                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     LESLIE C. MACNEIL,                              DOCKET NUMBER
                   Appellant,                        SF-0752-15-0455-I-1

                  v.

     DEPARTMENT OF VETERANS                          DATE: December 31, 2015
       AFFAIRS,
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Leslie C. MacNeil, Reno, Nevada, pro se.

           Shelley D. Cutts, Esquire, Phoenix, Arizona, 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 her 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 erroneous


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     interpretation of statute or regulation 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.          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).
¶2         Effective October 31, 2014, the appellant retired from her GS-8 Medical
     Records Technician position. Initial Appeal File (IAF), Tab 6 at 19. She filed an
     appeal with the Board asserting that she retired involuntarily. 2 IAF, Tab 1. She
     declined a hearing. Id. at 1.
¶3         The administrative judge correctly advised the appellant of her burden to
     establish Board jurisdiction over her appeal by establishing that her retirement
     was involuntary because she lacked a meaningful choice due to the agency’s
     improper actions, i.e., duress, coercion, or misrepresentation. IAF, Tab 2 at 2,
     Tab 3 at 1-3; see Salazar v. Department of the Army, 115 M.S.P.R. 296, ¶ 9
     (2010).   The appellant alleged that the agency created an intolerable working


     2
       Because we affirm the dismissal for lack of jurisdiction, we need not reach the issue
     of whether this appeal was timely filed.          See Dean v. U.S. Postal Service,
     115 M.S.P.R. 56, ¶ 13 n.5 (2010). However, we note that on March 11, 2015, the
     appellant sought to amend her equal employment opportunity complaint, which was
     pending before a U.S. Equal Employment Opportunity Commission (EEOC)
     administrative judge, to include her involuntary retirement claim. IAF, Tab 1 at 8. On
     March 12, 2015, the EEOC administrative judge dismissed the complaint without
     prejudice for the appellant to file a Board appeal and await a jurisdictional
     determination. Id. at 8-9.
                                                                                       3

     environment by subjecting her to “unrelenting retaliation” for her equal
     employment opportunity (EEO) activity and failing to timely provide a reasonable
     accommodation. IAF, Tab 1 at 5. She alleged that, as a result of the intolerable
     working environment, she experienced “physical and mental deterioration to such
     an unhealthy degree” that she felt she had no choice but to retire. Id. She further
     claimed that she was forced to retire because the agency charged her with absence
     without leave (AWOL) on September 19, 2014, despite knowing that the charge
     was invalid. IAF, Tab 13 at 3, 31-32.
¶4           The administrative judge issued an initial decision based on the written
     record, dismissing the appeal for lack of jurisdiction because the appellant failed
     to establish that her retirement was involuntary. IAF, Tab 16, Initial Decision
     (ID).    The administrative judge found that, before the appellant retired, the
     agency had offered her the accommodations she requested and concluded its
     fact finding investigation surrounding the AWOL charge without taking or
     threatening disciplinary action.    ID.   The administrative judge concluded that,
     under those circumstances, a reasonable person in the appellant’s position would
     not have felt compelled to retire. ID. The administrative judge further found
     that: (1) the agency’s actions in investigating the circumstances leading to the
     AWOL charge were appropriate and within its authority; and (2) the appellant
     failed to prove by preponderant evidence that the agency subjected her to a
     pattern of harassment and retaliation. ID.
¶5           The appellant has filed a petition for review. 3 Petition for Review (PFR)
     File, Tab 1. She disputes that her retirement was voluntary, arguing that: (1) the
     agency’s failure to provide her with a reasonable accommodation for 3 years is
     indicative of a pattern of coercion, harassment, and retaliation designed to force
     her retirement;     (2) the   fact that   the   agency offered   her   a reasonable
     accommodation before her retirement does not negate its failure to accommodate
     3
       The appellant moved to withdraw her petition for review, but subsequently withdrew
     that motion. Petition for Review (PFR) File, Tabs 3-4.
                                                                                       4

     her over a 3-year period; (3) the administrative judge “ignore[d] the physical and
     mental effect” that the agency’s failure to accommodate had on her; and (4) the
     agency did not have a reasonable basis for the AWOL charge and she retired
     because she believed management would use the charge to remove her. Id. at 4-6.
     The agency did not respond.

