Retire or Be Fired – A Tough Choice But Not Coercion

An Army employee who elected to retire rather than be removed for unacceptable performance sought reinstatement by arguing he was coerced into retiring.

According to Jenkins v Merit Systems Protection Board (CAFC No. 2017-2193, 1/2/19), Mr. Jenkins was a Supervisory Army Community Services Division Chief when he ran into performance issues.

Mr. Jenkins failed performance reviews, was put on a PIP (Performance Improvement Plan), and served a 3-day suspension for bypassing his first line supervisor when he submitted a report to higher levels. When Jenkins failed his PIP, his supervisor offered him an opportunity to move to a nonsupervisory position with no reduction in grade or pay. Jenkins refused, followed by a notice of proposed removal for unacceptable performance. At that point, Mr. Jenkins sent an email to his boss indicating that effective March 31, 2012, he was retiring. However, he did challenge the removal by submitting a written response. The deciding official indicated Jenkins would be removed effective April 1, 2012. Separately the Army notified Jenkins that in light of his decision to retire effective March 31st, it would revoke and cancel the removal effective that same day provided Jenkins actually retired that same day. (pp. 1-2)

At that point Mr. Jenkins submitted the official retirement request form, indicating his retirement was “voluntary….effective 31 Mar 12…” (p. 3) The agency kept its word and cancelled the removal, and Mr. Jenkins retired.

However, Mr. Jenkins appealed to the MSPB challenging the removal action and claiming that he retired involuntarily because the agency would remove him if he did not retire. In 2017 the MSPB dismissed Jenkins’ appeal having found it lacked jurisdiction to hear it. The Board found nothing in the record indicating Mr. Jenkins asked to withdraw his retirement, nor any evidence of coercion.  Further since he had retired, there was no removal as it was rescinded by the agency. Jenkins on the other hand argued that he was forced to retire by the agency’s threat to remove him if he did not. (p. 4)

Unsuccessful at the MSPB, Mr. Jenkins went to court arguing he had been improperly removed or coerced into retiring. That did not go well. The court has ruled that MSPB was correct that it lacked jurisdiction in the case “because the Army rescinded its removal…” and in doing so mooted Mr. Jenkins claim of improper removal.(p. 6)

As for his claim of involuntary retirement, Jenkins would have to prove that he was given no choice but to retire as the result of improper actions by the agency. The MSPB weighed the evidence and concluded that there was not agency misconduct. Jenkins had claimed that someone (unidentified by him) had told him he needed to follow through with retirement in order to protect his benefits and this was evidence of agency misrepresentation. However he never did identify who told him this, and he admitted that Human Resources had not provided any misinformation on the matter. As the court states, “Mr. Jenkins simply had the choice of not retiring and opposing the removal, or retiring.” (p. 11) That adds up to a tough choice but not coercion as far as MSPB and now the appeals court are concerned.

In short, Mr. Jenkins will stay retired.

Jenkins v. MSPB 2017-2193

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.