Debra L. Rethaber v. Merit Systems Protection Board

Note: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2006-3311
DEBRA L. RETHABER,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent,
and
DEPARTMENT OF VETERANS AFFAIRS,
Intervenor.
Trang Q. Tran, Tran Law Firm, L.L.P., of Houston, Texas, for petitioner.
Calvin M. Morrow, Attorney, Office of the General Counsel, United States Merit
Systems Protection Board, of Washington, DC, for respondent. With him on the brief were
B. Chad Bungard, General Counsel, Rosa M. Koppel, Deputy General Counsel, and
Rosalyn L. Wilcots, Acting Associate General Counsel.
Claudia Burke, Trial Attorney, Commercial Litigation Branch, Civil Division, United
States Department of Justice, of Washington, DC, for intervenor. With her on the brief were
Peter D. Keisler, Assistant Attorney General, Jeanne E. Davidson, Director, and Todd M.
Hughes, Assistant Director.
Appealed from: United States Merit Systems Protection Board

-- 1 of 7 --

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2006-3311
DEBRA L. RETHABER
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent,
and
DEPARTMENT OF VETERANS AFFAIRS,
Intervenor.
___________________________
DECIDED: May 15, 2007
___________________________
Before NEWMAN, LOURIE, and GAJARSA, Circuit Judges.
PER CURIAM.
Debra Rethaber (“Ms. Rethaber”) appeals the Merit Systems Protection Board’s
(“Board”) dismissal of her claim for a demotion to a lower pay grade. Rethaber v. Dep’t
of Veterans Affairs, No. DA-0752-06-0115-I-1 (Apr. 6, 2006). The Board determined
that Ms. Rethaber had not proven that her demotion was involuntary and therefore
dismissed her case for lack of jurisdiction. Id. We affirm.

-- 2 of 7 --

BACKGROUND
Ms. Rethaber has been an employee of the Department of Veterans Affairs (“the
agency”) since December 2002. In March 2005 she was demoted from the position of
Rating Veterans Service Representative (“RVSR”) to the lower pay grade position of
Legal Instruments Examiner (“LIE”).
Prior to Ms. Rethaber’s demotion she had received numerous written notices
regarding deficiencies in her performance as a RVSR. In September 2004 she was
placed on a performance assistance plan that lasted for thirty days as a result of her
failure to meet the required quality of work. At the end of the performance assistance
plan, Ms. Rethaber’s supervisor determined that her work did not meet the required
standards and placed her on a ninety day performance improvement plan.
Ms. Rethaber was notified that if her work still failed to meet the required standards at
the end of the performance improvement plan “she would be issued an unacceptable
performance rating and be subject to removal from her current position by
reassignment, demotion, or removal from employment.”
At the end of the performance improvement plan, Ms. Rethaber’s supervisor
determined that she had failed to meet the required standards and issued her an
unacceptable rating. Ms. Rethaber was then issued a notice of proposed removal for
unacceptable performance. However, prior to making a final decision on the proposed
removal, the agency gave Ms. Rethaber a letter offering her the alternative of
transferring to another position. The letter listed two local positions that were available
for her, including the LIE position to which she was transferred, as well as five positions
2006-3311 2

-- 3 of 7 --

that would require relocation. Each of the positions offered was at a lower pay grade
than her GVSR position. The letter included a preprinted response form.
After meeting with her union representative, Ms. Rethaber returned the form to
the agency. Although none of the boxes on the form were checked and none of the
blanks were filled in, the following statement was typed onto the form:
Let me make it unquestionably clear that I am electing to accept the
agency’s offer of a position acceptable under threat of termination . . . .
The position so elected is:
1. Legal Instrument Examiner, GS-0996-09 ($60,642.00 PA).
2. Claims Assistant, GS-0998-06 ($44,618.00 PA).
Although Ms. Rethaber refused to sign the form, the line indicating the Claims Assistant
position was crossed out. The cross out was initialed by Ms. Rethaber.
The agency determined that Ms. Rethaber had thereby accepted the transfer to
the LIE position. It issued a decision notice to Ms. Rethaber stating that although her
work as an RVSR was “clearly unacceptable” she would be voluntarily transferred to the
LIE position. Ms. Rethaber appealed that transfer to the Board, alleging that the
transfer was involuntary. Because the Board found that Ms. Rethaber had voluntarily
accepted the transfer, it dismissed the appeal for lack of jurisdiction.
Ms. Rethaber filed an appeal to this court from the Board’s decision. This court
has jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
DISCUSSION
This court must affirm the Board’s decision unless it is “(1) arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance with law; (2) obtained without
procedures required by law, rule, or regulation having been followed; or (3) unsupported
by substantial evidence.” 5 U.S.C. § 7703(c); Barrett v. Soc. Sec. Admin., 309 F.3d
2006-3311 3

