LEAD TRIAL AND

APPELLATE COUNSEL

UNITED STATES CIRCUIT COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

LAURETTA L. MINTZMYER, Petitioner

v. 

DEPARTMENT OF THE INTERIOR, Respondent.

95-3665  84 F.3d 419;

1996 U.S. App. LEXIS 11369

May 16, 1996, DECIDED

Appealed from: Merit Systems Protection Board.

No. DE1221930414-W-4.

COUNSEL:  Paul J. Ruskin, of Douglaston, New York, argued for petitioner. With him on the brief was Carl J. Hartmann, of New York, New York, of counsel.

William P. Donovan, Jr., Attorney, Commercial Litigation Branch, Department of Justice, of Washington, D.C., argued for respondent. With him on the brief were Frank W. Hunger, Assistant Attorney General, David M. Cohen, Director and Joseph A. Kijewski, Assistant Director. Also on the brief was Patricia M. Miller, Office of the Solicitor, Department of the Interior, Washington, D.C., of counsel.

Before NEWMAN, MAYER, and LOURIE, Circuit Judges. [*421] 

MAYER, Circuit Judge. 

Lauretta L. Mintzmyer petitions for review of a final decision of the Merit Systems Protection Board, No. DE1221930414-W-4, dismissing her individual right of action appeal. We affirm.  Background  In 1980, Mintzmyer became the Regional Director of the Rocky Mountain Region of the National Park Service, a bureau within the United States Department of the Interior (agency). As such, she was in the Senior Executive Service working in Denver, Colorado. In October [**2] 1991, Mintzmyer and two other directors of different regions were part of a three-way rotation, in which Mintzmyer was reassigned as Regional Director of the Mid-Atlantic Region in Philadelphia, Pennsylvania.  Displeased with her transfer, Mintzmyer filed an Equal Employment Opportunity complaint with the agency, claiming that her reassignment was due to gender and age discrimination and was in retaliation for whistleblowing. In April 1992, Mintzmyer retired. She then amended her EEO complaint to allege that she had been coerced into retiring for the same reasons.   In October 1992, Mintzmyer filed a complaint against the agency in the United States District Court for the District of Colorado, alleging, inter alia, violations of Title VII of the Civil Rights Act of 1964, 42  U.S.C. section 2000e-2(a); and the Age Discrimination in Employment Act of 1967, 29 U.S.C. section 623(a)(1)- (2). The case was transferred to the United States District Court for the District of Columbia.

Then, in January 1993, Mintzmyer filed a complaint with the United States Office of Special Counsel,  alleging that she had been reassigned and constructively discharged in reprisal for making protected  disclosures [**3] under the Whistleblower Protection Act of 1989, Pub. L. No. 101-12, 103 Stat. 16  (1989) (codified at scattered sections of Title 5, United States Code) (WPA). The Office of Special  Counsel notified Mintzmyer in March 1993 that she had not made any protected disclosures within the  meaning of that act. See 5 U.S.C. section 2302(b)(8) (1994). Nor did it find any apparent nexus between the  disclosures she claimed were protected and personnel actions allegedly taken against her.

Mintzmyer then filed an individual right of action (IRA) appeal to the Merit Systems Protection Board.  The administrative judge found that the relief sought and factual allegations in both the board appeal and  the district court action were virtually identical. Consequently, he dismissed the appeal without prejudice  because of the potential collateral estoppel implications of the pending case in district court.

On January 12, 1995, the district court entered judgment in favor of the agency on seven of Mintzmyer's  eight claims, but awarded her $ 5,025 for a year-end bonus it found she was wrongfully denied in reprisal  for filing a discrimination complaint against the agency. See Mintzmyer v. Babbitt, 1995 U.S. Dist.  LEXIS 1182, No. 93-0773(GK) [**4] (D.D.C. Jan. 12, 1995). The court expressly rejected Mintzmyer's  claim that she had been constructively discharged for filing a discrimination complaint against the  agency. Id. at *32-33.

Mintzmyer then refiled her IRA appeal to the board, which dismissed it. The administrative judge held  that the board had no jurisdiction over four alleged retaliatory agency actions that she had not raised  initially before the Office of Special Counsel. Alternatively, he ruled that only one of those additional four  actions involved an appealable "personnel action." He held further that her claim that she had been  constructively removed in reprisal for whistleblowing was collaterally estopped by the district court's  holding that she had not been constructively discharged in retaliation for having filed age and sex  discrimination complaints against the agency. The administrative judge also held that she was collaterally  estopped from relitigating her claims that she had been denied a bonus and step increase because of  whistleblowing. Mintzmyer's final claim, that the agency reassigned her in reprisal for whistleblowing,  was dismissed as moot because the board could provide her no meaningful [**5] relief after she had  voluntarily retired. The initial decision became final on June 15, 1995, when [*422] the full board denied  Mintzmyer's petition for review. 5 C.F.R. section 1201.113(b) (1995).

