                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     SUSAN H. JONES,                                 DOCKET NUMBER
                   Appellant,                        AT-0752-16-0353-I-1

                  v.

     DEPARTMENT OF VETERANS                          DATE: July 20, 2016
       AFFAIRS,
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Kerry Knox, Esquire, Murfreesboro, Tennessee, for the appellant.

           Bradley Flippin, Nashville, Tennessee, 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 alleged 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


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     erroneous 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, 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        Effective December 31, 2014, the appellant retired from her position as a
     Financial Accounts Technician.     Initial Appeal File (IAF), Tab 6 at 19.      On
     March 13, 2015, she filed a formal equal employment opportunity complaint
     alleging that the agency discriminated against her on the basis of a disability and
     forced her to retire. Id. at 10‑11. On February 17, 2016, the agency issued a
     final agency decision (FAD) finding that it did not constructively discharge the
     appellant when she retired and that she failed to prove that the agency
     discriminated against her as alleged.     Id. at 10‑16.    The FAD notified the
     appellant of her mixed-case appeal rights. Id. at 16-17.
¶3        On February 26, 2016, the appellant timely appealed her alleged involuntary
     retirement to the Board and requested a hearing. IAF, Tab 1. 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 her to submit evidence and argument amounting to a nonfrivolous
     allegation that her retirement was involuntary because of duress, coercion, or
                                                                                      3

     misrepresentation by the agency. IAF, Tab 3. In response, the appellant asserted
     that she felt she had “no choice but to retire” given the circumstances leading up
     to her retirement. IAF, Tab 5 at 9-10. By way of background, she explained that,
     in January 2014, the agency placed her on a 90‑day performance improvement
     plan (PIP) and that, although she successfully completed the PIP, the agency
     required her to sustain successful performance for a 1‑year period.       Id. at 6.
     However, while experiencing a personal “crisis,” her productivity decreased and,
     on October 29, 2014, the agency proposed to remove her for failure to meet her
     productivity standards during June, July, August, and September 2014. Id. at 7-8.
     The appellant stated to the deciding official that she had received medical help
     and that she needed some additional time to improve her performance while
     receiving medical treatment.    Id. at 8-9.   On December 12, 2014, the agency
     offered the appellant a Last Chance Agreement (LCA), which she considered to
     be “overbearing” because any single violation of the LCA would result in her
     removal without prior notice and she had to waive all of her rights to challenge
     the removal. Id. at 9. She further stated that, from discussions with the union,
     she understood that she could lose her retirement benefits if the agency
     terminated her under the LCA. Id. Thus, the appellant did not accept the terms
     of the LCA and instead retired. Id. 9‑10.
¶4        In the initial decision, the administrative judge found that the appellant
     failed to make a nonfrivolous allegation that her retirement was involuntary and
     dismissed the appeal without holding the appellant’s requested hearing.       IAF,
     Tab 8, Initial Decision (ID) at 1, 4-6.     The appellant has filed a petition for
     review of the initial decision, and the agency has responded in opposition to her
     petition for review. Petition for Review (PFR) File, Tabs 1, 3.
¶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).
                                                                                        4

     However, an appellant may overcome the presumption by showing that her
     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 she 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         As noted above, one means by which an appellant may rebut the
     presumption of voluntariness is by presenting sufficient evidence to show that her
     retirement was based on agency-supplied misinformation.            Id., ¶ 14.    The
     appellant asserted below that the union informed her that she might lose her
     retirement benefits if the agency terminated her.          IAF, Tab 5 at 9.      The
     administrative judge found that, while it appeared that the appellant may have
     been given incorrect information, that misinformation was not provided to her by
     the agency. ID at 4-5. Although the appellant asserts again on review that she
     was laboring under misinformation when she decided to retire, she has not
     disputed the administrative judge’s finding that the agency did not provide the
     misinformation. PFR File, Tab 1 at 7. Accordingly, we find that the appellant
     has failed to nonfrivolously allege that her retirement was involuntary due to
     misinformation supplied by the agency.
¶7         To establish involuntariness based on coercion, an appellant must show that
     the agency effectively imposed the terms of her retirement, she had no realistic
     alternative but to retire, and her retirement was the result of the agency’s
     improper acts. Staats v. U.S. Postal Service, 99 F.3d 1120, 1124 (Fed. Cir. 1996).
     The doctrine of coerced involuntariness is “a narrow one” and does not apply if
     an employee retires due to “measures that the agency is authorized to adopt, even
     if those measures make continuation in the job so unpleasant … that [she] feels
                                                                                        5

