                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     GAIL L. STANLEY,                                DOCKET NUMBER
                   Appellant,                        DC-0752-15-0317-I-1

                  v.

     DEPARTMENT OF VETERANS                          DATE: June 4, 2015
       AFFAIRS,
                 Agency.



             THIS FINAL ORDER IS NO NPRECEDENTIAL *

           Sara McDonough, Esquire, Washington, D.C., for the appellant.

           Amanda J. Marlatt, 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 this involuntary resignation 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 erroneous


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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.     Except as expressly MODIFIED by this Final
     Order, we AFFIRM the initial decision.
¶2        In this appeal, the appellant alleged that she involuntarily resigned from her
     GS-13 Decision Review Officer position because the agency denied her
     March 14, 2014 request to take leave without pay (LWOP) under the Family and
     Medical Leave Act of 1993 (FMLA), because she had already exhausted her
     12-week FMLA leave entitlement at the time of her request. Initial Appeal File
     (IAF), Tab 1. The appellant asserted, among other things, that the agency failed
     to honor a host of regulations regarding its obligations under the FMLA, and she
     argued that the agency failed to notify her that it had designated her earlier
     request for paid leave as FMLA-qualifying or that the paid leave she took under
     that request was counted against her 12-week annual entitlement under the
     FMLA. Id. at 5.
¶3        In addition to the usual acknowledgment order, the administrative judge
     issued a jurisdictional order in which he gave the appellant explicit notice of her
     burden to establish jurisdiction over her appeal. IAF, Tab s 2-3. In her response,
     the appellant asserted that she detrimentally relied on the agency’s statements that
     she had exhausted all her available paid leave as well as her 12-week FMLA
     entitlement. IAF, Tab 4 at 5. She also asserted that the agency should grant her
                                                                                        3

     LWOP request as a reasonable accommodation and claimed that its repeated
     failure to grant her requested accommodation made her working conditions so
     difficult that a reasonable person in her position would have felt compelled to
     resign.   Id. at 6-7.   She further asserted that agency rules require it to grant
     LWOP to disabled veterans like herself for medical treatment.         Id. at 7.   The
     agency moved to dismiss the appeal for lack of jurisdiction, arguing that the
     appellant failed to nonfrivolously allege that her resignation was involuntary and
     noting that the only accommodation the appellant sought was unlimited leave
     without any anticipated return to duty or job modification that would actually
     allow her to perform the essential functions of her position. IAF, Tab 8. In reply,
     the appellant essentially reiterated the arguments described above. IAF, Tab 9.
¶4         In his initial decision, the administrative judge dismissed the appeal for lack
     of jurisdiction, finding that the appellant presented no evidence to show that the
     agency had engaged in any misrepresentation, deceit, misinformation, or
     misconduct that deprived the appellant of her freedom to choose whether to
     resign. IAF, Tab 13, Initial Decision (ID) at 5. Instead, the administrative judge
     found that the record reflected that the appellant made a clear choice between the
     potential of negative discipline for being absent without leave (AWOL) and a
     voluntary resignation.     Id.   The administrative judge further found that the
     appellant’s medical evidence belied her arguments regarding accommodation
     because it indicated that she lacked the capacity to work anywhere and under any
     circumstances.    Id.   Lastly, the administrative judge found that, because the
     record reflected that the appellant had been granted many weeks of leave from
     duty, she failed to nonfrivolously allege that the agency made her working
     conditions so difficult that a reasonable person in her position would have felt
     compelled to resign. Id.
¶5         The appellant, who was pro se below but is represented by counsel for the
     purposes of her petition for review, asserts therein that she had no choice but to
     resign after the agency rescinded her accommodation to work a flexible schedule.
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     Petition for Review (PFR) File, Tab 1 at 5, 8. She reiterates her claim that the
     agency retroactively designated her paid leave request as FMLA-qualifying in her
     absence and would not approve LWOP as a reasonable accommodation after it
     determined that she had exhausted her entitlement under the FMLA. Id. at 5, 9.
     She also argues that the agency misinformed and deceived her about her rights
     and responsibilities under the FMLA because no one told her that her FMLA
     leave was to run concurrently with her paid leave. Id. at 5, 9-10. The agency
     responds in opposition to the appellant’s petition for review. PFR File, Tab 3.
¶6        An employee-initiated action, such as a resignation or retirement, is
     presumed to be voluntary, and thus outside the Board’s jurisdiction, unless the
     employee presents sufficient evidence to establish that the agency obtained the
     action through duress or coercion or shows that the agency’s actions would have
     misled a reasonable person.         Green v. Department of Veterans Affairs,
     112 M.S.P.R. 59, ¶ 8 (2009).     The touchstone of the voluntariness analysis is
     whether, considering the totality of the circumstances, factors operated on the
     employee’s decision-making process that deprived her of freedom of choice.
     Searcy v. Department of Commerce, 114 M.S.P.R. 281, ¶ 12 (2010). To establish
     involuntariness on the basis of coercion, an employee must show that the agency
     effectively imposed the terms of her resignation or retirement, that she had no
     realistic alternative but to resign or retire, and that her resignation or retirement
     was the result of improper acts by the agency.       Staats v. U.S. Postal Service,
     99 F.3d 1120, 1123-24 (Fed. Cir. 1996).       In cases where intolerable working
     conditions are alleged, the Board will find an action involuntary only if the
     employee demonstrates that the employer or agency engaged in a course of action
     that made working conditions so difficult or unpleasant that a reasonable person
     in that employee’s position would have felt compelled to resign or retire. Markon
     v. Department of State, 71 M.S.P.R. 574, 577 (1996).
¶7        The U.S. Court of Appeals for the Federal Circuit has said that the doctrine
     of coercive involuntariness is a narrow one, requiring that the employee satisfy a
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     demanding legal standard. Garcia v. Department of Homeland Security, 437 F.3d
     1322, 1329 (Fed. Cir. 2006) (en banc).      Moreover, even though a resignation
     procured in violation of the regulations for granting leave may be coercive, where
     an employee is faced with the unpleasant alternative of resigning or being
     subjected to an adverse action, the resulting resignation cannot be considered an
     involuntary resignation unless the employee shows that the agency lacked
     reasonable grounds for threatening to take the adverse action. See, e.g., Terban v.
     Department of Energy, 216 F.3d 1021, 1026 (Fed. Cir 2000); Schultz v. United
     States Navy, 810 F.2d 1133, 1135-36 (Fed. Cir. 1987); Aurandt v. Department of
     the Air Force, 53 M.S.P.R. 591, 596-97 (1992).
¶8         An appellant is entitled to a hearing on the issue of Board jurisdiction over
     an appeal of an alleged involuntary resignation or retirement only if she makes a
     nonfrivolous allegation casting doubt on the presumption of voluntariness.
     Burgess v. Merit Systems Protection Board, 758 F.2d 641, 643 (Fed. Cir. 1985).
     In this context, a nonfrivolous allegation that a resignation was involuntary is an
     allegation supported by facts and evidence which, if proven, would make a prima
     facie case that the appellant’s resignation was involuntary.     See id.; see also
     Dennis v. Department of Veterans Affairs, 62 M.S.P.R. 462, 464 (1994) (citing
     Dumas v. Merit Systems Protection Board, 789 F.2d 892, 893-94 (Fed. Cir.
     1986)). We agree with the administrative judge’s determination that the appellant
     failed to make a nonfrivolous allegation sufficient to entitle her to a hearing on
     her involuntary resignation clam, and we modify the initial decision thusly, in
     order to clarify the analysis therein.
¶9         First, we note that the appellant relies upon the wrong regulations in her
     submissions. She cites to the regulations implementing the FMLA in Title 29 of
     the Code of Federal Regulations, which apply to private sector and postal
     employees. See PFR File, Tab 1 at 9. The regulations at 5 C.F.R. Part 630 apply
     to federal employees like the appellant. See, e.g., Burge v. Department of the Air
     Force, 82 M.S.P.R. 75, ¶ 18 (1999).       Nevertheless, the voluntariness of the
                                                                                          6

