[00:00:18] Speaker 03:
Is counsel present for the next case Womack against the MSPB?

[00:00:25] Speaker 03:
Please come forward.

[00:00:44] Speaker 03:
This is case appeal number 191713 Womack against the MSPB.

[00:00:52] Speaker 03:
Mr. Fisher, Mr. Fisher, before you start, I observe that you've waited the division of your time for rebuttal.

[00:01:01] Speaker 03:
You understand that new issues can't be raised on rebuttal.

[00:01:05] Speaker 04:
I understand, Your Honor.

[00:01:10] Speaker 04:
Okay.

[00:01:10] Speaker 04:
Good morning, Your Honors.

[00:01:11] Speaker 04:
Morris Fisher for the appellant.

[00:01:14] Speaker 04:
The reason I did ask for that might be a drop of an unusual format is because I think the case is very straightforward.

[00:01:23] Speaker 04:
It boils down to the opinion in Scharf versus the Department of the Air Force, which basically says that it is not necessary for an administrative judge to find that the appellant

[00:01:40] Speaker 04:
is intentionally deceived about his retirement options.

[00:01:44] Speaker 04:
That all that needs to happen is that there has to be a statement.

[00:01:50] Speaker 04:
Statement has to be misleading.

[00:01:52] Speaker 04:
Guy has to rely on it.

[00:01:54] Speaker 04:
That's it.

[00:01:55] Speaker 02:
Well, he was given choices.

[00:01:58] Speaker 02:
He was given choices.

[00:01:59] Speaker 02:
That's true.

[00:02:00] Speaker 02:
And he chose to retire.

[00:02:01] Speaker 02:
Well, he chose... And a voluntary retirement is not appealable.

[00:02:07] Speaker 04:
The only thing that's an issue in this case is not whether he retired.

[00:02:10] Speaker 04:
That's conceded that he did voluntarily retire.

[00:02:16] Speaker 04:
The issue is for the months of July to December.

[00:02:21] Speaker 04:
His supervisor admits, page 61 to page 62, or I'm sorry, 99 to 100, he admits that

[00:02:33] Speaker 04:
Mr. Womack offered to do the job on a TDY to the end of the year.

[00:02:39] Speaker 04:
He admitted that.

[00:02:41] Speaker 04:
He offered to do that.

[00:02:42] Speaker 04:
He said, no, that won't work.

[00:02:45] Speaker 04:
We need somebody permanent.

[00:02:47] Speaker 04:
They didn't get anybody permanent.

[00:02:50] Speaker 04:
And he also admitted, the supervisor also admitted, that Mr. Womack could have been one of those people.

[00:02:59] Speaker 04:
What they did was they used TD wires until the end of the year, from July to the end of the year.

[00:03:04] Speaker 04:
That was admitted.

[00:03:06] Speaker 04:
The supervisor, Mr. Medina, fully admitted Mr. Womack could have been one of those people.

[00:03:12] Speaker 04:
So he tricked them.

[00:03:15] Speaker 04:
Now, maybe even if the court believes that there was a need for this permanent position, the position was never advertised.

[00:03:24] Speaker 04:
The judge clarified that, pages 99 and 100.

[00:03:29] Speaker 04:
in the appendix.

[00:03:30] Speaker 04:
In the end, the judge specifically asked him two questions.

[00:03:34] Speaker 04:
He asked him, number one, was the position ever advertised prior to Mr. Womack?

[00:03:44] Speaker 04:
No.

[00:03:45] Speaker 04:
Was it advertised afterward?

[00:03:47] Speaker 04:
Do you know if it was ever filled?

[00:03:50] Speaker 04:
And Mr. Medina goes into a diatribe of what happened in 2017.

[00:03:54] Speaker 04:
Something happened in 2017.

[00:03:56] Speaker 02:
Could you point out in your blue brief where you claimed that Mr. Womack was tricked?

[00:04:06] Speaker 02:
It sounds to me like a new issue.

[00:04:08] Speaker 02:
I don't know if it's a new issue.

[00:04:09] Speaker 02:
It's a new issue being argued.

[00:04:12] Speaker 02:
I don't think this is a new issue at all.

[00:04:15] Speaker 02:
Well, could you point out the word

[00:04:17] Speaker 02:
I may not have used the word... Something approximating that.

[00:04:22] Speaker 04:
I may not have used the actual word tricked, but he was... And then I say it right in the statement of the case.

