                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     CLINTON W. SMITH,                               DOCKET NUMBER
                   Appellant,                        SF-0752-15-0100-I-1

                  v.

     DEPARTMENT OF THE TREASURY,                     DATE: May 12, 2015
                 Agency.



             THIS FINAL ORDER IS NO NPRECEDENTIAL *

           Clinton W. Smith, Fresno, California, pro se.

           Ian J. Watson, Esquire, San Francisco, California, 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 the 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
     interpretation of statute or regulation or the erroneous application of the law to

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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 and AFFIRM the initial decision, which is now the
     Board’s final decision. 5 C.F.R. § 1201.113(b).

                                      BACKGROUND
¶2         The appellant was employed as a GS-07 Correspondence Examination
     Technician with the Internal Revenue Service (IRS). Initial Appeal File (IAF),
     Tab 7, Subtab 4c. On April 7, 2014, the appellant notified the agency that he
     intended to resign from his position. Id., Subtab 4d. The agency processed the
     appellant’s resignation that same day. Id., Subtab 4c. Thereafter, the appellant
     filed an equal employment opportunity complaint with the agency alleging that he
     had resigned due to a hostile work environment and harassment based on gender.
     Id., Subtab 4b at 18-19, 26-27. Following the issuance of a final agency decision
     finding that the appellant was not entitled to relief, id., Subtab 4a, the appellant
     filed the instant Board appeal, IAF, Tab 1.
¶3         The administrative judge provided the appellant with his burden of proof on
     jurisdiction.   IAF, Tab 2.   After providing the parties with the opportunity to
     respond to the order and without holding a hearing, the administrative judge
     issued an initial decision dismissing the appeal for lack of jurisdiction.     IAF,
     Tab 16, Initial Decision (ID) at 1, 8.
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¶4        The appellant has filed a petition for review. Petition for Review (PFR)
     File, Tab 1. On review, the appellant reiterates his contention that his resignation
     was involuntary and asserts that the administrative judge improperly denied him a
     hearing. Id. In support of his claim that his resignation was involuntary, the
     appellant argues that the agency: (1) improperly proposed to suspend him; and
     (2) subjected him to a hostile work environment and “disparate treatment.” Id.
     The agency has filed a response to the appellant’s petition. PFR File, Tab 3.

                       DISCUSSION OF ARGUMENTS ON REVIEW
¶5        A decision to resign is presumed to be a voluntary act outside the Board’s
     jurisdiction, and the appellant bears the burden of showing by a preponderance of
     the evidence that his resignation was involuntary and therefore tantamount to a
     forced removal.     Garcia v. Department of Homeland Security, 437 F.3d 1322,
     1329-30 (Fed. Cir. 2006).      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 him of freedom of choice.
     Coufal v. Department of Justice, 98 M.S.P.R. 31, ¶ 22 (2004). An appellant is
     entitled to a hearing on the issue of Board jurisdiction over an alleged involuntary
     resignation only if he 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). Nonfrivolous allegations of Board
     jurisdiction are allegations of fact which, if proven, could establish a prima facie
     case that the Board has jurisdiction over the matter at issue.           Deines v.
     Department of Energy, 98 M.S.P.R. 389, ¶ 11 (2005). In determining whether the
     appellant has made a nonfrivolous allegation of jurisdiction entitling him to a
     hearing, the administrative judge may consider the agency’s documentary
     submissions; however, to the extent that the agency’s evidence constitutes mere
     factual contradiction of the appellant’s otherwise adequate prima facie showing of
     jurisdiction, the administrative judge may not weigh evidence and resolve
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     conflicting assertions of the parties and the agency’s evidence may not be
     dispositive. Ferdon v. U.S. Postal Service, 60 M.S.P.R. 325, 329 (1994).
¶6         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.    Markon v. Department of State, 71 M.S.P.R. 574, 577
     (1996). Furthermore, when an appellant raises allegations of discrimination in
     connection with an involuntariness claim, evidence of discrimination may be
     considered only in terms of the standard for voluntariness. Id. at 578. Thus, in
     an involuntary resignation appeal, evidence of discrimination goes to the ultimate
     question of coercion, i.e., whether under all of the circumstances working
     conditions were made so difficult by the agency that a reasonable person in the
     employee’s position would have felt compelled to resign. Id.
¶7         In support of his allegations that the agency subjected him to a hostile work
     environment and “disparate treatment,” the appellant alleges, among other things,
     that his team leader and other agency officials threatened to have him removed by
     security from a meeting, ordered him to follow improper directives, and failed to
     respond to his emails containing criticisms and complaints.       PFR File, Tab 1
     at 5-7. Applying the standard set forth in Markon, we find that the appellant
     failed to nonfrivolously assert that his daily working conditions were so
     intolerable that a reasonable person in his position would have felt compelled to
     resign. See, e.g., Miller v. Department of Defense, 85 M.S.P.R. 310, ¶ 32 (2000)
     (a feeling of being unfairly criticized or difficult or unpleasant working
     conditions are generally not so intolerable as to compel a reasonable person to
     resign).
¶8         The appellant further contends that the agency improperly proposed his
     suspension.   PFR File, Tab 1 at 5. As noted by the administrative judge, the
     record reflects that, on June 17, 2013, the agency advised the appellant that it was
                                                                                       5

