                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     BRENDA L. BERKLEY,                              DOCKET NUMBER
                   Appellant,                        PH-1221-14-0539-W-1

                  v.

     DEPARTMENT OF                                   DATE: January 20, 2015
       TRANSPORTATION,
                 Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Darrin W. Gibbons, Esquire, Richmond, Virginia, for the appellant.

           Anastasiya Sidorova, Washington, D.C., for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     dismissed her individual right of action (IRA) appeal for lack of jurisdiction and
     also dismissed her claim of an involuntary retirement for lack of jurisdiction.
     Generally, we grant petitions such as this one only when: the initial decision

     1
        A nonprecedential order is one that the Board has determined does not add
     significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
     but such orders have no precedential value; the Board and administrative judges are not
     required to follow or distinguish them in any future decisions. In contrast, a
     precedential decision issued as an Opinion and Order has been identified by the Board
     as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
                                                                                        2

     contains erroneous findings of material fact; the initial decision is based on an
     erroneous interpretation of statute or regulation or the erroneous application of
     the law to the facts of the case; the judge’s rulings during either the course of the
     appeal or the initial decision were not consistent with required procedures or
     involved an abuse of discretion, and the resulting error affected the outcome of
     the case; or new and material evidence or legal argument is available that, despite
     the petitioner’s due diligence, was not available when the record closed.        See
     Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
     § 1201.115). After fully considering the filings in this appeal, and based on the
     following points and authorities, we conclude that the petitioner has not
     established any basis under section 1201.115 for granting the petition for review,
     and we DENY the petition for review.            The administrative judge’s initial
     decision, as supplemented by this Final Order with regard to the jurisdictional
     dismissal of the involuntary retirement claim, constitutes the Board’s final
     decision in this matter. 5 C.F.R. § 1201.113.

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶2         The appellant, a former Financial Management Specialist with the Federal
     Highway Administration, submitted an application for retirement effective
     October 31, 2013. Initial Appeal File (IAF), Tab 1, Subtab 8. After retiring from
     federal service, the appellant filed a complaint with the Office of Special Counsel
     (OSC) challenging several agency actions on the basis of whistleblower reprisal.
     IAF, Tab 14 at 25-34. OSC issued the appellant a close-out letter on January 15,
     2014, and the appellant thereafter filed a timely IRA appeal with the Board. IAF,
     Tab 1 & Subtab 5 (OSC close-out letter).             After holding several status
     conferences with the parties in an effort to define the issues presented, and after
     issuing several jurisdictional orders explaining the appellant’s various burdens to
     establish the Board’s jurisdiction over her potential claims, the administrative
     judge issued an initial decision dismissing her appeal for lack of jurisdiction.
                                                                                         3

     IAF, Tab 30, Initial Decision (ID). Specifically, the administrative judge found
     that the appellant failed to nonfrivolously allege that she made a protected
     disclosure under 5 U.S.C. § 2302(b)(8) and that she also failed to nonfrivolously
     allege that she engaged in a protected activity under 5 U.S.C. § 2302(b)(9). ID
     at 5-6. The administrative judge further concluded that the appellant failed to
     exhaust her claim of reprisal based on her filing a complaint with the agency’s
     Office of Inspector General (OIG), ID at 6, and he also determined that the
     appellant failed to nonfrivolously allege that she was forced to retire based upon
     alleged intolerable working conditions which left her no choice but to leave
     federal service involuntarily, ID at 7-8.
¶3         The appellant has filed a petition for review challenging the administrative
     judge’s jurisdictional dismissal of her claim of an involuntary retirement. 2
     Petition for Review (PFR) File, Tab 1 at 4-6. The agency has filed a response in
     opposition to the petition for review. PFR File, Tab 3.
     The administrative judge properly dismissed the appellant’s IRA appeal for lack
     of jurisdiction.
¶4         The Board has jurisdiction over an IRA appeal if the appellant exhausts her
     administrative remedies with OSC and makes nonfrivolous allegations that:
     (1) she made a disclosure under 5 U.S.C. § 2302(b)(8), or engaged in a protected
     activity under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the disclosure
     or protected activity was a contributing factor in the agency’s decision to take or
     fail to take a personnel action as defined by 5 U.S.C. § 2302(a). See 5 U.S.C.
     §§ 1214(a)(3),   1221(e)(1);   see   also   Yunus    v.   Department    of   Veterans
     Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001). A nonfrivolous allegation is an
     allegation of fact that, if proven, could establish a prima facie case that the Board
     has jurisdiction over the appeal.           Carney v. Department of Veterans

