Tough Choice in Short Time Doesn't Equal Coercion
By Susan Smith
Wednesday, March 19, 2008
The former Assistant Federal Security Director for the Transportation Services Administration at Raleigh-Durham Airport has failed to convince the appeals court to order the Merit Systems Protection Board to reopen his appeal.
Instead, the court has now sided with the Board majority's opinion that giving the official four hours to decide whether to go ahead and resign or be served with a notice of adverse action did not amount to coercion. (Parrott v. Merit Systems Protection Board and Department of Homeland Security, C.A.F.C. No. 2007-3119, 3/12/08) The facts are taken from the court's opinion.
Mr. Parrott's problems began when TSA conducted a site visit at the airport because of security breaches and various complaints to Headquarters made by Mr. Parrott concerning his boss, Mr. Juhl, the Federal Security Director at Raleigh-Durham. The site visit led to a management inquiry, which led to a report, which eventually was referred to the TSA Professional Review Board (PRB), a group responsible for looking into misconduct or mismanagement involving senior agency officials. (Opinion, pp. 2-3)
While the PRB review was pending, its chair sent Parrott an email notifying him that the Board would be considering "serious issues that relate to you and your employment with TSA." Among other things the agency was concerned about a security breach at Raleigh-Durham involving 200 unscreened bags being placed on airplanes. (p. 3)
The PRB voted to propose Parrott's removal for "unacceptable leadership performance" and violations of standard procedures. Several senior agency officials then met with Parrott. He was told that he and his boss were being relieved of their duties immediately and that a notice proposing to remove him was ready and would be given to him that day. His options were to resign or have the notice served on him at which point he could resign or respond to the notice and let the agency make a final decision on his proposed removal. Parrott asked to see the notice of proposed removal before he made his decision, but the agency declined, taking the position he could see it if and when it was issued to him. (pp. 3-4)
Parrott opted to resign. He was then given and reviewed a sample agreement covering things such as his resignation in lieu of proposed removal, effective date of his resignation, leave matters, information the agency would provide to prospective employers, and waiver of his appeal rights to the Board. Certain provisions were hammered out, and Parrott signed the agreement that same day--about 4 hours after being told of the forthcoming notice of proposed removal. (p. 4)
Parrott appealed to the MSPB, arguing that his resignation was coerced and involuntary and therefore he had been constructively removed. Parrott had the burden to prove by a preponderance of the evidence. A hearing was held but the Administrative Judge found that TSA did not impose the terms of the settlement agreement, adequately explained his proposed removal, gave him enough time to make an informed decision, and gave Parrott reasonable alternatives to resignation. In short, Parrott's resignation was found to be voluntary and therefore the Board had no jurisdiction over his appeal. (pp. 6-7)
The full MSPB was divided, but sustained the AJ's decision, with member Barbara Sapin dissenting. Sapin apparently choked on the short period of time that Parrott had to consider his options and the agency's refusal to show him the notice of proposed removal before he made his decision—she believed that these factors added up to an involuntary resignation. (pp. 7-8) The Board chairman rebutted Sapin's arguments. Chairman McPhie pointed out that Parrott had been given an advance notice of the possibility that he was facing removal, was given the option of resigning which the agency was not required to do, and that the agency was within its rights to decline to give him the notice of proposed removal to review. (p. 8)
The circuit court has now affirmed the Board majority. Unlike Member Sapin, the court had no problem with the short period of time given Parrott to make his decision on resignation: "TSA could have simply served upon Mr. Parrott the notice of proposed removal, after which the only options available to him would have been a resignation in lieu of termination or a challenge to the proposed action." (p. 10)
The court goes on to point out that Parrott avoided a negative employment reference by resigning and he was able to negotiate concessions from the agency in the settlement agreement. In short, the court agreed with Board Chairman McPhie that the agency's actions did not amount to coercion: "TSA offered Mr. Parrott an option that it was under no obligation to provide, one that offered benefits to Mr. Parrott…[and] giving Mr. Parrott only a short time period within which to accept…was not coercive…even though he might have preferred to have that choice remain open for a longer period of time." (p. 10)
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