                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     JOHN MONTGOMERY,                                DOCKET NUMBER
                 Appellant,                          DC-0752-16-0641-I-1

                  v.

     DEPARTMENT OF ENERGY,                           DATE: December 28, 2016
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           John Montgomery, Midland, Michigan, pro se.

           Jocelyn Richards and Michele A. Forte, 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 his alleged involuntary retirement appeal for lack of jurisdiction .
     Generally, we grant petitions such as this one only in the following
     circumstances: the initial decision contains erroneou s findings of material fact;
     the initial decision is based on an erroneous interpretation of statute or regulation

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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.     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         Prior to the alleged involuntary retirement at issue in this appeal, the agency
     employed the appellant as a GS-15 Management Analyst.            Initial Appeal File
     (IAF), Tab 4 at 20. On August 11, 2015, the appellant and the agency entered
     into a settlement agreement resolving his equal employment opportunity (EEO)
     complaint. Id. at 21-24. In relevant part, the appellant agreed to withdraw his
     claims against the agency and to resign no later than April 30, 2016, and the
     agency agreed to reassign him to a new position, place him in a limited‑term
     100% regular telework status, and to pay him a lump sum payment of $40,000.
     Id. at 21‑22. The appellant also agreed that, if he failed to resign by April 30,
     2016, he would be required to return the $40,000 lump sum payment, his telework
     agreement would expire, and he would be required to report for duty at his
     regular duty station on May 2, 2016. Id. at 22. The appellant retired effective
     April 30, 2016. 2 Id. at 20, 41-42.


     2
       On several occasions prior to his retirement, the appellant contacted the agency
     alleging breach of the settlement agreement. IAF, Tab 4 at 26, 31, 35. In three final
     agency decisions (FADs), the agency determined that it had not breached the settlement
                                                                                           3

¶3         On June 7, 2016, the appellant appealed his alleged involuntary retirement
     to the Board and requested a hearing. IAF, Tab 1 at 1-2. The appellant alleged
     that: he was forced to retire “due to harassment, discrimination, hostile working
     conditions and retaliation”; “[t]he action voluntarily taken by the agency against
     me was a product of misinformation or deception”; and “[s]uch action was a
     product of Agency’s coercive actions that made working conditions so difficult or
     unpleasant that a reasonable person in my position would have felt compelled to
     resign, retire, or take demotion.”     Id. at 5.   The administrative judge issued a
     jurisdictional order informing the appellant that the Board lacks jurisdiction over
     voluntary actions, such as resignations and retirements, and ordered him to
     submit evidence and argument amounting to a nonfrivolous allegation that his
     retirement was involuntary because of duress, coercion, or misrepresentation by
     the agency. IAF, Tab 2 at 2-4. The agency moved to dismiss the appeal for lack
     of jurisdiction and as untimely filed. IAF, Tab 4 at 5-9. Without holding the
     requested hearing, the administrative judge issued an initial decision finding that
     the appellant failed to make a nonfrivolous allegation that his retirement was
     involuntary and dismissing the appeal for lack of jurisdiction.          IAF, Tab 11,
     Initial Decision (ID) at 8-11. 3




     agreement as alleged by the appellant. Id. at 25, 30, 35. The appellant appealed the
     FADs to the Equal Employment Opportunity Commission’s Office of Federal
     Operations (OFO), which affirmed each of the FADs. Id. at 25-28, 30-33, 35-38. In
     each of its decisions, OFO found that the settlement agreement was “valid and binding
     on both parties.” Id. at 27, 32, 37.
     3
       The administrative judge also found that the Board was collaterally estopped from
     reviewing the validity of the settlement agreement because the identical issue was
     determined by OFO in the prior EEO actions; the validity determination was necessary
     to the resulting OFO decisions; and the appellant was fully represented in the prior EEO
     actions. ID at 8; IAF, Tab 4 at 25-28, 30-33, 35-38. Accordingly, the administrative
     judge adopted OFO’s finding that the settlement agreement was “valid and binding on
     both parties.” ID at 8. The appellant does not challenge this finding on review, PFR
     File, Tabs 1, 4, and we discern no basis to disturb it.
                                                                                      4

¶4        The appellant has filed a petition for review of the initial decision, the
     agency has responded in opposition, and he has replied to the agency’s
     opposition. Petition for Review (PFR) File, Tabs 1, 3‑4.
¶5        Generally, the Board lacks the authority to review an employee’s decision
     to retire, which is presumed to be a voluntary act. Brown v. U.S. Postal Service,
     115 M.S.P.R. 609, ¶ 9, aff’d, 469 F. App’x 852 (Fed. Cir. 2011). However, an
     appellant may overcome the presumption of voluntariness by showing that his
     retirement was the product of misinformation or deception by the agency, or of
     coercive acts by the agency, such as intolerable working conditions or the
     unjustified threat of an adverse action. SanSoucie v. Department of Agriculture,
     116 M.S.P.R. 149, ¶ 14 (2011). An appellant is only entitled to a jurisdictional
     hearing over an alleged involuntary retirement if he makes a nonfrivolous
     allegation casting doubt on the presumption of voluntariness.           Id., ¶ 16.
     Nonfrivolous allegations of Board jurisdiction are allegations of fact that, if
     proven, could show Board jurisdiction over the matter at issue. Id.
¶6        The doctrine of coerced involuntariness is “a narrow one.” Staats v. U.S.
     Postal Service, 99 F.3d 1120, 1124 (Fed. Cir. 1996). To establish involuntariness
     on the basis of coercion, an employee must show that: the agency effectively
     imposed the terms of his retirement; he had no realistic alternative but to retire;
     and his retirement was the result of improper acts by the agency. Id. “[T]he fact
     than an employee is faced with an unpleasant situation or that his choice is
     limited to two unattractive options does not make [his] decision any less
     voluntary.”   Staats, 99 F.3d at 1124.     The Board must determine 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. Brown, 115 M.S.P.R. 609, ¶ 10.
¶7        Here, the appellant alleged that the agency made his working conditions
     intolerable and coerced his retirement by, among other things, refusing to “meet
     or speak to [him]”; denying him contact with other employees needed to complete
                                                                                        5

