Error: Bad annotation destination
                       NOTE: This disposition is nonprecedential.


  United States Court of Appeals for the Federal Circuit
                                        06-3266


                                      E.K. WADE,

                                                           Petitioner,

                                           v.


                              DEPARTMENT OF LABOR,

                                                           Respondent.


      E.K. Wade, of Walnut Creek, California, pro se.

      Gregory T. Jaeger, Attorney, Commercial Litigation Branch, Civil Division, United
States Department of Justice, of Washington, DC, for respondent. With him on the brief
were Peter D. Keisler, Assistant Attorney General, David M. Cohen, Director, and Todd M.
Hughes, Assistant Director.

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                      NOTE: This disposition is nonprecedential.

    United States Court of Appeals for the Federal Circuit


                                        06-3266


                                      E.K. WADE,

                                                      Petitioner,

                                           v.

                              DEPARTMENT OF LABOR,

                                                      Respondent.


                           ___________________________

                            DECIDED: January 17, 2007
                           ___________________________



Before GAJARSA, MOORE, and JORDAN, * Circuit Judges.

PER CURIAM.


       The petitioner, E.K. Wade, seeks review of a final decision of the Merit Systems

Protection Board (“Board”) that dismissed, for lack of jurisdiction, his appeal regarding

his alleged involuntary resignation from the Department of Labor. Wade v. Dep’t of

Labor, No. SF-0752-05-0640-I-1 (M.S.P.B. Sept. 12, 2005) (“Initial Decision”).       The

Initial Decision became final when the Board declined to review it. Wade v. Dep’t of


*
       Honorable Kent A. Jordan, Circuit Judge, United States Court of Appeals for the
Third Circuit, sitting by designation.
Labor, No. SF-0752-05-0640-I-1 (M.S.P.B. Apr. 4, 2006) (“Final Order”).      We have

considered Mr. Wade’s claims and find them without merit. We therefore affirm the

dismissal by the Board for lack of jurisdiction.

                                      BACKGROUND

       Before his resignation, the petitioner, E.K. Wade, worked as an Equal

Opportunity Specialist with the Department of Labor (“Agency”).        Throughout his

employment with the Agency, Mr. Wade had multiple confrontations with his co-workers

and management. The incident most relevant in this appeal involves Mr. Wade’s use of

racially offensive language towards two of his co-workers. After the incident, Mr. Wade

received a notice of proposed suspension from the Agency. Four days later, Mr. Wade

submitted his resignation. Mr. Wade filed an appeal to the Board alleging that his

resignation was involuntary. The administrative law judge (“ALJ”) denied Mr. Wade’s

request for a hearing and found that the Board lacked jurisdiction because his

resignation was voluntary.     Initial Decision at 1-2.   The Board denied Mr. Wade’s

petition for review.   Final Order at 1.    He now appeals to this court and we have

jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).

                                       DISCUSSION

       Our scope of review in an appeal from a Board decision is limited. This court

must affirm the Board’s decision unless it is: “(1) arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law; (2) obtained without procedures

required by law, rule, or regulation having been followed; or (3) unsupported by

substantial evidence.” 5 U.S.C. § 7703(c) (2000); see Walls v. Merit Sys. Prot. Bd., 29

F.3d 1578, 1581 (Fed. Cir. 1994).




06-3266                                       2
       An employee who resigns has no appeal right to the Board, unless he can prove

that his resignation is involuntary. Shoaf v. Dep’t of Agric., 260 F.3d 1336, 1340-41

(Fed. Cir. 2001). Resignations are presumed voluntary and the employee must come

forward with sufficient evidence to establish the resignation was involuntary. Id. at 1341.

This court has recognized that “’the doctrine of coercive involuntariness is a narrow one’

requiring that the employee must ‘satisfy a demanding legal standard.’” Garcia v. Dep’t

of Homeland Sec., 437 F.3d 1322, 1329 (Fed. Cir. 2006) (en banc) (citing Staats v. U.S.

Postal Serv., 99 F.3d 1120, 1124 (Fed. Cir. 1996)).

       To establish a right to a hearing on jurisdiction the employee must make a non-

frivolous claim of Board jurisdiction. Garcia, 437 F.3d at 1344. A non-frivolous claim is a

claim that if proven, establishes jurisdiction. Id. At the hearing, the employee must

prove jurisdiction by a preponderance of the evidence. Id.

       In this case, Mr. Wade alleges that the Board erred because it failed to consider

all of the evidence he submitted.        Mr. Wade argues that he was forced to resign

because of a hostile work environment created by the following Agency actions: (1)

failure to grant him additional sick leave; (2) failure to grant his request for a transfer; (3)

denial of a timely promotion; and (4) threatening him with suspension.

       The Board correctly determined that Mr. Wade did not make a non-frivolous

claim of jurisdiction. This court has held that:

       In evaluating involuntariness, the proper test is "an objective one," and
       one that "considers the totality of the circumstances." The employee must
       "establish that a reasonable employee confronted with the same
       circumstances would feel coerced into resigning."

Id. at 1329 (citations omitted). The ALJ determined that Mr. Wade’s allegations were

not supported in the record and discussed with specificity the basis for his decision.



06-3266                                        3
Initial Decision at 5-6.   The ALJ noted that Mr. Wade worked for months after his

request for additional sick leave was denied, Mr. Wade’s “request for transfer was

denied because the supervisor that was the subject of his complaints retired,” and his

delayed “promotion was the subject of several EEO complaints, none of which were

resolved in his favor.” Id. at 5. Also, the ALJ noted, Mr. Wade admitted to the use of

racially offensive language, which was the basis for the suspension. Initial Decision at 6;

see Terban v. Dep’t of Energy, 216 F.3d 1021, 1026 (Fed. Cir. 2000) (holding that the

employee must show the Agency’s adverse action threat was made without a

reasonable basis).    Accordingly, we hold that the ALJ applied the proper test and

substantial evidence supported his decision.

       Mr. Wade raises other allegations that also do not establish Board jurisdiction.

Mr. Wade’s claims of Title VII discrimination do not confer Board jurisdiction absent an

appealable adverse action. See Garcia, 437 F.3d at 1342-43 ("[t]he Board has not been

granted jurisdiction over Title VII claims . . . unaccompanied by an appealable action

over which the Board does have jurisdiction.”). Also, Mr. Wade’s allegation that the

Board failed to take judicial notice of the California Unemployment Insurance Appeals

Board’s (“CUIAB”) decision does not establish jurisdiction.      The CUIAB decision is

based on California state law and is not binding upon the Board.

                                     CONCLUSION

       For the foregoing reasons, the Board properly dismissed Mr. Wade’s appeal for

lack of jurisdiction. We affirm the judgment of the Board.

       No costs.




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