     The appellant did not establish by preponderant evidence that the agency coerced
     her to retire by failing to accommodate her alleged disability.
¶6         The appellant suffers from a medical condition which, among other
     symptoms, causes extreme light sensitivity.       IAF, Tab 13 at 97-98.       When
     exposed to the fluorescent lighting generally found in office environments, she
     experiences blurry vision and eye pain and discomfort, which leads to severe
     headaches and fatigue. Id. at 90-91, 95, 97-98. Beginning in 2011, she requested
     various accommodations to address this issue, including: modifications to her
     work station to reduce glare from lighting; a dimly lit environment; a compressed
     work schedule and periodic breaks during the workday, which would give her
     time to rest her eyes; a private office; and the option to telework. Id. at 84-85,
     87, 90-91; IAF, Tab 6 at 58, 69.
¶7         The record reflects that, over the next 3 years, the agency considered the
     appellant’s requests for several different accommodations.        In April 2012, the
     EEO    Program      Manager   notified   the   appellant   that    the   Reasonable
     Accommodation Committee (RAC) had recommended providing her with light
     blocking glasses.    IAF, Tab 6 at 66.    The appellant explained that her prior
     experience with these glasses was that they hurt her nose, face, and head. Id. at
     64. In June 2012, the EEO Program Manager corresponded with the agency’s
     interior designer to assess the possibility of covering the appellant’s cubicle. Id.
     at 61-62. The interior designer, however, raised several concerns with a cubicle
     shield. Id. at 61. On December 5, 2012, a supervisor in the appellant’s chain of
     command provided the EEO Program Manager with a memorandum indicating
     that, as recommended by RAC, the agency would allow the appellant to continue
                                                                                        5

      her compressed work schedule and continue to grant the appellant 10-minute
      breaks from data entry each hour. Id. at 56.
¶8         In October 2013, the agency offered the appellant a private office where she
      could adjust the lighting to meet her needs. IAF, Tab 13 at 86. It appears that
      she accepted this offer. IAF, Tab 6 at 21. However, in May 2014, she disputed
      that a private office was an adequate accommodation and instead requested to
      work from home, where she asserted she could control not only lighting, but also
      temperature, humidity, stress and fatigue. IAF, Tab 13 at 84-85. In June 2014,
      the agency approved the appellant to telework for a 90-day trial period. IAF,
      Tab 6 at 33-34.   The appellant declined the offer.     Id. at 30.   She retired in
      October 2014. Id. at 19.
¶9         On review, the appellant does not dispute that the agency offered the
      above-noted accommodations, or their effectiveness. Rather, she contends that
      the agency failed to accommodate her until October 2013 and questions the
      “timing” of the agency’s accommodation offers.        PFR File, Tab 1 at 4.     The
      administrative judge considered and rejected these arguments below, finding that:
      (1) the agency provided the appellant a private office approximately a year before
      she retired and, when she claimed that that was no longer sufficient, it granted her
      request to telework; and (2) the appellant unreasonably declined the telework
      accommodation she had explicitly requested.            ID at 8-9.     Given those
      circumstances, the administrative judge found that the appellant was not forced to
      retire. ID at 8-9. We discern no basis to disturb this analysis. The appellant’s
      mere disagreement with the administrative judge’s weighing of the evidence does
      not establish a basis for review.    See Broughton v. Department of Health &
      Human Services, 33 M.S.P.R. 357, 359 (1987) (discussing that the mere
      reargument of issues already raised and properly resolved by the administrative
      judge below does not establish a basis for review).
¶10        The appellant also argues that the administrative judge improperly
      “ignore[d] the physical and mental effect” that the agency’s delay in providing a
                                                                                        6

      reasonable accommodation had on her.        PFR File, Tab 1 at 4.     However, an
      administrative judge’s failure to mention all of the evidence of record does not
      mean that she did not consider it in reaching her decision.            Marques v.
      Department of Health & Human Services, 22 M.S.P.R. 129, 132 (1984), aff’d,
      776 F.2d 1062 (Fed. Cir. 1985) (Table). Further, the appellant does not explain
      what these physical and mental effects were, identify the related evidence that she
      believes the administrative judge improperly ignored, or explain how any such
      evidence warrants a different outcome in this appeal. See generally PFR File,
      Tab 1 at 4-6. Accordingly, this argument also fails to establish a basis for review.
      See Rumsey v. Department of Justice, 120 M.S.P.R. 259, ¶ 11 (2013) (citing
      Weaver v. Department of the Navy, 2 M.S.P.R. 129, 133 (1980) (holding that,
      before the Board will undertake a complete review of the record, the petitioning
      party must explain why the challenged factual determination is incorrect and
      identify the specific evidence in the record that demonstrates the error), review
      denied, 669 F.2d 613 (9th Cir. 1982) (per curiam)); see also 5 C.F.R.
      §§ 1201.114(b), 1201.115.

