Warren S. Matthews v. United States Postal Service

NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
is not citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
04-3208
WARREN S. MATTHEWS,
Petitioner,
v.
UNITED STATES POSTAL SERVICE,
Respondent.
__________________________
DECIDED: November 17, 2004
__________________________
Before NEWMAN, Circuit Judge, FRIEDMAN, Senior Circuit Judge, and BRYSON, Circuit
Judge.
PER CURIAM.
Warren S. Matthews petitions for review of the decision of the Merit Systems
Protection Board, Docket No. NY3443010339-B-1, dismissing his appeal. We affirm the
decision of the Board.

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04-3208 2
Background
Mr. Matthews was employed as a mail carrier by the U.S. Postal Service in
Baltimore, Maryland. In 1986 he requested a transfer from Baltimore to the Binghamton,
New York area so that his wife could care for her ill parents, who lived in the area.
Although he had not been transferred, Mr. Matthews moved his family to Binghamton in
October 1989 and continued to work in Baltimore. Due to the difficulties of this
arrangement, he resigned on February 21, 1991.
Mr. Matthews appealed the agency's failure to transfer him on August 27, 2001. In
the Initial Decision the administrative judge dismissed the appeal on the ground that Mr.
Matthews had not established that the Board had jurisdiction of the appeal. The AJ
observed that an agency's decision not to select an employee for a particular position is not
appealable to the Board. The full Board, vacating that ruling, characterized Mr. Matthews'
claim as one for involuntary retirement rather than non-selection for a particular position.
The Board remanded so that the AJ could apprise Mr. Matthews of what he must show in
order to establish the Board's jurisdiction, citing Burgess v. Merit Systems Protection Board,
758 F.2d 641, 643-44 (Fed. Cir. 1985).
Upon remand, the AJ found that Mr. Matthews had established that the Board had
jurisdiction of his claim for involuntary retirement, but had not pleaded facts that, if proven,
would establish such a claim. The AJ also found that Mr. Matthews had not shown that his
appeal was timely or that conditions existed that excused the late filing of his appeal. The
AJ dismissed the appeal, the full Board declined further review, and this appeal followed.

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04-3208 3
Discussion
Voluntary resignation from federal employment is not appealable to the Board. See,
e.g., Braun v. Department of Veterans Affairs, 50 F.3d 1005 (Fed. Cir. 1995). However, an
employee's resignation is not voluntary if it is deemed to have been coerced by the agency.
In order to show coercion the employee must establish that "the agency effectively
imposed the terms of the employee's resignation or retirement, that the employee had no
realistic alternative but to resign or retire, and that the employee's resignation or retirement
was the result of improper acts by the agency." Staats v. United States Postal Service, 99
F.3d 1120 (Fed. Cir. 1996) (citing Schultz v. United States Navy, 810 F.2d 1133, 1136
(Fed. Cir. 1987)).
The act that Mr. Matthews identifies as an act of coercion is the agency's failure to
transfer him to Binghamton. However, the circumstances that made his continued
employment in Baltimore intolerable were not the result of actions taken by the agency.
Although Mr. Matthews moved his family to Binghamton for strong family reasons, the
agency has no obligation to help solve the problems that accompanied that move.
Coercion requires more than unpleasant or difficult circumstances. Cf. Staats, 99 F.3d at
1124 ("[T]he doctrine of coercive involuntariness is a narrow one. It does not apply to a
case in which an employee decides to resign or retire because he does not want to accept
a new assignment, a transfer, or other measures that the agency is authorized to adopt,
even if those measures make continuation in the job so unpleasant for the employee that
he feels that he has no realistic option but to leave.") Transfer to a remote location is not a
routine aspect of employment, and failure to transfer, without more, is not reasonably
viewed as grounds of coerced resignation.

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04-3208 4
Mr. Matthews states that there were issues of discrimination in the agency's refusal
to transfer him to Binghamton, while offering to transfer him to New York City. To the
extent the discrimination issues were before the Board, for appeal to this court the
discrimination aspects must be waived. See Williams v. Department of the Army, 715 F.2d
1485, 1491 (Fed. Cir. 1983) ("We hold that where jurisdiction lies in the district court under
5 U.S.C. §7703(b)(2)1, the entire action falls within the jurisdiction of that court and this
court has no jurisdiction, under 5 U.S.C. §7703(b)(1), over such cases. This holding is
limited to situations in which the employee is challenging judicially the board's
determinations of both the discrimination and the nondiscrimination issues.").
Substantial evidence supports the Board's conclusion that the agency's failure to
grant the requested transfer does not meet the criteria of a coerced resignation. We affirm
on this ground, and do not address the Board's further finding that the appeal was untimely
filed.
No costs.
1 5 U.S.C. '7703(b)(2) provides:
(2) Cases of discrimination subject to the provisions of section 7702 of this title shall be
filed under section 717(c) of the Civil Rights Act of 1964 (42 U.S.C. '2000e-16(c)),
section 15(c) of the Age Discrimination in Employment Act of 1967 (29 U.S.C. '633a(c)),
and section 16(b) of the Fair Labor Standards Act of 1938, as amended (29 U.S.C.
'216(b)), as applicable. Notwithstanding any other provision of law, any such case filed
under any section must be filed within 30 days after the date the individual filing the case
received notice of the judicially reviewable action under section 7702.

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