Mr. Kelly's reduction in grade and pay is presumed voluntary because he accepted the Agency's proposal that he be reassigned to the PDK location. See Gaudette v. Dep't of Transp., 832 F.2d 1256, 1258 (Fed. Cir. 1987). Mr. Kelly's presumptively voluntary reassignment was constructively involuntary, however, if it was based on misinformation, deception, or coercion.
In a recent decision this court rejected that proposition holding that an agency has no obligation to counsel its employees on what constitutes "involuntariness" in a legal sense. Gaudette v. Department of Transp., 832 F.2d 1256, 1258-59 (Fed. Cir. 1987). We recognize, of course, that where an agency advises an employee on options available to him or her, it must give correct information so that the employee may make an informed choice.
Both the Federal Circuit and the MSPB have repeatedly held that "the fact that an employee is faced with an unpleasant situation or that his choice is limited to two unattractive options does not make the employee's decision any less voluntary." Staats v. U.S. Postal Serv., 99 F.3d 1120, 1124 (Fed. Cir. 1996); see also Gaudette v. Dep't of Trans., 832 F.2d 1256, 1259 (Fed. Cir. 1987) (concluding an air traffic controller's reassignment was voluntary in similar circumstances, explaining the fact that "the employee would prefer to stay in the position from which he or she faces possible removal and dislikes taking a pay-cut does not make their decision to accept the offer of a lower-grade position legally involuntary"); Loggins v. U.S. Postal Serv., 112 M.S.P.R. 471, 476 (2009) ("An employee's acceptance of a lower-graded position is generally considered to be voluntary and not subject to the Board's jurisdiction."); Reed v. U.S. Postal Serv., 99 M.S.P.R. 453, 460 (2005) (same), aff'd, 198 F. App'x 966 (Fed. Cir. 2006). Similarly, the Federal Circuit has held that a federal employee who, like here, accepts reassignment to a lesser position in lieu of facing proposed removal cannot demonstrate that the reassignment is "involuntary" so as to vest the MSPB with jurisdiction.
Unlike the vast majority of government positions, developmental air traffic controllers enter an "up or out" training course which they must pass through to become a Full Performance Level controller. See Gaudette v. Department of Transp., 832 F.2d 1256 (Fed. Cir. 1987); Hanratty v. Federal Aviation Admin., 780 F.2d 33 (Fed. Cir. 1985). Under Chapter 75 of the Civil Service Retirement Act, 5 U.S.C. § 7501-7543 (1988) (CSRA), an adverse action is sustainable only if it promotes the efficiency of the service.
Although Mr. Harris argues that when he decided to resign, he relied on faulty information and his record of convictions, unlike Mr. Scharf and Mr. Covington, plaintiff was the expert and fully informed on what had actually happened in his home on the critical night of January 31, 2001. See Gaudette v. Dep't of Transp., 832 F.2d 1256, 1258 (Fed. Cir. 1987) (petitioners who were reassigned to lower-graded positions claimed to have been "involuntarily demoted," but the Federal Circuit found that, "[p]etitioners knew as much as the agency concerning their future if they did not elect to transfer," and found the demotions to be voluntary); Petrick v. United States, 12 Cl. Ct. 700, 703 (1987) (the court concluded that plaintiff Petrick's separation from the military was voluntary, noting that "here plaintiff was a competent personnel specialist who knew the rules.").
Although Mr. Harris argues that when he decided to resign, he relied on faulty information and his record of convictions, unlike Mr. Scharf and Mr. Covington, plaintiff was the expert and fully informed on what had actually happened in his home on the critical night of January 31, 2001. See Gaudette v. Dep't of Transp., 832 F.2d 1256, 1258 (Fed. Cir. 1987) (petitioners who were reassigned to lower-graded positions claimed to have been "involuntarily demoted," but the Federal Circuit found that, "[p]etitioners knew as much as the agency concerning their future if they did not elect to transfer," and found the demotions to be voluntary); Petrick v. United States, 12 Cl. Ct. 700, 703 (1987) (the court concluded that plaintiff Petrick's separation from the military was voluntary, noting that "here plaintiff was a competent personnel specialist who knew the rules.").
However, the test for failing to provide relevant information is more discriminating: Failing to provide information will only rebut the presumption of voluntariness in cases "where the agency had given misinformation and had an affirmative obligation to correct the misinformation by supplying the correct information." Gaudette v. Dep't of Transp., 832 F.2d 1256, 1258 (Fed. Cir. 1987). Plaintiff has not alleged or exhibited any misrepresentations on which he detrimentally relied.