                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     EDWARD V. PERPLIES,                             DOCKET NUMBER
                  Appellant,                         SF-0752-14-0200-I-1

                  v.

     DEPARTMENT OF LABOR,                            DATE: September 19, 2014
                 Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Edward V. Perplies, Esquire, Arleta, California, pro se.

           Andrew J. Schultz, San Francisco, California, 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 this involuntary retirement 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        A nonprecedential order is one that the Board has determined does not add
     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 Parties may cite nonprecedential orders,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

     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        The Board’s jurisdiction is not plenary; it is limited to those matters over
     which it has been given jurisdiction by law, rule, or regulation. Maddox v. Merit
     Systems Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). The appellant bears
     the burden of proving, by a preponderance of the evidence, that the Board has
     jurisdiction over his appeal. 5 C.F.R. § 1201.56(a)(2)(i). An appellant is entitled
     to a hearing on the issue of Board jurisdiction over an appeal of an alleged
     involuntary resignation or 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). To meet the nonfrivolous
     standard, an appellant need only plead allegations of fact that, if proven, could
     show jurisdiction. Pariseau v. Department of the Air Force, 113 M.S.P.R. 370,
     ¶ 14 (2010). Mere pro forma allegations, however, are insufficient to meet this
     standard. Id.
¶3        In actions like the one at issue here, i.e., a retirement initiated by an
     employee in a situation where there has been no threat of an adverse action, such
     as a removal, the appropriate test for voluntariness is whether, under all of the
     circumstances, working conditions were made so difficult by the agency that a
                                                                                              3

     reasonable person in the appellant's position would have felt compelled to resign
     or retire. See, e.g., Markon v. Department of State, 71 M.S.P.R. 574, 577 (1996).
     In cases where intolerable working conditions are alleged, both the courts and 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. Id. at 577-78. When an appellant
     raises    allegations   of   discrimination   or   reprisal   in   connection   with    an
     involuntariness claim, evidence of discrimination may be considered only in
     terms of the standard for voluntariness in a particular situation—not whether such
     evidence meets the test for proof of discrimination or reprisal established under
     Title VII. Id. at 578. Thus, evidence of discrimination or 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.
¶4            The appellant filed an appeal in which he alleged that he involuntarily
     retired from his position as a GS-12 Investigator for the agency’s Employee
     Benefits Security Administration.        Initial Appeal File (IAF), Tab 1.             The
     administrative judge subsequently informed the appellant of the elements and
     burdens of establishing jurisdiction over an involuntary retirement. IAF, Tab 2
     at 2-3. The appellant responded, arguing that his physical and emotional health
     was impacted by his placement on a performance improvement plan (PIP) in
     August 2012, and the agency’s subsequent enforcement of that PIP. IAF, Tab 6
     at 2. The appellant asserted that the PIP was vague and overbroad and that the
     agency intentionally scheduled weekly PIP meetings such as to interfere with his
     regular mealtimes, 2 which he contended affected the blood-sugar regimen that he



     2
      The appellant argued that the agency “compelled [his] attendance during required
     meals,” but he also cited the agency’s failure under the PIP “to regularly schedule
                                                                                               4

     had implemented upon his physician’s advice and that was necessitated by his
     known diabetic condition. Id. at 2-3. The appellant also asserted that the agency
     failed to disclose that he could not receive his full retirement annuity at age 58
     until after he had already accepted his position. 3         Id.   The agency moved to
     dismiss the appeal for lack of jurisdiction, IAF, Tab 8, and the administrative
     judge granted the agency’s motion, finding that the appellant failed to make
     nonfrivolous allegations that the agency created working conditions so intolerable
     that a reasonable person in the appellant’s position would have felt compelled to
     retire, IAF, Tab 10, Initial Decision (ID) at 7-8.
¶5         With his timely-filed petition for review, the appellant seeks to introduce
     new evidence, a letter from a coworker concerning one of the individuals that the
     appellant alleges was responsible for the hostile work environment that compelled
     him to retire.    Petition for Review (PFR) File, Tab 1 at 1, 7-8; Tab 4.              The
     appellant claims that, although the letter is dated October 4, 2013, it was made
     available to him on February 20, 2014, PFR File, Tab 1 at 1, and he states that he



     weekly meetings with any predictability or regularity” as evidence that his subsequent
     retirement was involuntary. IAF, Tab 6 at 2.
     3
       According to the agency, the appellant served in his position for over 12 years at the
     time he retired. IAF, Tab 8 at 1. It appears that the appellant is arguing that the agency
     misled him by omission at the time it hired him that he could receive a full annuity after
     5 years of creditable service regardless of his age at the date he chose to retire, and that
     he relied on that omission to his detriment, see IAF, Tab 6 at 2, but he offers nothing to
     support this bare allegation. Moreover, something that occurred 12 years before the
     alleged involuntary retirement at issue is most likely too attenuated to have caused a
     reasonable person under these circumstances to retire. See, e.g., Miller v. Department
     of Defense, 85 M.S.P.R. 310, ¶ 10 (2000) (although other periods are not categorically
     excluded, the circumstances existing immediately before the actual date of the action
     are the most relevant in determining the voluntariness of that action). Nevertheless,
     even if the appellant established this, an employee’s eligibility for a retirement annuity
     is fixed by statute and regulation. See 5 U.S.C., chapter 84; 5 C.F.R., parts 841-46.
     The government cannot be estopped from denying benefits not otherwise permitted by
     law even if the claimant was denied monetary benefits because of his reliance on the
     mistaken advice of a government official. Office of Personnel Management v.
     Richmond, 496 U.S. 414, 416, 434 (1990).
                                                                                        5

