                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     TIMOTHY WAYNE MORRIS,                           DOCKET NUMBER
                 Appellant,                          AT-0752-15-0015-I-1

                  v.

     NATIONAL AERONAUTICS AND                        DATE: August 19, 2015
       SPACE ADMINISTRATION,
                  Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Timothy Wayne Morris, Jefferson, Georgia, pro se.

           Charles Alexander Vinson and Miata L. Coleman, Esquire, Kennedy Space
             Center, Florida, 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 his appeal for lack of jurisdiction without a hearing because he failed
     to make a nonfrivolous allegation that his retirement was an involuntary action

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     and his other claims are unreviewable absent an otherwise appealable action.
     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 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 had been a Safety and Occupational Health Specialist at the
     Kennedy Space Center for almost 10 years when, on February 12, 2014, he
     applied for a voluntary early retirement under the agency’s Voluntary Early
     Retirement Authority (VERA). Initial Appeal File (IAF), Tab 7 at 49-50, 64. On
     his application form, he represented that his decision to retire was voluntary and
     he elected a separation date of September 30, 2014. Id. at 49.
¶3         After he applied for retirement, he continued to work for the agency, and on
     June 9, 2014, his branch chief informed him that his annual rating for the period
     from May 1, 2013, through April 30, 2014, was “Fully Successful (meets).” IAF,
     Tab 6 at 23, 28, Tab 7 at 30-48. This was a lower rating than the appellant had
     received in prior years, IAF, Tab 7 at 51-63, and the branch chief told him how he
     might contest the rating, IAF, Tab 6 at 29.
                                                                                         3

¶4         Beginning on June 11, 2014, the appellant was out of work in a leave
     without pay status, apparently related to an on-the-job injury, 2 and he returned to
     duty status on September 3, 2014. IAF, Tab 7 at 22, 27-29. During this period,
     the appellant communicated with various agency officials regarding his workers’
     compensation claim and the option of applying for disability retirement. E.g.,
     IAF, Tab 6 at 11-15, 19, 41, 148-49, 153-58, Tab 12 at 2-21. According to the
     appellant, he also sought assistance in relocating to another office due to alleged
     unfair working conditions, citing in particular his June 2014 performance
     appraisal, his medical status and compensable injury, his workers’ compensation
     claim, and disability discrimination.    E.g., IAF, Tab 12 at 7-12.      The agency
     eliminated most of his duties in September 2014, purportedly because of his
     impending retirement, and assigned him to a new direct supervisor. Id. at 32, 57.
     In a meeting on or about September 9, 2014, the agency informed the appellant
     that he would return to the existing chain of command for his position if he
     withdrew his request for early retirement. E.g., id. at 9, 32, 57.
¶5         On or about that same day, the appellant also spoke with his union president
     about concerns that are not clearly specified in the record, but which presumably
     relate to his complaints of discrimination and unfair working conditions described
     throughout his pleadings. IAF, Tab 14 at 8. On September 22, 2014, he emailed
     his union president regarding the status of his request to file a grievance, and the
     union president replied that their prior informal conversation had not been a
     formal grievance request. Id. He instructed the appellant to review the collective
     bargaining agreement and use a grievance form to notify the union of any
     particular violation.   Id.   He explained that the union would then review the
     grievance and determine whether it warranted being forwarded to the appropriate
     officials. Id. He also advised that the appellant may need to contact the equal
     employment opportunity office due to the nature of his concerns. Id.
     2
       The appellant appears to have received workers’ compensation benefits for the period
     from June 11, through August 1, 2014. IAF, Tab 7 at 22.
                                                                                      4

