Would a Reasonable Person Feel Compelled to Resign?

A patent examiner has lost in her bid to persuade the MSPB and a federal court that her resignation was involuntary. The issue is not the employee’s subjective beliefs but whether a reasonable person would have felt compelled to resign.

A patent examiner has lost her bid to persuade the Merit Systems Protection Board, and now the federal appeals court, that her resignation was in fact involuntary. (Shelborne v. Merit Systems Protection Board, C.A.F.C. No. 2007-3003 (nonprecedential), 5/11/07)

Let’s back up a bit. An employee who resigns voluntarily has no right to appeal to the MSPB. For the Board to take jurisdiction over a resignation case, the employee has to show that the resignation was actually involuntary and therefore a constructive removal.

Shelborne tried to convince the MSPB that her resignation was the result of duress and coercion on the part of the Patent Office. She pointed mostly to events that happened at least a year before and in some cases 12 years before her resignation. The Administrative Judge ruled that these events were too remote in time to have contributed to Shelborne’s resignation. As for more recent events–critiques of her work by her superiors, and the agency’s strict enforcement of its leave policies – the AJ concluded that, while Shelborne may have been unhappy with such events, they are “not improper actions that can reasonably be regarded as coercing an employee to resign.” (Opinion pp. 2-3)

Shelborne took her case to the Federal Circuit Court of Appeals. She argued, among other things, that the AJ had erred by finding her resignation to be voluntary because she had put the agency on notice that she felt she had been forced to resign – she had filed her appeal with the MSPB before the effective date of her resignation, and she had stated on her form requesting the resignation that it was forced. (p. 4)

Here is the court’s take on this argument: “Ms. Shelborne might have felt compelled to resign based on what she felt were unfair agency actions, and she might have made that feeling known to the agency, but her subjective feelings do not establish that a reasonable person would have felt compelled to resign and thus do not show that the agency improperly coerced her resignation.” In short the court agreed with the MSPB that it had no jurisdiction to consider Shelborne’s appeal. (p. 4)

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.