                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     ROBERT D. O'BRIEN,                              DOCKET NUMBER
                   Appellant,                        AT-0752-14-0640-I-1

                  v.

     DEPARTMENT OF THE ARMY,                         DATE: February 10, 2015
                 Agency.



             THIS FINAL ORDER IS NO NPRECEDENTIAL 1

           Adam Jerome Conti, Atlanta, Georgia, for the appellant.

           Christopher M. Kenny, Fort Gordon, Georgia, 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 the appeal for lack of jurisdiction. For the reasons discussed below, we
     GRANT the appellant’s petition for review and REMAND the case to the regional
     office for further adjudication in accordance with this order.


     1
        A nonprecedential order is one that the Board has determined does not add
     sign ificantly 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 Parties may cite nonprecedential orders,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

¶2        The appellant occupied a GS-13 Supervisory Security Specialist position,
     which was designated as a law enforcement officer position and was subject to
     random drug testing. Initial Appeal File (IAF), Tab 1. A urine sample that he
     provided on February 5, 2014, was certified by an agency Medical Review
     Officer as testing positive for codeine and morphine.           Id.   The appellant
     maintained that he had codeine in his system because he had taken prescription
     cough syrup with codeine a few days before the test, and that codeine metabolized
     into morphine.   Id.   He indicated during the investigation of the positive test
     result that he did not submit his prescription for cough syrup with codeine
     because he had been told that the agency would not accept a prescription that was
     more than 6 months old and his prescription was written more than 6 months prior
     to the drug test. IAF, Tab 4 at 28. Subsequently, the appellant became aware that
     the agency proposed to remove him based on the positive drug test result, and he
     resigned before receiving the notice of proposed removal. IAF, Tab 9 at 11.
¶3        The appellant filed an appeal, alleging that his supervisor provided
     inaccurate and misleading information that coerced his resignation. Specifically,
     he alleged that, during a meeting on April 2, 2014, his supervisor failed to inform
     him that before he could be removed, he had the right to an advance notice and an
     opportunity to respond. Id. The appellant represented that during the meeting his
     supervisor said that the agency had decided to remove the appellant and that to be
     eligible for federal retirement and/or to get reinstated somewhere in the federal
     system, he had to resign immediately, prior to being formally issued the notice of
     proposed removal that the supervisor said he had in hand. Id. The appellant
     alleged that, based on the supervisor’s representation during the meeting, he
     returned to his office, drafted a resignation letter that he dated April 1, 2014, and
     submitted it before receiving the proposed removal notice. Id.
¶4        The administrative judge found that the appellant had made a nonfrivolous
     allegation that his resignation was coerced by his supervisor’s misleading
     statements, and held a jurisdictional hearing at which the appellant and his
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     supervisor testified about the meeting of April 2, 2014. IAF, Tab 14. She found
     that the appellant’s version was not credible. IAF, Tab 12, Initial Decision (ID)
     at 5. Rather, she credited the appellant’s supervisor’s testimony that the appellant
     arrived at the meeting with the resignation letter in hand. ID at 5. In crediting
     the supervisor’s testimony, the administrative judge found that the supervisor’s
     statement that the meeting lasted fewer than 5 minutes was corroborated by
     another employee who was in the office at the time of the meeting, and that his
     testimony was consistent with the statement that he provided earlier. ID at 5.
     She also found that, even if the appellant’s supervisor made the statements that
     the appellant alleges were made, the appellant was an experienced and trained
     supervisor who knew or should have known that his removal needed to be
     proposed before it was finalized and that he would have an opportunity to respond
     to a deciding official. ID at 6-7. Thus, the administrative judge found that the
     appellant failed to show that his resignation was the result of coercion. ID at 6-8.
¶5        In his petition for review, the appellant asserts that, on August 22, 2014,
     based on information that he learned during the August 18, 2014 Board hearing,
     he telephoned the agency’s drug testing laboratory to inquire into the manner that
     his drug test had been processed. Petition for Review (PFR) File, Tab 4 at 7-8.
     He said that the laboratory asked for copies of his prescriptions regardless of how
     old they were, and he promptly provided them. Id. at 8. On September 2, 2014,
     he received a copy of a Lab Results Report that reflected negative results for his
     drug test based on the urine sample that he provided on February 5, 2014. Id. at
     27. With his petition for review, the appellant provided an affidavit repeating
     that he did not provide any prescriptions during the investigation of the positive
     test result because he had been wrongly informed that he may submit only
     prescriptions that were less than 6 months old. Id. at 15. He also provided a
     copy of the Lab Results Report showing negative results, and a list of his
     prescriptions   showing    that   he    was   prescribed   guaifenesin/codeine   on
     August 31, 2011.    Id. at 21, 27.     The appellant asks the Board to accept the
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     affidavit, prescription information, and the September 2, 2014 Lab Results Report
     into the record as new evidence to show that he resigned based on misleading
     information.
¶6        Under 5 C.F.R. § 1201.115, the Board generally will not consider evidence
