                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     MICHAEL EUGENE REID,                            DOCKET NUMBER
                 Appellant,                          CH-3443-15-0040-I-1

                  v.

     DEPARTMENT OF VETERANS                          DATE: February 12, 2015
       AFFAIRS,
                 Agency.



             THIS FINAL ORDER IS NO NPRECEDENTIAL 1

           Michael Eugene Reid, Indianapolis, Indiana, pro se.

           Kyle C. Mardis, Esquire, Indianapolis, Indiana, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice 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        A nonprecedential order is one that the Board has determined does not add
     sign ificantly 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 Parties may cite nonprecedential orders,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 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            Effective May 21, 2010, the appellant resigned from his position as a GS-05
     Secretary with the agency’s Veterans Affairs Medical Center (VAMC) in
     Indianapolis, Indiana. Initial Appeal File (IAF), Tab 9 at 49. On June 8, 2010,
     the appellant filed an equal employment opportunity (EEO) complaint with the
     agency, alleging, inter alia, that his resignation was a constructive discharge
     caused by race discrimination and reprisal for his prior EEO activity.       See id.
     at 25.     On July 12, 2011, the agency issued a final decision finding that the
     appellant’s resignation was voluntary and that the evidence failed to substantiate
     his allegations of discrimination and reprisal. Id. at 38.
¶3            On October 24, 2014, the appellant filed an appeal with the Board and
     requested a hearing, alleging that his resignation was involuntary. IAF, Tab 1. In
     support of his claim, the appellant alleged that “the lack of candor, morals, and
     principles among leadership caused [him] to look for employment elsewhere.” Id.
     at 9. The appellant asserted that he was offered “an interagency transfer” to the
     U.S. Department of Agriculture (USDA), with a start date of May 24, 2010;
                                                                                          3

     however, that offer was rescinded because his immediate supervisor “sabotaged”
     his transfer by telephoning the individual who would have been his supervisor at
     the USDA.     Id. at 4.   The appellant contended that the rescission of the offer
     “forced” him to change the Standard Form (SF) 50 documenting his separation
     from the agency to indicate that the nature of his separation was a “constructional
     [sic] Discharge” rather than an interagency transfer. Id. He further contended
     that, in the “remarks” portion of the SF-50, he stated that he feared reprisal from
     his supervisor and the Indianapolis VAMC’s Director; however, at the Director’s
     instruction, a Human Resources Officer deleted those remarks and replaced them
     with the statement “employee offered no explanation for resignation.” Id. at 4;
     see IAF, Tab 9 at 49.
¶4        The administrative judge issued an acknowledgment order, as well as orders
     on timeliness and jurisdiction.    IAF, Tabs 2-4.    In his jurisdictional order, the
     administrative judge informed the appellant that a resignation is presumed to be
     voluntary and that he would be granted a hearing only if he supported his claim
     with affidavits or other evidence of facts which, if proven, could show that his
     resignation was involuntary because of duress, coercion, or misrepresentation.
     IAF, Tab 4 at 2.     The administrative judge ordered the appellant to submit
     evidence or argument amounting to a nonfrivolous allegation that his claim of
     involuntary resignation is within the Board’s jurisdiction. Id. at 3.
¶5        In response, the appellant submitted documentation in which he reiterated
     the arguments he made in his initial filing with the Board and further alleged that
     his supervisor: (1) sent authorities to his home “with [an] indication that [he] was
     Homicidal & Suicidal”; and (2) suggested that they serve chicken and watermelon
     at the appellant’s farewell party. 2 IAF, Tab 5 at 17. The agency filed a response



     2
       The appellant filed two submissions in response to the administrative judge’s orders.
     IAF, Tabs 5-6. His initial submission includes the documents he submitted in his
     subsequent submission. Compare IAF, Tab 5 at 13-23, with IAF, Tab 6 at 5-15.
                                                                                             4

     to the acknowledgment order, arguing that the appeal should be dismissed as
     untimely filed without good cause shown for the filing delay. IAF, Tab 9 at 6-12.
¶6         Without holding the requested hearing, the administrative judge issued an
     initial decision that dismissed the appeal for lack of jurisdiction, finding that the
     appellant failed to make a nonfrivolous allegation that his resignation was
     involuntary. 3 IAF, Tab 10, Initial Decision (ID) at 1-2, 6. The appellant has filed
     a petition for review, the agency has filed a response in opposition to the petition
     for review, and the appellant has filed a reply to the agency’s response. Petition
     for Review (PFR) File, Tabs 1, 3, and 4.