¶6            According to the appellant, he submitted his retirement package in
     mid-September after being informed he would return to his existing command if
     he did not retire as planned. IAF, Tab 12 at 9, Tab 14 at 2. His application for
     immediate retirement, which he signed on August 19, 2014, elects an effective
     date of September 30, 2014. IAF, Tab 7 at 23-26. The agency separated him
     from service as retired under a special option effective September 30, 2014. Id.
     at 16.
¶7            The appellant filed an appeal with the Board and requested a hearing. IAF,
     Tab 1. He alleged initially that the agency had violated his medical privacy under
     the Health Insurance Portability and Accountability Act (HIPAA) and had
     discriminated against him based on his disability by giving him the largest
     workload while he was injured and lowering his annual performance rating. Id.
     at 5.    The administrative judge notified him of his burden of proving that the
     Board has jurisdiction over his appeal by preponderant evidence and that the
     Board generally lacks jurisdiction over HIPAA violations or discrimination
     claims absent an otherwise appealable action.       IAF, Tab 5 at 1-2.    During a
     telephonic status conference with the parties, the administrative judge clarified
     that the appellant was alleging that his retirement was involuntary, and she
     ordered him to file evidence or argument amounting to a nonfrivolous allegation
     that his retirement was an involuntary action within the Board’s jurisdiction.
     IAF, Tab 11. The administrative judge explained that he could meet this burden
     by alleging facts that, if proven, would show that his retirement was involuntary
     because of duress, coercion, or misrepresentation, such as by making detailed
     factual allegations that the agency made his working conditions so difficult that a
     reasonable person in his position would have felt compelled to retire, or that he
     relied to his detriment on misleading statements made by the agency. Id. at 3.
¶8            In response, the appellant alleged that his communications with several
     agency officials from June through September 2014, were misleading and
     coercive. IAF, Tab 12 at 2-7. He further argued that the agency coerced his
                                                                                       5

      retirement by creating intolerable and discriminatory working conditions by,
      among other things, improperly lowering his performance rating and refusing his
      request to relocate.     Id. at 7-21.   He argued that agency officials repeatedly
      threatened him by telling him that, should he not retire pursuant to the VERA by
      September 30, he would “return to the same job under [the] same working
      conditions and chain of command.” Id. at 9.
¶9         The administrative judge found that the appellant failed to make a
      nonfrivolous allegation that his retirement was tantamount to a constructive
      removal within the Board’s jurisdiction.       IAF, Tab 16, Initial Decision (ID)
      at 6-8. The administrative judge found that, even if proven, the alleged coercive
      statements from agency employees were neither misleading nor material to his
      decision to take an early retirement under the agency’s VERA program.           ID
      at 6-7. The administrative judge further determined that the appellant failed to
      make a nonfrivolous allegation of an objectively intolerable working environment
      that would have compelled a reasonable person to retire due to improper acts by
      the agency. ID at 7-8.

                      DISCUSSION OF ARGUMENTS ON REVIEW
¶10         In his petition for review, the appellant renews his arguments that his
      appeal is within the Board’s jurisdiction because the agency forced his retirement.
      Petition for Review (PFR) File, Tab 1. To overcome the presumption that his
      retirement was a voluntary action outside the Board’s jurisdiction, he must show
      that it was the result of the agency’s misinformation, deception, or coercion.
      Hosozawa v. Department of Veterans Affairs, 113 M.S.P.R. 110, ¶ 5 (2010). If
      the appellant presents nonfrivolous allegations of Board jurisdiction—i.e.,
      allegations of fact that, if proven, could establish Board jurisdiction—he is
      entitled to a hearing at which he must prove jurisdiction by a preponderance of
      the evidence. See Garcia v. Department of Homeland Security, 437 F.3d 1322,
      1344 (Fed. Cir. 2006) (en banc); Hosozawa, 113 M.S.P.R. 110, ¶ 5.          For the
                                                                                         6

