                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     DONATUS U. UNARA,                               DOCKET NUMBER
                  Appellant,                         CH-3443-15-0404-I-1

                  v.

     DEPARTMENT OF VETERANS                          DATE: November 4, 2015
       AFFAIRS,
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Donatus U. Unara, Ypsilanti, Michigan, pro se.

           Michael E. Anfang, Esquire, Kansas City, Missouri, 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 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


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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).

                                      BACKGROUND
¶2         The appellant, a GS-9 Medical Technologist, resigned from his position
     effective November 17, 2014. Initial Appeal File (IAF), Tab 7 at 30-31. On or
     about January 12, 2015, he contacted the agency’s Office of Resolution
     Management (ORM) to add a claim of forced resignation to his pending equal
     employment opportunity (EEO) complaint. Id. at 34-36. In a March 13, 2015
     notice, ORM advised the appellant that it had determined that the forced
     resignation claim was “like or related to” the existing claims of harassment and
     hostile work environment and that it had accepted the claim for investigation as
     an independently actionable claim.     Id.   The notice further advised that, as a
     result of the amendment of his complaint to include his forced resignation claim,
     the appellant’s complaint was now a mixed case, which required the agency to
     complete the investigation and issue a final agency decision (FAD) within
     120 calendar days of the amendment.          Id. at 37.   The notice set forth the
     appellant’s mixed-case appeal rights, explaining that he could file a Board appeal
     within 30 days of receiving the FAD or, if he did not receive a FAD within
                                                                                            3

     120 days of his last amendment, he could file a Board appeal immediately without
     waiting for the FAD. Id. On April 14, 2015, ORM advised the appellant that it
     had completed the investigation and provided him a copy of the investigative file.
     Id. at 40.    The notice accompanying the investigative file explained that the
     appellant had 30 days from receipt of the notice to either request a FAD from the
     agency or to file an appeal directly with the Equal Employment Opportunity
     Commission. 2 Id.
¶3         On April 20, 2015, the appellant filed the instant appeal with the Board and
     requested a hearing. IAF, Tab 1. On the appeal form, he indicated that he was
     appealing a removal, an involuntary resignation, and unlawful discrimination and
     retaliation, and indicated that the effective date of the challenged agency decision
     was April 14, 2015. 3           Id. at 2.    The administrative judge issued an
     acknowledgment order, explaining, in part, that the Board generally lacks
     jurisdiction over voluntary actions, such as resignations, and advised the
     appellant that his appeal would be dismissed unless he amended it to allege that
     his resignation was the result of duress, coercion, or misrepresentation by the
     agency.      IAF, Tab 2 at 2.    The administrative judge also issued an order on
     timeliness, explaining that, although the appeal appeared to be untimely filed
     more than 30 days after the effective date of the alleged forced resignation, an


     2
       The April 14, 2015 notice set forth the post-investigation procedures applicable to a
     nonmixed-case complaint rather than a mixed-case complaint. IAF, Tab 7 at 40-41; see
     29 C.F.R. §§ 1614.108(f), 1614.302(d)(2). Where, as here, an employee has filed a
     mixed-case complaint, the post-investigation notice should advise that a final decision
     will be issued within 45 days without a hearing. 29 C.F.R. § 1614.302(d)(2). We find,
     however, that this procedural error did not prejudice the appellant because ORM’s
     March 13, 2015 notice correctly set forth the post-investigation procedures and appeal
     rights applicable to a mixed-case appeal, and, in any event, the appellant filed a Board
     appeal several days after receiving the post-investigation notice. IAF, Tab 1, Tab 7
     at 37.
     3
       It appears that the appellant construed the April 14, 2015 post-investigation notice as
     a final decision on his EEO complaint. See IAF, Tab 1 at 2; see also IAF, Tab 7
     at 40-41.
                                                                                      4

