                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     PUSHPA BISARYA,                                 DOCKET NUMBER
                  Appellant,                         DE-0752-13-1939-I-1

                  v.

     DEPARTMENT OF HEALTH AND                        DATE: August 19, 2014
       HUMAN SERVICES,
                 Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Pushpa Bisarya, Ballwin, Missouri, pro se.

           Moira McCarthy, Phoenix, Arizona, 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 alleged involuntary retirement appeal for lack of jurisdiction.
     Generally, we grant petitions such as this one only when: the initial decision
     contains erroneous findings of material fact; the initial decision is based on an

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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.
     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         The appellant filed a Board appeal alleging that her retirement from the
     position of Medical Officer (Emergency Medicine) was involuntary. See Initial
     Appeal File (IAF), Tab 5 at 1, Tab 10 at 16, Tab 14 at 5. The appellant alleged
     that she had no choice but to retire after her supervisor gave her a minimally
     successful performance review and threatened her with a 4-month reassignment to
     a unit where she would have to perform work that she was not hired to do under
     the supervision of a Physician’s Assistant with whom she had a poor working
     relationship.   See IAF, Tab 1 at 1-8, 113-14.     The appellant claimed that her
     supervisor’s actions were in retaliation for her refusal to lend her $200 for her
     daughter over a year prior to the incidents at issue in the instant appeal.       Id.
     at 5-6, 113; IAF, Tab 14 at 2-3.
¶3         After holding a status conference, the administrative judge assigned to the
     case at the time issued an order which advised the appellant that she would not be
     entitled to a hearing unless she made nonfrivolous allegations that brought her
                                                                                       3

     retirement within the Board’s jurisdiction. 2 See IAF, Tab 5 at 2-4. Further, the
     order explicitly set forth the pleading requirements to establish involuntariness on
     the basis of coercion. Id. at 2. After providing the parties with the opportunity to
     provide evidence and argument regarding the appellant’s claim, the administrative
     judge issued an initial decision dismissing the appeal for lack of jurisdiction
     without holding a hearing. IAF, Tab 15, Initial Decision (ID) at 1, 7.
¶4        The appellant has filed a timely petition for review. Petition for Review
     (PFR) File, Tab 1.     The agency has responded in opposition to the petition for
     review. PFR File, Tab 3.
     The appellant has not made a nonfrivolous allegation that her decision to retire
     was coerced.
¶5        The appellant bears the burden of proving by preponderant evidence that the
     matter she is appealing is within the Board’s authority to review. Brown v. U.S.
     Postal Service, 115 M.S.P.R. 609, ¶ 11, aff’d, 469 F. App’x 852 (Fed. Cir. 2011),
     cert. denied, 133 S. Ct. 414 (2012); 5 C.F.R. § 1201.56(a)(2)(i). A retirement is
     an action presumed to be voluntary and not appealable to the Board unless the
     appellant presents sufficient evidence to establish that the retirement was
     obtained through duress or coercion, or shows that a reasonable person would
     have been misled by the agency.            Baldwin v. Department of Veterans
     Affairs, 109 M.S.P.R. 392, ¶ 10 (2008).          An appellant is entitled to a
     jurisdictional hearing only if she makes nonfrivolous allegations that her
     retirement was involuntary. Id., ¶ 11.
¶6        The    doctrine     of   coercive   involuntariness    is   a   narrow    one.
     Brown, 115 M.S.P.R. 609, ¶ 10 (quoting Staats v. U.S. Postal Service, 99 F.3d
     1120, 1124 (Fed. Cir. 1996)). Thus, an employee must show that the agency
     effectively imposed the terms of her retirement, that the employee had no realistic
     alternative but to retire, and that the employee’s retirement was the result of

     2
       The case was subsequently reassigned to the administrative judge who issued the
     initial decision. IAF, Tab 9.
                                                                                      4

     improper acts by the agency. Id. The issue is whether, considering the totality of
     the circumstances, the employee’s working conditions were made so difficult that
     a reasonable person in the employee’s position would have felt compelled to
     retire. Id.
¶7         On February 7, 2013, the appellant’s supervisor met with the appellant to
     discuss her 2012 performance appraisal, and she provided the appellant with a
     copy of the evaluation that indicated a rating of minimally successful. IAF, Tab 1
     at 23-29, Tab 12 at 13-15. The appellant claimed she had no notice that there
     were any issues with her work, thus, she alleged that it was “obvious” that her
     supervisor had ulterior motives for the poor rating.      IAF, Tab 1 at 2-3.   The
     appellant’s supervisor also detailed the appellant to Express Care within the
     Emergency Department for a period not to exceed 120 days, effective March 1,
     2013, through June 28, 2013. Id. at 22; IAF, Tab 12 at 15. The appellant alleged
     that her performance appraisal and reassignment were reprisal for her previous
     refusal to lend her supervisor $200. IAF, Tab 1 at 5-6.
¶8         On June 20, 2013, the appellant’s supervisor met with the appellant and her
     union representative. Id. at 76. Subsequently, the appellant’s supervisor revised
     the appellant’s performance appraisal and gave her an overall rating of fully
     successful. IAF, Tab 1 at 79, Tab 12 at 15-16. The appellant’s rating remained
     minimally successful only in one critical element. IAF, Tab 1 at 80, Tab 12 at 15.
     In addition, her supervisor gave her a letter of reference.     IAF, Tab 1 at 85,
     Tab 12 at 16.
¶9         The appellant’s supervisor did not reverse her decision to assign the
     appellant to Express Care. IAF, Tab 12 at 16. As explained by the appellant,
     working with the Director of Express Care in the past had been “very
     challenging” and she was “appalled” that she would have to work with him. IAF,
     Tab 1 at 3. The appellant alleged that her supervisor forced her to retire because
     “[e]ither I work with the man who already made my life hell earlier and get fired
     or I retire . . . . [He] . . . absolutely surely would have played game[s] with me
                                                                                          5

