Q: If I resign, would I have no recourse with MSPB?
A: Generally not. An employee-initiated action, like resignation, is presumed voluntary and outside of the Merit System Protection Board’s (MSPB) jurisdiction. Freeborn v. Dep’t of Justice, 119 M.S.P.R. 290, 294 (2013). However, if the federal employee presents sufficient evidence to establish that the action was obtained through duress, coercion, or shows a reasonable person would have been misled by the agency, the presumption of voluntariness is removed. Green v. Dep’t of Veterans Affairs, 112 M.S.P.R. 59, 63 (2009).
The employee has the burden of proving the MSPB’s jurisdiction by a preponderance of the evidence. 5 C.F.R. § 1201.56(a)(2); see Sansouchie v. Dep’t of Agriculture, 116 M.S.P.R. 149, 154 (2011). To establish involuntariness on the basis of coercion or duress, an employee must show that “the agency effectively imposed the terms of the employee’s resignation, the employee had no realistic alternative but to resign, and the employer’s resignation was the result of improper acts by the agency.” Axsom v. Dep’t of Veterans Affairs, 110 M.S.P.R. 605, 610-11 (2009); see also Hinton v. Dep’t Veterans Affairs, 119 M.S.P.R. 129, 132 (2013). Alternatively, to establish involuntariness on the basis of misinformation, an employee must show that the agency made misleading statements and he or she reasonably relied on the misinformation to his or her detriment. Aldridge v. Dep’t of Agriculture, 111 M.S.P.R. 670, 674 (2009).
If the employee makes a non-frivolous allegation that the matter is within the MSPB’s jurisdiction, he or she is entitled to a hearing at which he or she must prove jurisdiction. Brown v. U.S. Postal Service, 115 M.S.P.R. 609, 612 (2011). A non-frivolous allegation in this context is an allegation of fact that if proven could establish that the agency caused the employee to involuntarily resign.
This case law update was written by Michael J. Sgarlat, Associate Attorney*, Shaw Bransford & Roth, PC.
*Not admitted in D.C. Admitted only in the State of Maryland. Practicing in the District of Columbia under the supervision of Debra L. Roth, Julia H. Perkins and Christopher J. Keeven while application for admission is pending per Rule 49(c)(8) of the D.C. Court of Appeals.
For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.