In Johnson v. Department of Veterans Affairs, No. 05-3149 (Fed. Cir. 2006), a court of appeals decided that the Merit Systems Protection Board (“MSPB”) did not have jurisdiction over a former Department of Veterans Affairs (“DVA”) employee because her resignation was voluntary.

According to the court decision:

Sheri P. Johnson served as a cemetery representative for the DVA. In November 2002, Ms. Johnson received a “Notice of Unacceptable Performance.” On January 2, 2004, after allowing Ms. Johnson the opportunity to improve performance, the DVA issued her a decision regarding her removal, effective January 29, 2004. On the day before Ms. Johnson’s removal date, she consulted a human resources (“HR”) assistant who was responsible for processing removals and resignations. Ms. Johnson sought the HR assistant’s advice as to whether she should resign or face removal. According to a statement by the HR assistant, she advised Ms. Johnson to resign rather than be terminated. On January 28, 2004, Ms. Johnson resigned her position.

After Ms. Johnson resigned, she filed an appeal before the MSPB, asserting that her resignation was involuntary. Ms. Johnson cited the following as reasons for her involuntary resignation: (1) a death in the family and a funeral on January 30, 2006; (2) DVA officials urged her to resign; (3) the deciding official continually asked about Ms. Johnson’s employment status; and (4) the HR assistant advised Ms. Johnson to resign.

The MSPB and the Federal Circuit Court of Appeals decided that Ms. Johnson was not entitled to an MSPB appeal because her resignation was voluntary. At the outset, the court stated that resignations are presumed to be voluntary. In order to establish that Ms. Johnson involuntarily resigned from her position, she needed to establish that she had no choice but to resign. The court declared that when an employee is “merely faced with a choice between two unpleasant alternatives, either resign or be removed for cause, then such a choice is not involuntary.” The court identified some situations when a resignation could be deemed involuntary:

The employee resigned under duress brought on by government action.

An employee unsuccessfully tried to resign before the effective date.

The employee submitted a resignation under time pressure.

An employee failed to understand the situation due to mental incompetence.

The employee resigned due to agency deception or misrepresentation.

In Ms. Johnson’s case, she alleged that the DVA obtained her resignation due to time pressure, duress, and/or misrepresentation.

The court rejected Ms. Johnson’s stated reasons for her resignation. The court concluded that the DVA gave Ms. Johnson three-and-a-half weeks to make her decision, which is adequate time. In contrast to Ms. Johnson’s case, the court explained that when an “agency demand[ed] an immediate decision, then the employee’s decision was involuntary.” Indeed, in citing a previous case, the court deemed two weeks enough time for an employee to make an informed decision. Additionally, the court found that repeated inquiries as to Ms. Johnson’s last day failed to amount to duress. Finally, the court reasoned that Ms. Johnson’s reliance on the HR representative’s advice was not misinformation.

Unless working conditions are objectively intolerable, resigning from a position is the least desirable option because you face more difficult legal obstacles when trying to prove “constructive termination.” When faced with the “unpleasant alternatives” of resignation or termination, federal employees should obtain the advice of legal counsel or assistance from their union, if available. The federal courts have established a high standard for determining whether an employee’s resignation is involuntary. If you plan to contest an adverse employment action, you should reconsider before submitting your resignation because the resignation will greatly complicate any possible appeal.

This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com .

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