     2
        The appellant has not specifically challenged any of the administrative judge’s
     findings as to the jurisdictional dismissal of her IRA appeal on review. See PFR File,
     Tab 1 at 4-6. As explained below, we have reviewed the initial decision and concur
     with the dismissal of the IRA appeal for lack of jurisdiction.
                                                                                        4

     Affairs, 121 M.S.P.R. 446, ¶ 11 (2014). In determining whether the appellant has
     made a nonfrivolous allegation of jurisdiction entitling her to a hearing, the
     administrative judge may not weigh evidence or resolve conflicting assertions of
     the parties. Id.
¶5         In response to the administrative judge’s jurisdictional orders concerning
     her IRA appeal, the appellant alleged that she contacted an agency equal
     employment opportunity (EEO) counselor in April 2013, to file a complaint of
     discrimination in which she disclosed retaliation and harassment based on, inter
     alia, the agency’s overburdening her with work and placing her on a performance
     improvement plan (PIP).       IAF, Tab 14.      After considering the appellant’s
     allegations, the administrative judge gave the parties an additional opportunity to
     brief the issue of whether a complaint of discrimination could serve as a protected
     disclosure under section 2302(b)(8). IAF, Tab 20. In response, the appellant
     argued that her IRA appeal “is not based upon a discrimination complaint, but
     rather [] is based upon reprisal related to the filing of a previous discrimination
     complaint.” IAF, Tab 21.
¶6         We agree with the administrative judge that the appellant failed to
     nonfrivolously allege facts which could establish the Board’s jurisdiction over her
     IRA appeal. The Board has found that allegations that are limited to EEO matters
     covered under 5 U.S.C. § 2302(b)(1) and (b)(9) are excluded from coverage under
     section 2302(b)(8).      See Applewhite v. Equal Employment Opportunity
     Commission, 94 M.S.P.R. 300, ¶ 23 (2003). Thus, to the extent that the appellant
     sought to predicate her IRA appeal on her disclosure of EEO matters, the
     administrative judge properly found that a complaint of discrimination is not a
     protected disclosure under 2302(b)(8). 3 See Parikh v. Department of Veterans
     Affairs, 110 M.S.P.R. 295, ¶ 24 (2008).


     3
      We agree with the administrative judge that the changes enacted by the Whistleblower
     Protection Enhancement Act of 2012 (WPEA) do not change this result. ID at 5.
                                                                                          5