                                           ANALYSIS
     The administrative judge correctly found that the appellant failed to make a
     nonfrivolous allegation of jurisdiction.
¶7        An employee-initiated action, such as a resignation, is presumed to be
     voluntary, and thus outside the Board’s jurisdiction, unless the employee presents
     sufficient evidence to establish that the agency obtained the action through duress
     or coercion, or shows that the agency’s actions would have misled a reasonable
     person. Green v. Department of Veterans Affairs, 112 M.S.P.R. 59, ¶ 8 (2009).
     The touchstone of the voluntariness analysis is whether, considering the totality
     of the circumstances, factors operated on the employee’s decision-making process
     that deprived him of freedom of choice.         Searcy v. Department of Commerce,
     114 M.S.P.R. 281, ¶ 12 (2010). An appellant is entitled to a hearing on the issue
     of Board jurisdiction over an appeal of an alleged involuntary resignation or

     3
       In the initial decision, the administrative judge explained that, because of his finding
     that the Board lacks jurisdiction over this appeal, he did not make any findings as to
     whether the appeal was timely filed or, if not, whether good cause existed for an
     untimely filing. IAF, Tab 10, Initial Decision (ID) at 2 n.1 (citing Wylie v. Department
     of Agriculture, 99 M.S.P.R. 71, 73 (2005)). We discern no error by the administrative
     judge in declining to make any findings regard ing the timeliness of the appeal in the
     in itial decision. See Rosell v. Department of Defense, 100 M.S.P.R. 594, ¶ 5 (2005)
     (the existence of Board jurisdiction is the threshold issue in adjudicating an appeal and
     ordinarily should be determined before reaching the issue of timeliness) aff’d, 191 F.
     App’x 954 (Fed. Cir. 2006).
                                                                                       5

     retirement only if he makes a nonfrivolous allegation casting doubt on the
     presumption of voluntariness.      Burgess v. Merit Systems Protection Board,
     758 F.2d 641, 643 (Fed. Cir. 1985).            Nonfrivolous allegations of Board
     jurisdiction are allegations of fact which, if proven, could establish a prima facie
     case that the Board has jurisdiction over the matter in issue.      Ferdon v. U.S.
     Postal Service, 60 M.S.P.R. 325, 329 (1994).
¶8        The Federal Circuit has said that the 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) (en banc).     To establish involuntariness on the basis of coercion, an
     employee must show that the agency effectively imposed the terms of the
     employee’s resignation or retirement, that the employee had no realistic
     alternative but to resign or retire, and that the employee’s resignation or
     retirement was the result of improper acts by the agency. Staats v. U.S. Postal
     Service, 99 F.3d 1120, 1123-24 (Fed. Cir. 1996).       In cases where intolerable
     working conditions are alleged, the Board will find an action involuntary only if
     the employee demonstrates that the employer or agency engaged in a course of
     action that made working conditions so difficult or unpleasant that a reasonable
     person in that employee’s position would have felt compelled to resign or retire.
     Markon v. Department of State, 71 M.S.P.R. 574, 577 (1996).
¶9        When an appellant raises allegations of discrimination and reprisal in
     connection with an involuntariness claim, evidence of discrimination may be
     considered only in terms of the standard for voluntariness. Markon, 71 M.S.P.R.
     at 578.   Thus, in an involuntary retirement or resignation appeal, evidence of
     discrimination or EEO retaliation goes to the ultimate question of coercion, i.e.,
     whether, under all of the circumstances, working conditions were made so
     difficult by the agency that a reasonable person in the employee's position would
     have felt compelled to resign or retire. Id.
                                                                                       6

