The Merit Systems Protection Board (Board) held that it lacked jurisdiction to hear Mr. Shoaf s appeal because his resignation was not involuntary.
Shoaf v. Dep’t of Agrie.,
BACKGROUND
Mr. Shoaf resigned from the United States Forest Service (the agency) in 1995. In 1996, Mr. Shoaf appealed to the Boаrd. He alleged that his resignation was involuntary and that he was constructively discharged in retaliation for making disclosures protected under the Whistleblower Protection Act, 5 U.S.C. § 2302(b)(8) (1994). The Board determined that it lacked jurisdiction over Mr. Shoaf s appeal because his separation was neither a constructive removal action taken by the agency nor a “personnel action” under the Whistleblower Protection Act.
Shoaf v. Dep’t of Agrie.,
*269 Shoaf II summarizes the facts of this case. In brief, Mr. Shoaf worked for the agency as a Forestry Systems Analyst and had performance ratings of “fully successful” or “outstanding” from 1978 through 1990. In April 1990, he transferred to the Tongass National Forest (the Tongass) to help prеpare for the sale of timber in old-growth forest. In July 1991 Mr. Shoaf began to criticize, both within the agency and publicly, the Forest Service’s timber management practices. As a result, Mr. Shoaf was publicly reprimanded, prohibited from speaking to the media, and lost some of the responsibilities of his position. On July 6, 1993, Mr. Shoaf filed a whistle-blower disclosure with the Office of Special Counsel (OSC), alleging that he was the victim of retaliation and discrimination as a result of his criticism of the Forest Service.
In September, 1993, the Forest Service eliminated Mr. Shoafs position, and he voluntarily accepted a new position as a “Special Projects Forester” with the Timber staff in Ketchikan, Alaska. This non-supervisory position did not exist prior to Mr. Shoafs tenure and was abolished when he left it. Mr. Shoaf was busy only approximately sixty per cent of the time frоm January 1994 through August 1994, and had virtually no work for the remainder of the year. In February 1995, Mr. Shoaf resigned, accepting $25,000 as part of an incentive program offered by the Govеrnment for early retirement.
On September 21,1995, Mr. Shoaf wrote to OSC, alleging that he was “forced out” of his job with the Forest Service as a result of the whistle-blowing disclosures. On May 8,1996, thе OSC issued a notice of termination of its inquiry into Shoafs complaint. On October 31, 1996, Mr. Shoaf requested corrective action by the Board. Mr. Shoafs appeal to thе Board was based on the assertion that the agency had made his working conditions so intolerable through “deliberate idling” that any reasonable employee in his situаtion would have felt compelled to resign. Shoaf v. Dep’t of Agric., No. SE-0752-96-0462-I-2, p. 8 (M.S.P.B. Sept. 11, 1998). The administrative judge held that the agency’s actions did not constitute circumstances under which a reasоnable person would be “forced” to resign, and that Mr. Shoaf had not shown that his separation was either a constructive removal action or a “personnel action” under the Whistleblower Protection Act. Consequently, the Board lacked jurisdiction over, and thus dismissed, Mr. Shoafs appeal.
On appeal, this court held that the Board had abused its discretion “by completely failing to consider the pre-transfer activities concerning Shoaf on the Tongass ... events occurring from the time period commencing on the date of Shoafs transfer to the Tongass in April 1990, including actions and inactions by his supervisors during the relevant time period and his transfer to the timber unit.” Shoaf II at 1343.
DISCUSSION
A. Standard of Review
This court must affirm a Board decision unless it is: “(1) arbitrary or capricious, an abuse of discretion, or otherwise not in accordance with the law; (2) obtained without procedure required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence.” 5 U.S.C. § 7703(c) (1996);
Hayes v. Dep’t of Navy,
To prevail on the merits of a constructive discharge case, the petitioner must show by preponderant evidence that his resignation was involuntary.
See Shoaf II,
B. “Involuntary” Dismissal
In its decisiоn on remand, the Board listed several factors which led the administrative judge to find that pre-transfer (pre-1993) events did not lend “significant support” to Mr. Shoafs claim of involuntаry resignation in 1995.
Shoaf III
at ---, slip op. at 9-10. In this list, of special import are the facts that that claim was based on alleged deliberate idling in his post-transfer position, and that there was a nineteen-month delay between the transfer and Mr. Shoafs resignation.
See Terban v. Dep’t of Energy,
On the other hand, the Bоard found substantial evidence to siipport its decision that no coercion in the form of deliberate idling had occurred at all. That evidence included the testimony of Mr. Shoafs post-transfer supervisor, presented before the administrative judge; the lack of adverse influence on Mr. Shoafs work load by Mr. Shoafs second-lеvel supervisor, who had been implicated in the pre-transfer events; Mr. Shoafs lack of initiative in finding additional work on his own; and the presence of work opportunities in an airborne mapping program that became available to Mr. Shoaf before his resignation. Shoaf III at-, slip op. at 11.
In considering, as directed by this court, events which occurrеd prior to 1993, the Board found that these events may have “contributed to his dissatisfaction, but did not provide significant support” for his claim of involuntary resignation in 1995, i.e., that they were not so intolerable that a reasonable person in the employee’s position would have felt compelled to resign.
See Middleton v. Dep’t of Defense,