                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     CLARENCE EDWARD BALDWIN,                        DOCKET NUMBER
       JR.,                                          DC-0752-16-0464-I-1
                 Appellant,

                  v.
                                                     DATE: September 29, 2016
     SMALL BUSINESS
       ADMINISTRATION,
                  Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL *

           Clarence Edward Baldwin, Jr., Alexandria, Virginia, pro se.

           Claudine Landry, Esquire, Washington, D.C., for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     dismissed the appeal for lack of jurisdiction. Generally, we grant petitions such
     as this one only when: the initial decision contains erroneous findings of material

     *
        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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


     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
     administrative 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, we conclude that the petitioner has not
     established any basis under section 1201.115 for granting the petition for review.
     Therefore, we DENY the petition for review and AFFIRM the initial decision,
     which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶2        Effective May 5, 2015, the appellant received a career-conditional
     appointment to the GS-12 competitive service position of Loan Specialist. Initial
     Appeal File (IAF), Tab 10 at 75. The appointing Standard Form 50 provided that
     the appointment was subject to completing a 1-year initial probationary period
     beginning on the effective date of the appointment. Id. Effective March 1, 2016,
     before he completed his probationary period, the appellant resigned. Id. at 19.
     The appellant filed an appeal, alleging that his resignation was involuntary
     because he resigned in lieu of termination and because of discrimination on the
     bases of his race (black) and marital status (single). IAF, Tab 11 at 4.
¶3        The administrative judge found that the appellant failed to allege facts to
     support a finding that the agency coerced or misled him or otherwise deprived
     him of a meaningful choice about resigning. IAF, Tab 12, Initial Decision (ID)
     at 2-4. She found that, by the appellant’s own admission, he resigned because the
     agency intended to terminate him before the end of his probationary period. Id.
     She found that, although the choice between termination and resignation is
                                                                                       3


     unpleasant, it did not render the appellant’s resignation involuntary. Id. She also
     found that the appellant failed to show that he was coerced to resign because he is
     single or black. Id.
¶4         In his petition for review, the appellant recounts the meeting between him
     and agency management officials, at which he was afforded the option of either
     signing the termination letter outlining his poor performance or resigning. He
     also reiterates that the agency discriminated against him because he is unmarried
     and black. Petition for Review (PFR) File, Tab 2.

     The appellant is not an employee with Board appeal rights.
¶5         A probationary employee in the competitive service who has not completed
     1 year of current continuous service has no statutory right of appeal to the Board.
     See    5 U.S.C.    § 7511(a)(1)(A);      McCormick       v.   Department     of       the
     Air Force, 307 F.3d 1339, 1341 (Fed. Cir. 2002); Niemi v. Department of the
     Interior, 114 M.S.P.R. 143, ¶ 9 (2010).      Here, the record establishes that the
     appellant was appointed subject to a 1-year probationary period that he did not
     complete. IAF, Tab 5 at 12, Tab 10 at 19. Thus, he had no statutory right to
     appeal his proposed termination.

     The administrative judge correctly determined that the appellant failed to
     establish that his resignation was involuntary.
¶6         The appellant has the burden of proving the Board’s jurisdiction by a
     preponderance     of   the   evidence.    Parrott   v.   Merit   Systems   Protection
     Board, 519 F.3d 1328, 1332 (Fed. Cir. 2008); 5 C.F.R. § 1201.56(a)(2).                An
     employee-initiated action, such as a resignation, is presumed to be voluntary, and
     thus outside the Board’s jurisdiction.         See Freeborn v. Department of
     Justice, 119 M.S.P.R. 290, ¶ 9 (2013); Vitale v. Department of Veterans
     Affairs, 107 M.S.P.R. 501, ¶ 17 (2007). An involuntary resignation, however, is
     equivalent to a forced removal and therefore is within the Board’s jurisdiction.
     Garcia v. Department of Homeland Security, 437 F.3d 1322, 1328 (Fed. Cir.
     2006) (en banc). To overcome the presumption that a resignation is voluntary,
                                                                                      4