      The appellant did not establish by preponderant evidence that the agency coerced
      her to retire by charging her with AWOL.
¶11        In September 2013, the agency granted the appellant 8 hours of official time
      to perform union duty on the last work day of each pay period. IAF, Tab 13
      at 37-38. On May 23, 2014, the union president advised the agency that the union
      wished to stop the appellant’s official time, stated that those hours would be
      reassigned to another employee, E.F., once the appellant’s official time stopped,
      and requested a start date for E.F.    Id. at 46.   It appears that the appellant’s
      claimed performance of union duty was called into question on August 21, 2014,
      when she requested leave under the Family and Medical Leave Act because
      computer work exacerbated headaches she was experiencing. Id. at 72. When
      she made the request, she stated that she expected to be able to work the
      following day because it was her union day and those duties did not require the
                                                                                            7

      use of a computer.        Id.   When the Chief of Business Services, J.B., sought
      guidance on the request, the Chief of Human Resources Management Services
      questioned whether the appellant still was performing union duty, citing the
      union’s May 2014 email requesting to discontinue the appellant’s official time.
      Id. at 70, 72.
¶12            On August 22, 2014, an employee in Business Services stated that she had
      never seen any email traffic indicating when E.F. was to begin union duty. Id.
      at 70.     J.B. then stated that the agency should clarify the formal arrangement
      between management and the union as to the appellant’s union hours before
      beginning a fact-finding investigation. Id. at 75. J.B. then asked the union when
      the appellant’s last union day was. Id. at 71. On September 4, 2014, the union
      vice president responded that the agency would “have to look it up or ask [the
      appellant]” because it had “been a while.” Id.
¶13            The appellant’s supervisor charged her with AWOL on September 19, 2014,
      noting that she was unable to reach the appellant by telephone at home and could
      not verify that she was working in the union office. Id. at 47, 57. When the
      appellant inquired about the reason for the AWOL charge on September 22, 2014,
      her supervisor advised her that, in light of the May 2014 email, the agency would
      need verification from the union as to when her union duty ended and whether she
      had performed union duty on various dates. Id. at 57. The appellant responded
      that no change had occurred in her official time. Id. at 49. However, employees
      in the agency’s Labor and Employee Relations (LER) office contended that the
      appellant stopped performing union duties on or about July 1, 2014. Id. at 48, 50.
¶14            The appellant asserts that she was forced to retire out of fear that the agency
      would rely upon the AWOL charge to remove her.                 PFR File, Tab 1 at 5.
      However, there is no evidence, and she does not allege, that the agency took,
      proposed or threatened any disciplinary action against her before she retired.
      Thus, we cannot conclude that her retirement was involuntary on this basis. See
      Miller v. Department of Defense, 85 M.S.P.R. 310, ¶ 29 (2000) (explaining that,
                                                                                            8

      to prove a constructive discharge, an employee has an obligation to act
      reasonably, not assume the worst, and not jump to conclusions too quickly).
      Even if the agency had proposed or threatened disciplinary action, the appellant’s
      choice to retire rather than oppose the action would not rebut the presumed
      voluntariness   of   her   retirement.      See   Frison    v.   Department     of   the
      Army, 94 M.S.P.R. 431, ¶ 5 (2003).
¶15         An exception to the above-noted general principle—that an employee’s
      unpleasant choice between retiring and opposing an adverse action does not rebut
      the presumption of voluntariness—exists if the employee shows that the agency
      knew or should have known that it could not prevail on the adverse action. Id.
      The appellant contends that the AWOL charge was invalid. PFR File, Tab 1 at 5.
      However, for the reasons set forth below, we disagree. 4
¶16         Although the appellant disputed that she had stopped performing union
      duties, and presented some evidence in support of that assertion, 5 the relevant
      question is whether the agency had reasonable grounds to impose the AWOL
      charge. See Schultz v. United States Navy, 810 F.2d 1133, 1136 (Fed. Cir. 1987).
      The union requested the reassignment of official time in May 2014 and the LER
      office reported that it occurred in July 2014.       Further, when asked when the
      appellant’s last union day was, the union vice president did not report that the
      appellant still was performing union duty, but rather, stated that it had “been a

      4
        The appellant states that she requested clarification during discovery from the agency
      regarding the AWOL charge and nothing was provided. PFR File, Tab 1 at 5. To the
      extent that the appellant is alleging error by the administrative judge, we will not
      consider such an argument because she failed to file a motion to compel below. See
      Boston v. Department of the Army, 122 M.S.P.R. 577, ¶ 12 (2015). The appellant failed
      to timely initiate discovery, but the administrative judge nonetheless granted her
      untimely request for an extension to do so. IAF, Tab 12. In that order, the
      administrative judge explicitly referred the appellant to the Board’s regulations for
      filing a motion to compel. Id.
      5
       On October 7, 2014, E.F. advised the appellant’s supervisor that E.F. and the appellant
      were never informed of any official time changes taking effect on or around July 1,
      2014. IAF, Tab 13 at 65.
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      while” and referred the agency back to the appellant. We thus conclude that the
      agency had reasonable grounds to charge the appellant with AWOL and,
      therefore, that the charge was not purely coercive.
¶17        Based on the foregoing, we affirm the dismissal for lack of jurisdiction
      because the appellant failed to establish by preponderant evidence that her
      retirement was involuntary.

                      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:
                                     U.S. 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 U.S. 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 U.S. 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.
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      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:                              ______________________________
                                            William D. Spencer
                                            Clerk of the Board
Washington, D.C.