¶7         We further concur with the administrative judge that the appellant’s
     allegation of reprisal under section 2302(b)(9) based on her filing a prior EEO
     complaint of discrimination does not establish the Board’s jurisdiction in an IRA
     appeal.   See ID at 5.     Pursuant to the WPEA, an employee may now seek
     corrective action in an IRA appeal for any personnel action taken as a result of a
     prohibited personnel practice described in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C),
     or (D). See Colbert v. Department of Veterans Affairs, 121 M.S.P.R. 677, ¶ 6
     (2014); see also 5 U.S.C. § 1221(a). Reprisal for filing a prior EEO complaint,
     however, is not included among this listing of prohibited personnel practices
     which can form the basis of an IRA appeal; rather, this prohibition is contained
     within 5 U.S.C. § 2302(b)(9)(A)(ii), and it does not provide a basis for
     establishing the Board’s jurisdiction over an IRA appeal.              See Mudd v.
     Department of Veterans Affairs, 120 M.S.P.R. 365, ¶ 7 (2013). The administrative
     judge properly found that the appellant’s allegations of EEO reprisal fail to
     nonfrivolously establish the Board’s jurisdiction over an IRA appeal. Id.
¶8         Finally, we find no reason to differ with the administrative judge’s
     conclusion that the appellant failed to exhaust her alleged protected disclosure
     made to the OIG. ID at 6. The Board has consistently held that it may only
     consider the specific allegations of reprisal which have been presented to OSC,
     and the appellant has presented no evidence that she exhausted this claim with
     OSC. 4 See Coufal v. Department of Justice, 98 M.S.P.R. 31, 37 (2004). We
     accordingly AFFIRM the jurisdictional dismissal of the appellant’s IRA appeal.
     The administrative judge properly dismissed the appellant’s involuntary
     retirement claim for lack of jurisdiction.
¶9         Upon reviewing the appellant’s responses to his jurisdictional orders, the
     administrative judge found that the appellant also was alleging that she was
     forced to retire, and he issued a separate jurisdictional order outlining the

     4
       The appellant conceded below that she did not present this disclosure to OSC and that
     it was unexhausted. ID at 6.
                                                                                     6

appellant’s burden of establishing the Board’s jurisdiction over an involuntary
retirement. 5   IAF, Tab 28.    In response, the appellant alleged that she was
subjected to harassment, including disparaging comments, verbal altercations
with coworkers and supervisors, and threatened disciplinary actions, and that she
was subsequently placed on a 90-day PIP (which triggered the cancellation of her
eligibility to telework), at the end of which the agency proposed her removal for
unacceptable performance under chapter 43. IAF, Tab 29. In support of these
allegations, the appellant submitted an affidavit statement and an email exchange
between several supervisory-level employees. Id. at 6-10. The administrative
judge found that the appellant failed to nonfrivolously allege that, based on these
working conditions, she had no choice but to retire. ID at 7-8. We have carefully
reviewed the administrative judge’s initial decision and the appellant’s arguments
presented below, and, for the reasons that follow, we too conclude that the
appellant has failed to establish that the agency coerced her into retiring “by
creating working conditions so intolerable for the employee that he or she is
driven to involuntarily resign or retire.”          See Shoaf v. Department of
Agriculture, 260 F.3d 1336, 1341 (Fed. Cir. 2001). The administrative judge’s

5
  The appellant’s involuntary retirement was among the personnel actions the appellant
sought to challenge in her IRA appeal. See IAF, Tab 14 at 30, 34. The Board has held
that an appellant can challenge a constructive adverse action in an IRA appeal. See
Colbert, 121 M.S.P.R. 677, ¶ 12. Generally, an employee can only elect to pursue a
remedy for a prohibited personnel practice through one of the following mechanisms: a
direct appeal to the Board under 5 U.S.C. § 7701; a grievance under the provisions of a
negotiated grievance procedure; or a complaint seeking corrective action from OSC.
See Edwards v. Department of the Air Force, 120 M.S.P.R. 307, ¶ 12 (2013).
Whichever remedy is sought first by an aggrieved employee is deemed an election of
that procedure and precludes pursing the matter in either of the other two forums. Id.
Here, the appellant filed a complaint with OSC prior to filing her Board appeal; it
appears, however, that the agency did not give the appellant notice of her procedural
options for electing a remedy under 5 U.S.C. § 7121(g). Under these circumstances, the
Board has found that an employee’s election is not knowing and informed and thus not
binding. Id. (citing Agoranos v. Department of Justice, 119 M.S.P.R. 498, ¶¶ 14, 17
(2013)). We find that the appellant’s filing of a complaint with OSC did not preclude
the administrative judge from considering whether the appellant could separately
establish jurisdiction over her alleged involuntary retirement under chapter 75.
                                                                                        7

