Jacqueline Marshall v. Merit Systems Protection Board

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JACQUELINE MARSHALL,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2024-1330
______________________
Petition for review of the Merit Systems Protection
Board in No. DA-3443-23-0415-I-1.
______________________
Decided: October 21, 2024
______________________
JACQUELINE K. MARSHALL, Richmond, TX, pro se.
DEANNA SCHABACKER, Office of the General Counsel,
United States Merit Systems Protection Board,
Washington, DC, for respondent. Also represented by
ALLISON JANE BOYLE, KATHERINE MICHELLE SMITH.
______________________
Before MOORE, Chief Judge, HUGHES and CUNNINGHAM,
Circuit Judges.
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MARSHALL v. MSPB 2
PER CURIAM.
Jacqueline Marshall appeals a decision of the Merit
Systems Protection Board (Board) dismissing her appeal
for lack of jurisdiction. For the following reasons, we
affirm.
BACKGROUND
On July 7, 2023, Ms. Marshall retired from her position
as an Inventory Management Specialist with the
Department of Veterans Affairs (VA). Appx. 36.1 On
August 13, 2023, she filed three separate initial appeal
forms with the Board, each of which alleged the VA refused
to provide back pay for on-call hours.2 Appx. 56–59; Appx.
60–64; Appx 65–69. Ms. Marshall claimed she was on-call
“twenty four-seven” from 2010 to 2018 and was due back
pay for those hours. Appx. 2; see also Appx. 69. In her
initial appeal forms, Ms. Marshall also alleged that,
because of her efforts to receive the on-call back pay, she
“was subjected to harassment and a hostile work
environment, which forced [her] into premature
retirement.” Appx. 69.
The administrative judge (AJ) issued jurisdictional
orders informing Ms. Marshall that, without additional
evidence, the Board may not have subject matter
jurisdiction over her claims. Appx. 49–52; Appx. 53–55.
Specifically, the AJ explained that the Board lacks
jurisdiction over an agency’s refusal to pay on-call back pay
unless the claim alleges circumstances such as retaliation
1 “Appx.” refers to the Appendix attached to
Respondent’s Informal Response Brief.
2 On-call hours are hours where the employee must be
available to work outside the employee’s regular 40-hour
work week. For each on-call hour, an employee is entitled
to additional pay, which is ten percent of an employee’s
overtime rate. Appx. 74.
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MARSHALL v. MSPB 3
for whistleblowing or discrimination based on uniformed
service. Appx. 53–55. The AJ also informed Ms. Marshall
that the Board does not have jurisdiction over voluntary
retirements and explained that she must make a
nonfrivolous allegation that her retirement “was
involuntary because of duress, coercion, or
misrepresentation.” Appx. 50.
In response, Ms. Marshall argued the VA’s alleged
failure to pay her for on-call hours may be classified as a
reduction in pay. Appx. 44. Ms. Marshall alleged the VA’s
failure to pay her for on-call hours, coupled with her efforts
to collect payment for those hours, led to a deterioration of
her mental well-being, including encountering feelings of
fear and anguish at work. Appx. 69; Appx. 42. Ms.
Marshall asserted that she was prescribed medication to
assist her in managing her daily responsibilities at work.
Appx. 42. As a result, Ms. Marshall contends she was
compelled to terminate her employment prematurely by
retiring early. Id.
In the initial decision, the AJ dismissed the appeal for
lack of jurisdiction, determining there was no appealable
action surrounding the issues of on-call back pay and
involuntary retirement. Appx. 1–9. The initial decision
became final after Ms. Marshall did not petition for review.
Id. at 9. Ms. Marshall appeals. We have jurisdiction
pursuant to 28 U.S.C. § 1295(a)(9) and 5 U.S.C.
§ 7703(b)(1)(A).
DISCUSSION
We must uphold 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). Whether the Board lacks jurisdiction is
a question of law we review de novo. Forest v. Merit Sys.
Prot. Bd., 47 F.3d 409, 410 (Fed. Cir. 1995).
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MARSHALL v. MSPB 4
I
In her brief to this court, Ms. Marshall indicates that
the Board did not make any errors of fact or apply the
wrong law or fail to consider any important ground for
relief. Petitioner’s Informal Br. at 2–3. She nonetheless
states without explanation that she wants to be
compensated for ten years of labor because she was not
paid correctly. Id. at 3.
II
The Board properly dismissed Ms. Marshall’s claim for
on-call back pay for lack of jurisdiction. Appx. 1–9. Under
5 U.S.C. § 7512(4), the Board has jurisdiction over an
appeal of “a reduction in pay.” For purposes of such an
appeal, “pay” is defined as “the rate of basic pay . . . for the
position held by an employee.” 5 U.S.C. § 7511(a)(4).
Premium pay, which is pay in addition to an employee’s
basic pay, is excluded from this definition. 5 C.F.R.
§ 752.402 (“Pay means the rate of basic pay . . . before any
deductions and exclusive of additional pay of any kind.”);
Nigg v. Merit Sys. Prot. Bd., 321 F.3d 1381, 1385 (Fed. Cir.
2003) (“By statute, however, the term ‘reduction in pay’
refers to a reduction in basic pay, not a reduction in
premium pay.”).