      and get me fired.” IAF, Tab 14 at 5. The appellant stated that, in 2007, she was
      hired solely to work in the emergency room and not in Express Care. See IAF,
      Tab 1 at 3-4.
¶10         The appellant alleged that during the June 20, 2013 meeting she asked her
      supervisor if she remembered asking the appellant for $200 for her daughter and
      that her supervisor stated that she did remember asking for the loan. Id. at 5. In
      her declaration, the appellant stated that her supervisor asked for the loan in
      January 2012.    IAF, Tab 14 at 1.      However, her supervisor indicated in her
      declaration that she never requested that the appellant give her daughter $200 or
      any amount of money. 3 IAF, Tab 12 at 13.
¶11         On review, the appellant contends that the reasonable person in her position
      would have been coerced to retire. See PFR File, Tab 1 at 2-3. In addition, the
      appellant states that she was discriminated against based on her race and color.
      Id. at 2. The administrative judge fully considered these contentions below and
      correctly determined that they did not establish that the appellant’s retirement
      was coerced. ID at 3-7.
¶12         The appellant’s contention that she retired because of her performance
      appraisal and in anticipation that she would be miserable working in Express Care
      while on temporary assignment there for 4 months does not show that her
      retirement was involuntary.      The doctrine of coerced involuntariness is not
      implicated if the employee retires because she does not like a new assignment or
      a transfer, even if it makes continuation in the job so unpleasant that she feels she
      has no option but to retire. Conforto v. Merit Systems Protection Board, 713 F.3d
      1111, 1121-22 (Fed. Cir. 2013) (citing Staats, 99 F.3d at 1124). An employee is
      not guaranteed a stress-free working environment.          Miller v. Department of
      Defense, 85 M.S.P.R. 310, ¶ 32 (2000). Dissatisfaction with work assignments, a


      3
       The appellant’s supervisor indicated that in July 2010 she accepted two payments of
      $200 each for tutoring services that she provided to the appellant. IAF, Tab 12 at 13.
                                                                                            6

      feeling of being unfairly criticized, or difficult or unpleasant working conditions
      are generally not so intolerable as to compel a reasonable person to resign. Id.
¶13          Although the appellant’s supervisor gave the appellant a minimally
      successful rating under the critical element of productivity and cost, there is no
      evidence that she threatened the appellant with disciplinary action. Moreover, the
      appellant’s supervisor stated in the appellant’s letter of reference, “I recommend
      her as a reliable doctor.”      IAF, Tab 1 at 85.       A reasonable person in the
      appellant’s position would have contested the performance appraisal, rather than
      retire.     See Brown, 115 M.S.P.R. 609, ¶ 15 (instead of retiring based on her
      speculation that a disciplinary action might occur in the future, the appellant
      clearly had the option to contest an action she thought was invalid if that
      occurred). In fact, the appellant successfully challenged her original appraisal.
¶14          On review, the appellant alleged that her supervisor changed her statement
      regarding the alleged $200 loan request. PFR File, Tab 1 at 2. It is immaterial
      whether the appellant’s supervisor asked for the alleged $200 loan. Even if the
      appellant’s supervisor were motivated by reprisal for the denial of the loan, the
      appellant still has not shown that a reasonable person in her position would
      retire. 4
¶15          The appellant claims that she was discriminated against based on her age,
      gender, national origin, and race and color.          In the context of an alleged
      involuntary retirement, the Board must consider discrimination allegations only
      insofar as they relate to the issue of voluntariness.       Axsom v. Department of
      Veterans Affairs, 110 M.S.P.R. 605, ¶ 12 (2009).            In the instant case, the
      appellant’s allegations of discrimination are vague. See IAF, Tab 1 at 60, 113,
      Tab 14 at 4; PFR File, Tab 1 at 2.           Claims of discrimination that are not
      accompanied by allegations specifying particular acts of discrimination are
      insufficient to support a prima facie case of involuntariness. Tripp v. Department
      4
       The appellant did not claim reprisal for whistleblower activity and therefore the Board
      does not have jurisdiction under the Whistleblower Protection Enhancement Act.
                                                                                  7

of the Air Force, 59 M.S.P.R. 458, 461 (1993). Further, even assuming that the
agency’s alleged actions were discriminatory, the appellant failed to show how
those actions coerced her retirement. See id. Without more, a claim that the
agency’s actions were motivated by discrimination is not sufficient to establish
Board jurisdiction over an alleged constructive removal. Conforto, 713 F.3d at
1120. We agree with the administrative judge that the Board lacks jurisdiction
over the appellant’s retirement; thus, the Board lacks jurisdiction over the
appellant’s discrimination claim.

                 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. 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

     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 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 is available at the court's website, www.cafc.uscourts.gov.
                                                                                8

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 your court
appeal, 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 court. 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:                            ______________________________
                                          William D. Spencer
                                          Clerk of the Board
Washington, D.C.
