material fact concerning the voluntariness
      of his resignation. B-2, RF, Tab 24 at 2 n.1. Therefore, the appellant’s argument
      that he resigned in the face of an improper termination has the appearance of
      being raised for the first time on petition for review. See Banks v. Department of
      the Air Force, 4 M.S.P.R. 268, 271 (1980) (the Board generally will not consider
      an argument raised for the first time in a petition for review absent a showing that
      it is based on new and material evidence not previously available despite the
      party’s due diligence). Nevertheless, considering that this is an IRA appeal and
      that the appellant’s argument bears on the jurisdictional issue, we will give him
      the benefit of the doubt and find that he raised it implicitly below.      We will
      therefore consider it on review.
¶10        A constructive termination is a personnel action under the Whistleblower
      Protection Act. Murphy v. Department of Veterans Affairs, 102 M.S.P.R. 238, ¶ 8
                                                                                       6

      (2006). However, just as in appeals under 5 U.S.C. chapter 75 and 5 C.F.R. Part
      315, a resignation is actionable in an IRA appeal only if the appellant shows that
      it was involuntary. Lawley v. Department of the Treasury, 84 M.S.P.R. 253, ¶ 8
      (1999); Mintzmyer v. Department of the Interior, 84 F.3d 419, 423 (1996). Under
      the appellant’s theory of the case, the question of whether his resignation
      amounted to a constructive removal is intertwined with whether the agency
      retaliated against him for whistleblowing. In other words, the Board would have
      to determine if the agency’s decision to terminate the appellant was in retaliation
      for whistleblowing before it could determine whether the appellant’s resignation
      was a constructive termination. It is true that the Board will sometimes consider
      reprisal and discrimination claims for the limited purpose of determining whether
      a retirement or resignation was voluntary. Garcia v. Department of Homeland
      Security, 437 F.3d 1322, 1341 (Fed. Cir. 2006) (en banc); Markon v. Department
      of State, 71 M.S.P.R. 574, 578 (1996); Tripp v. Department of the Air Force,
      59 M.S.P.R. 458, 461 (1993).     This is so even in the context of IRA appeals
      alleging constructive removals as personnel actions. Diefenderfer v. Department
      of Transportation, 108 M.S.P.R. 651, ¶ 37 (2008).          However, the Board’s
      consideration of these issues does not extend to the ultimate determination of
      whether discrimination or reprisal actually occurred. See Taber v. Department of
      the Air Force, 112 M.S.P.R. 124, ¶ 11 (2009) (in an involuntary retirement or
      resignation appeal, evidence of discrimination goes to the ultimate question of
      coercion, i.e., whether under all of the circumstances, working conditions were
      made so difficult by the agency that a reasonable person in the employee’s
      position would have felt compelled to resign or retire).
¶11        Nor does this line of cases have any bearing on the theory of
      involuntariness under which the appellant is proceeding, i.e., that he resigned in
      the face of an improper termination. The appellant argues that the issue should be
      analyzed by weighing the evidence that the agency decided to terminate him
      based on protected whistleblowing against the evidence that the agency
                                                                                          7

      terminated him because he was not a good employee. PFR File, Tab 1 at 16.
      However, this is not the proper standard. The proper standard is whether the
      agency knew or should have known that the reasons for its threatened termination
      could not be substantiated.       Harris v. Department of Veterans Affairs,
      114 M.S.P.R. 239, ¶ 8 (2010) (citing Schultz v. U.S. Navy, 810 F.2d 1133, 1136
      (Fed. Cir. 1987)).   To show that his resignation amounted to a constructive
      termination under this theory, the appellant must do more than merely rebut the
      agency’s reasons for terminating him.       He must show that the agency lacked
      reasonable grounds for threatening the termination in the first place. Garland v.
      Department of the Air Force, 44 M.S.P.R. 537, 540-41 (1990).
¶12        Regardless of whether the appellant was a whistleblower, the record shows
      that the agency did have reasonable grounds for terminating his employment.
      These include reports from multiple employees, including the appellant’s
      supervisors, subordinates, and peers, that the appellant had an unprofessional
      communication style marked with loud, angry outbursts and an intimidating
      demeanor. MSPB Docket No. DC-1221-10-0875-W-1, Initial Appeal File (IAF),
      Tab 7, Subtabs 4B-4E, Tab 19, Subtab 18; B-2, RF, Tab 17 at 36-37.                This
      evidence provided a reasonable basis for the agency’s decision to terminate the
      appellant for his inability to control his temper and poor interpersonal skills.
      IAF, Tab 19, Subtab 26.         The appellant’s whistleblower claim and his
      characterization of these reports as “exaggerations” and “isolated anecdotes” may
      constitute plausible rebuttals to the agency’s reasons for terminating him, but
      they do not constitute a nonfrivolous allegation that the agency lacked reasonable
      grounds for its threatened action or that the reasons for the termination could not
      be substantiated.
¶13        Furthermore,    we   disagree   with   the   appellant’s   argument   that    the
      administrative judge applied the preponderance of the evidence standard in
      dismissing his appeal for lack of jurisdiction. PFR File, Tab 1 at 16. In his
      remand initial decision, the administrative judge captioned the discussion of the
                                                                                         8

