Board Reinstates Employee Who Resigned Based on Erroneous Belief That He Faced Immediate Suspension

On August 22, 2011, the Appellant, Isaac Freeborn, filed an appeal asserting that his resignation of April 27, 2011, was involuntary. The appellant admitted during an OIG investigation that he had allowed contraband, in the form of tennis shoes, to enter a Bureau of Prisons facility. When the Appellant admitted his wrongdoing to the warden of the facility, appellant asserted that the warden told the appellant that he would be suspended immediately for 10 days while the warden initiated an investigation, or the Appellant could resign. The Appellant resigned immediately.

The appellant introduced evidence that the warden told the appellant that if he resigned immediately there would be no suspension in the Appellant’s record and no investigation into the appellant’s activity, and no one informed the Appellant that he would be entitled to notice and an opportunity to respond before the suspension issued. The agency introduced evidence that the warden told the appellant that he was considering putting the appellant on non-disciplinary paid home duty status, rather than suspending the appellant.

The administrative judge dismissed the appeal for lack of jurisdiction, finding that the Appellant did not prove by the preponderance of the evidence that his resignation was involuntary. The administrative judge found that the warden testified that he told the Appellant he was considering putting the appellant on home duty status pending an investigation rather than suspending the appellant, and that home duty status was not an adverse action.

Before the Board, the appellant, proceeding pro se, argued that the administrative judge should have applied the Board’s decision in Gibeault v. Department of the Treasury, 114 M.S.P.R. 664, ¶ 8 (2010), holding that an employee-initiated action is considered involuntary if it resulted from the employee’s reasonable reliance on the agency’s misleading statements or from the agency’s failure to provide the employee with adequate information on which to make an informed choice. The appellant argued that the warden’s statements about home duty status were misleading, and led the appellant to believe that he would be suspended if he did not resign.

The Board reversed the decision below, and ordered that the appellant be reinstated. The Board cited to a series of statements in the record and a letter from the appellant from which the Board concluded that the appellant believed that he was being disciplined by means of a suspension, that the warden was aware of the appellant’s erroneous belief, and that the warden did not act to correct the appellant’s incorrect belief. The Board noted that the warden testified that it was possible for an employee to get confused between home duty status and a suspension, that he did not know if the appellant knew the distinction between the two, and that he did not inform the appellant that the appellant would be entitled to written notice of a proposed disciplinary action before such action took place.

The Board further held that the appellant demonstrated good cause for delay in filing his appeal because the agency did not inform the appellant of his right to appeal the alleged involuntary resignation to the Board, and the appellant filed his appeal within 5 days of learning of his right to appeal.

The case is Freeborn v. Department of Justice, 2013 MSPB 23 (March 29, 2013). The case can be found here.

 

Posted in Case Law Update

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