      initial decision dismissing the appellant’s claim of an involuntary retirement, as
      supplemented by the following analysis, is AFFIRMED.
¶10        An employee-initiated action, such as a retirement, is presumed to be
      voluntary, and thus outside of the Board’s jurisdiction, unless the employee
      presents sufficient evidence to establish that the action was obtained through
      duress or coercion or show that a reasonable person would have been misled by
      the agency. Searcy v. Department of Commerce, 114 M.S.P.R. 281, ¶ 12 (2010).
      To establish the involuntary nature of an action based on coercion, an appellant
      must show that: (1) the agency effectively imposed the terms of the employee’s
      resignation or retirement; (2) the employee had no realistic alternative but to
      resign or retire; and (3) the employee’s resignation or retirement was the result of
      improper acts by the agency. Shoaf, 260 F.3d at 1341. The Federal Circuit has
      held that “[t]he doctrine of involuntariness is a narrow one, requiring that the
      employee satisfy a demanding legal standard.”         Conforto v. Merit Systems
      Protection Board, 713 F.3d 1111, 1121 (Fed. Cir. 2013).               The test for
      demonstrating involuntariness is objective, i.e., whether a reasonable employee
      confronted with the same circumstances would feel coerced into resigning or
      retiring. Id.; see Carey v. Department of Health & Human Services, 112 M.S.P.R.
      106, ¶ 5 (2009).   In making this determination, the Board must consider the
      totality of the circumstances surrounding the employee’s decision, including
      “events not immediately preceding the leave of employ” which may provide
      “context for an analysis of the events temporally close to the employee’s
      retirement.” Shoaf, 260 F.3d at 1342; see Searcy, 114 M.S.P.R. 281, ¶ 12 (the
      touchstone of voluntariness is whether, considering the totality of the
      circumstances, the employee was deprived of freedom of choice).
¶11        We have reviewed the appellant’s arguments concerning the alleged
      intolerable working conditions which caused her to retire, and we concur with the
      administrative judge that a reasonable person in the appellant’s position would
      not have felt compelled to retire under these circumstances. ID at 6-7. At the
                                                                                        8

      outset, we note that the appellant’s retirement followed both her placement on a
      90-day PIP and the agency’s issuing her a notice of proposed removal based upon
      her unacceptable performance under chapter 43. 6 See IAF, Tab 1. Because these
      events are temporally closest to the appellant’s decision to retire, we find that
      they are the most probative in determining whether the agency forced her to
      retire.   See Shoaf, 260 F.3d at 1342 (the most probative evidence of
      involuntariness is usually that which is closest to the challenged action).      In
      response to the administrative judge’s jurisdictional order, however, the appellant
      offered no argument explaining why a reasonable person faced with these
      circumstances would have felt compelled to leave federal service; instead, the
      appellant only alleged that her work had never been subjected to a high level of
      scrutiny in the past and that she was harassed about the quality of each work item
      submitted. IAF, Tab 29 at 5. In order to sustain a performance-based action
      under chapter 43, however, an agency must demonstrate by substantial evidence
      that, at a minimum, it provided the appellant with the information needed for her
      to perform at the level needed to avoid a performance-based action.             See
      Henderson v. National Aeronautics & Space Administration, 116 M.S.P.R. 96,
      ¶ 22 (2011) (an agency must inform an employee of what is needed to avoid
      performance-based action before taking an action under chapter 43).             The
      employee’s opportunity to improve her performance based on this feedback is a
      substantive right under 5 U.S.C. chapter 43. See Betters v. Federal Emergency
      Management Agency, 57 M.S.P.R. 405, 408 (1993).          We find no basis in the
      record to conclude that the agency’s compliance with the substantive
      requirements needed to sustain a performance-based action under chapter 43
      coerced the appellant to retire.
¶12         An appellant’s placement on a PIP and the issuance of a notice of proposed
      removal, under certain circumstances, could separately constitute “improper acts
      6
        The appellant retired prior to the agency issuing a final decision on her proposed
      removal.
                                                                                          9

