                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     LINDA ELAINE LATEEF,                            DOCKET NUMBER
                   Appellant,                        DC-0752-15-0402-I-1

                  v.

     DEPARTMENT OF THE TREASURY,                     DATE: July 14, 2015
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Rosemary Dettling, Esquire, Washington, D.C., for the appellant.

           Byron D. Smalley, Esquire, and Robert M. Mirkov, Esquire, Washington,
             D.C., 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 her 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


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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).

                      DISCUSSION OF ARGUMENTS ON REVIEW
¶2           The appellant, a former supervisory program manager, retired from federal
     service after the agency proposed her removal. Initial Appeal File (IAF), Tab 1
     at 8.   She subsequently filed this timely appeal in which she alleged that her
     retirement was involuntary and requested a hearing. Id. at 1-6. She asserted that
     she was forced to retire because the agency retaliated against her for filing an
     equal employment opportunity (EEO) claim, altered several of her working
     conditions while it did not alter the working conditions of other employees, and
     improperly disciplined her. Id. at 6. Additionally, the appellant contended that
     the agency made her work extremely stressful.         Id.   She asserted that she
     therefore filed a reasonable accommodation request and sought reassignment, but
     that the agency denied the short-term reassignment that she sought. Id.
¶3           The administrative judge issued an acknowledgment order providing the
     appellant with her burden of proof on jurisdiction.     IAF, Tab 2.    The agency
     responded, asserting that the appellant: (1) requested retirement documents prior
     to the proposed removal; (2) elected to retire rather than oppose her removal; and
                                                                                               3

     (3) made no showing that her election to retire was involuntary.              IAF, Tab 7
     at 4-5. The appellant responded and submitted an affidavit in which she alleged
     that she retired because she was subjected to duress and coercion. IAF, Tab 8
     at 6-7.
¶4         The administrative judge dismissed the appeal for lack of jurisdiction
     without holding a hearing, finding that the appellant had failed to raise
     nonfrivolous allegations of Board jurisdiction over her appeal. IAF, Tab 9, Initial
     Decision (ID) at 1. Specifically, she found that: (1) the appellant was planning
     to retire prior to receiving the agency’s removal; (2) the appellant failed to
     nonfrivolously allege that the agency could not support its removal; and (3) there
     was no evidence of agency coercion or improper actions. ID at 4-6.
¶5         The appellant filed a timely petition for review in which she challenges the
     dismissal for lack of jurisdiction.         Petition for Review (PFR) File, Tab 1.
     Specifically, she asserts, inter alia, that the administrative judge did not consider
     her affidavit in its entirety. 2     Id. at 8.    The appellant also asserts that the
     administrative judge, in finding no evidence of agency coercion or improper
     action and that the appellant was not deprived of alternatives to retirement, failed
     to consider the agency’s numerous specific acts of harassment and retaliation. Id.
     at 9-10. The appellant further contends that she was entitled to a jurisdictional
     hearing. Id. at 10. The agency has responded in opposition to the petition for
     review. PFR File, Tab 3.
¶6         We agree with the administrative judge that the appellant failed to raise
     nonfrivolous    allegations    of   Board     jurisdiction   over    her   appeal.      An


     2
       To the extent that the appellant argues that the administrative judge did not fully
     consider her affidavit, we note that the administrative judge cited the affidavit in setting
     forth the factual background of the case and in her analysis. ID at 4-5. Regardless, the
     administrative judge’s failure to mention all of the evidence of record does not mean
     that she did not consider it in reaching her decision. See 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).
                                                                                       4

     employee-initiated action, such as a retirement, is presumed to be voluntary, and
     thus outside the Board’s jurisdiction.        Vitale v. Department of Veterans
     Affairs, 107 M.S.P.R. 501, ¶ 17 (2007).      To overcome the presumption that a
     retirement is voluntary, an employee must show that the retirement was the
     product of agency misinformation, deception, or coercion.       Id., ¶ 19.   In this
     regard, 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 herself from the workplace.         Wright v. Department of
     Veterans Affairs, 85 M.S.P.R. 358, ¶ 25 (2000).           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. Coufal v. Department of Justice, 98 M.S.P.R. 31, ¶ 22 (2004).
¶7         An appellant is entitled to a hearing on the issue of Board jurisdiction over
     an appeal of an alleged involuntary separation if she 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). A nonfrivolous
     allegation is an allegation of fact that, if proven, could establish a prima facie
     case that the Board has jurisdiction over the appeal.        Locke v. U.S. Postal
     Service, 61 M.S.P.R. 283, 288 (1994).
¶8         Here, the appellant alleges that, regardless of the timing of the proposed
     removal, she had already planned to retire due to harassment and retaliation. PFR
     File, Tab 1 at 10.    We agree with the administrative judge’s finding that the
     appellant did not nonfrivolously allege that she was effectively deprived of any
     alternative but to retire.   ID at 5.   In particular, we find that the appellant’s
     assertions, including, inter alia, that the agency altered her working conditions,
     improperly disciplined her, caused her working environment to become stressful,
     and denied her short-term reassignment request, do not constitute nonfrivolous
     allegations that her retirement was involuntary.     See Miller v. Department of
                                                                                            5

     Defense, 85 M.S.P.R. 310, ¶ 32 (2000) (an employee is not guaranteed a working
     environment free of stress, unfair criticism, or unpleasant working conditions).
     To the extent that the appellant asserts that she was discriminated and retaliated
     against for prior EEO activity, IAF, Tab 1; PFR File, Tab 1 at 9, we have
     considered such claims insofar as they relate to the issue of voluntariness, see
     Wright, 85 M.S.P.R. 358, ¶ 25. In an involuntary retirement appeal, as opposed
     to considering these claims separately, the Board considers evidence of
     discrimination and retaliation as it relates to the ultimate question of coercion,
     namely, 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 retire. Id. As discussed, we find that the appellant
     has failed to nonfrivolously allege that she had no alternative but to retire.
¶9         Even if the appellant were alleging that she retired in order to avoid having
     to oppose a potential removal action, the mere fact that she was faced with the
     unpleasant choice of either retiring or opposing a potential removal for cause
     does not rebut the presumed voluntariness of her ultimate choice to retire. Lloyd
     v. Small Business Administration, 96 M.S.P.R. 518, ¶ 3 (2004). Rather, for an
     appellant’s retirement in such circumstances to be considered involuntary and
     therefore appealable as a constructive removal, she must establish that the agency
     did not have reasonable grounds for proposing removal. Id. In this case, the
     appellant has failed to nonfrivolously allege that that the agency lacked
     reasonable grounds for proposing her removal. 3



     3
       There is no dispute that the agency proposed the appellant’s removal based upon
     charges of insubordination, failure to follow a supervisor’s directive, unprofessional
     conduct, and making false or misleading statements in a matter of official interest. IAF,
     Tab 1. The proposal contained detailed specifications in support of the charges. Id.
     The appellant does not dispute many of the instances of misconduct that serve as the
     basis for these charges. Id.; PFR File, Tab 1. She also does not dispute the
     administrative judge’s finding that the agency had reasonable grounds for proposing her
     removal. PFR File, Tab 1; see ID at 4-5.
                                                                                        6

¶10        Accordingly, because the appellant failed to raise nonfrivolous allegations
      casting doubt on the presumption of voluntariness, we find that 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.
                                                                                 7

     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
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.
