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Rasp v. Dept. of Transportation

United States Court of Appeals for the Federal Circuit

October 14, 1999


Before Newman, Circuit Judge, Smith, Senior Circuit Judge, and Rader, Circuit Judge.


Leo M. Rasp appeals the October 30, 1998 final decision of the Merit Systems Protection Board, Docket No. CH-0752-97-0121-I-2, dismissing his appeal for lack of jurisdiction. Because substantial evidence in the record supports the Board's finding that Mr. Rasp retired voluntarily, we affirm.


Until 1994, Mr. Rasp was a Supervisory Air Traffic Control Specialist in the Chicago Air Route Traffic Control Center. In April of 1994, Mr. Rasp signed an agreement to retire under the Department of Transportation's Voluntary Separation Incentive Program, under which he would be paid a $25,000 incentive for his retirement. On May 3, 1994, Mr. Rasp's retirement became effective and soon thereafter he received his incentive payment, minus applicable taxes.

One day before his retirement, however, Mr. Rasp contacted an Equal Employment Opportunity counselor, alleging that he was being forced to retire because of his age. Mr. Rasp alleged that his superiors at the Federal Aviation Administration engaged in a pattern of harassment that made working conditions so intolerable that he had no choice but to retire. The Equal Employment Opportunity Commission remanded the case back to the Department of Transportation (DOT) on the ground that, if proven, Mr. Rasp's allegation of age discrimination made out a case of coerced retirement or constructive discharge. The DOT investigated Mr. Rasp's claim and concluded that Mr. Rasp had not been subjected to discrimination on the basis of age. Mr. Rasp appealed this decision to the Merit Systems Protection Board ("MSPB" or "Board").

An MSPB Administrative Judge (AJ) held a two-day evidentiary hearing at which he heard testimony from Mr. Rasp and from agency witnesses. The AJ issued an Initial Decision in which he considered each of the incidents cited by Mr. Rasp and concluded that, viewed objectively, the incidents would not have had the effect of coercing someone in Mr. Rasp's position into involuntary retirement. The AJ found, therefore, that Mr. Rasp's retirement did not result from agency coercion but rather from a voluntary decision motivated by a $25,000 incentive payment. Because the Board lacks jurisdiction over voluntary retirements, the AJ dismissed Mr. Rasp's appeal for lack of jurisdiction. This decision became the final decision of the Board when the full Board denied review on October 30, 1998.

Mr. Rasp timely appealed to this court. We have jurisdiction to review a final decision of the MSPB. 5 U.S.C. § 7703 (1994). Standard of Review

Mr. Rasp bears the burden of establishing the Board's jurisdiction. See 5 C.F.R. § 1201.56(a)(2) (1999). The Board's Conclusion on the scope of its jurisdiction is a question of law which we review de novo. See King v. Briggs, 83 F.3d 1384, 1387 (Fed. Cir.1996). However, the voluntariness of an employee's retirement is a question of fact, see Moyer v. United States, --- F.3d ---, ---, 1999 WL 689595, at *6 (Fed. Cir. Sept. 2, 1999), which we review for support by substantial evidence in the record, see 5 U.S.C. § 7703(c) (1994). Voluntariness of Retirement

"The governing background principles are these: 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; the Board assumes jurisdiction over an appeal by an employee who has resigned or retired only if the employee shows that his resignation or retirement was involuntary and thus tantamount to forced removal." Staats v. United States Postal Service, 99 F.3d 1120, 1123-1124 (Fed. Cir. 1996). "In order to establish involuntariness on the basis of coercion, an employee must show 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." Id. at 1124.

In this case, Mr. Rasp alleges that his superiors engaged in a series of improper acts that were intended to humiliate him, to undermine his authority with subordinates, and to make it impossible for him to function effectively. Mr. Rasp alleged that his superiors, inter alia, encouraged the union to file an unfair labor practice complaint (ULP) against him; altered a performance rating he gave to a subordinate, increasing it from "exceptional" to "outstanding;" encouraged him to falsely admit to improper behavior alleged in a ULP; singled him out for public humiliation at a meeting; and failed to investigate the circumstances of a petition in which a number of Mr. Rasp's subordinates urged him to resign. As a result of this harassment by his superiors, Mr. Rasp alleges, he "was being worn down and [] knew that one day he would be 'had.' ... [T]he only solution left was to retire." The MSPB, however, found that Mr. Rasp had not met his burden of showing that his retirement was a result of agency coercion. The AJ reviewed each of the incidents alleged by Mr. Rasp as an example of agency harassment and concluded in each case either that Mr. Rasp had failed to establish that the incident occurred as he alleged or that the agency had legitimate reasons for its actions. The AJ concluded that "[w]hen considered together, the incidents do not show that a reasonable person in the appellant's situation would have been deprived of free choice in deciding whether to retire."

Mr. Rasp argues that the Board erred because it failed to grasp the complex evidence, failed to consider the totality of the circumstances, and "failed to note perjury by agency witnesses." In Mr. Rasp's view, these deficiencies require reversal of the Board's decision. We disagree.

The AJ issued a thorough Initial Decision that considered each of the incidents cited by Mr. Rasp as an example of the agency's campaign to force him out. The AJ evaluated each of these incidents and found that a reasonable person in Mr. Rasp's position would not have been coerced into retiring involuntarily. The AJ concluded that Mr. Rasp voluntarily decided to retire in order to take advantage of the $25,000 incentive payment.

The AJ's Conclusion is supported by, inter alia, the following evidence in the record. (1) Mr. Rasp signed an application for Voluntary Separation Incentive Payment on April 25, 1994; the application stated that "My decision to retire or resign is entirely voluntary and has not been coerced." (2) In his Request for Personnel Action, also signed April 25, 1994, under Reasons for Resignation/Retirement, Mr. Rasp wrote "The Time Has Come, under PL 92- 297 with VSIP." (3) Mr. Rasp retired on the last day on which he was eligible to receive a VSIP, indicating that he resigned when he did in order to receive the $25,000 payment, not because of agency coercion. (4) Mr. Rasp's superiors testified that the events alleged by Mr. Rasp to form a pattern of harassment either did not occur the way Mr. Rasp recounted them or had a legitimate basis.

It is true that Mr. Rasp introduced evidence to support his version of events, including his own testimony and a memo that he wrote on May 3, 1994 and had included in his personnel file (stating that he disagreed with the statement that his retirement was "entirely voluntary and ha[d] not been coerced"). However, we review findings of fact by the MSPB under the deferential "substantial evidence" standard. The record contains substantial evidence that supports the Board's finding that Mr. Rasp retired voluntarily and not as a result of agency coercion. The Board's finding is therefore affirmed.

To the extent that Mr. Rasp alleges that the agency's witnesses perjured themselves in their Board testimony, and that the AJ "failed to note" this perjury, he in essence asks us to re-evaluate the credibility of the witnesses before the Board. This we cannot do. The credibility determinations of an administrative Judge are due great deference and are "virtually unreviewable" on appeal. Hambsch v. Department of the Treasury, 796 F.2d 430, 436 (Fed. Cir. 1986). They will not be disturbed unless inherently improbable, discredited by undisputed evidence, or contrary to physical facts. See Hanratty v. Department of Transportation, 819 F.2d 286, 288 (Fed. Cir. 1987). This case presents none of these circumstances and we find no other basis in the record to justify disturbing the AJ's credibility determinations.

We conclude that the record contains substantial evidence to support the Board's finding that Mr. Rasp retired voluntarily. The Board has no jurisdiction over a voluntary retirement and therefore it properly dismissed Mr. Rasp's appeal for lack of jurisdiction.


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