                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     CHASE M. LENTZ,                                 DOCKET NUMBER
                   Appellant,                        SF-0752-15-0363-I-1

                  v.

     DEPARTMENT OF THE INTERIOR,                     DATE: January 11, 2016
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Chase M. Lentz, Fresno, California, pro se.

           Kevin D. Mack, Esquire, Sacramento, California, 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. 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

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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, 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        The appellant filed an appeal alleging that he was constructively discharged
     from his position as a Botanist. Initial Appeal File (IAF), Tab 1. The record
     reflects that, on May 15, 2014, the appellant received a letter of reprimand (LOR)
     based on charges of acting outside the scope of his authority and conduct
     unbecoming.    IAF, Tab 5, Subtab 4e.      On November 13, 2014, the appellant
     received a notice proposing a 14-day suspension, charging him again with acting
     outside the scope of his authority and conduct unbecoming. Id., Subtab 4d. The
     appellant responded to the proposed suspension. IAF, Tab 3 at 107-181. In a
     February 10, 2015 decision, the deciding official sustained both charges and the
     proposed 14-day suspension penalty, effective February 15, 2015. IAF, Tab 5,
     Subtab 4c. On February 11, 2015, the appellant notified the agency that he was
     resigning from his position, effective February 13, 2015. Id., Subtab 4b. The
     agency processed the appellant’s resignation effective February 13, 2015, which
     stated the reason for his resignation as: “I have been subjected to many acts of
     harassment and a hostile work environment, that has severely aggravated an
     illness and disabilities.   Circumstances were so intolerable that I needed to
     resign.” Id., Subtab 4a.
                                                                                       3

¶3        Because it appeared that the Board may not have jurisdiction over the
     appellant’s claim that his resignation was involuntary, the administrative judge
     issued an order informing the appellant that a resignation is presumed to be
     voluntary and that, unless he alleged that his resignation was the result of duress,
     coercion, or misrepresentation by the agency, his appeal would be dismissed.
     IAF, Tab 2 at 2-3. The administrative judge ordered the appellant to provide
     evidence and argument amounting to a nonfrivolous allegation that the Board has
     jurisdiction over his claim of an involuntary resignation. Id. at 4. In response,
     the appellant submitted numerous documents and argued that his resignation was
     coerced because the agency brought unjustifiable charges in support of its
     reprimand and 14-day suspension. IAF, Tabs 3, 6. The agency filed a motion to
     dismiss the appeal for lack of jurisdiction, arguing that the appellant failed to
     raise a nonfrivolous allegation that his resignation was involuntary. IAF, Tab 4.
     After considering the appellant’s responses, the administrative judge dismissed
     the appeal for lack of jurisdiction without holding the requested hearing, finding
     that the appellant failed to nonfrivolously allege that a reasonable person in his
     position would have felt compelled to resign due to coercive or improper acts by
     the agency. Initial Decision (ID) at 9.
¶4        The appellant has filed a petition for review in which he alleges, inter alia,
     that he resigned to avoid a threatened adverse action that the agency knew or
     should have known could not be substantiated and that his other avenues of
     redress have been fruitless, such as filing an equal employment opportunity
     complaint, Office of Special Counsel (OSC) complaints, a USERRA 2 appeal, and
     grievances. Petition for Review (PFR) File, Tab 1. The agency did not file a
     response.
¶5        The appellant bears the burden of proving the Board’s jurisdiction by a
     preponderance of the evidence.      Parrott v. Merit Systems Protection Board,
     2
      Uniformed Services Employment and Reemployment Rights Act of 1994 (codified at
     38 U.S.C. §§ 4301-4333).
                                                                                      4

     519 F.3d 1328, 1332 (Fed. Cir. 2008); 5 C.F.R. § 1201.56(a)(2). An employee’s
     resignation is presumed to be a voluntary action and, as such, is not within the
     Board’s jurisdiction. Thomas v. Department of Housing & Urban Development,
     63 M.S.P.R. 649, 656 (1994). The Board will afford an appellant a hearing on
     jurisdiction over the appeal of an alleged involuntary resignation if the appellant
     makes a nonfrivolous allegation of fact that would rebut the presumption of
     voluntariness. Burgess v. Merit Systems Protection Board, 758 F.2d 641, 643
     (Fed. Cir. 1985). A nonfrivolous allegation is one that, if proven, establishes a
     prima facie case that the appellant’s resignation was involuntary. Dumas v. Merit
     Systems Protection Board, 789 F.2d 892, 893-94 (Fed. Cir. 1986).               The
     presumption that a resignation is voluntary can be rebutted by evidence showing
     that the resignation was the result of agency misrepresentation, coercion or
     duress. Scharf v. Department of the Air Force, 710 F.2d 1572, 1574-75 (Fed. Cir.
     1983).
¶6        Here, the appellant asserts on review that the agency “has been taking
     unsubstantiated, escalating disciplinary actions against me and has expressed
     their desire to terminate me.” PFR File, Tab 1 at 9. The appellant asserts that the
     administrative judge erred in finding that the LOR and the 14-day suspension had
     not constituted improper acts or otherwise created intolerable working conditions.
     Id. at 12.    The appellant contends that the “unjustified escalating disciplinary
     actions would have led to other unjustified adverse actions resulting in my
     removal.” In this regard, he asserts that he had heard rumors that his supervisor
     had stated she was going to remove him and he contends that it was wrong for the
     agency to threaten him with a baseless adverse action. Id.
¶7        The test for determining whether a resignation was the result of coercion is
     whether:     (1) the appellant involuntarily accepted the agency’s terms; (2) the
     circumstances permitted no other alternative; and (3) the circumstances were the
     result of the agency’s coercive acts. Edgerton v. Merit Systems Protection Board,
     768 F.2d 1314, 1316-17 (Fed. Cir. 1985); Barnett v. U.S. Postal Service,
                                                                                        5