     that [she] has no realistic option but to leave.” Id. “[T]he fact that an employee
     is faced with an unpleasant situation or that [her] choice is limited to two
     unattractive   options   does   not    make   the   employee’s   decision   any less
     voluntary.” Id.
¶8        When an appellant alleges that the agency took actions that made her
     working conditions so intolerable that she was driven to an involuntary
     resignation or retirement, the Board will find her retirement involuntary only if
     she demonstrates that the agency engaged in a course of action that made her
     working conditions so difficult or unpleasant that a reasonable person in her
     position would have felt compelled to retire. Vitale v. Department of Veterans
     Affairs, 107 M.S.P.R. 501, ¶ 20 (2007). On review, the appellant argues that she
     had no choice but to retire because she could not continue working for her same
     supervisors after the way they had treated her and could not trust them to give her
     “a reasonable chance of working out the [LCA].”            PFR File, Tab 1 at 6-7.
     Although the appellant did not like the terms of the LCA and did not trust her
     supervisors, she nonetheless had a choice to accept the terms of the LCA, face
     removal pursuant to the proposed removal, or retire.         The fact that she was
     dissatisfied with her choices does not render her ultimate decision to retire
     involuntary. See Staats, 99 F.3d at 1124. Furthermore, there is no indication that
     the agency acted improperly or took any unauthorized action regarding the
     proposed removal action or the LCA. Thus, we agree with the administrative
     judge that the appellant’s choice between unpleasant alternatives did not render
     her retirement involuntary. ID at 4.
¶9        The appellant also appears to argue that the agency discriminated against
     her on the basis of disability by proposing her removal “shortly after learning
     [that] she suffered from a serious health condition.” PFR File, Tab 1 at 6. The
     Board addresses allegations of discrimination and reprisal in connection with an
     alleged involuntary retirement only insofar as those allegations relate to the issue
     of voluntariness, i.e., whether, under all of the circumstances, the agency made
                                                                                         6

      the appellant’s working conditions so difficult that a reasonable person in the
      appellant’s   position   would   have   felt   compelled   to   resign   or   retire.
      Vitale, 107 M.S.P.R. 501, ¶ 20; Markon v. Department of State, 71 M.S.P.R. 574,
      577-78 (1996).     Here, the appellant’s allegation that the agency acted in a
      discriminatory manner, even if proven true, fails to establish that the agency
      engaged in a course of conduct that made her working conditions so difficult that
      a reasonable person in her position would have felt compelled to retire. Thus, the
      appellant has not nonfrivolously alleged that her retirement was involuntary on
      the basis of discrimination.
¶10         The appellant further appears to argue that the agency discriminated against
      her by denying her request for a reasonable accommodation. PFR File, Tab 1
      at 6. Specifically, she states that “she notified [her supervisors] that she wished
      to ‘pursue all resources . . . available in order to recover from this major life
      event,’ including the Agency’s employee assistance program,” and “requested
      that her supervisors consider these major life events in light of her job
      performance.” Id. She contends that the agency denied these “accommodations”
      and instead proposed her removal. Id. Although a retirement may be rendered
      involuntary when an agency improperly denies an employee’s request for a
      reasonable accommodation that would have enabled her to continue in her
      position, see Hosozawa v. Department of Veterans Affairs, 113 M.S.P.R. 110, ¶ 7
      (2010), the appellant has not made such an allegation here, PFR File, Tab 1.
      Even assuming that her vague statements to her supervisors constituted a request
      for a reasonable accommodation, the appellant has not nonfrivolously alleged that
      the agency’s response (or lack of a response) to her request rendered her working
      conditions intolerable or otherwise coerced her retirement. PFR File, Tab 1.
¶11         The appellant also argues that the agency failed to afford her an opportunity
      to demonstrate acceptable work performance while under medical care and failed
      to timely notify her of her work deficiencies. Id. at 6. Although these arguments
      may have been raised in a performance‑based action under title 5, chapter 43 if
                                                                                    7

the appellant had been removed pursuant to the notice of proposed removal, see,
e.g., White v. Department of Veterans Affairs, 120 M.S.P.R. 405, ¶ 5 (2013), the
Board may only consider them here to the extent they relate to the voluntariness
of the appellant’s decision to retire, see Vitale, 107 M.S.P.R. 501, ¶ 20. We find,
however, that they have no bearing on the issue of voluntariness.

                NOTICE TO THE APPELLANT REGARDING
                   YOUR FURTHER REVIEW RIGHTS 2
      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

2
 The administrative judge afforded the appellant mixed-case review rights. ID at 9-11.
However, when, as here, the Board lacks jurisdiction over an appeal, we provide notice
of nonmixed-case review rights. Conforto v. Merit Systems Protection Board, 713 F.3d
1111, 1117-19 (2013). We have provided the appellant the proper review rights here.
                                                                                  8

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.
