                    NOTE: Pursuant to Fed. Cir. R. 47.6, this
                    disposition is not citable as precedent. It is a
                    public record.

 United States Court of Appeals for the Federal Circuit

                                        05-3149

                                 SHERI P. JOHNSON,

                                                              Petitioner,

                                            v.

                       DEPARTMENT OF VETERANS AFFAIRS,

                                                              Respondent.


                             ________________________

                              DECIDED: March 9, 2006
                             ________________________


Before NEWMAN, MAYER, and GAJARSA, Circuit Judges.

GAJARSA, Circuit Judge.

                                       DECISION

      Sheri P. Johnson, a former cemetery representative for the Department of

Veterans Affairs ("DVA"), petitions us from the Merit Systems Protection Board

(“MSPB”), which denied jurisdiction over her removal claim. The administrative judge

("AJ") found that Johnson failed to allege facts that show she involuntarily resigned from

the position. Because the MSPB's jurisdiction does not cover voluntary removals, the

AJ dismissed the case. The initial decision was made final by the board on January 28,

2005. We affirm.
                                    BACKGROUND

      Johnson began work with the federal government on December 25, 1992. She

was appointed as a Cemetery Representative for the National Cemetery in

Leavenworth, Kansas on August 11, 2002. Several months later on November 25,

2002, she received a "Notice of Unacceptable Performance" explaining that she violated

agency policy by, among other things, scheduling internments without identification,

failing to properly schedule burials, and scheduling multiple internments at the same

time. On January 13, 2003 the DVA notified Johnson of her deficient performance

again. She was given 90 days to improve performance.

      In June of 2003, Johnson was informed that she was still failing to meet certain

requirements of “Organizational Support.” She was given another 35 days to improve

performance, and, in July of 2003, the DVA notified her that she did improve but warned

that she could be removed if she failed to maintain a satisfactory level of performance.

After further unsatisfactory performance from July through October, the DVA proposed

her removal on November 3, 2003.

      Johnson responded to the removal notice on November 17, 2003 taking

responsibility for the errors she made but claiming that she had insufficient time and

training to learn the position, that her degree negatively impacted her position, and that

she was not represented by the union. On January 2, 2004, the deciding official issued

a decision to remove Johnson on January 29, 2004.

      The day before her scheduled removal, on January 28, 2004, Johnson met with a

human resources assistant, Marylin Buzzell, who was responsible for processing




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actions such as removals and resignations. In Buzzell's declaration, she admitted to

meeting with Johnson and summarized the meeting as follows:

      3. During our meeting, the Appellant asked me what I would do if I had the
      choice to resign or be terminated. Initially, I responded that the decision
      was hers and that it was a uniquely individual decision. I gave this
      response to the Appellant despite her repeated requests. Finally,
      however, I told the Appellant that personally, I would resign. I did not offer
      any further explanation as to why I would make that choice.

      4. At no time did I advise the Appellant that resignation was a better option
      than termination. At no time did I discuss any benefits associated with
      resignation or any other advantages I feel resignation might have as
      opposed to termination. My comment to the Appellant was limited to the
      statement that I would resign rather than be terminated.

At the end of the meeting, Johnson signed a handwritten note resigning her position as

cemetery representative effective January 28, 2004. On the same day, the DVA issued

a Form 50-B documenting her resignation.

      In her pro se response to the jurisdictional issue, Johnson claimed that the

resignation was involuntary because (1) her grandfather died the week of her removal

and the funeral was being held January 30th, (2) the Agency officials urged her to

resign rather than be terminated, (3) the deciding official continually asked her

employment status, (4) Buzzell advised her to resign in lieu of termination. Taking

these facts as true, the AJ found that Johnson failed to allege a claim of involuntary

removal because there was no "evidence that the resignation was obtained through

duress, coercion, misinformation, or some other condition precluding a voluntary

decision."

                               STANDARD OF REVIEW

      We review questions of MSPB jurisdiction de novo. See Butler v. Social Sec.

Admin., 331 F.3d 1368, 1371-72 (Fed. Cir. 2003). In constructive removal cases where



05-3149                                     3
a petitioner was not afforded an evidentiary hearing on the jurisdiction, we must

determine whether the petitioner made a non-frivolous allegation of jurisdiction that

entitles her to an evidentiary hearing where she may establish jurisdiction by a

preponderance of the evidence. See Garcia v. Dep't of Homeland Sec., ___ F.3d ___

(2006).