     exception to the 30-day filing deadline applies where an appellant, who was
     subject to an action that is appealable to the Board, has timely filed a formal
     discrimination complaint with the agency. IAF, Tab 3 at 2. The order explained
     that, in such cases, an appellant may file a Board appeal either:        (1) within
     30 days after receipt of the agency resolution or final decision on the complaint;
     or (2) if the agency has not resolved the matter or issued a final decision on the
     formal complaint within 120 days, the appellant may appeal the matter directly to
     the Board at any time after the expiration of 120 calendar days. Id.; see 5 C.F.R.
     § 1201.154(b).
¶4        The appellant responded, in relevant part, that his appeal was timely filed
     because more than 120 days had elapsed since he filed his EEO complaint and the
     agency had not issued a FAD or otherwise resolved the matter. IAF, Tab 4 at 3.
     He further argued that the agency forced him to resign by harassing him and
     subjecting him to a hostile work environment between July 2013, and
     September 2014, as set forth in his discrimination complaint. Id. at 3-4, 26-27.
     In particular, he alleged that the agency did not select him for a GS-10 Medical
     Technologist position, issued him a letter of counseling, scrutinized his request
     for compensation, assigned him to do the duties of two positions over the course
     of 3 days, failed to take action when the employee assigned to assist him failed to
     help with assigned duties, and denied him training on several occasions.        Id.
     at 26-27.   He further alleged that his supervisor falsely accused him of not
     responding to her on two occasions, falsely stated that she had received
     complaints about him from other staff members, scheduled two mandatory
     meetings while he was scheduled to be off work, made several rude or hostile
     comments, and, while he was in the hospital recovering from a stroke, repeatedly
     called him to tell him to return to work and threatened him with absence without
     leave (AWOL). See id. at 4, 26-27.
¶5        The agency countered that the appeal was prematurely filed because the
     appellant had not yet requested a FAD and because 120 days had not elapsed
                                                                                             5

     since his last amendment. IAF, Tab 7 at 7-8. The agency further argued that,
     even if the appeal was ripe, the Board still would lack jurisdiction over it because
     the appellant had failed to show that his resignation was involuntary. Id. at 8-10.
¶6         Without holding the requested hearing, the administrative judge dismissed
     the appeal for lack of jurisdiction, finding that the appeal was timely filed but that
     the appellant failed to nonfrivolously allege that the agency’s action rendered his
     resignation involuntary. IAF, Tab 13, Initial Decision (ID). 4 The administrative
     judge also found that, absent an otherwise appealable action, the Board lacked
     jurisdiction to address the appellant’s discrimination claims. ID at 9.

                      DISCUSSION OF ARGUMENTS ON REVIEW
¶7         The appellant has filed a petition for review of the initial decision, the
     agency has responded in opposition to the petition for review, and the appellant
     has replied to the agency’s opposition. Petition for Review (PFR) File, Tabs 1, 4,
     8. 5 In the petition for review, the appellant argues only that “the Board was not


     4
       In finding that the appeal was timely filed, the administrative judge explained that, at
     the time of the June 30, 2015 initial decision, more than 120 days had elapsed since the
     agency accepted the appellant’s mixed-case amendment on March 13, 2015, and that the
     agency had not issued a FAD or resolved the discrimination complaint in the interim.
     ID at 2 n.1. The relevant date for calculating the 120-day period, however, is the date
     the appellant filed the mixed-case complaint, not the date the agency accepted the
     complaint for investigation.       See 5 C.F.R. § 1201.154(b); see also 29 C.F.R.
     § 1614.302(d)(1)(i). Here, the 120-day period began to run on or about January 12,
     2015, the date the appellant amended his pending EEO complaint to include the alleged
     forced resignation. See IAF, Tab 7 at 34. As such, the 120-day period ended on
     approximately May 13, 2015, several weeks after the appellant initiated this appeal on
     April 22, 2015. Although the appeal was premature when the appellant filed it, it had
     ripened by the time both parties had responded to the order on timeliness. As such, any
     error by the administrative judge in calculating the 120-day period did not prejudice the
     appellant’s rights.
     5
       The agency mailed the appellant, who is not an e-filer, a copy of its response to his
     petition for review to his address of record on August 25, 2015. PFR File, Tab 4 at 7-8.
     On September 14, 2015, the appellant filed a change of address notice with service to
     the agency by fax. PFR File, Tab 5. That same day, the agency’s response was
     returned to the agency as undeliverable. PFR File, Tab 6 at 4. On September 15, 2015,
     the agency mailed a copy of its response to the appellant’s new address, id. at 5, and, on
                                                                                       6

exhaustive as to the underlying[] controlling issues in the original complaint” and
requests that the Board “exercise fairness and justice in responding to this request
for review.” PFR File, Tab 1 at 1. The agency responds that the administrative
judge correctly dismissed the appeal for lack of jurisdiction because the appellant
failed to show that his resignation was involuntary.         PFR File, Tab 4.     In his
reply, the appellant again challenges the selection process for the GS-10 Medical
Technologist position and argues that the agency forced him to cover two
positions on four dates in August and September 2014, which made his working
conditions intolerable. 6 See PFR File, Tab 8 at 2-4. The appellant further argues
that the administrative judge failed to rule on his motion to compel discovery. 7
Id. at 2-3.


