             NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition is not
             citable as precedent. It is a public record.

United States Court of Appeals for the Federal Circuit

                                        04-3250


                                   JUDITH O. BELT,

                                                Petitioner,

                                           v.

                           DEPARTMENT OF COMMERCE,

                                                Respondent.

                            __________________________

                             DECIDED: November 2, 2004
                            __________________________


Before LOURIE, SCHALL,and LINN, Circuit Judges.

PER CURIAM.

                                       DECISION

      Judith O. Belt appeals from the decision of the Merit Systems Protection Board

dismissing her case for lack of jurisdiction. Belt v. Dep’t of Commerce, No. DC-0752-

03-0052-I-1 (M.S.P.B. Feb. 20, 2004) (“Initial Decision”). We affirm.

                                    BACKGROUND

      Ms. Belt was a Secretary at the Bureau of the Census, Department of

Commerce, until March 2000, when she resigned from her position. Subsequently, Belt

filed an equal employment opportunity (“EEO”) complaint and then an appeal to the

Board, asserting that her resignation had been coerced and that it was in fact
involuntary.   The Administrative Judge (“AJ”) determined that Belt had not raised

allegations that, if proven, would establish a prima facie case of involuntary retirement.

As a result, the AJ held that Belt had not shown that her resignation was involuntary and

dismissed the appeal for lack of jurisdiction.     Initial Decision, slip op. at 5.   Belt

petitioned for review by the Board, which concluded that she had not presented any

new, previously unavailable evidence. Accordingly, the Board denied her petition for

review, making the AJ’s initial decision final. Belt v. Dep’t of Commerce, No. DC-0752-

03-0052-I-1 (M.S.P.B. Mar. 10, 2004). Belt timely appealed to this court. We have

jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).

                                      DISCUSSION

       The scope of our review in an appeal from a decision of the Board is limited. We

must affirm the Board’s decision unless it was: “(1) arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law; (2) obtained without procedures

required by law, rule, or regulation having been followed; or (3) unsupported by

substantial evidence.” 5 U.S.C. § 7703(c) (2000); see Briggs v. Merit Sys. Prot. Bd.,

331 F.3d 1307, 1311 (Fed. Cir. 2003).

       On appeal, Belt argues that the Board refused to consider her evidence of

discrimination and harassment.     She alleges discrimination by her supervisors and

coworkers based on age, gender, race, and disability. Additionally, Belt claims that she

was the target of a pattern of harassment as retaliation for a prior EEO complaint she

had filed against the Bureau of the Census and for other grievances that she reported.

In response, the Government asserts that the Board properly dismissed Belt’s case




04-3250                                  2
because she did not meet her burden of proof and failed to raise nonfrivolous

allegations in support of her involuntary resignation claim.

       We agree with the Government that the Board correctly dismissed Belt’s appeal

for lack of jurisdiction. Our analysis begins with the presumption that “[a] decision to

resign or retire is . . . voluntary, and an employee who voluntarily retires has no right to

appeal to the Board.” Staats v. United States Postal Serv., 99 F.3d 1120, 1123-24

(Fed. Cir. 1996). The Board has jurisdiction over an appeal only if the employee can

demonstrate that her resignation was involuntary. Id. at 1124. “In order 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.” Id.

       Belt has not met her burden to show that her resignation was involuntary. The

AJ appropriately considered all of Belt’s arguments regarding coercion and harassment

in the workplace, ultimately concluding that she “did not allege facts sufficient to make

out a prima facie case of discrimination or retaliation on any basis.” Initial Decision, slip

op. at 4.   The AJ properly determined that Belt had not adequately supported her

allegations.* Moreover, the AJ found that even if Belt’s allegations were true, she had

other options available to her besides resignation. For example, the AJ noted that Belt

could have reported possible criminal activities to the appropriate authorities or filed an

EEO complaint requesting that her allegations of discrimination and harassment be



       *
             Belt did not support her allegation of harassment with affidavits or other
evidence, as she was required to do. See Marcino v. U.S. Postal Serv., 344 F.3d 1199,
1204 (Fed. Cir. 2003).


04-3250                                   3
investigated. Id. at 4-5. The AJ thus decided that a reasonable person in Belt’s position

would not have concluded that she had no choice but to retire. Id. at 5. Consequently,

the AJ properly held that Belt had not rebutted the presumption that her resignation was

voluntary.

       We therefore conclude that the AJ was correct to dismiss Belt’s appeal for lack of

jurisdiction. Because the Board’s decision was supported by substantial evidence and

was not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance

with law, we affirm.




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