     59 M.S.P.R. 125, 127-28 (1993). The fact that an employee is faced with the
     unpleasant choice of either resigning or opposing a potential removal action does
     not rebut the presumed voluntariness of his ultimate choice of resignation.
     Schultz v. U.S. Navy, 810 F.2d 1133, 1136-37 (Fed. Cir. 1987).              However,
     inherent in such a proposition is the presumption that the agency had “reasonable
     grounds for threatening to take an adverse action.” Id. If the appellant can show
     that the agency knew that the reasons for the threatened removal could not be
     substantiated, the action would be purely coercive and would render his resulting
     resignation involuntary, thereby making his appeal within the Board’s jurisdiction
     and entitling him to reinstatement.    See Barthel v. Department of the Army,
     38 M.S.P.R. 245, 251 (1988). To make this showing, the appellant must do more
     than merely rebut the agency’s reasons for the threatened action. See id.
¶8        Here, there is no evidence that the agency imposed the terms of the
     resignation.   Further, the administrative judge thoroughly considered the
     appellant’s claim that his resignation was coerced.        ID at 5-20.       As the
     administrative judge correctly found, the appellant did not explain why he did not
     continue to challenge the 14-day suspension action by filing a grievance or a
     discrimination complaint, instead of resigning before it went into effect, since he
     already had filed a discrimination complaint over the proposed action. ID at 9.
     The administrative judge also correctly found that the appellant failed to
     adequately explain why the LOR had been a factor compelling him to resign,
     since it had occurred over 8 months prior to his resignation, and he previously
     had filed an OSC complaint and a discrimination complaint contesting it. Id.
     While the appellant challenges the administrative judge’s finding that he failed to
     nonfrivolously allege that there was a complete lack of support for the LOR and
     14-day suspension by continuing to argue that the agency’s actions were
     unsubstantiated, we agree with the administrative judge that the appellant has
     failed to make a nonfrivolous allegation that the agency knew or should have
     known that the LOR and 14-day suspension could not be substantiated.
                                                                                        6

      Moreover, as to the appellant’s claim that his supervisor allegedly stated that she
      was going to remove him, the agency had not proposed his removal at the time of
      the resignation, and mere conjecture of an adverse action does not constitute
      coercion or duress on the part of the agency. Holman v. Department of Treasury,
      9 M.S.P.R. 218, 220 (1981), aff’d, 703 F.2d 584 (Fed. Cir. 1982) (Table).
¶9         The appellant also argues that he was subjected to a hostile work
      environment and that he resigned because the agency created unreasonably
      difficult working conditions by setting forth, in both the LOR and the notice of
      proposed suspension, impossible work expectations that were meant to punish
      him and justify future disciplinary actions. PFR File, Tab 1 at 13-14. Intolerable
      working conditions may render an action involuntary when, under all the
      circumstances, the working conditions were made so difficult by the agency that a
      reasonable person in the employee’s position would have felt compelled to absent
      himself from the workplace.        Wright v. Department of Veterans Affairs,
      85 M.S.P.R. 358, ¶ 25 (2000). Thus, the appellant has to show that a reasonable
      person would have felt that there was a causal connection between all of the
      circumstances, including those incidents that were remote in time, and his
      resignation. See Miller v. Department of Defense, 85 M.S.P.R. 310, ¶ 26 (2000).
¶10        In this case, the administrative judge found that the appellant failed to
      nonfrivolously allege that the agency’s issuance of these expectations constituted
      an improper act or otherwise created intolerable working conditions that gave him
      no realistic alternative but to resign. ID at 10-14. The administrative judge noted
      that the appellant stopped coming to work and was on leave from November 14,
      2014, until his resignation and that he failed to adequately explain why
      management’s expectations would have made him feel he needed to resign as he
      had not been performing his duties for the 3 months preceding his resignation. ID
      at 13. Further, the administrative judge properly found that the appellant failed to
      nonfrivolously allege that the agency created working conditions so difficult that
                                                                                           7