¶10        Applying these standards, the administrative judge considered the various
      reasons that the appellant offered for tendering his resignation to the agency. See
      ID at 4-6. The administrative judge noted that the appellant did not expound on
      his generalized statements about the lack of candor, morals, and leadership among
      management by identifying the agency officials responsible for the offensive
      conduct or explaining what that conduct entailed. ID at 5. In addition, as the
      administrative judge noted, the appellant did not explain what his supervisor
      purportedly told the USDA supervisor or the reasons the USDA gave for
      rescinding the offer of reassignment. ID at 5. The administrative judge found
      that the appellant’s vague and conclusory allegations failed to demonstrate why
      these actions left him with no alternative but to resign. ID at 5.
¶11        The administrative judge also found that the appellant’s reprisal claim is
      “woefully deficient in establishing a nonfrivolous allegation of Board jurisdiction
      over his appeal.” ID at 5. In particular, the administrative judge found that the
      appellant’s allegation that he feared reprisal from agency management was sheer
      conjecture, and that the appellant failed to identify any action of retaliation
      purportedly committed against him. ID at 5. The administrative judge noted that
      the appellant “is utterly silent as to how his fear of retaliation impacted his job
      with the agency, and forced him to tender his resignation.” ID at 6. In sum, the
      administrative judge found that “a reasonable person would not have felt the
      incidents described by the appellant were so offensive and pervasive that the only
      alternative would be to resign from the agency.” ID at 6.
¶12        The appellant challenges this finding on review, asserting that his job was
      “made so intolerable” that he could not remain as an employee of the agency. See
      PFR File, Tab 1 at 4.     In support of this claim, the appellant reiterates his
      arguments from below that: his supervisor telephoned his prospective supervisor
      at the USDA and influenced his decision to rescind the appellant’s offer of
      employment; and his supervisor sent the police to his home and indicated to them
      that the appellant was suicidal and homicidal.       Id.   As discussed above, the
                                                                                            7

      administrative judge considered the reasons the appellant offered for tendering
      his resignation and properly found that a reasonable person would not have felt
      that the incidents the appellant described were so offensive or pervasive that there
      was no alternative but to resign from the agency. 4 See ID at 4-6. The appellant’s
      reiteration of these arguments on review is essentially mere disagreement with the
      administrative judge’s explained findings and, as such, provides no basis to
      disturb the initial decision.     Broughton v. Department of Health & Human
      Services, 33 M.S.P.R. 357, 359 (1987).
¶13         For the first time on review, the appellant argues that his email account was
      locked during his last 3 weeks of employment at the agency, thereby restricting
      him from performing his duties.       PFR File, Tab 1 at 4.      The Board need not
      consider this argument, as it is raised for the first time on review without a
      showing of good cause for the Board to consider it. Banks v. Department of the
      Air Force, 4 M.S.P.R. 268, 271 (1980) (the Board generally will not consider an
      argument raised for the first time in a petition for review absent a showing that it
      is based on new and material evidence not previously available despite the party's
      due diligence).   Moreover, this argument provides no basis for disturbing the
      initial decision, as it does not constitute a nonfrivolous allegation that the
      appellant’s resignation was involuntary based on intolerable working conditions.
      Even if it is true that the appellant’s email account was locked during his last
      3 weeks of employment with the agency, his working conditions were not so
      intolerable that a reasonable person in the appellant's position would have felt
      compelled to resign. Thus, we discern no reason to disturb the administrative
      judge’s explained finding that the appellant failed to make a nonfrivolous
      allegation of jurisdiction over his appeal.


      4
        We further note that the incident in which police were sent to the appellant’s home
      occurred on June 2, 2010, i.e., after the appellant’s resignation. See IAF, Tab 9 at 25
      n.4, 31-32. Consequently, this incident could not have affected this appellant’s
      decision to resign and it thus provides no support for his constructive discharge claim.
                                                                                        8

¶14        Lastly, we find unavailing the appellant’s argument on review that “none of
      the factual evidence was considered” in the initial decision. PFR File, Tab 1 at 4.
      It is well settled that an administrative judge's failure to mention all of the
      evidence of record does not mean that he did not consider it in reaching his
      decision. Marques v. Department of Health & Human Services, 22 M.S.P.R. 129,
      132 (1984), aff'd, 776 F.2d 1062 (Fed. Cir. 1985) (Table), cert. denied, 476 U.S.
      1141 (1986).   Moreover, contrary to the appellant’s contention on review, the
      initial decision shows that the administrative judge thoroughly considered the
      appellant’s allegations in support of his involuntary resignation claim and the
      evidence relevant to that claim. See generally ID.

                      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
                                                                                9

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 your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. 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.
