CHASE M. LENTZ, Petitioner
MERIT SYSTEMS PROTECTION BOARD, Respondent
for review of the Merit Systems Protection Board in No.
M. Lentz, Fresno, CA, pro se.
M. Morrow, Office of the General Counsel, Merit Systems
Protection Board, Washington, DC, for respondent. Also
represented by Bryan G. Polisuk, Katherine M. Smith.
Newman, Dyk, and Hughes, Circuit Judges.
Newman, Circuit Judge.
M. Lentz appeals the decision of the Merit Systems Protection
Board (MSPB or "Board"), holding that his
resignation from federal employment was a voluntary act and
not a constructive discharge. We vacate the Board's
decision, as based on incorrect evidentiary procedures
including the inappropriate application of collateral
estoppel. We remand to the MSPB for redetermination of the
issue of constructive discharge.
Lentz entered federal service in 2002, and at the times here
relevant was employed as a botanist with the Bureau of Land
Management of the Department of the Interior (the
"Agency") in California. Mr. Lentz had no
disciplinary record until May 15, 2014, when his supervisor
issued a letter of reprimand for "acting outside the
scope of his authority" and "conduct
unbecoming." MSPB Appx 34. These charges were based on
his authorization to permit goat grazing on certain public
lands, without the prior approval of his supervisors.
Id. On November 13, 2014 Mr. Lentz's supervisor
issued a letter proposing a fourteen-day suspension for
various infractions, citing his management of interns, his
behavior toward his supervisors, and his interaction with
outside entities. Id. at 34-35. Soon after receiving
this letter, Mr. Lentz went on medical leave. The proposed
fourteen-day suspension was sustained on February 10, 2015,
during his medical leave, to commence on February 15, 2015.
Lentz resigned on February 13, 2015. His letter of
resignation cites harassment and a hostile work environment
that aggravated an illness and his veterans disability, and
made his work circumstances intolerable. He states, "I
had been pushed to the limits of what I could endure and had
to take significant amounts of sick leave as a result."
Initial Appeal File (IAF), Tab 9 at 29. He states that until
the most recent two years (and new supervisors) his
performance had consistently been rated "superior."
He states that he has filed complaints for discrimination and
harassment by his supervisors, including complaints for
violation of the Uniformed Services Employment and
Reemployment Rights Act (USERRA), 38 U.S.C. §§
4301-4335, and that the letters of reprimand are retaliatory.
February 25, 2015, Mr. Lentz filed an appeal with the MSPB,
asserting constructive discharge. He stated that the May 2014
letter of reprimand and the November 2014 letter and
fourteen-day suspension were retaliatory and discriminatory,
leading to his constructive discharge. IAF, Tab 1. He stated
that his ensuing illness and medical leave should be viewed
as a constructive suspension, and that "the agency
coerced my resignation by bringing unjustifiable charges and
creating unreasonably difficult working conditions."
IAF, Tab 1 at 5. He also alleged discrimination on the basis
of his status as a disabled veteran, and retaliation for
having previously filed a complaint for violation of USERRA.
In separate appeals to the MSPB, not here at issue, he
alleged that the Agency actions were in retaliation for
protected whistleblower activity.
MSPB's Administrative Judge (AJ), at the Western Regional
Office, bifurcated the February 25, 2015 appeal into two
separate cases. The first case (Lentz
I)designated the appeal as a claim for
involuntary resignation under 5 U.S.C. Chapter 75. The second
case (Lentz II) designated the appeal as a complaint
under USERRA. The AJ dismissed Lentz I for lack of
jurisdiction, and the AJ subsequently held that Mr. Lentz was
collaterally estopped from raising in Lentz II the
evidence and issues that the AJ had assigned to Lentz
I. Mr. Lentz states that by separating the several
factual aspects and concerns that contributed to his
involuntary resignation, their combined weight was never
considered, distorting the MSPB's review.
Lentz I proceeding
first proceeding was designated by the AJ as a dismissal
action under Chapter 75, and was limited by the AJ to the
issue of constructive discharge based on Mr. Lentz's
assertions that the Agency "brought unjustifiable
charges in support of its reprimand and 14-day suspension,
" "committed prohibited personnel practices by
using his protected disclosures of information as a basis for
discipline, " and "misrepresented, exaggerated and
omitted evidence." MSPB Appx 39-40.
Agency moved to dismiss the Lentz I proceeding for
"lack of jurisdiction." The AJ granted the motion
without the requested hearing, stating that "[Mr. Lentz]
has failed to nonfrivolously allege he was subjected to a
discriminatory/retaliatory hostile work environment so
coercive in nature that he had no choice but to resign."
MSPB Appx 51. ...