September 18, 2015, the appellant mailed his reply to the agency’s response, PFR File,
Tab 8.    Under the unique circumstances present here, we have considered the
appellant’s reply to the agency’s response to his petition for review.
6
  The appellant also has submitted evidence with his reply concerning the selection
process for the GS-10 Medical Technologist position and work schedules for August
and September 2014, some of which appears to have been submitted for the first time
on review. PFR File, Tab 8 at 4, 6-18. Under 5 C.F.R. § 1201.115, however, the Board
generally will not consider evidence submitted for the first time with the petition for
review absent a showing that it was unavailable before the record was closed despite the
party’s due diligence. Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980).
Although the appellant has not done so here, we have considered his submissions and
find that they do not change the outcome of this appeal.
7
  The administrative judge did not rule on the appellant’s June 22, 2015 motion to
compel. IAF, Tab 10. However, because the appellant’s motion to compel did not
comply with the requirements of our regulations, the administrative judge’s failure to
rule on the motion was not prejudicial to the appellant’s rights. See Johnson v.
Department of Justice, 104 M.S.P.R. 624, ¶ 30 (2007). Specifically, the appellant
did not file the motion to compel within 10 days after the agency’s time to respond to
discovery expired, he failed to provide either an affidavit or sworn statement in support
of his claim that he did not receive any discovery responses from the agency or a
statement indicating that he attempted in good faith to resolve this discovery dispute
with the agency, and he did not state how the information contained in the discovery
sought was relevant and material. See IAF, Tab 10; 5 C.F.R. § 1201.73(c)(1)(ii)-(iii),
(c)(2), (d)(3). Thus, the administrative judge’s failure to rule on the motion to compel
provides no basis to reverse the initial decision. See Panter v. Department of the
Air Force, 22 M.S.P.R. 281, 282 (1984).
                                                                                            7

¶8          Generally, the Board lacks the authority to review an employee’s decision
      to resign or 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), cert.
      denied, 133 S. Ct. 414 (2012). However, if an agency essentially coerced the
      employee’s decision in a manner that deprived him freedom of choice, the Board
      will take jurisdiction over the matter as a constructive removal.          Id.    “The
      doctrine of coercive involuntariness ‘is a narrow one’ requiring that the employee
      ‘satisfy a demanding legal standard.’      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 v. Merit Systems Protection
      Board, 713 F.3d 1111, 1121 (Fed. Cir. 2013) (quoting Staats v. U.S. Postal
      Service, 99 F.3d 1120, 1124 (Fed. Cir. 1996)).       Where, as here, the appellant
      claims that the agency coerced his resignation by creating intolerable working
      conditions, the issue is whether, considering the totality of the circumstances, his
      working conditions were made so difficult that a reasonable person in his position
      would have felt compelled to resign or retire. Vitale v. Department of Veterans
      Affairs, 107 M.S.P.R. 501, ¶¶ 19-20 (2007). In making this determination, the
      Board will consider allegations of discrimination and reprisal only insofar as they
      relate to the issue of voluntariness and not whether they would establish
      discrimination or reprisal as an affirmative defense. Id., ¶ 20.
¶9          The appellant bears the burden of proving by preponderant evidence that the
      matter he is appealing is within the Board’s authority to review.                Brown,
      115 M.S.P.R. 609, ¶ 11; 5 C.F.R. § 1201.56(b)(2)(i)(A). If the appellant makes a
      nonfrivolous allegation that the matter is within the Board’s jurisdiction, he is
      entitled to a hearing at which he must prove jurisdiction. Brown, 115 M.S.P.R.
      609, ¶ 11. A nonfrivolous allegation in this context is an allegation of fact that, if
      proven, could establish that the agency coerced the appellant’s resignation. Id.
¶10         We have reviewed the initial decision and agree with the administrative
      judge that the appellant failed to nonfrivolously allege that his resignation was
                                                                                        8

