Forced Retirement – or Removal?

It is pretty difficult to prove a coerced retirement, as this plaintiff found out in Browne v. Merit Systems Protection Board (CAFC No. 2015-3136 (nonprecedential), 12/21/15). The court’s opinion sets out the facts leading up to Browne’s retirement. It also has a pretty good summary of the legal requirements to be met in making such a case.

She was a Supervisory Associate Advocate in the Internal Revenue Service when “workplace issues” (a nice way of putting it) arose between Browne and her secretary. The cross complaints by each to supervisors started flying, things escalated, and eventually the secretary threw a notebook at Browne. At this point the agency Inspector General got into it.

After retiring, Browne appealed to the MSPB, arguing that she was forced into retirement. To support her appeal, she cited suggestions by various supervisors and the EEO director that she resign, that she was forced into a telework situation, that she was offered a detail where the work had no “substance,” that she overheard mocking comments about her, and that no one afforded her “collegiality or courtesy.” Capping it all off was being advised that she would be reassigned into an analyst position. (p. 2)

A voluntary retirement that is coerced is deemed a removal by adverse action. That is what Browne argued to the Board. A full-blown fact finding hearing was held. Browne testified, as did witnesses for the agency. The Administrative Judge ruled that even if Browne’s allegations were true, this did not established that a “reasonable person in her position would have felt compelled to retire or resign.” Hence her retirement was voluntary and the Board had no jurisdiction. (p. 3)

Noting that voluntary actions are not appealable, the court has now sustained the Board’s handling of Browne’s case. Pointing out that the legal standard that Browne must meet is a “demanding one,” the court found that she did not meet it. As long as MSPB’s findings are supported by substantial evidence, the reviewing court will not make factual determinations by reweighing the evidence or reevaluating witness testimony….” (p. 5) A court’s job is to simply review the record.

Browne argued that the agency witnesses lied across the board and that the AJ was biased against her. The court found nothing to this in the record. She also argued her own attorney was lacking. Since she did not raise this to the Board and because there was no attorney “malfeasance…apparent on the record…” the court was not persuaded.

In short, Ms. Browne’s appeal was unsuccessful both with the MSPB and the appeals court.

Browne v. MSPB (2015-3136)

© 2016 Susan McGuire Smith. All rights reserved. This article may not be reproduced without express written consent from Susan McGuire Smith.

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About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.

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