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Wolfe v. Occupational Safety and Health Review Commission

U.S. Court of Appeals, Federal Circuit


January 07, 1999

EMMA J. WOLFE, PETITIONER,
v.
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, RESPONDENT.

Before Mayer, Chief Judge, Rader and Gajarsa, Circuit Judges.

The opinion of the court was delivered by: Per Curiam.

Emma J. Wolfe appeals a decision of the Merit Systems Protection Board, DA0351960466-I-1, dismissing for lack of jurisdiction her appeal of two separate actions: (1) the action of the Occupational Safety and Health Review Commission reassigning her from her position of Administrative Assistant, GS-11, in Dallas, Texas, to a position of Administrative Assistant, GS-11, in Washington, D.C., in lieu of an action to separate her by a reduction in force (RIF), and (2) her subsequent allegedly involuntary resignation. We affirm.

The board's jurisdiction is "strictly defined and confined by statute and regulation." Bolton v. Merit Sys. Protection Bd., 154 F.3d 1313, 1316 (Fed. Cir. 1998); see 5 U.S.C. § 7701(a) (1994). Similarly, our ability to review the board's decisions is limited by statute. See 5 U.S.C. § 7703(c) (1994). We set aside board findings only if they are found to be "(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." Id. In contrast, the scope of the board's jurisdiction is a legal question which we review de novo. See Bolton, 154 F.3d at 1316. Thus, although we may review without deference the board's Conclusion that it did not have jurisdiction over Wolfe's appeal, its factual determinations are binding unless they are not supported by substantial evidence. See id.

Wolfe argues that her in-grade reassignment is an appealable RIF action. An employee's right to appeal a RIF action stems from regulations prescribed by the Office of Personnel Management under its statutory authority. See 5 U.S.C. §§ 3501-3504 (1994). An employee affected by a RIF may appeal to the board if "furloughed for more than 30 days, separated, or demoted by a reduction in force action." 5 C.F.R. § 351.901 (1998). The position Wolfe was reassigned to carried the same grade and pay rate as her original position. Her employment was uninterrupted until her resignation, which became effective a month after the RIF. Accordingly, Wolfe's reassignment did not constitute a furlough, separation, or demotion and is not appealable under the regulation.

Alternatively, Wolfe argues that the reassignment constitutes an appealable adverse action under 5 U.S.C. §§ 7511-7513 (1994), or constructively amounts to such an action. The board jurisdiction provided by these statutes applies only to a removal, a suspension for more than 14 days, a reduction in grade, a reduction in pay, or a furlough of 30 days or less. See 5 U.S.C. § 7512 (1994). Because Wolfe did not suffer a reduction in grade or pay rate and because she remained a federal employee following the reassignment, Wolfe's reassignment did not constitute an adverse action or a constructive adverse action.

Finally, Wolfe argues that her resignation was involuntary and thus a constructive removal appealable under sections 7511-7513. "Resignations are presumed to be voluntary." Tretchinck v. Department of Transp., 109 F.3d 749, 751 (Fed. Cir. 1997). "An employee asserting that his or her resignation was involuntary must show that it was the result of duress, coercion, or misinformation provided by the agency." Id. Wolfe failed to meet this burden. Her own testimony supports the board's findings that: (1) she chose to accept the reassignment; (2) she initiated her resignation after the reassignment, when she evaluated her financial situation; (3) the agency did not solicit her resignation or retirement; and (4) the agency did not misrepresent any information to her.

Wolfe asserts that the RIF was invalid because it was motivated by reasons personal to other employees in her office. However, the board could not have reached this question unless Wolfe met the burden of proving that the actions she appealed were within the board's limited statutory and regulatory jurisdiction, which she did not.

19990107


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