-- 4 of 7 --

781, 785 (Fed. Cir. 2002). The Board’s determination that it lacked jurisdiction is a
question of law that we review de novo. Id. Ms. Rethaber has the burden of proving by
a preponderance of the evidence that the Board had jurisdiction to review her appeal.
See 5 C.F.R. § 1201.56(a)(2); Garcia v. Dep’t of Homeland Sec., 437 F.3d 1322, 1344
(Fed. Cir. 2006) (en banc).
The Board’s jurisdiction is limited by statute. Garcia, 437 F.3d at 1327. It has
“jurisdiction to hear appeals over certain enumerated adverse action taken by an
agency against an employee.” Id.; see also 5 U.S.C. § 7513(d). Reductions in grade
and reductions in pay are among the enumerated adverse actions from which an
employee can appeal to the Board. 5 U.S.C. § 7512(3), (4); Garcia, 437 F.3d at 1327.
Such a reduction must be involuntary in order to be appealable. Garcia, 437 F.3d at
1328. An action that appears voluntary on its face may nonetheless be involuntary if it
was obtained through coercion by the agency. Id. at 1329.
Ms. Rethaber argues that the Board has jurisdiction over her demotion because it
was not voluntary. In support of her position that the demotion was involuntary,
Ms. Rethaber contends (1) that she did not accept the transfer to the lower pay grade
position, and (2) that even if she did accept the transfer, she did not do so voluntarily
because she was coerced by the agency.
Ms. Rethaber argues that she did not accept the transfer to the LIE position
because she did not sign the transfer proposal form and that her initials on the form only
indicate that she had rejected one of the proposed options, not that she had accepted
the other option. However, Ms. Rethaber returned the transfer proposal form to the
agency with a statement that she was “electing to accept the agency’s offer of a position
2006-3311 4

-- 5 of 7 --

acceptable under treat of termination.” The statement also declared that the position
elected was either the LIE position or an even lower grade Claims Assistant position.
The line listing the Claims Assistant position was crossed out and Ms. Rethaber initialed
that cross-out. A choice between two unpleasant options does not make the choice
coerced or involuntary. Garcia, 437 F.3d at 1329. We therefore find that the Board
properly determined that Ms. Rethaber had accepted the transfer to the LIE position.
Ms. Rethaber also argues that her acceptance of the demotion was involuntary
because it was obtained through coercion by the Agency. An employee may show that
an adverse action was obtained though coercion by proving that the agency did not
have reasonable grounds to propose the adverse action in the first place. Terban v.
Dep’t of Energy, 216 F.3d 1021, 1026 (Fed. Cir. 2000); Staats v. U.S. Postal Serv.,
99 F.3d 1120, 1124 (Fed. Cir. 1996); Schultz v. U.S. Navy, 810 F.2d 1133, 1136 (Fed.
Cir. 1987). “If an employee can show that the agency knew that the reason for the
threatened removal could not be substantiated, the threatened action by the agency is
purely coercive.” Schultz, 810 F.2d at 1136.
Here, Ms. Rethaber argues that the agency did not have reasonable grounds to
propose her removal because she was never told what was specifically wrong with her
rating decisions, as required by 5 U.S.C. § 4303(b)(1)(A)(i). However, prior to
Ms. Rethaber’s removal she received formal written counseling memoranda, a
performance assistance plan, and a performance improvement plan all indicating that
the accuracy percentage of her ratings was below the required level. These
communications advised Ms. Rethaber of required performance standards. Further,
Ms. Rethaber met with her supervisors on numerous occasions to discuss specific
2006-3311 5

-- 6 of 7 --

errors with her ratings decisions. Under these circumstances, we find that
Ms. Rethaber has not met her burden of proving that the agency knew that the reasons
for the threatened removal could not be substantiated.
Ms. Rethaber also argues that she was coerced into accepting the demotion
because the agency did not give her time to consider her options. Ms. Rethaber is
correct in her statement that forcing an employee to make an immediate decision can
be improper and coercive. Schultz, 810 F.2d at 1136 (holding that agency’s
requirement that resignation be submitted immediately was coercive). However,
Ms. Rethaber was not forced to make an immediate decision. She was given until end
of the next business day to return her response to the transfer proposal. During the
time period between receiving the proposal and returning her decision, Ms. Rethaber
was able to meet with her union representative. Under these circumstances, we
determine Ms. Rethaber has not met her burden of proving that the agency coerced her
into accepting the transfer.
CONCLUSION
We conclude that the Board properly determined that it lacked jurisdiction over
Ms. Rethaber’s appeal because she had voluntarily accepted a transfer to a position at
a lower pay grade and that her acceptance of that transfer was not coerced by the
agency. The decision of the Board is therefore affirmed.
No costs.
2006-3311 6

-- 7 of 7 --