On appeal, Mintzmyer first argues that the board improperly dismissed the four claims it found had not  been raised before the Office of Special Counsel. Second, she challenges the board's determination that  her constructive removal claim was collaterally estopped by the district court's holding.

Discussion

We review the board's decision within precisely defined statutory limits. See Hayes v. Department of  Navy, 727 F.2d 1535, 1537 (Fed. Cir. 1984). We must affirm its decision to dismiss Mintzmyer's appeal  unless she shows it is: (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with  law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3)  unsupported by substantial evidence. 5 U.S.C. section 7703(c) (1994). Mintzmyer has not met this burden.

A.

Mintzmyer first argues that the board erred as a factual matter in finding that she had failed to take four of  the eight acts of whistleblower reprisal to the Office of Special [**6] Counsel. Consequently, she asserts  that the board wrongfully dismissed those claims.

The WPA prohibits government personnel actions taken against an employee in reprisal for  whistleblowing. 5 U.S.C. section 2302(b)(8) (1994); Horton v. Department of Navy, 66 F.3d 279, 282 (Fed.  Cir. 1995); Ward v. Merit Sys. Protection Bd., 981 F.2d 521, 523 (Fed. Cir. 1992). Except when there  exists an independent right to appeal an adverse personnel action directly to the board, an employee or  former employee aggrieved by the action must first seek corrective action from the Office of Special  Counsel. 5 U.S.C. sectionsection 1214(a)(3), 1221(b) (1994); Knollenberg v. Merit Sys. Protection Bd., 953 F.2d  623, 625-26 (Fed. Cir. 1992). Only after the Office of Special Counsel has notified the employee or former  employee that it has terminated its investigation or has failed to commit to pursuing corrective action  within 120 days may that person file an IRA appeal, under 5 U.S.C. section 1221, to the board. 5 U.S.C. section  1214(a)(3); Ellison v. Merit Sys. Protection Bd., 7 F.3d 1031, 1036 (Fed. Cir. 1993); Knollenberg, 953  F.2d at 625-26.

At the Office of Special Counsel, Mintzmyer argued that the agency [**7] had taken the following  personnel actions against her in reprisal for whistleblowing: (1) reassigned her; (2) denied her a salary  step increase; (3) denied her a bonus; and (4) constructively discharged her through a course of "harassing  and retaliatory behavior." Before the board, Mintzmyer alleged that the agency also had taken the  following "retaliatory actions": (1) threatened to reprimand her; (2) continuously threatened her with  "prosecution"; (3) made several false and slanderous statements "with regard to actions taken against and  by" her; and (4) declared that she was a threat to President George Bush just prior to a visit he made to the  Mid-Atlantic Region.

Mintzmyer, who has the burden of establishing the board's jurisdiction over her IRA appeal, see Cruz v.  Department of Navy, 934 F.2d 1240, 1244 (Fed Cir. 1991) (in banc), does not argue that the four claims  dismissed as newly raised were directly appealable to the board and thus within its jurisdiction. Rather,  she points to the allegation in her complaint filed with the Office of Special Counsel that she was  "subjected to constructive discharge by harassing and retaliatory behavior" in arguing that she had raised  [**8] these claims previously. But she did not raise these four alleged agency actions as independent  personnel actions taken against her before the Office of Special Counsel. Mintzmyer was required "to  articulate with reasonable clarity and precision the basis for [her] request for corrective action under the  WPA" to the Office of Special Counsel. Ellison, 7 F.3d at 1037; see also Ward, 981 F.2d at 526. Her  failure to do so deprived the board of jurisdiction over these four claims; thus, its dismissal was proper. *

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* In light of this holding, we need not address whether these claims constitute appealable personnel  actions under 5 U.S.C. sectionsection 1221(a), 2302(b)(8).

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[*423] B.

Mintzmyer next argues that the board erred in holding that she was collaterally estopped from litigating  that her retirement constituted a constructive discharge in reprisal for whistleblowing. She contends that  the district court addressed only whether she had been constructively discharged because of age and  gender discrimination, not whistleblowing. [**9] She sees these as different issues based on related, but  different, facts. While she is correct that a discrimination claim is distinct from a whistleblowing claim,  the ultimate issue in both claims is whether Mintzmyer retired under such intolerable working conditions  that her retirement constituted a constructive discharge by the agency. That was fully litigated in the  district court.

