Christie v. United States

KuNzig, Judge, delivered the opinion of the court: In this civilian employment action, the court is confronted with a single legal question: whether plaintiff was wrong — 336 — fully separated from government service, by means of a coerced resignation. We hold that, as a matter of law, plaintiff’s resignation was voluntary. The factual setting in which this case arises may be briefly summarized as follows: Plaintiff, a '5-point veteran’s preference employee, had continuously served in the Navy Department since 1943. From 1943 until August 1946, plaintiff was on active duty in the United States Naval reserve. At the end of World War II, she was converted to civilian status and remained a civilian employee until the effective date of her resignation, March 10, 1972. At the time of her separation, plaintiff was employed as a Technical Data Management Specialist, OS-13, with the Naval Weapons Engineering Support Activity, located at the Washington, D.C. Navy Yard. On November 22, 1971, plaintiff was issued an Advance Notice of Proposed Eemoval for “Attempting to Inflict Bodily Injury to Your Supervisor — First Offense.” This charge stemmed from an alleged striking incident during a meeting on November 15,1971, where plaintiff allegedly made threatening gestures toward her supervisor. Plaintiff submitted a written reply denying the charge on December 8, 1971. By letter dated February 23, 1972, plaintiff was notified of the agency’s decision to separate her for cause, effective February 25,1972. However, since the installation was undergoing a reduction-in-force (EIF), the effective date of plaintiff’s discharge was extended to give her the opportunity to explore the alternative of voluntary resignation via Discontinued Service Eetirement. While it is disputed as to which side initiated the extension request, the effective date of plaintiff’s proposed removal was reset to March 3, 1972. The period between February 25 and March 3, 1972 was marked by a series of exchanges between the agency and plaintiff. Plaintiff attempted to submit a resignation conditioned by her allegation that it was being tendered under duress. The agency informed plaintiff it could not accept such a conditional resignation because it was not “in consonance with the most current controlling regulation” and — 337 — advised plaintiff that applicable regulations mandate that such resignations be voluntary. On March 3,1972, plaintiff tendered a resignation free of protest and submitted an application for discontinued service retirement, both effective March 10, 1972. Plaintiff’s resignation and application for discontinued service retirement were processed and approved by the agency and plaintiff was separated from the Navy Department effective March 10,1972. Subsequent to her resignation, plaintiff appealed to the Appeals Examining Office (AEO) of the Civil Service Commission (CSC). In her March 25, 1972 letter, plaintiff switched back to her earlier position that her resignation was involuntary, described its effect as an “adverse action” taken against her, and requested a hearing before the AEO. The AEO held, in a decision issued on June 12, 1972, that plaintiff’s separation by resignation was voluntary. Stating that voluntary separations are not within the CSC’s appellate jurisdiction, the AEO denied plaintiff’s request for a hearing. The decision of the AEO was affirmed by the CSC Board of Appeals and Review (BAR) on December 8,1972. Having exhausted her administrative remedies, plaintiff filed the present action in this court on December 19, 1973, seeking back pay, reinstatement and other relief. This case, in its present posture, is before us on cross-motions for summary judgment. Defendant’s motion is grounded on plaintiff’s failure to establish by objective standards that her resignation was obtained by duress. Plaintiff’s cross-motion for summary judgment is premised on the view that the totality of events surrounding her resignation evidences a denial of any viable choice but to resign and thus, as a matter of law, she is entitled to judgment. For the reasons stated below, we conclude that plaintiff’s allegation of involuntary resignation fails as a matter of law and therefore dismiss the petition. This court has enunciated a principle, now firmly established, for determining whether a resignation is voluntarily tendered. The element of voluntariness is vitiated only when the resignation is submitted under duress brought on by — 338 — Government action. Leone v. United States, 204 Ct. Cl. 334, 339 (1974). The tripart test for such duress is: * * * (1) that one side involuntarily accepted the terms of another; (2) that circumstances permitted no other alternative; and (3) that said circumstances were the the result of coercive acts of the opposite party. * * * Fruhauf Southwest Garment Co. v. United States, 126 Ct. Cl. 51, 62, 111 F. Supp. 945, 951 (1953). Employee resignations are presumed to be voluntary. This presumption will prevail unless plaintiff comes forward with sufficient evidence to establish that the resignation was involuntarily extracted. Plantiff had the opportunity to rebut this presumption before the CSC. This court, under the doctrine of exhaustion of administrative remedies, must restrict its review to the factual matters presented below. See Haynes v. United States, 190 Ct. Cl. 9, 12-13, 418 F. 2d 1380, 1383 (1969). Upon review of the facts as they appear in the record before the CSC, it is clear that plaintiff has failed to show that her resignation was obtained by external coercion or duress. Duress is not measured by the employee’s subjective evaluation of a situation. Father, the test is an objective one. McGucken