                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     TONI HOLDER,                                    DOCKET NUMBER
                         Appellant,                  DA-0752-14-0388-I-1

                  v.

     DEPARTMENT OF VETERANS                          DATE: January 16, 2015
       AFFAIRS,
                 Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Pamela Perry, Little Rock, Arkansas, for the appellant.

           Lynne Ravellette, Esquire, North Little Rock, Arkansas, 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 for lack of jurisdiction her appeal of her allegedly involuntary
     retirement. Generally, we grant petitions such as this one only when: the initial
     decision contains erroneous findings of material fact; the initial decision is based

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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).
¶2         Effective February 28, 2013, the appellant, who was a union officer on
     full-time official time, retired from her GS-9 position at the Veterans Affairs
     Medical Center North Little Rock, Arkansas. Initial Appeal File (IAF), Tab 9
     at 35-48. She thereafter filed an appeal in which she claimed that her retirement
     was involuntary. IAF, Tab 2 at 5-6. The administrative judge issued an initial
     decision in which he found that the appellant failed to make a nonfrivolous
     allegation that her retirement was involuntary and he dismissed the appeal for
     lack of jurisdiction. Initial Decision (ID) at 2, 5-9.
¶3         The appellant claims that she was forced to retire because two other union
     officials on full-time official time, B.W. and D.M., created a hostile working
     environment.    It appears that the major triggering event occurred at a union
     meeting in October 2012, when B.W. allegedly put her hands on the appellant.
     IAF, Tab 6 at 31-34. Shortly thereafter, the appellant submitted a statement to
     the agency in which she claimed that B.W. was engaging in threatening behavior
     and, within 1 week, the agency opened an investigation and issued a no-contact
     order to both parties and to D.M., instructing them to conduct their business by
     phone or email, and offering office space in a different building so one or the
                                                                                       3

     other could move. IAF, Tab 6 at 36-37. The agency was ultimately unable to
     substantiate the appellant’s allegations, but it kept the no-contact order in place.
     Id. at 38; IAF, Tab 9 at 32.
¶4         An employee-initiated action, such as the retirement at issue in this appeal,
     is presumed to be voluntary unless the appellant presents sufficient evidence to
     establish that the action was obtained through duress or coercion. See 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); see also Searcy v. Department of
     Commerce, 114 M.S.P.R. 281, ¶ 12 (2010). 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 her of freedom of
     choice.   Searcy, 114 M.S.P.R. 281, ¶ 12; Green v. Department of Veterans
     Affairs, 112 M.S.P.R. 59, ¶ 8 (2009).      In applying the voluntariness test to
     allegations that a retirement was coerced by intolerable working conditions, the
     appropriate test is whether, under all of the circumstances, the agency engaged in
     a course of action that made working conditions so difficult or unpleasant that a
     reasonable person in the appellant’s position would have felt compelled to retire.
     Searcy, 114 M.S.P.R. 281, ¶ 12; Williams v. Department of Agriculture,
     106 M.S.P.R. 677, ¶ 11 (2007).
¶5         We find that the administrative judge correctly concluded that the appellant
     has not made a nonfrivolous allegation of involuntariness for several reasons.
     First, the only face-to-face contact on agency premises that the appellant alleges
     occurred after the no-contact order went into effect took place off-duty when the
     appellant attended a public event in the agency’s parking lot.      She saw D.M.
     there, but the appellant herself had no contact with D.M. IAF, Tab 9 at 20-27.
     Thus, as the administrative judge found, within 1 week after the appellant
     reported the triggering incident, the agency issued no-contact orders to all
     involved and whatever harassment or bad behavior may have been occurring in
     the workplace stopped.
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¶6           Moreover, the parking lot incident occurred on February 15, 2013.          Id.
     at 20. By that time, the appellant had already made her decision and told her
     therapist on February 13, 2013, that she was retiring at the end of February. IAF,
     Tab 6 at 49.      Thus, the parking lot incident cannot have had more than a
     negligible effect on the appellant’s retirement. Further, the lapse of more than
     5 months between the triggering incident in mid-October 2012, and the
     appellant’s retirement on February 28, 2013, undercuts the appellant’s assertion
     that her working conditions were so intolerable as to have compelled her
     retirement. See Searcy, 114 M.S.P.R. 281, ¶ 13 (a 5-month lapse of time undercut
     the appellant’s assertion that his working conditions were so intolerable as to
     have compelled his resignation); see also Terban v. Department of Energy,
     216 F.3d 1021, 1024 (Fed. Cir. 2000) (a long period of time between the alleged
     coercive act and the employee’s retirement diminishes the causal link between the
     two events and, thus, attenuates the employee’s claim of involuntariness).
¶7           Most importantly, the appellant has failed to make a nonfrivolous allegation
     that her retirement was involuntary because of intolerable working conditions
     created by the agency.        Cf. Hosozawa v. Department of Veterans Affairs,
     113 M.S.P.R. 110, ¶ 5 (2010) (to establish involuntariness on the basis of
     coercion, the appellant must establish, inter alia, that the retirement was the result
     of improper actions by the agency).         In cases where the appellant alleges
     intolerable working conditions, the Board will find an action involuntary only if
     the appellant demonstrates that the agency engaged in a course of action that
     made working conditions so difficult or unpleasant that a reasonable person in the
     appellant’s position would have felt compelled to retire. Green, 112 M.S.P.R. 59,
     ¶ 11.
¶8           There is no allegation that the appellant suffered any ill-treatment at the
     hands of an agency supervisor or agency employee outside the context of the
     union. The appellant reported the most serious incident to the agency, which took
     action and issued no-contact orders within a week, after which there is no
                                                                                   5

allegation of any further incidents at work.      The agency cannot interfere in
internal union business, see 5 U.S.C. § 7116(a), or assume responsibility for the
appellant’s safety in her personal life away from work. Even assuming that the
union made the decision at issue in this case for improper reasons personal to the
appellant, its action cannot be imputed to the agency.

                 NOTICE TO THE APPELLANT REGARDING
                    YOUR FURTHER REVIEW RIGHTS 2
     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.

2
   The administrative judge afforded the appellant mixed-case review rights. ID
at 13-15. However, in the absence of Board jurisdiction, this is not a mixed case. We
have provided the appellant the proper review rights here. See, e.g., Axsom v.
Department of Veterans Affairs, 110 M.S.P.R. 605 (2009).
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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.
