No Promotion, Placement on PIP Does Not Mean This AF Employee Was Constructively Discharged

An Air Force employee who was transferred and then did not receive an upgrade because of poor performance decided to retire before his performance improvement plan was up. After he retired, he argued his retirement was involuntary and his case eventually went into federal court.

An Air Force civilian employee who retired rather than accept a different position following a reduction in force, failed in his bid to convince the Federal Circuit that his retirement was involuntary.( Brooks v. Department of the Air Force, C.A.F.C. No. 2007-3069 (nonprecedential), 5/14/07)

Brooks was a GS-6 Mail Supervisor at Sheppard Air Force Base in Texas when his position was eliminated in a RIF. His initial transfer was to a GS-4 Transportation Clerk position. He accepted it “under duress.” The agency was then able to find a GS-6 Contract Services Monitor position to which Brooks was reassigned. Several months later, these jobs at the base were upgraded to GS-7 or 8, except for Brooks’ position. The agency indicated that Brooks was not performing at the GS-6 level and that is why his job was not upgraded. (Brooks had just received an unacceptable rating and was under a Performance Improvement Plan at the time of the upgrade in others’ positions.) (Opinion pp. 1-2)

Brooks submitted his retirement papers before his PIP was up. Once the retirement took effect, he claimed that it had been involuntary and asserted that he was constructively discharged. His appeal made its way to the Merit Systems Protection Board. At his hearing, Brooks testified that not being upgraded and being placed on a PIP factored into his decision to retire. He also admitted he was having problems performing some of the duties of his job and that is was “highly unlikely” that he could eke out a year of acceptable performance.

The agency testified that had Brooks continued his unacceptable performance, then the agency would have looked for other positions; however, Brooks retired before it got to that point. (p. 3)

The Administrative Judge found that Brooks had failed to show his retirement was involuntary, and therefore the Board lacked jurisdiction over his appeal. Brooks took his case to the appeals court. (p. 4)

He fared no better there. The court agreed that the Board lacked jurisdiction, noting that the test is one that looks at all the circumstances: “The employee must establish that a reasonable employee confronted with the same circumstances would feel coerced into resigning.” (p. 5; citations omitted) Further, a central issue is freedom of choice. Even if circumstances made it “so unpleasant” that the employee “feels that he has no realistic option but to leave,” the decision to retire is nevertheless still voluntary. (p. 5)

The court concludes that the Board was correct in finding it had no jurisdiction in Brooks’ case.

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.