      by the agency” which coerced an appellant into retirement. Conforto, 713 F.3d
      at 1122; Barthel v. Department of the Army, 38 M.S.P.R. 245, 251 (1988) (if an
      employee can show that the reasons for a proposed adverse action cannot be
      substantiated, the proposed action would be coercive). The administrative judge,
      however, specifically apprised the appellant of this possibility in his jurisdictional
      order, and the appellant offered no argument in response which could demonstrate
      that the agency knew or should have known that it could not sustain its proposed
      removal under chapter 43.           See IAF, Tabs 28 (jurisdictional order), 29
      (appellant’s   response);   see     also   Harris   v.   Department    of   Veterans
      Affairs, 114 M.S.P.R. 239, ¶ 10 (2010) (the granting of a within-grade increase
      could demonstrate that the appellant’s performance was acceptable, and it entitled
      the appellant to a jurisdictional hearing on whether the agency knew or should
      have known that it could not substantiate a proposed chapter 43 removal covering
      the same period of time).         We find, moreover, that the appellant failed to
      nonfrivolously allege that the agency wrongly placed her on a PIP, and we are not
      persuaded by her argument that her work product was subjected to a high level of
      scrutiny thus demonstrating intolerable working conditions which forced her to
      retire.   See IAF, Tab 29 at 5.      We therefore find that the appellant failed to
      nonfrivolously allege either that the agency’s actions immediately prior to her
      retirement were so intolerable that a reasonable person in her position would have
      felt compelled to resign or that the agency knew it could not substantiate its
      proposed removal under chapter 43.
¶13         We also have considered the other evidence cited by the appellant in her
      response to the jurisdictional order and we find that it fails to demonstrate that
      the agency subjected her to intolerable working conditions which left her no
      choice but to retire. See IAF, Tab 29 at 4. Specifically, the appellant argued that
      several colleagues made inappropriate comments about her weight loss due to her
      medical condition. Id. From the evidence submitted, however, it appears these
      comments were isolated and that they occurred more than 6 months prior to the
                                                                                          10

      appellant’s decision to retire.      Id. (citing a February 2013 email which
      summarized the appellant’s complaints about prior comments; the appellant
      retired in October 2013). Furthermore, the appellant did not allege that any other
      rude or intolerant comments or behavior were directed toward her after
      February 2013, and we accord this evidence of intolerant behavior less probative
      weight in determining that the appellant failed to nonfrivolously allege that she
      had no other choice but to retire in October 2013. 7 See Shoaf, 260 F.3d at 1343
      (the Board has the discretion to determine the evidentiary weight of events
      temporally further from the employee’s resignation); see also IAF, Tab 29 at 4.
¶14         Lastly, we have considered the appellant’s assertion that a supervisory
      official instructed her that she “can’t threaten [her] [immediate] supervisor with
      filing an EEO complaint” and that this same official shortly thereafter “followed
      through on his stated intention to take action against the appellant if she ever
      filed an EEO complaint.” Id. at 4-5. We find the manner in which the appellant’s
      representative has presented this excerpt materially misleads the reader. The full
      statement, which is taken from the same February 2013 email discussed above, is
      as follows:
                    I explained to her [the appellant] that you can’t threaten
                    your supervisor with filing an EEO complaint, or say
                    that “I’m not your slave, those days are over” and not
                    expect her to do her duty and give you the information
                    so you can pursue an EEO if that’s your decision.