                                     DISCUSSION

      Employee removal actions are appealable to the MSPB. See 5 U.S.C §§ 7701,

7512. For a removal to be covered by § 7512, however, it must be involuntary. See

Schultz v. United States Navy, 810 F.2d 1133, 1135-36 (Fed. Cir. 1987). From the

outset, resignations are presumed to be voluntary. Id. at 1136. However, a petitioner

may prove her resignation was involuntary if "(1) the agency effectively imposed the

terms of the employee's resignation or retirement; (2) the employee had no realistic

alternative but to resign or retire; and (3) the employee's resignation or retirement was

the result of improper acts by the agency." Shoaf v. Dep't of Agric., 260 F.3d 1336, 1341

(Fed. Cir. 2001).    Essentially, we ask whether, under all the circumstances, an

employee has been deprived of free choice. See id. at 1342. If, on the other hand, the

employee is merely faced with a choice between two unpleasant alternatives, either

resign or be removed for cause, then such a choice is not involuntary. See Schultz, 810

F.2d at 1136.

      We have recognized several situations where an employee's resignation may

have been involuntary. They include:

      (1) an employee resigns under duress brought on by government action,
      (2) an employee unsuccessfully tries to withdraw his resignation before its
      effective date, (3) an employee submits a resignation under time pressure,
      . . . (4) an employee fails to understand the situation due to mental



05-3149                                    4
       incompetence, . . . [and (5) the resignation was] obtained by agency
       misrepresentation or deception.

Scharf v. Dep’t of the Air Force, 710 F.2d 1572, 1574 (Fed. Cir. 1983) (citations

omitted). Here, Johnson suggests that her resignation was involuntary due to time

pressure, duress, and/or misrepresentation. Taking her allegations as true we may

assume that in the last week of work Johnson was repeatedly asked by DVA officers

when her last day of work would be, and she was advised by the Human Resources

Department to resign.      Without more, these actions do not raise a non-frivolous

allegation that her decision to resign was involuntary or somehow coerced.

       Courts have, on occasion, allowed employees to appeal when faced with

insufficient time to make the resignation decision, e.g., Perlman v. United States, 490

F.2d 928 (Ct. Cl. 1974), but these instances usually require that the agency demand an

immediate decision. See Staats v. U.S. Postal Serv., 99 F.3d 1120, 1126 (Fed. Cir.

1996) (two weeks to decide whether to resign was not sufficient time pressure to make

the choice involuntary).    In Perlman, the Court of Claims held that an employee’s

decision to retire was involuntary when he had inadequate time to determine his appeal

rights and inadequate assistance to inform him of his rights. The employee was notified

that he would be terminated in a RIF on June 24, 1971. Id. at 930. He was later

informed by a personnel specialist that he could retire by May 31, 1971 and receive a

greater annuity benefit. Id. In an interest to protect his appeal rights, he sought advice

from the Civil Service Commission (“CSC”), but he was unable to contact the CSC and

determine his appeal rights. Facing the deadline, he was forced to retire in order to

preserve the financial benefit of the increased annuity. Id. at 931.




05-3149                                      5
       To establish involuntary removal by misinformation or deception, we do not

require intentional misinformation. Covington v. Department of Health & Human

Services, 750 F.2d 937, 942 (Fed. Cir. 1984). Negligent or innocent misinformation will

suffice if the employee relied on the misinformation to his or her detriment. Id.

       In the present case, the allegations that she was under time constraints and

pressure to make the decision do not overcome the fact that there was a decision to be

made. Without more, repeated requests by agency supervisors and officials asking

when her last day would be do not rise to the level of no realistic alternative but to

resign.

       Likewise, her contention that Bruzzell advised her to resign is no indication that

the agency has somehow misled her into believing that her appeal rights would be

secure or that the agency misinformed her of the consequences. Johnson had three-

and-a-half weeks to make her decision after the deciding official announced her

removal.    This was sufficient time for her to make an informed decision and her

allegations fail to raise any facts of coercion, duress, or deception on the part of the

DVA.

                                      CONCLUSION

       The MSPB denied Johnson’s appeal because it lacked jurisdiction.              For the

reason stated in this opinion we find no reversible error. Accordingly, we affirm.



No costs.




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