[00:04:40] Speaker 04:
He knew page three and four.

[00:04:43] Speaker 04:
He knew the Glynco position was vacant for well over a year.

[00:04:47] Speaker 04:
He asked appellant to fill it.

[00:04:49] Speaker 04:
He made no effort to find anybody else when he was not permitted to take the thing on a TDY position.

[00:04:56] Speaker 04:
Other employees doing the TDY simply did the subject Glynco position.

[00:05:01] Speaker 04:
Mr. Fisher, let me ask you.

[00:05:03] Speaker 01:
As I understand it, what had to be determined here was whether

[00:05:08] Speaker 01:
There was a legitimate management reason for the reassignment.

[00:05:12] Speaker 01:
That's what our Colbert case said, relying on the Ketterer and Umsher cases in the Merit Systems Protection Board.

[00:05:21] Speaker 01:
And the AJ in the board, I believe, found that the reasons for the reassignment were legitimate because, number one, there was a need at Glencoe

[00:05:34] Speaker 01:
And number two, that as capable as he was and as good a record as he had, the fact was that Mr. Womack had been in this at Fort Benning for 15 years and that they needed someone who had more hands-on in the field experience to be teaching this advanced class.

[00:05:57] Speaker 01:
And the AJ said those reasons were established.

[00:06:01] Speaker 01:
Now, for that reason,

[00:06:04] Speaker 01:
there was no unreasonable or improper reassignment, the AJ said.

[00:06:11] Speaker 01:
Okay, that was what he said.

[00:06:12] Speaker 01:
Now, the whole point though about the working until December 31st as opposed to, I guess it was July 31st.

[00:06:21] Speaker 01:
It was June 31st.

[00:06:25] Speaker 01:
That's a detail of his retirement.

[00:06:28] Speaker 01:
That doesn't relate to whether

[00:06:30] Speaker 01:
The basic retirement decision, which he made, was coerced because substantial evidence supports.

[00:06:39] Speaker 01:
And you don't really challenge the two points about the legitimacy of the reassignment.

[00:06:43] Speaker 04:
Well, we challenge the legitimacy.

[00:06:46] Speaker 04:
There is something called need.

[00:06:47] Speaker 04:
And then there's something called need.

[00:06:51] Speaker 04:
And then there's something called need to the point where I'm going to do something about it.

[00:06:56] Speaker 01:
Infrastructure.

[00:06:57] Speaker 01:
But he could have, under our case law,

[00:06:59] Speaker 01:
I think, I can't recall the exact case, but as I understand it, our jurisprudence says that if he was unhappy about this period between end of June and the end of December, he could have refused and he could have stayed there.

[00:07:17] Speaker 01:
And he could have refused and then he would have been fired.

[00:07:21] Speaker 01:
But he chose not to do that.

[00:07:22] Speaker 01:
He was faced with the decision of leaving at the end of June.

[00:07:26] Speaker 01:
Didn't they extend it to July?

[00:07:29] Speaker 04:
I don't recall.

[00:07:30] Speaker 01:
Well, OK.

[00:07:30] Speaker 01:
But anyway, he was faced with the choice of leaving at the end of June or the end of July, or saying, no, I'm not going to do that, and being fired.

[00:07:40] Speaker 01:
And we've said, once it was established that there was a legitimate reason to reassign him, what difference does this make?

[00:07:48] Speaker 04:
Why does the court accept, and why does the judge accept that there was a legitimate reason to reassign him

[00:07:58] Speaker 04:
to the point where someone had to be hired at Glenicoe, because nobody was on a permanent basis.

[00:08:07] Speaker 04:
And remember, Judge, this was the lowest form of training, because their whole point was in his own.

[00:08:14] Speaker 04:
This were incoming agents.

[00:08:15] Speaker 04:
Right, right.

[00:08:16] Speaker 04:
So their claim is we couldn't have gotten anybody in the United States to do this job.

[00:08:21] Speaker 04:
The only person we could have gotten is Mr. Womack.

[00:08:25] Speaker 04:
which there's nothing in an email, a vacancy announcement, a shred of paper, nothing that supports that.

[00:08:32] Speaker 04:
And that he was deficient in the first place is on a double hearsay, which is impossible to rebut.

[00:08:39] Speaker 04:
From one guy who Medina says, someone told his liaison.

[00:08:46] Speaker 01:
Yeah, but the AJ accepted the Medina testimony.

