                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     JACKIE DELONAIS-OLSON,                          DOCKET NUMBER
                  Appellant,                         DE-0752-15-0210-I-1

                  v.

     DEPARTMENT OF THE INTERIOR,                     DATE: November 16, 2015
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Dennis Maloney, Esquire, Aberdeen, South Dakota, for the appellant.

           Teresa M. Garrity, Esquire, Bloomington, Minnesota, 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
     interpretation of statute or regulation or the erroneous application of the law to

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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).

                                       BACKGROUND
¶2         The appellant was employed as an Information Technology Specialist.
     Initial Appeal File (IAF), Tab 5 at 7. In April 2013, she accepted a Voluntary
     Early Retirement Authority offer and retired from Federal service later that
     month.    Id. at 4, 7.     In November 2013, she filed a timely formal equal
     employment       opportunity    (EEO)   complaint    of   discrimination    alleging
     discrimination in the form of disparate treatment, a hostile work environment, and
     a constructive discharge based upon her age, race, national original, religion, sex,
     and disability. IAF, Tab 8, Subtab A-1. In January 2015, the agency issued a
     final agency decision finding that the appellant was not subjected to unlawful
     employment discrimination. IAF, Tab 9, Subtab E-1.
¶3         The appellant timely filed this Board appeal in February 2015, in which she
     asserted that her retirement was involuntary because she was continually
     harassed, discriminated against, and subjected to a hostile work environment.
     IAF, Tab 1. She requested a hearing. Id. The administrative judge issued an
     acknowledgment order notifying the appellant that the Board may not have
     jurisdiction over her appeal, advising her of the applicable law and burdens of
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     proof, and directing her to submit evidence and argument establishing Board
     jurisdiction. IAF, Tab 2. The appellant did not respond to the acknowledgment
     order. The agency moved to dismiss the appeal for lack of jurisdiction. IAF,
     Tab 5. The administrative judge issued an order to show cause why the appeal
     should not be dismissed, IAF, Tab 6, to which both parties responded, IAF,
     Tabs 11-12.   Without holding the requested hearing, the administrative judge
     granted the agency’s motion and dismissed the appeal for lack of jurisdiction,
     finding that the appellant failed to nonfrivolously allege that a reasonable
     employee in her position would have found her working conditions so oppressive
     that she would have felt compelled to retire. IAF, Tab 13, Initial Decision at 7.
¶4        The appellant has timely petitioned for review. Petition for Review File,
     Tab 1. She argues that the administrative judge: (1) made erroneous findings of
     fact regarding whether her decision to retire was voluntary; (2) ignored the fact
     that, if she had not accepted retirement, she would have continued to be subjected
     to abusive and demeaning treatment; and (3) misapplied the law, followed
     improper procedures, and abused his discretion in a way that affected the outcome
     of the case. Id. at 2-3. The agency has not responded to the petition for review.

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶5        We agree with the administrative judge that the appellant has failed to raise
     nonfrivolous factual allegations that, if proven, would establish the Board’s
     jurisdiction. An employee-initiated action, such as a retirement, is presumed to
     be voluntary, and thus outside the Board’s jurisdiction, unless the employee
     presents sufficient evidence to establish that the action was obtained through
     duress or coercion or shows that a reasonable person would have been misled by
     the agency.   Green v. Department of Veterans Affairs, 112 M.S.P.R. 59, ¶ 8
     (2009). “‘[T]he doctrine of coercive involuntariness is a narrow one’ requiring
     that the employee ‘satisfy a demanding legal standard.’” Garcia v. Department of
     Homeland Security, 437 F.3d 1322, 1329 (Fed. Cir. 2006) (quoting Staats v. U.S.
                                                                                         4