     the employee must show that it was the result of the agency’s misinformation or
     deception   or   that   he   was   coerced   by   the   agency   to    resign.   See
     Vitale, 107 M.S.P.R. 501, ¶ 19.
¶7        To establish involuntariness on the basis of coercion, the appellant must
     establish that the agency imposed the terms of the resignation, the appellant had
     no realistic alternative but to resign, and the resignation was the result of
     improper actions by the agency.      Garcia, 437 F.3d at 1329.        If the employee
     claims that his resignation was coerced by the agency’s creating intolerable
     working conditions, he must show that a reasonable employee in his position
     would have found the working conditions so oppressive that he would have felt
     compelled to resign. Id. When an appellant raises an allegation of discrimination
     in connection with a claim of involuntariness, the allegation may be addressed
     only insofar as it relates to the issue of voluntariness. Axsom v. Department of
     Veterans Affairs, 110 M.S.P.R. 605, ¶ 12 (2009).        Once the appellant presents
     nonfrivolous allegations of Board jurisdiction—allegations of fact that, if proven,
     would establish the Board’s jurisdiction—he is entitled to a hearing at which he
     must prove jurisdiction by a preponderance of the evidence. Parrott, 519 F.3d
     at 1332; Garcia, 437 F.3d at 1344.
¶8        Here, the appellant argues on review that the agency coerced him into
     resigning because, while the agency permitted him to speak to a union
     representative before and during the meeting when the agency presented him with
     a termination letter, he was not allowed a union representative at the meeting
     itself. He also alleges that he was forced to resign because, although he was told
     that the agency was drafting a termination letter, the agency never actually
     provided him with the letter. In addition, he states that he was subjected to a
     hostile work environment because he was not allowed to telecommute and the
     agency reassigned him too frequently because he is single and black. PFR File,
     Tab 2.
                                                                                      5


¶9          The administrative judge correctly determined that the appellant failed to
      raise a nonfrivolous allegation that his resignation was involuntary. The agency’s
      failure to provide the appellant with a final copy of his termination letter did not
      render involuntary his otherwise voluntary action.          See generally Lake v.
      Department of Transportation, 33 M.S.P.R. 203, 208–09 (finding that the
      agency’s failure to advise an employee of an inapplicable policy and that he
      would have appeal rights if his demotion were involuntary did not render his
      acceptance of the demotion involuntary), aff’d, 837 F.2d 1097 (Fed. Cir. 1987)
      (Table). Likewise, the fact that the appellant resigned in lieu of obtaining a final
      draft of the termination letter did not cause his resignation to be coerced. He had
      the choice to wait until the agency issued the termination letter to fight it, but he
      instead chose to resign. Once the appellant resigned, there no longer was any
      need for the agency to complete the termination letter.
¶10         As to the appellant’s claim that he was not afforded union representation
      during the termination meeting, he has pointed to no law, rule, or regulation that
      would require the agency to provide him union representation during such a
      meeting, and we are aware of none. See, e.g., Pangarova v. Department of the
      Army, 42 M.S.P.R. 319, 325 (1989) (assuming that the appellant was a member of
      a collective bargaining agreement, he only had a right to union representation if
      he reasonably believed that the agency was going to subject him to an
      investigation leading to disciplinary action). In any event, the appellant, by this
      argument, fails to demonstrate that he involuntarily resigned.
¶11         Furthermore, the U.S. Court of Appeals for the Federal Circuit has held that
      the doctrine of coerced involuntariness does not apply if the employee resigns
      because he does not like agency decisions such as “a new assignment, a transfer,
      or other measures that the agency is authorized to adopt, even if those measures
      make continuation in the job so unpleasant … that he feels that he has no realistic
      option but to leave.” Staats v. U.S. Postal Service, 99 F.3d 1120, 1124 (Fed. Cir.
      1996).   Thus, even if the appellant in this case disagreed with several of the
                                                                                        6


      agency’s decisions, such as not allowing him to telecommute, or transferring and
      reassigning him, these decisions did not render his resignation forced. Moreover,
      the appellant’s apparent dissatisfaction with his interactions with management
      does not prove that his resignation was involuntary. See Miller v. Department of
      Defense, 85 M.S.P.R. 310, ¶ 32 (2000) (“An employee is not guaranteed a
      working environment free of stress.     Dissatisfaction with work assignments, a
      feeling of being unfairly criticized, or difficult or unpleasant working conditions
      are generally not so intolerable as to compel a reasonable person to resign.”).