      Id. at 9 (emphasis added).      Thus, contrary to the appellant’s insinuation, the
      supervisor did not instruct the appellant to refrain from exercising her EEO rights
      but rather explained that, if the appellant threatened to file an EEO complaint,

      7
        We emphasize that the February 2013 email only summarized past comments—they
      were not directed toward the appellant at this time—and it is not clear from the record
      when these comments were actually made, thus further reducing their probative value.
      See Searcy, 114 M.S.P.R. 281, ¶ 13 (finding a 5-month lapse between comments and an
      employee’s subsequent resignation undercut the assertion of intolerable working
      conditions which caused the employee to resign).
                                                                                            11

      then it would be reasonable for the supervisor to provide the appellant with notice
      of how to file such a complaint. 8          Id.     We find this statement fails to
      nonfrivolously allege that the appellant was subjected to such intolerable working
      conditions that she was left with no choice but to retire.
¶15         For the aforementioned reasons, the administrative judge’s jurisdictional
      dismissal of the involuntary retirement claim, as supplemented by this Final
      Order, is AFFIRMED, and the appellant’s petition for review is DENIED.

                       NOTICE TO THE APPELLANT REGARDING
                          YOUR FURTHER REVIEW RIGHTS
            You have the right to request review of this final decision by the United
      States Court of Appeals for the Federal Circuit.
            The court must receive your request for review no later than 60 calendar
      days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
      27, 2012). If you choose to file, be very careful to file on time. The court has
      held that normally it does not have the authority to waive this statutory deadline
      and that filings that do not comply with the deadline must be dismissed. See
      Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
            If you want to request review of the Board’s decision concerning your
      claims   of   prohibited   personnel    practices    under   5   U.S.C.   § 2302(b)(8),
      (b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
      the Board’s disposition of any other claims of prohibited personnel practices, you


      8
        In a separate paragraph, the same supervisor suggested that if the appellant were to
      threaten her immediate supervisor “again with an EEO complaint, that we look at it as
      misconduct and take appropriate action to that end.” IAF, Tab 29 at 9. There is no
      evidence in the record that this statement was conveyed to the appellant prior to her
      decision to retire, and we have no reason to find that it could have forced the appellant
      to conclude that she had no choice but to retire in October 2013. This statement,
      moreover, was made in February 2013, and the agency did not propose the appellant’s
      removal until late-September 2013, over 7 months later. This lapse in time also
      undermines the probative value of the statement, and we accord it less weight. See
      Searcy, 114 M.S.P.R. 281, ¶ 13.
                                                                                   12

may request review of this final decision by the United States Court of Appeals
for the Federal Circuit or any court of appeals of competent jurisdiction. The
court of appeals must receive your petition for review within 60 days after the
date of this order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If
you choose to file, be very careful to file on time. You may choose to request
review of the Board’s decision in the United States Court of Appeals for the
Federal Circuit or any other court of appeals of competent jurisdiction, but not
both.    Once you choose to seek review in one court of appeals, you may be
precluded from seeking review in any other court.
        If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States     Code,    at   our     website,   http://www.mspb.gov/appeals/uscode.htm.
Additional information about the United States Court of Appeals for the Federal
Circuit is available at the court's website, www.cafc.uscourts.gov. Of particular
relevance is the court's "Guide for Pro Se Petitioners and Appellants," which is
contained within the court's Rules of Practice, and Forms 5, 6, and 11.
Additional information about other courts of appeals can be found at their
respective           websites,          which         can         be         accessed
through http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
        If you are interested in securing pro bono representation for an appeal to the
United States Court of Appeals for the Federal Circuit, you may visit our website
at http://www.mspb.gov/probono for a list of attorneys who have expressed
interest in providing pro bono representation for Merit Systems Protection Board
appellants before the Federal Circuit.          The Merit Systems Protection Board
                                                                           13

neither endorses the services provided by any attorney nor warrants that any
attorney will accept representation in a given case.




FOR THE BOARD:                            ______________________________
                                          William D. Spencer
                                          Clerk of the Board
Washington, D.C.