[00:08:51] Speaker 01:
And you challenge it, which is fair enough on appeal.

[00:08:54] Speaker 01:
But the AJ accepted Mr. Medina's testimony, and I can't say that substantial evidence doesn't support that.

[00:09:01] Speaker 04:
And the fact that they just never hired anybody for that job, the fact that they told him, yes, this is an incredible need here, and they just, I'm sorry, Guy.

[00:09:11] Speaker 04:
We just didn't do it.

[00:09:12] Speaker 04:
I think they could ask the court to look at it.

[00:09:15] Speaker 02:
That isn't proof of misrepresentation, though.

[00:09:18] Speaker 02:
It's proof of a- The fact that they didn't hire anyone.

[00:09:21] Speaker 02:
There are various reasons why they didn't hire someone.

[00:09:25] Speaker 02:
They couldn't.

[00:09:26] Speaker 02:
Suddenly, there were financial restrictions.

[00:09:29] Speaker 02:
There was sequestration.

[00:09:32] Speaker 02:
And the burden is on Mr. Womack.

[00:09:35] Speaker 04:
But none of that was asked about at the hearing.

[00:09:40] Speaker 04:
The judge himself asked that question and didn't get any satisfactory response.

[00:09:45] Speaker 04:
If you look on page 100 of the appendix,

[00:09:48] Speaker 04:
So, and again, it doesn't have to be an intentional thing.

[00:09:54] Speaker 04:
The question at the end of the day was, this guy could have been one of the people to do this at the end of the year.

[00:10:02] Speaker 04:
There's no reason why he shouldn't have been.

[00:10:04] Speaker 01:
And you're saying this all came out in the question, with respect to the question of when he would actually leave the job.

[00:10:12] Speaker 04:
Exactly.

[00:10:14] Speaker 04:
That's right.

[00:10:15] Speaker 04:
Nothing further.

[00:10:23] Speaker 03:
Thank you.

[00:10:24] Speaker 03:
Ms.

[00:10:24] Speaker 03:
Ledger.

[00:10:28] Speaker 00:
May it please the court.

[00:10:30] Speaker 00:
The administrative judge correctly found that petitioner did not meet his burden to establish that his retirement was involuntary.

[00:10:36] Speaker 00:
Therefore, the MSPP did not have jurisdiction over this appeal.

[00:10:41] Speaker 00:
To overcome the presumption that his retirement was voluntary, petitioner must show either that it was a result of agency misinformation and deception or that it was coerced by the agency.

[00:10:53] Speaker 00:
And to establish coercion, petitioner must show three things.

[00:10:57] Speaker 00:
First, the agency effectively imposed the terms of the resignation.

[00:11:00] Speaker 00:
Second, petitioner had no realistic alternative but to resign.

[00:11:04] Speaker 00:
And third, the resignation was the result of improper acts by the agency.

[00:11:10] Speaker 03:
But isn't there something curious, you can't dig it out from the record, but here you take a person whose entire career has apparently been trouble-free and superior at least in the last few months and say, all right, pick up yourself or your family or whatever, go four hours away where there's no way you can really, since you're due to retire anyway,

[00:11:40] Speaker 03:
in December that you can really establish a presence or make a significant contribution.

[00:11:51] Speaker 03:
It doesn't seem, there's something very strange about employee relations and management that, again, it doesn't show up in this record.

[00:12:05] Speaker 03:
Do you have a theory about all this?

[00:12:07] Speaker 00:
Well, from the record, it's clear that Mr. Medina testified that he did respect petitioners work and his career.

[00:12:15] Speaker 00:
And that was one of the reasons he wanted to transfer him to this position where they needed an experienced instructor.

[00:12:21] Speaker 00:
And also because of the complaints that had been going on within the agency about his extended tenure and his

[00:12:29] Speaker 00:
current position, which was unprecedented.

[00:12:31] Speaker 00:
Most other instructors there served for five years, and he had been there for 15.

[00:12:36] Speaker 00:
So there was pressure to move him back into the field or to another position.

[00:12:40] Speaker 00:
However, I would note that the legitimacy of the reassignment is not

[00:12:46] Speaker 00:
being challenged in this case.

[00:12:49] Speaker 00:
If Petitioner wanted to challenge that, he should have refused to resign and then allowed the agency to fire him.

[00:12:55] Speaker 00:
And then he could have appealed that removal decision.

[00:12:59] Speaker 00:
So the only thing he's challenging here is whether or not the change in the retirement date rendered his retirement involuntary.