     Postal Service, 99 F.3d 1120, 1124 (Fed. Cir. 1996)).                An employee’s
     dissatisfaction with the options that an agency has made available to her is not
     sufficient to render her decision to resign or retire involuntary. Conforto v. Merit
     Systems Protection Board, 713 F.3d 1111, 1121 (Fed. Cir. 2013). Where, as here,
     the appellant claims that her retirement was coerced by intolerable working
     conditions created by the agency, the issue is whether, considering the totality of
     the circumstances, her working conditions were made so difficult that a
     reasonable person in her position would have felt compelled to resign or retire.
     Vitale v. Department of Veterans Affairs, 107 M.S.P.R. 501, ¶ 20 (2007).           In
     making this determination, the Board addresses allegations of discrimination and
     reprisal in connection with an alleged involuntary resignation or retirement only
     insofar as those allegations relate to the issue of voluntariness. Id.
¶6         The appellant bears the burden of proving by preponderant evidence that the
     matter she is appealing is within the Board’s authority to review. 2 Brown v. U.S.
     Postal Service, 115 M.S.P.R. 609, ¶ 11 aff’d, 469 F. App’x 852 (Fed. Cir.
     2011); 5 C.F.R. § 1201.56(b)(2)(i)(A).       If an appellant makes nonfrivolous
     allegations of jurisdiction, i.e., allegations that, if proven, would establish the
     Board’s jurisdiction, she is entitled to a hearing at which she must prove
     jurisdiction by a preponderance of the evidence.           Mims v. Social Security
     Administration, 120 M.S.P.R. 213, ¶ 16 (2013).
¶7         According to the agency’s characterizations of the appellant’s formal EEO
     complaint, she asserted that she was subjected to a hostile work environment and
     discriminated against by her supervisors and a coworker. IAF, Tab 9, Subtab E-1.
     Specifically, according to the agency, she alleged that: (1) she was forced to take
     the option of early retirement to avoid further stress and irreparable health issues
     caused by her first-line supervisor; (2) she was directed to keep her door open at


     2
      A preponderance of the evidence is that degree of relevant evidence that a reasonable
     person, considering the record as a whole, would accept as sufficient to find that a
     contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).
                                                                                         5

     all times; (3) her first-line supervisor had a mirror installed in the work area,
     which the appellant asserts was an attempt to monitor her activities; (4) her
     first-line supervisor pointed a finger in her face and yelled at her in the presence
     of coworkers; and (5) during a staff meeting, her first-line supervisor yelled at
     her.   Id.    In the attachment to her formal complaint of discrimination, the
     appellant made several additional allegations. IAF, Tab 8, Subtab A-1.
¶8          The appellant asserted, inter alia, that her first-line supervisor improperly
     denied her credit time while allowing others credit time and told her to do a better
     job organizing her time, that her supervisors did not complete certain personnel
     paperwork in a timely manner, and that her hours were incorrectly marked on her
     time sheet. Id. Additionally, she asserted that her first-line supervisor did not
     tell others when the appellant was out on leave. Id. The appellant also alleged
     various forms of disrespect and difficulty when doing her work, including that her
     first-line supervisor reacted badly to her disagreement with another employee
     during a meeting, she was assigned work tickets to complete with time limits that
     would expire while she was on leave, her first-line supervisor sent her emails
     criticizing her spelling and grammar and questioning her about the status of her
     work tickets and other work tasks, and her first-line supervisor cancelled a
     meeting that she had set up because she said it was not necessary.                 Id.
     Additionally, her first-line supervisor called her into her office and told her not to
     work with certain employees or reassign service tickets to them and took her off a
     project.     Id.   The appellant further alleged that her first-line supervisor
     “disrespected” her by saying that her aches and pains were the result of aging and
     by hanging up on her when they were on the telephone. Id.
¶9          Moreover, the appellant alleged that her first-line supervisor and her
     coworker negatively contributed to her work environment because “[the
     appellant] would correct things and make sure they were working before [she] left
     from work . . . and when [she] would return the next day things would be changed
     or missing” after these individuals stayed late at work and, after the coworker saw
                                                                                        6