      appellant’s choice to resign is not affected because, under any analysis and even
      assuming that the agency did not properly administer the FMLA in this instance,
      to the extent that the appellant argues that her resignation was involuntary
      because she believed she would be subject to an adverse action if the agency
      placed her in an AWOL status, the agency had not yet done so, nor had it
      proposed an adverse action against her, and the appellant clearly could have
      contested that action, if and when it did occur. See, e.g., Brown v. U.S. Postal
      Service, 115 M.S.P.R. 609, ¶ 15, aff’d, 469 F. App’x 852 (Fed. Cir. 2011), cert.
      denied, 133 S. Ct. 414 (2012).
¶10        We also note that the appellant has provided no authority for her underlying
      assertion that she was entitled to use her paid sick leave first and then, in a serial
      fashion, invoke her FMLA leave entitlement for the same condition. Although
      the agency may allow the appellant to stack her leave in that manner, the
      appellant identifies no authority for her contention that it must do so. Moreover,
      as set forth above, the appellant retained the right to challenge any adverse action
      the agency might take. If an agency bases an adverse action on its interference
      with an employee’s rights under the FMLA, the adverse action is a violation of
      law and cannot be sustained. Gross v. Department of Justice, 77 M.S.P.R. 83, 90
      (1997). However, as noted above, the agency has neither proposed nor effected
      an adverse action in this matter and, as the following analysis indicates, the
      agency also did not interfere with the appellant’s rights under the FMLA such
      that her resignation was involuntary.
¶11        The Board has not considered a leave interference claim in this context, but
      the United States Court of Appeals for the Eighth Circuit, interpreting a decision
      of the United States Court of Appeals for the Sixth Circuit, found that leave
      interference only occurs in a situation like this when “the employer’s action
      prevents the employee from using benefits to which she is entitled under the
      [FMLA].” Walker v. Trinity Marine Products, 721 F.3d 542, 544-45 (8th Cir.
      2013), cert. denied, 134 S. Ct. 1293 (2014). Under this rubric, such interference
                                                                                7

would occur if the agency forced the appellant to take FMLA leave when she did
not have a serious health condition that precluded her from working, and would
be ripe for adjudication only if the employee subsequently sought FMLA leave
for a serious health condition, but it was unavailable because the employer had
wrongfully forced the employee to take FMLA leave in the past, when she did not
have a serious health condition. See Wysong v. Dow Chemical Co., 503 F.3d 441,
449 (6th Cir. 2007). Thus, in the instant matter, because the record reflects that
the leave requested by the appellant in both instances was for the same serious
medical condition, she cannot meet the elements of a claim of leave interference.
Moreover, because there is no indication in the record that the appellant would
have been able to return to work after an additional 12 weeks of leave, LWOP in
this case would only have postponed the appellant’s inevitable decision regarding
her medical condition and her career.

                  NOTICE TO THE APPELLANT REGARDING
                     YOUR FURTHER REVIEW RIGHTS
     The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You have the right to
request the United States Court of Appeals for the Federal Circuit to review this
final decision.   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
                                                                                  8

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.
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
United States 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:                            ______________________________
                                          William D. Spencer
                                          Clerk of the Board
Washington, D.C.