      voluntariness issue as follows:    “The appellant has failed to prove that his
      decision to resign from his position in lieu of a probationary termination was
      involuntary.” RID at 8. Although this may suggest that the administrative judge
      applied a preponderant evidence standard, a reading of the analysis itself shows
      that the administrative judge based it on the undisputed facts of the case, as the
      parties agreed that he would do during the prehearing conference. RID at 10-11;
      B-2, RF, Tab 24 at 2 n.1. To the extent that the administrative judge did not
      consider   whether the reasons     for   the   threatened   termination   could   be
      substantiated, this is because the appellant failed to apprise the administrative
      judge that this was the nature of his claim even though the administrative judge
      notified him of this theory of involuntariness and directed him toward the
      relevant case law. B-2, RF, Tab 9 at 2-3.
¶14        In this regard, we note that the agency subjected the appellant to a covered
      personnel action when it presented him with a termination notice and threatened
      to terminate him. See 5 U.S.C. § 2302(a)(2)(A)(iii); Zygmunt v. Department of
      Health & Human Services, 61 M.S.P.R. 379, 381 (1994). In Zygmunt, the Board
      found that the appellant’s claim that the agency constructively removed her in
      retaliation for whistleblowing was, in the context of her IRA appeal, better
      construed as a claim that the agency threatened to remove her in retaliation for
      whistleblowing.   61 M.S.P.R. at 381-84.       It remanded the appeal for further
      adjudication under that theory.    Id. at 381-82.     In this case, however, the
      appellant, represented by an attorney, has been explicit that the only personnel
      action at issue in this IRA appeal is a constructive termination. B-2, RF, Tab 24
      at 2-3, Tab 25.   Neither the appellant, nor the administrative judges, nor the
      Board in its previous Opinion and Order considered the appellant’s constructive
      removal claim under this theory. Importantly, the appellant does not argue on
      petition for review that the administrative judge erred in failing to consider the
      threatened termination as a separate personnel action. See 5 C.F.R. § 1201.115
      (the Board normally will consider only issues raised in a timely filed petition or
                                                                                    9

cross petition for review). For these reasons, we find it inappropriate to raise a
new personnel action sua sponte at this stage of the litigation.

                  NOTICE TO THE APPELLANT REGARDING
                     YOUR FURTHER REVIEW RIGHTS
        You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit.
        The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
        If you want to request review of the Board’s decision concerning your
claims    of   prohibited   personnel   practices   under   5   U.S.C.   § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request review of this final decision by the United States Court of Appeals
for the Federal Circuit or any court of appeals of competent jurisdiction. The
court of appeals must receive your petition for review within 60 days after the
date of this order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If
you choose to file, be very careful to file on time. You may choose to request
review of the Board’s decision in the United States Court of Appeals for the
Federal Circuit or any other court of appeals of competent jurisdiction, but not
both.    Once you choose to seek review in one court of appeals, you may be
precluded from seeking review in any other court.
        If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
                                                                                10

States   Code,    at   our   website,   http://www.mspb.gov/appeals/uscode.htm.
Additional information about the United States Court of Appeals for the Federal
Circuit is available at the court's website, www.cafc.uscourts.gov. Of particular
relevance is the court's "Guide for Pro Se Petitioners and Appellants," which is
contained within the court's Rules of Practice, and Forms 5, 6, and 11.
Additional information about other courts of appeals can be found at their
respective       websites,     which       can         be   accessed       through
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
     If you are interested in securing pro bono representation for an appeal to the
United States Court of Appeals for the Federal Circuit, you may visit our website
at http://www.mspb.gov/probono for a list of attorneys who have expressed
interest in providing pro bono representation for Merit Systems Protection Board
appellants before the Federal Circuit.      The Merit Systems Protection Board
neither endorses the services provided by any attorney nor warrants that any
attorney will accept representation in a given case.




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