      her enter her first-line supervisor’s office while the supervisor was gone, she
      received an email from her first-line supervisor telling her not to go into the
      office. IAF, Tab 8, Subtab A-1. The appellant also asserted that the coworker
      and the supervisor moved her files from her cabinet, that the supervisor favored
      the coworker, and that the coworker bought the supervisor a gift. Id.
¶10        The appellant further alleged that her working environment affected her
      health. She asserted that, after her first-line supervisor stated that she was going
      to deny her leave request, she broke out in hives. Id. Likewise, she also asserted
      that, in response to her working conditions, she became depressed and had issues
      with confusion, concentration problems, and a rash break out that required
      treatment from a doctor.    Id.   In support of her claim, she submitted a letter
      showing that she was treated for anxiety related to stress at work. IAF, Tab 8,
      Subtab F-27.
¶11        It is well settled that an employee is not guaranteed a stress-free working
      environment; dissatisfaction with work assignments, a feeling of being unfairly
      criticized, or difficult or unpleasant working conditions generally are not so
      intolerable as to compel a reasonable person to retire. Miller v. Department of
      Defense, 85 M.S.P.R. 310, ¶ 32 (2000). Here, the appellant has described an
      unpleasant working environment wherein she felt she was unfairly treated. But,
      the doctrine of coerced involuntariness does not apply, where, as here, the
      employee retires because she does not like agency decisions “that the agency is
      authorized to adopt, even if those measures make continuation in the job so
      unpleasant . . . that [s]he feels that [s]he has no realistic option but to leave.”
      Conforto, 713 F.3d at 1121-22 (quoting Staats, 99 F.3d at 1124).        Instead, the
      appellant must demonstrate that the coercion is “the result of improper acts by the
      agency.”   Id.   Although the appellant disagrees with many of her first-line
      supervisor’s decisions and instructions, she has not alleged that these managerial
      actions were outside of the agency’s authority. Thus, considering the totality of
      the circumstances, we find that the appellant has failed to nonfrivolously allege
                                                                                        7

      that her working conditions were so intolerable that a reasonable person in her
      position would be compelled to retire.           See Searcy v. Department of
      Commerce, 114 M.S.P.R. 281, ¶ 13 (2010) (finding that the appellant’s claims
      that his supervisor denied his request for advanced leave, spoke to him in a
      disrespectful way, and did not provide him any assistance with his work
      assignments, and that a higher-level official refused to grant him an education
      waiver that would have allowed him to apply for certain vacancies did not evince
      working conditions so intolerable that a reasonable person would have felt
      compelled to resign).
¶12         The appellant also asserted that she was suspended for 5 days, that she was
      escorted out of the building in front of her coworkers immediately prior to the
      suspension, and that the agency considered certain information that it should not
      have considered in imposing the suspension. IAF, Tab 8, Subtabs A-1, F-3. The
      record reflects, however, that the appellant was able to respond to the proposal to
      suspend her prior to the imposition of the suspension. IAF, Tab 9, Attachment
      (Att.) 2b.   The evidence also does not reflect that the suspension, which was
      based upon a single charge of improper personal conduct with nine detailed
      specifications, was the result of improper acts.       See IAF, Tab 9, Subtab B-1,
      Att. 2; see also Conforto, 713 F.3d at 1122.         Finally, we find that a 5-day
      suspension does not rise to the level of coercion that would render the appellant’s
      retirement    involuntary.     See    Putnam    v.     Department   of     Homeland
      Security, 121 M.S.P.R. 532, ¶ 23 (2014) (finding that the agency’s decision to
      suspend the appellant’s security clearance did not constitute coercion).
¶13         Based on the foregoing, we affirm the administrative judge’s decision to
      dismiss the involuntary retirement appeal for lack of jurisdiction without holding
      a hearing.
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                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.
      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
                                                                                9

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.