On-call pay is a type of premium pay because it is in
addition to an employee’s basic pay. This court’s prior cases
on availability pay, which is akin to on-call pay, confirm
this. Nigg, 321 F.3d at 1385 (“This court has specifically
held that availability pay is a type of premium pay and not
part of the ‘rate of basic pay’ for a position within the
meaning of section 7511(a)(4).”); see also Martinez v. Merit
Sys. Prot. Bd., 126 F.3d 1480, 1482 (Fed. Cir. 1997) (“Since
availability pay is premium pay, it is not part of the ‘rate of
basic pay’ . . . .”). An alleged failure to pay on-call hours,
therefore, does not fall within “a reduction in pay” under
the statute. Accordingly, the Board properly dismissed Ms.
Marshall’s claim for on-call back pay for lack of jurisdiction.
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MARSHALL v. MSPB 5
The Board properly dismissed Ms. Marshall’s
involuntary retirement claim for lack of jurisdiction. Appx.
1–9. “A decision to resign or retire is presumed to be
voluntary, and an employee who voluntarily retires has no
right to appeal to the Board.” Staats v. U.S. Postal Serv.,
99 F.3d 1120, 1123–24 (Fed. Cir. 1996). To overcome the
presumption and show the “retirement was involuntary
and thus tantamount to forced removal”—a claim over
which the Board has jurisdiction—the employee must
prove by a preponderance of the evidence that her
retirement was involuntary. Id. at 1124; Shoaf v. Dep’t of
Agric., 260 F.3d 1336, 1341 (Fed. Cir. 2001). Typically,
employees prove involuntary retirement by showing: (1)
“the agency proposed or threatened an adverse action
against the employee;” (2) “the agency misinformed or
deceived the employee;” or (3) “the agency coerced the
employee to involuntarily resign or retire, for example, by
creating working conditions so intolerable for the employee
that he or she is driven to involuntarily resign or retire.”
Shoaf, 260 F.3d at 1341. Ms. Marshall’s claim could be read
as one alleging coercion.
In assessing involuntary coercion by an agency, this
court has adopted the Fruhauf test:
[T]o establish involuntariness on the basis of
coercion this court requires an employee to show:
(1) the agency effectively imposed the terms of the
employee’s resignation or retirement; (2) the
employee had no realistic alternative but to resign
or retire; and (3) the employee’s resignation or
retirement was the result of improper acts by the
agency.
Garcia v. Dep’t of Homeland Sec., 437 F.3d 1322, 1329 (Fed.
Cir. 2006) (citing Fruhauf Sw. Garment Co. v. United
States, 111 F. Supp. 945, 951 (Ct. Cl. 1953)). The elements
in the Fruhauf test are “evaluated from the perspective of
the reasonable employee confronted with similar
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circumstances.” Garcia, 437 F.3d at 1329. In applying this
objective test, “freedom of choice is a central issue.” Id. For
example, coercion does not apply where the employee had
a choice to fight the improper discharge for cause but chose
not to. Id. (citing Christie v. United States, 518 F.2d 584,
587 (Ct. Cl. 1975)). On the other hand, examples of coerced
retirement include where the retirement “is induced by a
threat to take disciplinary action that the agency knows
could not be substantiated” or “when the agency has taken
steps against an employee, not for any legitimate agency
purpose but simply to force the employee to quit.” Staats,
99 F.3d at 1124.
Ms. Marshall argued before the Board that she was
forced to retire prematurely because the VA failed to
properly pay her for on-call hours, and she was subjected
to harassment and discriminatory comments when she
tried to collect back pay for on-call hours. Appx. 42; Appx.
69. Regarding harassment and discrimination, which Ms.
Marshall alleges stemmed from her efforts to acquire on-
call back pay, Ms. Marshall asserts that she had feelings of
offense and apprehension at work; was referred to as “the
elderly individual;” experienced a deterioration in her
mental well-being; experienced a work atmosphere
characterized by hostility; encountered feelings of fear and
anguish; and was prescribed medication to assist her in
managing her daily responsibilities at work. Appx. 42.
We see no error in the Board’s decision that Ms.
Marshall failed to show that a reasonable employee would
have had no choice but to retire under these circumstances.
Garcia, 437 F.3d at 1329. As the Board explained, to the
extent Ms. Marshall believes she was subjected to any
improper actions based on her age or sex, she could have
sought redress for these actions via proper channels, rather
than retire. Appx. 7–8; Christie, 518 F.2d at 587 (“The fact
remains, plaintiff had a choice. She could stand pat and
fight. She chose not to.”). While it may have been an
unpleasant prospect to pursue a different remedy, “the fact
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that an employee is faced with an unpleasant situation or
that his choice is limited to two unattractive options does
not make the employee’s decision any less voluntary.”
Garcia, 437 F.3d at 1329 (citing Staats, 99 F.3d at 1124).
As this Court has routinely held, there cannot be coercion
when the petitioner had another option besides retiring.
Staats, 99 F.3d at 1124. We find no error in the Board’s
conclusion that a reasonable employee in Ms. Marshall’s
circumstances would not have felt that she had no other
option but to retire. The Board appropriately dismissed
Ms. Marshall’s claims of on-call back pay and involuntary
retirement for lack of jurisdiction.
CONCLUSION
We have considered Ms. Marshall’s remaining
arguments and find them unpersuasive. We affirm the
Board’s dismissal for lack of jurisdiction.
AFFIRMED
COSTS
No costs.
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