v. United States, 187 Ct. Cl. 284, 289, 407 F. 2d 1349, 1351, cert. denied, 396 U.S. 894 (1969); Pitt v. United States, 190 Ct. Cl. 506, 513, 420 F. 2d 1028, 1032 (1970). While it is possible plaintiff, herself, perceived no viable alternative but to tender her resignation, the record evidence supports CSC’s finding that plaintiff chose to resign and accept discontinued service retirement rather than challenge the validity of her proposed discharge for cause. The fact remains, plaintiff had a choice. She could stand pat and fight. She chose not to. Merely because plaintiff was faced with an inherently unpleasant situation in that her choice was arguably limited to two unpleasant alternatives does not obviate the voluntariness of her resignation. Federal Personnel Manual Supp. 752-1, subchapter S1-2a(3). This court has repeatedly upheld the voluntariness of resignations where they were submitted to avoid threatened termination for cause. Pitt v. United States, supra (termination resulting from possible criminal prosecution); Cosby v. — 339 — United States, 189 Ct. Cl. 528, 417 F. 2d 1345 (1969) (termination for gross insubordination); Autera v. United States, 182 Ct. Cl. 495, 389 F. 2d 815 (1968) (termination for incompetence) . Of course, the threatened termination must be for good cause in order to precipitate a binding, voluntary resignation. Autera v. United States, supra at 499, 389 F. 2d at 817. But this “good cause ’’requirement is met as long as plaintiff fails to show that the agency knew or believed that the proposed termination could not be substantiated. Leone v. United States, supra at 340. Although plaintiff has attempted to impugn the agency’s motivation for proceeding with her proposed termination, plaintiff does not deny that the incident which formed the basis of the charge against her had taken place (although she does assert the so-called assault was nothing more than an “inadvertent touching”). This admission is fatal to plaintiff’s attempt to impeach the agency’s decision to terminate her for cause. Whether this charge could have been sustained had plaintiff chosen to appeal her discharge for cause is irrelevant. What is relevant is that the admission of this incident is prima facie evidence that an arguable basis for discharge existed. Plaintiff’s suggestion that her resignation was obtained as a result of agency deception is completely unsupported by the record. It is true that CSC regulations recognize that a normally voluntary action is transformed into an involu-tary one if obtained by agency misrepresentation. Federal Personnel Manual Supp. 752-1, subchapter Sl-2a(l). But reliance on the misrepresentation is an essential element. Here, plaintiff not only fails to show such reliance, her own words completely repudiate it. In her request for consideration to the CSC AEO, dated March 25, 1972, plaintiff did allege that the agency misrepresented the consequences of a dismissal for cause regarding retirement/annuity rights. But in the same sentence, plaintiff concedes that the alleged misrepresentations were corrected “in later explorations of alternatives” before she submitted her disputed resignation. This concession clearly negates any suggestion that plaintiff relied on any purported agency misrepresentations. Plaintiff’s argument that her separation should be voided because she was not permitted to set the effective date of her — 340 — resignation has no merit. When plaintiff signed the necessary-forms requesting her separation from the rolls and her request for discontinued service retirement, she adopted the date contained therein as her own. This ratification, signified by her signature, clearly satisfies the requirements that plaintiff set her own effective date of resignation. Since plaintiff has failed to present an adequate claim of coerced resignation, CSC properly declined to accept her appeal. Voluntary separations are not adverse actions and are thus not appealable to the CSC. See 5 C.F.R. § 752-201(b). At oral argument, plaintiff’s counsel raised the issue of whether CSC’s denial of a requested hearing compels reinstatement. Our answer is that it does not. It would be folly to suggest that any time a hearing is requested, an agency must grant it. Yet, in effect, that is what plaintiff seems to imply. What plaintiff overlooks is that the legal classification of her separation is determinative of her entitlement to a hearing. The Supreme Court has recognized that non-probationary Federal employees have a property interest in their jobs. Arnett v. Kennedy, 416 U.S. 13 (1974). As such, employees are entitled to a due process hearing if the Government initiates an adverse action to remove them. However, when an employee voluntarily relinquishes her property interest, her separation cannot be considered an adverse action. Since there was no adverse action in this case, a hearing is not required. McGucken v. United States, supra at 289, 407 F. 2d at 1352. The underlying rationale is that a Government-initiated removal (adverse action) is analogous to a “taking” of a property interest; an employee-initiated separation is not. Compare Board of Regents v. Roth, 408 U.S. 564 (1972) with Perry v. Sindermann, 408 U.S. 593 (1972). Since plaintiff voluntarily relinquished her property interest, the CSC correctly denied her hearing request. In summary, we hold the CSC properly declined to accept plaintiff’s appeal because, as a matter of law, her resignation was voluntary. We further conclude CSC’s denial of plaintiff’s hearing request was proper. — 341 — Accordingly, defendant’s motion for summary judgment is granted, plaintiff’s cross-motion for summary judgment is denied, and the petition is dismissed.