     his duties; harassing him by “sending him demanding emails”; threatening him by
     stating “you know what is going to happen to you if you do not resign”; refusing
     his request for medical leave; refusing to allow him to “fully work in the job
     description assigned to [him]”; giving him an impossible performance plan;
     placing him on a performance improvement plan; denying him union
     representation; reassigning him to work for one of his past subordinate
     employees; attempting to force him to commit a crime; attempting to cover up
     sexual harassment; and using the settlement agreement to “justify … hostile
     working conditions.”     IAF, Tab 5 at 4-5.      The administrative judge found,
     however, that these allegations were insufficient to constitute a nonfrivolous
     allegation that his retirement was involuntary. ID at 9-11.
¶8         On review, the appellant argues that the administrative judge erred in
     finding his retirement voluntary and reiterates that the agency subjected him to
     intolerable working conditions by failing to remove the supervisor he accused of
     sexually harassing two females, attempting to have the appellant commit a crime,
     and generally treating the appellant in a “horrible,” “extraordinary,” and
     “egregious” manner. PFR File, Tab 1 at 4-7, Tab 4 at 4-6. He also asserts, as he
     did below, that, “[h]is supervisor sent [him] a threating [sic] email stating ‘if you
     do not resign you know what is going to happen to you[.]’” Id. at 4. According
     to the appellant, this threat placed him “under duress and coercion.” Id.
¶9         The alleged threat by the appellant’s supervisor regarding what would
     happen if the appellant did not resign or retire clearly refers to the terms of the
     settlement agreement, which provided that, if the appellant did not resign by
     April 30, 2016, he would be obligated to return the lump sum payment and re port
     to his duty station on May 2, 2016. IAF, Tab 4 at 22. As stated above, the fact
     that an employee must choose between two unpleasant options does not render his
     ultimate choice involuntary.    Staats, 99 F.3d at 1124.      Thus, the fact that the
     appellant had to choose between retiring and repaying the lump sum payment and
                                                                                        6

      returning to his prior duty station pursuant to the settlement agreement does not
      make his choice to retire involuntary.
¶10        While the appellant’s allegations regarding sexual harassment and the
      agency’s alleged attempt to have him “commit a crime” could be coercive, the
      appellant failed to provide any details or evidence in support of these bare
      contentions. Id. Accordingly, we find that his vague and generalized allegations,
      unsupported by any specific factual allegations, fail to raise a nonfrivolous
      allegation of jurisdiction over this appeal. See Marcino v. U.S. Postal Service,
      344 F.3d 1199, 1204 (Fed. Cir. 2003) (finding that mere conclusory allegations,
      unsupported by evidence or argument, do not constitute nonfrivolous allegations).
¶11        We have considered the appellant’s other arguments regarding the alleged
      intolerable working conditions created by the agency, but agree with the
      administrative judge that the incidents alleged do not evince the type of
      intolerable working conditions that would compel a reasonable person in the
      appellant’s position to retire.   ID at 9-10; see, e.g., Searcy v. Department of
      Commerce, 114 M.S.P.R. 281, ¶ 13 (2010) (finding that the employee’s
      allegations that his supervisor denied his request for advanced leave, spoke to him
      in a disrespectful way, and did not provide him any assistance with his work
      assignments did not evince intolerable working conditions).
¶12        The appellant further argues on review that the administrative judge erred in
      finding that, in the settlement agreement, he agreed to retire because “[t]he
      settlement agreement never mentions the word retirement and clearly did not state
      what would happen to the appellant if he did not retire.” PFR File, Tab 1 at 4-5
      (emphasis in original).   The appellant is correct that the settlement agreement
      states that he agreed to “resign,” rather than “retire.”         IAF, Tab 4 at 22.
      However, the wording of the settlement agreement and the appellant’s intentions
      when he entered into the settlement agreement have no relevance to the
      voluntariness of his ultimate decision to retire. See Staats, 99 F.3d at 1124.
                                                                                          7

¶13        The appellant also argues that the administrative judge was biased against
      him because she: informed the appellant that “these types of cases are hard to
      prove”; “did not give the appellant an opportunity to compel the agency t o
      produce documents”; and “gave discretion to the agency assuming they [sic] told
      the truth and that the settlement agreement allowed the agency to not be
      accountable for a constructive discharge of Appellant.” PFR File, Tab 1 at 4. In
      making a claim of bias or prejudice against an administrative judge, a party must
      overcome    the   presumption     of   honesty   and   integrity   that   accompanies
      administrative adjudicators. Oliver v. Department of Transportation, 1 M.S.P.R.
      382, 386 (1980).    Furthermore, an administrative judge’s conduct during the
      course of a Board proceeding warrants a new adjudication only if the
      administrative judge’s comments or actions evince “a deep-seated favoritism or
      antagonism that would make fair judgment impossible.” Bieber v. Department of
      the Army, 287 F.3d 1358, 1362-63 (Fed. Cir. 2002) (quoting Liteky v.
      United States, 510 U.S. 540, 555 (1994)). Here, the appellant has not pointed to
      any evidence that the administrative judge was biased or prejudiced against him,
      or that she displayed favoritism or antagonism in the proceedings below.
      Accordingly, we find no merit to the appellant’s complaints of bias.

                        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

      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,
                                                                                    8

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 and other sections o f 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.            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.