A retirement or resignation "is presumed to be a voluntary act and, therefore, beyond the Board's  jurisdiction." Braun v. Department of Veterans Affairs, 50 F.3d 1005, 1007 (Fed. Cir. 1995); see also  Cruz, 934 F.2d at 1244. However, the board does have jurisdiction over an appeal by an employee whose  retirement or resignation was involuntary, was a constructive removal. Cruz, 934 F.2d at 1244. Thus, to  determine whether the board had jurisdiction over Mintzmyer's IRA appeal requires determining whether  she was constructively removed. Stephens v. Merit Sys. Protection Bd., 986 F.2d 493, 496 (Fed. Cir.  1993). However, if another forum has already concluded that Mintzmyer was not constructively  discharged, and that holding is entitled to collateral estoppel effect, then the board lacked [**10]  jurisdiction to hear this claim.

The board may give collateral estoppel effect to court decisions in appropriate circumstances. Kroeger v.  United States Postal Serv., 865 F.2d 235, 238 (Fed. Cir. 1988); Thomas v. General Servs. Admin., 794  F.2d 661, 664 (Fed. Cir. 1986). Whether collateral estoppel, or issue preclusion, applies here turns on  whether: (1) the issue previously adjudicated by the district court is identical to the one before us; (2) that  issue was "actually litigated" in the district court; (3) the district court's resolution of that issue was  necessary to the resulting judgment; and (4) Mintzmyer was fully represented in the district court. Rice v.  Department of Treasury, 998 F.2d 997, 999 (Fed. Cir. 1993); McCandless v. Merit Sys. Protection Bd.,  996 F.2d 1193, 1198 (Fed. Cir. 1993). Mintzmyer concedes that she was represented by counsel in the  district court, but contends that the other three elements are not present here. We disagree.

The legal standard for establishing a constructive discharge is the same regardless of whether the  discharge was allegedly in retaliation for whistleblowing or for filing a discrimination claim. The district  court [**11] required Mintzmyer to establish that the agency intentionally made working conditions  intolerable, thereby forcing her to involuntarily retire. Babbitt, slip op. at 43. The test the court applied  was whether the agency created or tolerated "'retaliatory working conditions that would drive a reasonable  person to resign.'" Id. (quoting Katradis v. Dav-El of Washington, 270 U.S. App. D.C. 23, 846 F.2d 1482,  1485 (D.C. Cir. 1988)). The board has adopted the same test in examining whether an appellant has been  constructively discharged in reprisal for whistleblowing. See Heining v. General Servs. Admin., 68  M.S.P.R. 513, 519-22 (1995); Zygmunt v. Department of Health and Human Servs., 61 M.S.P.R. 379, 383  (1994); Burke v. Department of Treasury, 53 M.S.P.R. 434, 439 (1992). Mintzmyer does not argue that  this test is inappropriate in whistleblower cases, and we endorse the board's use of it.

In addition to the identity of the legal issue raised by both claims, the facts raised by Mintzmyer in support  of each claim are identical. The board explicitly found that "the underlying facts relied upon by  [Mintzmyer] to support her claims of constructive discharge before the Board and the District [**12]  Court are the same." She has not established that this finding is unsupported by substantial evidence.  Before the district court, Mintzmyer alleged that the agency had constructively discharged her by  undermining her ability to manage her staff in the Mid-Atlantic Region. Babbitt, slip op. at 2, 24. She  argued that a number of different agency actions, viewed cumulatively and in context, rendered her  position there untenable, [*424] forcing her to retire. In rejecting this claim, the court addressed three  controversial situations she faced upon assuming her post as Mid-Atlantic Regional Director and insulting  treatment she received from security officials who viewed her as a security risk to President Bush.

In her IRA appeal, Mintzmyer claimed that she was "subjected to continuing harassment with regard to . .  . employees ([under her] supervision)." As part of her prehearing submission to the board, she explained  further that the agency had subjected her to a continuous stream of harassment in Philadelphia that  undermined her relationship with her subordinates and decreased her effectiveness, resulting in a  constructive discharge. Although she argues on appeal that the factual basis [**13] for her whistleblower  claim differs from that of her discrimination claim and notes that the district court "refused to hear or  decide any of the facts going to constructive discharge caused by whistleblower retaliation," she has  alleged no acts of harassment to which she was subjected in Philadelphia that differ from those she relied  upon in litigating her discrimination claim.

Consequently, we believe the board's conclusion that the issue in each forum was identical is correct. It is  also beyond serious question that the issue was actually litigated in district court and was necessary to the  resulting judgment. The court conducted a five-day bench trial and concluded that the agency's actions did  not create the type of intolerable working conditions that amount to a constructive discharge. Mintzmyer  was collaterally estopped from litigating her constructive discharge claim. That she has appealed the  district court's judgment does not alter our conclusion. See Rice, 998 F.2d at 999 ("The pendency of an  appeal has no effect on the finality or binding effect of a trial court's holding.").

Conclusion

Accordingly, the decision of the Merit Systems Protection Board is affirmed. [**14]

AFFIRMED