      a reasonable person in his position would have felt compelled to resign.            ID
      at 14-17.
¶11        The appellant also asserts that the administrative judge erred by dismissing
      incidents remote in time to his resignation, i.e., the LOR, or his nonselection to
      various agency positions. However, even where the Board has expressly set forth
      the totality of the circumstances test or cited to Heining v. General Services
      Administration, 68 M.S.P.R. 513 (1995), which applies that test, the Board has
      found that, under certain circumstances, events may be too remote in time to have
      affected a reasonable person’s decision to resign. See Searcy v. Department of
      Commerce, 114 M.S.P.R. 281, ¶ 13 (2010) (5 months’ lapse of time undercuts the
      appellant’s assertion that working conditions were intolerable) (citing Terban v.
      Department of Energy, 216 F.3d 1021, 1025 (Fed. Cir. 2000) (discussing that
      evidence that a relatively short period of time elapsed between the alleged
      coercion and the employee’s resignation is probative of involuntariness)); Bates
      v. Department of Justice, 70 M.S.P.R. 659, 663-66 (1996) (finding that an
      incident that occurred approximately 2 years prior to the employee’s resignation
      was too remote in time to have caused her to resign and to have rendered her
      resignation involuntarily). Here, the administrative judge found that the appellant
      failed to adequately explain how the issuance of the May 15, 2014 LOR, or the
      work expectations within that LOR, created intolerable working conditions that
      caused him to resign on February 11, 2015, 9 months later, especially in light of
      the fact that he had taken leave and was not performing the expectation/duties of
      his position for the 3 months prior to his resignation.           ID at 9.   As to his
      nonselection to positions in May 2012, November 2013, and April 2014, the
      administrative judge found that, while the appellant felt disappointment over his
      nonselections,   the   appellant   failed   to   nonfrivolously    allege    why   such
      disappointment would cause him to resign. ID at 15.
¶12        Although    the   appellant    disagrees    with   the   administrative   judge’s
      determination that he has failed to adequately explain why these events compelled
                                                                                           8

      him to resign, the applicable law and the record evidence support the
      administrative judge’s determination that the appellant failed to make a
      nonfrivolous allegation that a reasonable person would have felt that there was a
      causal connection between all of the circumstances, including those incidents that
      were remote in time, and his resignation. ID at 5-20. Therefore, we discern no
      reason to disturb these explained findings. See Crosby v. U.S. Postal Service,
      74 M.S.P.R. 98, 106 (1997) (finding no reason to disturb the administrative
      judge’s findings where she considered the evidence as a whole, drew appropriate
      inferences, and made reasoned conclusions); Broughton v. Department of Health
      & Human Services, 33 M.S.P.R. 357, 359 (1987) (same).
¶13        To the extent the appellant contends that he had to resign because his other
      avenues of redress have proven to be fruitless, the fact that other avenues of
      redress may have involved protracted procedures or may have been unsuccessful
      does not establish that his choice to resign was involuntary.          See Schultz,
      810 F.2d at 1136-37; see also Musone v. Department of Agriculture, 31 M.S.P.R.
      85, 89 (1986) (determining that an appellant’s retirement in order to obtain an
      annuity and avoid the financial pressures facing him if he opposed the removal
      action does not establish coercion), aff’d, 818 F.2d 876 (Fed. Cir. 1987) (Table).
¶14        Finally, the appellant asserts on review that he was subjected to a
      constructive suspension when the agency denied his reasonable accommodation
      requests and forced him to take leave. PFR File, Tab 1 at 29. First, to the extent
      that the appellant, by this argument, is disagreeing with the administrative judge’s
      determination that the appellant failed to nonfrivolously allege that he was
      coerced into resigning because of the agency’s discriminatory or retaliatory
      actions, ID at 18-19, we must disagree.      Second, while the appellant asserted
      below that his use of sick leave was a result of a hostile work environment, he did
      not argue that he was constructively suspended during this period of time. IAF,
      Tabs 1, 3, 6. Thus, he raises this argument for the first time on review. Because
      the appellant has made no showing that this argument is based on new and
                                                                                  9

material evidence not previously available despite his due diligence, we have not
considered it. See Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271
(1980). Accordingly, we conclude that the appellant has provided no basis upon
which to disturb 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 U.S. 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 U.S. 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 U.S. 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 U.S. Court of Appeals for the Federal Circuit, you may visit our website at
                                                                                 10

http://www.mspb.gov/probono for information regarding pro bono 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.
