Per the court’s opinion in Trinkl v Merit Systems Protection Board (CAFC No. 2017-1378, 3/30/18, nonprecedential, Mr. Trinkl worked as an economist with the Bureau of Economic Analysis.
For many years he got “high quality” performance ratings, but then along came a new supervisor. Trinkl alleges he overheard comments disparaging toward older employees and he filed a complaint to the Human Resources Division as a result. He also claims he witnessed his two supervisors physically push a co-worker against a wall. Trinkl further claims that subsequently he was almost physically attacked by his immediate and second level supervisors during a mid year performance review.
Fearing for his safety, Trinkl reported the incident to a security official who, according to Trinkl, told him not to meet with these two supervisors in person. He also sought refuge in the nurse’s station since Trinkl’s pre-existing PTSD was being aggravated by the stress of dealing with these two supervisors. Trinkl sought reassignment. When his complaints were investigated and dismissed, and reassignment was denied, Trinkl believed he had no recourse but to retire. (Opinion pp. 1-3)
Trinkl retired, but appealed to the Merit Systems Protection Board (MSPB) arguing that his retirement was coerced and thus tantamount to removal. The MSPB found that there was no evidence to support Trinkl’s claim and therefore dismissed it for lack of jurisdiction. (p. 4)
The federal appeals court has now reversed and sent the case back to MSPB, concluding that there was sufficient evidence of coercion to give the Board jurisdiction over the matter. The court points out that resignations (retirements) are presumed voluntary, placing the burden on Trinkl to show otherwise. The employee “must show that the agency effectively imposed the terms of the employee’s resignation, the employee had no realistic alternative but to resign or retire, and the employee’s resignation or retirement was the result of improper acts by the agency.” (p. 5)
If an employee can show by a preponderance of the evidence that his retirement was involuntary and therefore a forced removal, then the Board has jurisdiction, says the court. The MSPB, in finding that Trinkl had not met his burden, cited a “one-time display of ‘non-verbal aggressive behavior” and the long passage of time between the altercation and Trinkl’s retirement as weighing heavily in its thinking. Says the court:
“[W]e reach a conclusion different from that of the Board. Considering Trinkl’s allegations of his experiences at the BEA collectively, rather than dismissing them one by one, as the Board did, we find that a person in like circumstances could reasonably feel unable to exercise free choice and compelled to retire. [T]he Board erred in considering and dismissing Trinkl’s allegations individually, rather than viewing Trinkl’s claims collectively as a series of escalating incidents culminating in his retirement. The Board further erred by considering the relative probative value of Trinkl’s allegations over time and discounting the probative value of the alleged near-physical attack due to uncertainty as to when it occurred.” (pp. 7-8)
The court vacated and remanded to the MSPB. Mr. Trinkl resoundingly won this round.