      following reasons, we find that the appellant has failed to demonstrate any
      material error in the initial decision, and we agree with the administrative judge’s
      explained finding that the appellant failed to make a nonfrivolous allegation of
      Board jurisdiction.
¶11         On review, the appellant restates his arguments that the agency coerced his
      retirement by subjecting him to discrimination and intolerable working
      conditions, and he resubmits certain documents that were in the record below. 3
      PFR File, Tab 1. To establish involuntariness on the basis of coercion, he must
      establish that the agency imposed the terms of his retirement, he had no realistic
      alternative but to retire, and the retirement was the result of improper actions by
      the agency. See Hosozawa, 113 M.S.P.R. 110, ¶ 5. To establish that the agency
      coerced his retirement by creating intolerable working conditions, the appellant
      must show that a reasonable employee in his position would have found the
      working conditions so oppressive that he would have felt compelled to resign or
      retire.   See id.   The appellant’s discrimination allegations are relevant to the
      jurisdictional issue to the extent they relate to the issue of voluntariness. See id.
      The doctrine of coercive involuntariness is a narrow one, requiring that the
      employee satisfy a demanding legal standard.           Conforto v. Merit Systems
      Protection Board, 713 F.3d 1111, 1121 (Fed. Cir. 2013); Putnam v. Department
      of Homeland Security, 121 M.S.P.R. 532, ¶ 22 (2014).               “An employee’s
      dissatisfaction with the options that an agency has made available to him is not
      sufficient to render his decision to resign or retire involuntary.”        Conforto,
      713 F.3d at 1121.
¶12         We have considered the appellant’s arguments on review, but we agree with
      the administrative judge’s analysis that his factual allegations, even if proven,
      could not establish that a reasonable person in his position would have felt

      3
        The appellant also submitted a Florida Today article dated after the close of the
      record. PFR File, Tab 4 at 4-7. That article, however, is immaterial to the
      jurisdictional issues under review.
                                                                                              7

      compelled to retire.     ID at 7-8; see Hosozawa, 113 M.S.P.R. 110, ¶ 5.             The
      appellant asserts that his assigned workload and June 2014 appraisal were based
      on unlawful discrimination due to his compensable injury. E.g., PFR File, Tab 1
      at 8. The appellant’s conclusory assertions are not supported by allegations of
      fact that would establish such discrimination and thus are not nonfrivolous
      allegations that he was subjected to an appealable action.              See Briscoe v.
      Department of Veterans Affairs, 55 F.3d 1571, 1573 (Fed. Cir. 1995) (“Although
      an appellant need not prove her entire case before she is entitled to a hearing, the
      [B]oard may request sufficient evidence to determine if, in the first instance,
      there is any support for what otherwise might be bald allegations.”). Further,
      even assuming he may have had a viable discrimination claim, he has not made a
      nonfrivolous allegation that a reasonable person would have been compelled to
      retire instead of challenging the alleged discrimination or other improper agency
      actions through available procedures.        See Axsom v. Department of Veterans
      Affairs, 110 M.S.P.R. 605, ¶ 17 (2009) (finding that the appellant failed to
      establish that a reasonable person would have felt compelled to resign because the
      appellant had the option to stand and fight the alleged discrimination, harassment,
      and retaliation rather than resign); see also Garcia, 437 F.3d at 1329 (finding that
      a resignation would not be involuntary if the employee had a choice whether to
      resign or contest the validity of the agency action).
¶13         On review, the appellant particularly argues that the agency acted
      improperly and coercively because it did not fulfill its obligations regarding the
      accommodation of his medical condition. 4 PFR File, Tab 1 at 4-6. He asserts


      4
        The appellant repeatedly asserts that the agency failed to provide him “interim relief,”
      by which he appears to mean that the agency did not properly account for his asserted
      medical limitations. E.g., PFR File, Tab 1 at 4. In Board law, the phrase “interim
      relief” more commonly refers to temporary relief ordered by an administrative judge to
      a prevailing party pending the outcome of any petition to review filed with the Board.
      See 5 U.S.C. § 7701(b)(2)(A). The administrative judge dismissed this appeal for lack
      of jurisdiction and appropriately did not order any interim relief as part of the initial
                                                                                            8