[00:13:09] Speaker 00:
And that's Petitioner's burden to establish that.

[00:13:13] Speaker 00:
And he simply hasn't

[00:13:15] Speaker 00:
produced convincing evidence that the fact that the date was moved up from his desired date of December to eventually July means that he had no choice but to resign.

[00:13:28] Speaker 00:
And actually, the agency showed flexibility in assigning his retirement date by agreeing to extend the date to July from June, which was their original choice for him to retire at his request.

[00:13:45] Speaker 00:
So there's simply no evidence of coercion here in the selection of the retirement date.

[00:13:50] Speaker 02:
Does an employee have an absolute right to determine a retirement date?

[00:13:56] Speaker 00:
I mean, in general, employees are allowed to choose their retirement dates.

[00:13:59] Speaker 00:
However, there is a standard of reasonableness.

[00:14:02] Speaker 02:
In this case... When did this begin?

[00:14:05] Speaker 02:
In November?

[00:14:07] Speaker 00:
Well, the reassignment was said to take place, I believe, by March.

[00:14:13] Speaker 00:
So just reasonably looking at tying the retirement date to the date of the reassignment, extending it out nine more months to December is not consistent with the agency's need to fill that position with a permanent employee.

[00:14:28] Speaker 02:
I think this was February 12th, and he said, I elect to resign in December, which is half months away.

[00:14:36] Speaker 00:
Yeah, so the reassignment would have taken place within 30 to 90 days after February 12th.

[00:14:44] Speaker 00:
So to be consistent with that time frame, June was the latest it could have been.

[00:14:48] Speaker 00:
And they actually did extend it further than that at his request.

[00:14:52] Speaker 00:
And the agency showed that they had sound management reasons for selecting the retirement date in June.

[00:14:59] Speaker 00:
Contrary to petitioners' arguments,

[00:15:04] Speaker 00:
No evidence, the record doesn't establish that the agency never advertised the position.

[00:15:09] Speaker 00:
In fact, the evidence that petitioner relies on, which is on page, let me see, page 99 of the appendix, is Medina's testimony that the position wasn't advertised

[00:15:25] Speaker 00:
prior to their decision to reassign particular to that position.

[00:15:29] Speaker 00:
He doesn't say anything about it not being advertised after he had declined the position.

[00:15:35] Speaker 00:
So that is clearly not enough to meet the burden to establish that.

[00:15:39] Speaker 02:
Was the argument about deception, trickery, elucidated in the blue brief?

[00:15:49] Speaker 00:
Well, he does he does argue that the position was a sham But he's certain doesn't cite evidence to support that So plausibly it could have been included in his brief.

[00:16:00] Speaker 00:
Yes, but our position is that he has not met his burden to establish that the only evidence in the record is that Medina was asked at the hearing What are you doing to fill this position now?

[00:16:14] Speaker 00:
And he said we're continuing to use temporary instructors to fill it

[00:16:18] Speaker 00:
That doesn't say the agency never tried to fill it.

[00:16:21] Speaker 00:
It doesn't say that they wanted to keep using temporary instructors or why they were using temporary instructors.

[00:16:26] Speaker 00:
So given the burdens in this case, Petitioner just hasn't satisfied his burden to establish that the presumptively voluntary act of retiring was actually involuntary.

[00:16:47] Speaker 00:
As I stated the agency had an operational need to permanently fill the FLETC position After petitioner had declined the transfer and an extended detail by an employee who had already announced his retirement did not fulfill that need and the lack of coercion in the selection of the retirement date is further demonstrated by the fact that The agency agreed to extend the retirement date by one month at petitioners request if petitioner did not wish to accept a

[00:17:15] Speaker 00:
the assigned date, he was free to either reconsider his decision to retire, allow the agency to remove him, or reconsider his decision to accept the transfer and take the transfer position.

[00:17:30] Speaker 00:
But instead, he chose to accept the retirement date in July and voluntarily retired.

[00:17:36] Speaker 00:
So because Petitioner did not meet his burden to rebut the presumption that his retirement was voluntary, the MSPB lacked jurisdiction over this appeal.

[00:17:46] Speaker 00:
And if there are no further questions, I would ask that you affirm the board's decision and dismiss the appeal.

[00:17:54] Speaker 03:
Thank you, Ms.

[00:17:55] Speaker 03:
Schleyber.

[00:18:01] Speaker 04:
Just a couple points to clarify the record here.