     submitted for the first time with the petition for review absent a showing that it
     was unavailable before the record was closed despite the party’s due diligence.
     Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980). Further, the Board
     will not grant a petition for review based on new evidence absent a showing that
     it is of sufficient weight to warrant an outcome different from that of the initial
     decision. Russo v. Veterans Administration, 3 M.S.P.R. 345, 349 (1980).
¶7        Here, nothing contradicts the appellant’s statement that he first learned
     during the hearing in his appeal that the agency provided misleading information
     regarding whether he could submit prescriptions that were older than 6 months.
     He contacted the drug testing laboratory within 4 days of the hearing in his
     appeal.   We find that under these circumstances the appellant acted with due
     diligence to contact the laboratory, and to obtain the new evidence that he
     submits on petition for review. We find further that the appellant’s statement,
     made under penalty of perjury, that he was misled into failing to submit his
     prescription for cough syrup with codeine, if proven, could constitute evidence
     sufficient to warrant a different jurisdictional outcome.         See Henson v.
     Department of the Treasury, 86 M.S.P.R. 221, ¶ 7 (2000).
¶8        A decision to resign is presumed to be a voluntary act outside the Board’s
     jurisdiction, and the appellant bears the burden of showing that his resignation
     was involuntary and therefore tantamount to a forced removal.          Baldwin v.
     Department of Veterans Affairs, 111 M.S.P.R. 586, ¶ 15 (2009). One means by
     which an appellant may overcome the presumption of voluntariness is by showing
     that the resignation was obtained by agency misinformation or deception. Id.
¶9        The touchstone of the analysis of whether a retirement or resignation is
     voluntary is whether the employee made an informed choice.           Id., ¶ 16. A
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      decision made “with blinders on,” based on misinformation or lack of
      information, cannot be binding as a matter of fundamental fairness and due
      process.     Id. (quoting Covington v. Department of Health & Human
      Services, 750 F.2d 937, 943 (Fed. Cir. 1984)).         The Board has stated that the
      principles set forth in the court’s decisions in Scharf v. Department of the Air
      Force, 710 F.2d 1572, 1574–75 (Fed. Cir. 1983), and Covington require an
      agency to provide information that is not only correct in nature but adequate in
      scope to allow an employee to make an informed decision, and that this includes
      an obligation to correct any erroneous information that it has reason to know an
      employee is relying on. Baldwin, 111 M.S.P.R. 586, ¶ 16; see Johnson v. U.S.
      Postal Service, 66 M.S.P.R. 620, 627–28 (1995).
¶10        We find that the appellant’s new evidence constitutes a nonfrivolous
      allegation of facts which, if proven, could warrant setting aside the drug test
      carried    out   without   the   benefit   of   that    prescription.    See,   e.g.,
      Henson, 86 M.S.P.R. 221, ¶ 8. Nonfrivolous allegations of Board jurisdiction are
      allegations of fact which, if proven, could establish a prima facie case that the
      Board has jurisdiction over the matter at issue.           Deines v. Department of
      Energy, 98 M.S.P.R. 389, ¶ 11 (2005). An appellant is entitled to a hearing on
      the issue of Board jurisdiction over an alleged involuntary resignation if he makes
      a nonfrivolous allegation casting doubt on the presumption of voluntariness.
      Burgess v. Merit Systems Protection Board, 758 F.2d 641, 643 (Fed. Cir. 1985).
¶11        The appellant’s assertion, and new evidence in support thereof, that he was
      misled by the agency into failing to submit critical evidence, if proven, may have
      affected the outcome of the investigation into his positive drug test. Absent the
      appellant’s receiving misleading representation of a rule prohibiting submission
      of prescriptions that were more than 6 months old, it appears that: (1) he would
      not have received a positive drug test result; (2) the agency may not have
      proposed his removal; and (3) he would not have felt pressured to resign. That is
      so, regardless of whether the agency was aware that its statements were
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      misleading. See Covington, 750 F.2d at 942. In any event, as noted, the appellant
      told the agency, during the investigation of the positive test results, that he had
      been informed of a rule prohibiting consideration of prescriptions that were more
      than 6 months old, thereby obligating the agency to inform the appellant if his
      belief was inaccurate.    We find that the appellant alleged that, as a long-time
      employee who had never been disciplined, IAF, Tab 1, he reasonably relied upon
      the misleading statements about a rule concerning whether he could submit
      certain prescriptions in concluding that he had no real choice but to immediately
      resign to preserve his good employment record.
¶12         Accordingly, we remand the appeal to the Atlanta Regional Office to afford
      the appellant an opportunity to prove his allegation of agency misrepresentation.
      On remand, the appellant shall be given the opportunity to supplement the record,
      including calling witnesses to give additional testimony, about whose testimony
      the administrative judge may then make additional credibility determinations. 2
      See Henson, 86 M.S.P.R. 221, ¶ 16.


                                             ORDER

¶13         We remand this appeal to the regional office for further adjudication
      consistent with this remand order.




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




      2
        Our findings in the remand order do not disturb the administrative judge’s credibility
      findin gs regarding what transpired between the appellant and his supervisor at the
      April 2, 2014 meeting.