     did not supplement the evidence earlier because he had already submitted two
     other coworker statements as exhibits in his presentation below, id.; see IAF,
     Tab 9, Exhibits 24, 26. Under 5 C.F.R. § 1201.115, the Board generally will not
     consider evidence submitted for the first time with the petition for review absent
     a showing that it was unavailable before the record was closed despite the party’s
     due diligence. Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980). The
     appellant does not say why the statement was previously unavailable to him
     despite his due diligence, and as noted above, he acknowledges in his petition for
     review that the evidence is cumulative. PFR File, Tab 1 at 1; compare PFR File,
     Tab 1 at 7-8, with IAF, Tab 9, Exhibits 24, 26. Moreover, the letter does not
     show that the administrative judge erred in finding that a reasonable person under
     these circumstances would not have felt compelled to retire. See PFR File, Tab 1
     at 7-8. The Board will not grant a petition for review based on new evidence
     absent a showing that it is of sufficient weight to warrant an outcome different
     from that of the initial decision. E.g., Russo v. Veterans Administration,
     3 M.S.P.R. 345, 349 (1980).
¶6         The appellant also argues that he would be able to prove his claim at trial,
     asserting that a dismissal of his appeal without affording him an opportunity to
     supplement his pleadings will cause him irreparable harm. PFR File, Tab 1 at 2.
     However, as noted above, an appellant is entitled to a hearing on the issue of
     Board jurisdiction over an appeal of an alleged involuntary resignation or
     retirement only if he makes a nonfrivolous allegation casting doubt on the
     presumption of voluntariness.     Burgess, 758 F.2d at 643.      The administrative
     judge gave the appellant ample notice of the burden he must meet to receive a
     hearing on his claim and she set a time for the record on the jurisdictional issue to
     close. IAF, Tab 2 at 2-4. That was the time for the appellant to have submitted
     his evidence. Having then elected to proceed without attempting to introduce the
     evidence he now seeks to submit on review, the appellant, who is an attorney
     representing himself pro se in this matter, may not at this stage seek to
                                                                                       6

     supplement the record with evidence that was apparently available to him before
     the record closed. Cf. Kopp v. Department of the Air Force, 33 M.S.P.R. 624,
     629 (1987) (a mistaken litigation strategy does not provide an adequate basis for
     reopening the record).
¶7        Ultimately, we agree with the administrative judge that the appellant failed
     to nonfrivolously allege that his retirement was involuntary.        Applying the
     standard set forth in Markon, we find that the appellant failed to nonfrivolously
     assert that his daily working conditions were so intolerable that a reasonable
     person in his position would have felt compelled to retire.       See, e.g., Miller,
     85 M.S.P.R. 310, ¶ 32 (dissatisfaction with work assignments, a feeling of being
     unfairly criticized, or difficult or unpleasant working conditions are generally not
     so intolerable as to compel a reasonable person to resign). Although the appellant
     alleged that he was subjected to a discriminatory and hostile workplace,
     culminating in his placement on a PIP, and was required to perform unspecified
     unethical and unlawful acts in connection with his employment, see, e.g., IAF,
     Tab 1 at 8-12, the totality of the circumstances based on the evidence that the
     appellant submitted, IAF, Tab 9, does not support his allegations, and instead
     reflects, as the administrative judge correctly found, “the common workplace
     situations where there is disagreement with the supervisors over work product and
     performance deficiencies which resulted in a PIP,” ID at 7.
¶8        Although the appellant clearly believed that he might be subject to
     discipline in the future as a result of the PIP, there is no evidence that such an
     action was planned, and an employee’s anticipation of an adverse action does not
     constitute coercion or duress on the part of an agency. See Holman v. Department
     of the Treasury, 9 M.S.P.R. 218, 220 (1981), aff’d, 703 F.2d 584 (Fed. Cir. 1982)
     (Table). Although the prospect of facing such an action is an unpleasant choice,
     the appellant always had the option of waiting and contesting such an action if he
     thought it unjustified. See, e.g., Schultz v. Department of the Navy, 810 F.2d
     1133, 1136 (Fed. Cir. 1987); Aurandt v. Department of the Air Force,
                                                                                  7

53 M.S.P.R. 591, 595 (1992). The appellant’s decision to retire, in lieu of facing
any potential adverse consequences he anticipated as the result of being placed on
a PIP does not show that his retirement was involuntary.           See Sullivan v.
Department of Veterans Affairs, 79 M.S.P.R. 81, 85 (1998); Shaishaa v
Department of the Army, 58 M.S.P.R. 450, 454 (1993) (the prospect of possible
future adverse action as the result of a PIP is speculative and not a proper basis
on which to find jurisdiction over an action not otherwise appealable to the
Board).

                  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.
                                                                                8

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.