     considering suspending him for 30 calendar days for failing to follow a
     managerial directive and notified him that he could request consideration of an
     alternative form of discipline. ID at 5; IAF, Tab 7, Subtab 4o. On July 8, 2013,
     the agency rescinded its offer of possible alternative discipline, stating it had
     been issued in error. Id., Subtab 4n. On the same day, the agency proposed to
     suspend the appellant for 30 calendar days for failure to follow a managerial
     directive.    Id., Subtab 4m.   On November 12, 2013, the agency rescinded its
     July 8, 2013 suspension proposal and issued a corrected notice proposing a
     20 calendar day suspension based on the charge of engaging in unprofessional
     conduct.     Id., Subtabs 4f, 4l.   In support of its charge, the agency listed four
     specifications detailing the appellant’s alleged unprofessional conduct, which,
     according to the agency, included leaving his supervisor an inappropriate
     voicemail, making inappropriate and disruptive statements in an IRS building
     cafeteria, interrupting a coworker during a meeting and refusing to leave after his
     supervisor asked him to, and using profanity in the workplace. Id., Subtab 4f.
     The agency did not issue any decision on the proposed suspension prior to the
     appellant’s resignation.
¶9         It is well established that the fact that an employee is faced with the
     unpleasant choice of either resigning or opposing a potential adverse action does
     not rebut the presumed voluntariness of his ultimate choice of resignation.
     Schultz v. United States Navy, 810 F.2d 1133, 1136-37 (Fed. Cir. 1987).
     However, if an appellant shows that an agency knew that it would not prevail on a
     proposed adverse action, the proposed action is coercive and the resulting
     resignation     is   involuntary.       Baldwin    v.   Department    of   Veterans
     Affairs, 109 M.S.P.R. 392, ¶ 12 (2008). Here, the appellant has failed to make a
     nonfrivolous allegation that the agency knew that it would not prevail on its
     November 12, 2013 proposed suspension action or that no arguable basis existed
     for the suspension action. See id., ¶ 17.
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¶10        Thus, because the appellant did not make a nonfrivolous allegation casting
      doubt on the presumption that his resignation was voluntary, the administrative
      judge properly denied his request for a hearing. See Burgess, 758 F.2d at 643.
      We therefore affirm the administrative judge’s initial decision dismissing the
      appeal for lack of Board jurisdiction.

                       NOTICE TO THE APPELLANT REGARDING
                          YOUR FURTHER REVIEW RIGHTS
           You have the right to request review of this final decision by the United
      States 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, 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 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.
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      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.
