Legal appeals call for attention to details

What does it take to prove that you didn't retire voluntarily? That question recently came before the courts in a case involving Jack Daniel, an employee of the Tennessee Valley Authority, who claimed the agency coerced his retirement.

Daniel said two agency actions led to his involuntary retirement. First, his bosses temporarily assigned him in 1993 to the TVA's Employee Transition Program; and second, he was passed over for several other positions for which he applied while in the ETP. Neither action proved to be a sufficient basis for upholding a claim of coercion.

Daniel was assigned to the ETP because of a reorganization. He challenged the assignment in an appeal before the Merit Systems Protection Board, which dismissed it. Daniel did not protest the MSPB's decision, which was a mistake on his part. Because he did not appeal, the MSPB's decision on his ETP assignment became final and could not be challenged in court.

When he was unable to obtain other positions within the TVA, Daniel was faced with, in his view, unpleasant choices. He could further appeal his ETP assignment or pursue his claims that he was not selected for other jobs because of discrimination. Instead, he chose to retire under the TVA early-out offer. He later regretted his action and took another crack at the system.

But the initial MSPB decision, which he did not appeal, prevented Daniel from again challenging his ETP assignment, this time through an involuntary retirement claim.

Daniel then tried to challenge his nonselections on the grounds of discrimination and reprisal for his first nonselection complaint. The Court of Appeals for the Federal Circuit, however, ruled that Daniel's nonselection claim could not be challenged before the MSPB because the board has no jurisdiction over nonselection claims. Nonselection claims can be challenged through the TVA's administrative employment discrimination complaint process and appealed to the Equal Employment Opportunity Commission.

Daniel did challenge three of his nonselections through the TVA complaint process. But in each case, the TVA ruled against Daniel and informed him of his right to appeal to the EEOC. Daniel did not appeal those decisions. That was another mistake.

Much of what befell Daniel is a result of his failure to take appropriate action on a timely basis. You cannot ignore a decision you believe unfair and expect to be able to challenge it later. Appeals must be made to the appropriate authority within the prescribed period.

Furthermore, Daniel could have remained in the ETP and waited for his likely reduction-in-force notice, which he then could have appealed to the MSPB. A choice between retirement and removal through a reduction in force could be considered coercive, if Daniel established that the TVA knew it had no basis for the threatened reduction in force.

Because Daniel failed to set forth facts that, if proven, would establish that his retirement was involuntary, the MSPB was without jurisdiction in this matter. The appeals court ruled that the MSPB properly dismissed Daniel's appeal without a hearing.

This case demonstrates that you're sunk if you don't comply with all procedural aspects of a case. It doesn't matter whether you're right. You have to dot all the I's and cross all the T's. Daniel didn't, and he is paying for it.

-- Bureaucratus is a retired federal employee who contributes regularly to Federal Computer Week.

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