      The appellant failed to establish that his marital status and racial discrimination
      claims rendered his resignation involuntary.
¶12         A probationary employee in the competitive service has a regulatory right to
      appeal a termination if he alleges that it was based on partisan political reasons or
      marital status discrimination. 5 C.F.R. § 315.806(b). Therefore, the Board would
      have jurisdiction to consider allegation of discrimination on the basis of marital
      status of a probationary employee who was terminated by the employing agency.
      In the context of a probationary employee’s alleged involuntary resignation, the
      Board will consider allegations of discrimination based on partisan political
      reasons or marital status only insofar as those allegations relate to the issue of
      voluntariness and not whether they would establish Board jurisdiction over the
      termination action. Cf. Markon v. Department of State, 71 M.S.P.R. 574, 578
      (1996) (finding that, in the context of an employee’s alleged involuntary
      resignation, the Board will consider allegations of discrimination and reprisal
      only insofar as those allegations relate to the issue of voluntariness and not
      whether they would establish discrimination or reprisal as an affirmative
      defense).    Similarly, as stated above, the appellant’s allegation of racial
      discrimination will be analyzed solely in terms of the voluntariness of
      his resignation.
¶13         Here, we agree with the administrative judge that the appellant’s allegations
      that the agency denied him telework and reassigned him too frequently because
                                                                                        7


      he is unmarried and black are conclusory and vague and insufficient to establish
      that his working conditions were so intolerable that a reasonable person would
      feel compelled to resign. ID at 4. The appellant failed to show that he lacked a
      meaningful choice other than to resign because of the agency’s allegedly
      improper marital status or racial discrimination.          Cf. Bean v U.S. Postal
      Service, 120 M.S.P.R. 397, ¶ 11 (2013) (explaining that the Board applies a two-
      part jurisdictional standard that is a unifying principle for all constructive actions:
      (1) the appellant lacked a meaningful choice; and (2) the lack of choice was
      because of the agency’s improperly actions).
¶14         Finally, as to the new arguments that the appellant raises for the first time
      on review, the Board generally will not consider arguments raised for the first
      time in a petition for review unless those arguments are based on new and
      material evidence that, despite due diligence, was unavailable when the record
      closed.       5 C.F.R.    § 1201.115(a);     see    Cartier    v.    Department       of
      Air Force, 26 M.S.P.R. 294, 294 n.* (1985) (declining to consider a claim of
      discrimination due to marital status first raised in a petition for review). The
      appellant has not established that these additional claims are based on new and
      material evidence not previously available to him.
¶15         Accordingly, we affirm the administrative judge’s determination to dismiss
      the appeal for lack of jurisdiction.

                       NOTICE TO THE APPELLANT REGARDING
                          YOUR FURTHER REVIEW RIGHTS
            You have the right to request review of this final decision by the U.S.
      Court of Appeals for the Federal Circuit. You must submit your request to the
      court at the following address:
                                 United States Court of Appeals
                                     for the Federal Circuit
                                   717 Madison Place, N.W.
                                    Washington, DC 20439
                                                                               8


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 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 U.S. 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 U.S. Code, at our
website, http://www.mspb.gov/appeals/uscode.htm.         Additional information 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.
      If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website
at   http://www.mspb.gov/probono       for     information   regarding   pro   bono
representation for Merit Systems Protection Board appellants before the Federal
Circuit.   The Merit Systems Protection Board neither endorses the services
provided by any attorney nor warrants that any attorney will accept representation
in a given case.




FOR THE BOARD:                               ______________________________
                                             Jennifer Everling
                                             Acting Clerk of the Board
Washington, D.C.