      that the agency did not fully assess his medical condition, his job skills, the work
      environment, and the agency’s reassignment options.          Id. at 4-5.   Because he
      could have raised this accommodation argument before the administrative judge
      but did not do so in any recognizable manner, it does not provide a basis for
      disturbing the initial decision. See 5 C.F.R. § 1201.115(d); see also Keefer v.
      Department of Agriculture, 92 M.S.P.R. 476, ¶ 18 n.2 (2002) (noting that an
      appellant who fails to articulate his claims with reasonable clarity and precision
      risks being found to have failed to meet his burden).
¶14         In any event, the appellant’s limited factual allegations, even if proven,
      would not establish that he was forced to retire by any improper agency act or
      omission related to accommodating his alleged medical condition. A resignation
      or retirement may be an involuntary action within the Board’s jurisdiction if an
      agency improperly denied an employee’s request for a reasonable accommodation
      of a medical condition. 5 See, e.g., Hosozawa, 113 M.S.P.R. 110, ¶ 7. He has not
      alleged that he requested any accommodation from the agency that would allow
      him to continue in his position of record; rather, he sought relocation away from
      his existing chain of command. PFR File, Tab 1 at 4-6. We conclude that the
      appellant has not alleged facts that could establish that the agency was remiss in
      any obligation related to accommodating his medical condition. See Brown v.
      Department of Defense, 397 F. App’x 649, 653 (Fed. Cir. 2010) (“[A] request for




      decision. ID at 8. Thus, there is no issue of the agency’s failure to comply with an
      interim relief order under 5 U.S.C. § 7701(b)(2).
      5
        We make no finding that the appellant was disabled. The September 24, 2014
      physician’s statement supporting his workers’ compensation claim identifies his
      medical condition as an injury to his right great toe that restricted him from climbing,
      kneeling, pulling, pushing, squatting, standing, or carrying more than 20 pounds. IAF,
      Tab 12 at 26.
                                                                                         9

      wholesale reassignment is different in nature from a request for accommodation
      that would allow an employee to continue her current employment.”). 6
¶15        We further agree with the administrative judge’s assessment that the
      appellant failed to make a nonfrivolous allegation of involuntariness based on a
      theory of agency misinformation or deception.         ID at 6-7.    On review, the
      appellant emphasizes alleged “failed promises” and actions by his union. E.g.,
      PFR File, Tab 1 at 4.     The appellant, however, must show that his agency’s
      improper actions forced his retirement.     See Green v. Department of Veterans
      Affairs, 112 M.S.P.R. 59, ¶ 9 (2009) (finding that the union representative was
      not a representative of the agency and her acts could not be imputed to the agency
      for purposes of determining whether the appellant’s resignation was involuntary);
      see also Scharf v. Department of the Air Force, 710 F.2d 1572, 1574 (Fed. Cir.
      1983) (stating that “a resignation will be held involuntary if obtained by agency
      misrepresentation or deception”). The appellant has not alleged a valid reason for
      attributing any union-provided misinformation or union action to the agency for
      purposes of determining whether the agency had subjected him to an appealable
      adverse action.   Cf. Danelishen v. U.S. Postal Service, 43 M.S.P.R. 376, 380
      (1990) (finding that the appellant failed to establish jurisdiction over his
      resignation based on bare allegations of collusion and conspiracy among the
      agency, an arbitrator, and the union). The Board, moreover, lacks jurisdiction
      over a claim of a union’s breach of its duty of fair representation or other claim
      regarding the operation of the grievance process. See, e.g., Berry v. Department
      of Justice, 31 M.S.P.R. 676, 678 (1986). We agree with the administrative judge
      that the alleged statements of agency officials, even if proven, could not establish
      that the agency improperly compelled his retirement through misrepresentation,
      coercion, or duress. ID at 6-7.

      6
        Although the court designated its decision in Brown as nonprecedential, we find the
      analysis persuasive. See Caros v. Department of Homeland Security, 122 M.S.P.R. 231,
      ¶ 24 n.11 (2015).
                                                                                              10

¶16        Based on the foregoing, we discern no basis for disturbing the initial
      decision.

                           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
                                                                               11

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.