[00:18:05] Speaker 04:
First of all, page 99, or page 62 of the appendix, where there's a question and answer

[00:18:16] Speaker 04:
What he ended up doing over there was using the TD-wise and he says yes.

[00:18:21] Speaker 04:
And on line 9, one of the people that could have been doing that in 2000s typo, let's say 16, was Mr. Womack.

[00:18:30] Speaker 04:
And he says, yes.

[00:18:32] Speaker 04:
OK, so that's evidence that they didn't fill the position afterwards.

[00:18:37] Speaker 04:
Page 100 of the record, the judge asks him, before you left, he says, I know you've said you've been out of your position for about a year, retired.

[00:18:49] Speaker 04:
And this hearing was in October of 2018.

[00:18:52] Speaker 04:
OK, so he was out of there certainly sometime in 2017.

[00:18:58] Speaker 04:
And before you left, had that position at Glencoe been filled permanently?

[00:19:05] Speaker 04:
And the witness says, I'm not sure what they did, because in 2017, and he goes through a whole thing about what happened in 2017.

[00:19:12] Speaker 04:
That implies that in 2016, they didn't have the position filled.

[00:19:21] Speaker 04:
He would have said that.

[00:19:21] Speaker 04:
He would have said, yes, they filled the position in 2016.

[00:19:24] Speaker 04:
I think there's more than enough in the record to suggest that the position was not filled

[00:19:34] Speaker 04:
permanent person in 2016.

[00:19:36] Speaker 04:
That's just a fact.

[00:19:40] Speaker 01:
But does that make a difference, Mr. Fisher?

[00:19:42] Speaker 01:
Assume the agency circumstances can change.

[00:19:46] Speaker 01:
Assume the agency thought it had to.

[00:19:48] Speaker 01:
And the A.J.

[00:19:51] Speaker 01:
found that based upon what had occurred prior to this dispute about the actual departure date, that

[00:19:59] Speaker 01:
it had made out its case.

[00:20:01] Speaker 04:
Judge, in the answer to that question, OK, is that had that been the case in 2016, Medina would have said so.

[00:20:12] Speaker 04:
He would have said that in that answer on page 100.

[00:20:15] Speaker 04:
He would have said it wasn't filled in 2016 because of everything that you're suggesting.

[00:20:23] Speaker 04:
And in fact, in 2017, something happened.

[00:20:28] Speaker 04:
And that made the whole thing null anyway, in 2017.

[00:20:34] Speaker 04:
Had it been 2016, he would have said that.

[00:20:37] Speaker 01:
And he didn't.

[00:20:38] Speaker 01:
What is curious though, is that this whole question only came up when they were talking about, when are you going to retire?

[00:20:47] Speaker 01:
He'd already said, I will retire.

[00:20:50] Speaker 01:
And you said at the beginning that it was a voluntary retirement.

[00:20:54] Speaker 01:
And this whole question.

[00:20:57] Speaker 01:
only rose when they were discussing, all right, what date are you going to leave?

[00:21:01] Speaker 01:
And as this letter said, he could have said, I'm not happy with this.

[00:21:08] Speaker 01:
I'm going to stay here.

[00:21:09] Speaker 01:
And he could have been fired and then challenged that.

[00:21:11] Speaker 01:
Our cases make that clear.

[00:21:13] Speaker 01:
And the cases have made that clear in circumstances which were much stronger, I think, than in this case.

[00:21:23] Speaker 01:
Much more egregious circumstances.

[00:21:26] Speaker 04:
Well, I mean, I don't know that you need such egregious circumstances.

[00:21:31] Speaker 04:
I mean, the question is, was it enough for him to have relied on the statement?

[00:21:38] Speaker 04:
And if he met that threshold, he doesn't need 20 people saying the same thing.

[00:21:44] Speaker 04:
It's one thing.

[00:21:46] Speaker 04:
Did it cause the guy to retire five months before he wanted to?

[00:21:51] Speaker 04:
I think the answer to that is yes.

[00:21:57] Speaker 03:
Thank you.

[00:21:58] Speaker 03:
Thank you both.

[00:21:59] Speaker 03:
The case is taken under submission.

[00:22:01] Speaker 03:
And that concludes this battle's arguments for this morning.

[00:22:06] Speaker 02:
All rise.

[00:22:07] Speaker 04:
The Honorable Court is adjourned until tomorrow morning, 6 o'clock AM.