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Garcia v. Dep't of Homeland Sec.

United States Court of Appeals for the Federal Circuit

February 10, 2006, Decided



 [*1324]  PROST, Circuit Judge.

Lourdes Garcia appeals the dismissal of her claim for constructive reduction in grade by the Merit Systems Protection Board (the "MSPB" or "Board"). The Board determined that Ms. Garcia had not proven that her actions were involuntary and therefore dismissed Ms. Garcia's case for lack of jurisdiction without granting her a hearing. Garcia v. Dep't of Homeland Sec., 2004 MSPB LEXIS 3788, *4, No. DC0752040110-I-1 (M.S.P.B. Jan. 22, 2004) ("Initial Decision"). Because the Board did not adequately determine whether or not Ms. Garcia had presented non-frivolous allegations, we vacate and remand.

An adverse action is an official action taken by a federal agency and imposed on an employee, such as an actual removal from employment or an actual reduction in grade or pay. 5 U.S.C. § 7512 (2000). Such official action is by statute [**3]  clearly within the jurisdiction of the Board, and an aggrieved employee can appeal such an action to the Board for a determination as to whether the action was proper. 5 U.S.C. § 7513(d) (2000). This case, however, does not involve an official adverse action. Instead, it deals with what is known as a constructive adverse action. ] A constructive adverse action arises when an agency's conduct leaves an employee no alternative but for the employee, involuntarily, to impose the adverse action on himself or herself. For example, although a resignation is ostensibly a voluntary separation from employment, it is possible that an employee can be coerced into resigning by actions of the employing agency. In other words, the facially voluntary action by the employee may actually be involuntary. Such an involuntary adverse action is known as a constructive adverse action, and a long line of cases has established that the Board's jurisdiction extends to an involuntarily imposed adverse action. Here, Ms. Garcia alleges that she applied for and involuntarily accepted a reduction in grade because her employer failed to accommodate her disability. Further, Ms. Garcia alleges [**4]  that the constructive adverse action was prompted by a violation of her rights to be free from discrimination in the workplace. Because her case presents questions both of possible adverse action and possible discrimination, it is a "mixed" case in the vernacular of our case law.

In Cruz v. Department of the Navy, we held that, ] when presented with a mixed case of constructive removal and discrimination, the Board only had authority to decide the discrimination issue if the Board had jurisdiction over the alleged constructive adverse action. 934 F.2d 1240, 1251-53 (Fed. Cir. 1991) (en banc). Cruz failed to prove that a constructive  [*1325]  adverse action had been taken against him. In other words, Cruz had failed to prove that his resignation was involuntary. Accordingly, we concluded that the Board correctly dismissed his case for want of jurisdiction without reaching his discrimination claim. Furthermore, though not explicitly mentioned in Cruz, the standards set forth in Cruz are consistent with the Board's own regulation that places the burden on the claimant to establish jurisdiction by a preponderance of the evidence. See 5 C.F.R. § 1201.56 (2004) [**5]  . Since Cruz, the typical procedure in constructive adverse action cases first grants a claimant a jurisdictional hearing if the employee makes non-frivolous allegations that, if proven, could establish the Board's jurisdiction. Then, at that hearing, the claimant has the burden of establishing the Board's jurisdiction by a preponderance of the evidence.

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437 F.3d 1322 *; 2006 U.S. App. LEXIS 3214 **


Subsequent History: Appeal dismissed by, On remand at Garcia v. Dep't of Homeland Sec., 2006 MSPB LEXIS 3454 (M.S.P.B., June 29, 2006)

Prior History:  [**1]  Appealed from: United States Merit Systems Protection Board.

Garcia v. Dep't of Homeland Sec., 96 M.S.P.R. 569, 2004 MSPB LEXIS 927 (2004)



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