      involuntary because of intolerable working conditions.       The appellant argued
      below that the alleged incidents of harassment and discrimination between
      July 2013, and September 2014, rendered his working conditions so intolerable
      that he was forced to resign. See IAF, Tab 4. As discussed above, the specific
      incidents the appellant raised include several purportedly rude and/or false
      remarks by his supervisor, denials of training opportunities, mandatory meetings
      scheduled when the appellant was off duty, unfair scrutiny of his request for
      compensation, an assistant’s failure to help with assigned duties for several
      months, and 3 or 4 days where the appellant was responsible for the duties of two
      positions. See IAF, Tab 4 at 4, 26-27; see also PFR File, Tab 8 at 2-4, 8-9. It is
      well settled, however, that an employee is not guaranteed a stress-free working
      environment and 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 resign. Miller v. Department of
      Defense, 85 M.S.P.R. 310, ¶ 32 (2000). None of the alleged agency actions, even
      if true, would compel a reasonable person to resign. Rather, the appellant has
      merely described an unpleasant and inconvenient working environment.
¶11        The appellant also asserted that his supervisor threatened him with AWOL
      if he did not return to work several days after suffering from a stroke. IAF, Tab 4
      at 4, 27. There is no evidence that the appellant was ever charged with AWOL
      and, even if he was, he clearly had the choice of contesting the AWOL charge
      rather than resigning. As such, even if unwarranted, the supervisor’s threat of
      charging the appellant with being AWOL did not render the appellant’s
      resignation involuntary.    See Garcia v. Department of Homeland Security,
      437 F.3d 1322, 1329 (Fed. Cir. 2006) (en banc) (explaining that a resignation
      is not involuntary if the employee had a choice of whether to resign or contest the
      validity of the agency action) (quoting Christie v. United States, 518 F.2d 584,
      587 (Cl. Ct. 1975)).    Similarly, the appellant challenged below the agency’s
      decision to issue him a letter of counseling.        IAF, Tab 4 at 27.     Even if
                                                                                        9

      unjustified, however, the letter of counseling was not coercive and did not render
      his resignation involuntary because the appellant could have chosen to contest it
      through the proper channels rather than resigning. See Garcia, 437 F.3d at 1329.
¶12        Lastly, the appellant alleged that the agency’s decision not to select him for
      the GS-10 Medical Technologist position contributed to the hostile work
      environment.    IAF, Tab 4 at 27; see PFR File, Tab 8 at 2-3.        However, the
      doctrine of coerced involuntariness does not apply where the employee resigns
      because he does not like agency decisions “that the agency is authorized to adopt,
      even if those measures make continuation in the job so unpleasant . . . that he
      feels that he has no realistic option but to leave.” Conforto, 713 F.3d at 1121-22
      (quoting Staats, 99 F.3d at 1124). Rather, the appellant must demonstrate that the
      coercion is “the result of improper acts by the agency.” Id. Here, the agency’s
      decision not to select the appellant for the GS-10 Medical Technologist position
      was well within its authority, and the appellant has not nonfrivolously alleged
      that his nonselection resulted from improper acts by the agency.        See Staats,
      99 F.3d at 1124. Further, he has not shown how a nonselection for a promotion
      rendered his working conditions so intolerable that a reasonable person in his
      position would be compelled to resign.
¶13        Considering the totality of the circumstances, we agree with the
      administrative judge that the appellant has failed to nonfrivolously allege that the
      agency created working conditions so intolerable that a reasonable person in his
      position would have felt compelled to resign. Even assuming some or all of the
      agency’s actions were wrong, unfair, or unlawful, as the appellant claims, he
      has not alleged circumstances that could have effectively denied him a
      meaningful choice to resign, which is a requisite element of a forced resignation
      within the Board’s adverse action jurisdiction under 5 U.S.C. chapter 75.       See
      Bean v. U.S. Postal Service, 120 M.S.P.R. 397, ¶ 8 (2013). Accordingly, we find
      that the appellant has failed to nonfrivolously allege that his resignation was
                                                                                       10

involuntary, and the administrative judge properly dismissed the appeal for lack
of jurisdiction without holding a hearing.

                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.
