                       NOTE: This disposition is nonprecedential.

  United States Court of Appeals for the Federal Circuit
                                        2009-3114

                                   DORIS ANN HALL,

                                                              Petitioner,

                                            v.

                       MERIT SYSTEMS PROTECTION BOARD,

                                                              Respondent.


      Doris Ann Hall, of Charlotte, North Carolina, pro se.

      Stephanie Conley, Attorney, Office of the General Counsel, Merit Systems
Protection Board, of Washington, DC, for respondent. With her on the brief were B. Chad
Bungard, General Counsel, and Keisha Dawn Bell, Deputy General Counsel.

Appealed from: Merit Systems Protection Board
                        NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit
                                         2009-3114

                                    DORIS ANN HALL,

                                                                 Petitioner,

                                              v.

                       MERIT SYSTEMS PROTECTIONS BOARD,

                                                                 Respondent.

    Petition for review of the Merit Systems Protection Board in DC0752080544-I-1.
                             ___________________________

                                DECIDED: July 13, 2009
                            ___________________________


Before NEWMAN, LOURIE, and RADER, Circuit Judges.

PER CURIAM.

                                              I.

       The Merit Systems Protection Board dismissed Ms. Doris Ann Hall’s claim of

involuntary retirement for lack of jurisdiction. Hall v. Dep’t of Homeland Sec., No. DC-

0752-08-0544-I-1 (M.S.P.B. December 11, 2008). Because Ms. Hall did not make a

non-frivolous allegation of involuntary retirement, this court affirms.

                                             II.

       Petitioner Doris Hall was employed as a human resources specialist with the

Transportation Security Administration in Arlington, Virginia. In January 2005, Hall had

a meeting with her supervisor, Deborah Grade, and her team leader, Andrea McKinney,
to discuss her career goals. At that meeting, Hall expressed the option of retirement in

the coming year. In her words: “I explained that I was 61 years old and would be

turning 62 years of age and would explore the possibility of retirement as my goal.” As

a result of the meeting, Grade instructed McKinney to review Hall’s employment file to

assess her retirement options.

       According to Hall, from that moment onwards Grade improperly used Hall’s

interest “as a means to harass” her into retirement in order to replace her with a

younger employee. In support of this claim, Hall alleges that she was frequently omitted

from assignment lists for training and given simple assignments which she found

demeaning and detrimental to her health. Hall also relies on an incident where she

attended a training session and was dismissed upon voicing her opinion that the

session was unhelpful.

       In October 2005, Hall alleges that she attended another meeting with Grade and

McKinney where Grade stated: “If you don’t retire, I’m going to terminate you. If I have

time, I’ll look for an Assistant’s job for you.” Later that month, Hall submitted a voluntary

retirement notice indicating that her effective date of retirement would be November 30,

2005. As further evidence to support her discrimination claim, Hall highlights that she

was not given “the usual office wide retirement celebration.” Shortly after the effective

date of her retirement, Hall filed a formal complaint of age discrimination with the Equal

Employment Opportunity Commission. The complaint was remanded to her employing

agency who ultimately found no evidence of age discrimination. Hall then appealed the

decision to the Board who dismissed Hall’s claim for lack of jurisdiction without granting

an evidentiary hearing. Hall timely appealed to this court under 28 U.S.C. § 1295(a)(9).




2009-3114                                     2
                                             III.

       The scope of our review from a Board appeal is limited. This court must affirm

unless the Board’s decision was “arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law; obtained without procedures required by law, rule,

or regulation having been followed; or unsupported by substantial evidence.” 5 U.S.C. §

7703(c); Chase-Baker v. Dep’t of Justice, 198 F.3d 843, 845 (Fed. Cir. 1999). This

court also reviews the Board’s jurisdiction without deference. Bolton v. Merit Sys. Prot.

Bd., 154 F.3d 1313, 1316 (Fed. Cir. 1998).

       Because a decision to resign or retire is presumed to be voluntary, an employee

who voluntarily resigns or retires has no right to appeal to the Board. Shoaf v. Dep't of

Agric., 260 F.3d 1336, 1340-41 (Fed. Cir. 2001). Where the resignation or retirement

was “involuntary and thus tantamount to forced removal,” however, the Board

possesses jurisdiction over the appeal. To establish involuntariness on the basis of

coercion we have required an employee to 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. Garcia v. Dep’t of Homeland

Sec., 437 F.3d 1322, 1329 (Fed. Cir. 2006). This court notes that “the doctrine of

coercive involuntariness is a narrow one” requiring that the employee “satisfy a

demanding legal standard.” Staats v. U.S. Postal Serv., 99 F.3d 1120, 1124 (Fed. Cir.

1996). The test for involuntariness is objective. An employee must “establish that a

reasonable employee confronted with the same circumstances would feel coerced into

resigning.” Middleton v. Dep't of Defense, 185 F.3d 1374, 1379 (Fed. Cir. 1999). “[A]




2009-3114                                     3
hearing is required with respect to jurisdictional questions only if the employee makes a

non-frivolous allegation that, if proved, would establish Board jurisdiction.” Staats, 99

F.3d at 1125.

       In Staats, we explained that the doctrine of coercive involuntariness “does not

apply to a case in which an employee decides to resign or retire because he does not

want to accept 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

for the employee that he feels that he has no realistic option but to leave.” Id. at 1124.

Presenting an employee with “an unpleasant situation” or “two unattractive options”

does not make the employee’s decision any less voluntary. Id. See also Christie v.

United States, 207 Ct.Cl. 333, 518 F.2d 584, 587 (1975) (“[W]hile it is possible plaintiff,

herself, perceived no viable alternative but to tender her resignation, the record

evidence supports CSC's finding that plaintiff chose to resign and accept discontinued

service retirement rather than challenge the validity of her proposed discharge for

cause. The fact remains, plaintiff had a choice. She could stand pat and fight. She

chose not to.”)

       This record does not show any non-frivolous allegations that rise to the level of

coercive involuntariness. Thus, Hall showed no entitlement to an evidentiary hearing

with respect to jurisdiction. It was Hall ─ not Grade or McKinney ─ who first brought up

the possibility of retirement in the meeting where her career goals were discussed. It

was Hall ─ not the agency ─ who set the date of her retirement. The vast majority of

Hall’s alleged discriminatory actions amount to nothing more than speculation. Her

claims that she was treated unfairly by being precluded from attending training




2009-3114                                    4
sessions, by being given “demeaning” job tasks, and by not receiving “the usual office

wide retirement celebration” are the exact type of contentions we have previously held

are not actionable under the doctrine of coercive involuntariness. Even Grade’s alleged

statement that she would terminate Hall if she refused to retire, when viewed in light of

the entire record, does not save Hall’s claim. Grade’s statement was itself immediately

qualified with, “[i]f I have time, I’ll look for an Assistant’s job for you.” Hall has alleged

no supporting facts beyond this isolated exchanged. Nor has she alleged that an

appointment to an assistant’s position would be beyond the agency’s scope of authority.

       In sum, the record shows that Hall’s retirement was not forced or coerced, as

those terms are used in this context. Instead, when the totality of the circumstances are

considered, we agree with the administrative judge that Hall’s proffer failed to provide

the basis for a non-frivolous involuntary-resignation claim. We therefore affirm the

Board’s decision.

                                            COSTS

       No costs.




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