                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     VANETTA SIMMONS,                                DOCKET NUMBER
                 Appellant,                          NY-0752-15-0109-I-1

                  v.

     DEPARTMENT OF                                   DATE: September 28, 2015
       TRANSPORTATION,
                 Agency.




             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Vanetta Simmons, South Ozone Park, New York, pro se.

           Jennifer D. Ambrose, Esquire, and Parisa Naraghi-Arani, 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 involuntary retirement appeal for lack of jurisdiction. Generally,


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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 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         On April 22, 2014, the agency notified the appellant that she would be
     administratively reassigned from her Human Resources Specialist position in
     New York to the same position at its Benefits Operations Center (BOC) in
     Kansas City, Missouri, effective no later than January 11, 2015. Initial Appeal
     File (IAF), Tab 6 at 12-13. The agency explained that it was consolidating the
     benefits function within its Office of Human Resource Management to streamline
     processes, and to improve quality control, management workflow, and the
     agency’s ability to collaborate on cross-cutting organizational issues and meet
     service delivery expectations. Id. at 12. The appellant would retain the same pay
     plan, grade/level and basic rate of pay, 2 and she would be eligible for relocation
     expense reimbursement. Id. The agency further stated that it would propose her
     separation if she declined the reassignment. Id. at 13. On April 28, 2014, the


     2
      The agency informed the appellant that the locality rate of pay would be lower. IAF,
     Tab 6 at 12.
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     agency advised the appellant that she also had the option to request special
     consideration for certain job vacancies at her current duty station. Id. at 15-16.
¶3         The appellant accepted the reassignment on June 20, 2014, stating that she
     was doing so “under duress because [she] was not given the proper information to
     make a reasonable or rational decision.” Id. at 17. On December 18, 2014, the
     agency reminded her that she would be separated from service if she failed to
     report to her new duty station in Missouri on January 12, 2015.            Id. at 21.
     However, on January 8, 2015, the appellant applied for a discontinued service
     retirement. Id. at 40-43. Her retirement became effective on January 10, 2015.
     Id. at 11, 40.
¶4         The appellant timely filed an involuntary retirement appeal with the Board.
     IAF, Tab 1.      She asserted that her retirement was involuntary because:     (1) it
     would have been a hardship for her to relocate due to her health and the health of
     her elderly mother, and she could not afford to maintain a home in New York and
     live in Missouri; (2) the agency required regional employees to relocate, while
     similar employees in the agency’s Washington, D.C. headquarters were not
     required to relocate; (3) employees in other regions received greater assistance in
     finding positions that would not require them to relocate; (4) when the agency
     first established the BOC in 2010, it maintained for several years that it would not
     require regional employees to relocate; (5) the agency provided piecemeal,
     conflicting information regarding the possibility of pay retention in the event that
     an employee voluntarily accepted a lower paying job and delayed in providing
     complete information regarding the Voluntary Early Retirement/Voluntary
     Incentive Separation Program (VERA/VISP); (6) the agency failed to inform her
     of vacancies that were posted for similar positions in Washington, D.C., did not
     consider allowing her to work virtually, and did not actively pursue her placement
     into a position that would not require her to relocate; (7) she did not receive the
     promised special consideration for any vacancies; (8) the agency’s offer for
     employees to go on a house hunting trip in Missouri was disingenuous because
                                                                                        4

     the trip coincided with training they were required to complete in Missouri and
     the agency provided unclear information as to whether employees would be
     required to pay back funds for the house hunting trip if they ultimately chose not
     to relocate; (9) the agency threatened to place her on sick leave restriction;
     (10) her relocation to the BOC was unnecessary because her work performance
     and quality was already good at her current duty station, whereas the BOC has
     been unsuccessful and ineffective since its establishment; and (11) agency
     management informed employees that they were lucky to have jobs and could be
     separated at any time if they declined reassignment.        Id.; IAF, Tab 8 at 4-7,
     Tab 13 at 4-43, Tab 16 at 4-7.
¶5         The administrative judge issued an initial decision based on the written
     record. 3 IAF, Tab 20, Initial Decision (ID). She dismissed the appellant’s appeal
     for lack of jurisdiction, finding that the appellant failed to establish that she
     retired involuntarily.   ID.     Specifically, she concluded that:   (1) the agency
     sufficiently refuted the appellant’s arguments suggesting that it did not have bona
     fide, legitimate management reasons for the reassignment; (2) the appellant
     did not establish that the agency provided her with insufficient, misleading, or
     inaccurate information that prevented her from making an informed decision
     about whether to accept the reassignment; and (3) the appellant’s claims
     concerning the infeasibility of relocation based upon her personal and financial
     circumstances did not establish that her decision to retire was involuntary. ID
     at 4-9.
¶6         The appellant has filed a petition for review. Petition for Review (PFR)
     File, Tab 1. She argues that the administrative judge failed to consider affidavits
     she submitted as evidence and instead relied upon the agency’s evidence, which
     contained numerous inaccuracies, in reaching her decision. Id. at 4. She states
     that the agency coerced her to retire because it forced her to choose between
     3
       The administrative judge found that the appellant was entitled to a jurisdictional
     hearing, but the appellant withdrew her hearing request. IAF, Tab 1 at 2, Tab 9 at 3.
                                                                                      5

     relocating, resigning, or retiring; and she could not resign because she needed
     income due to her medical problems. Id. at 4, 9. She also renews her arguments
     that:     (1) regional employees were required to relocate, but headquarters
     employees were not; (2) the agency delayed in providing information regarding
     the VERA/VSIP; (3) the agency failed to assist affected employees to find new
     positions, including not providing special consideration for job vacancies as
     promised; and (4) she was under duress when threatened with leave restriction.
     Id. at 4, 6-9. The agency filed a response, to which the appellant did not reply.
     PFR File, Tab 3.
¶7           As an initial matter, we find the appellant’s claim that the administrative
     judge failed to consider affidavits she submitted as evidence to be without merit.
     The administrative judge explicitly noted in the initial decision that “[t]he
     appellant submitted an affidavit and filed affidavits from other co-workers
     supporting her allegations of duress, coercion and misrepresentation.” ID at 4.
     She addressed the statements contained therein in detail in the initial decision.
     ID at 5-9.    The appellant’s mere disagreement with the administrative judge’s
     assessment of the evidence does not establish a basis for review. See Broughton
     v. Department of Health & Human Services, 33 M.S.P.R. 357, 359 (1987).
¶8           A decision to retire is presumed to be voluntary and an employee who
     voluntarily retires has no right to appeal to the Board. Jones v. Department of the
     Treasury, 107 M.S.P.R. 466, ¶ 10 (2007). An involuntary retirement, however, is
     tantamount to a removal and, accordingly, is an appealable action. Salazar v.
     Department of the Army, 115 M.S.P.R. 296, ¶ 9 (2010). An appellant can rebut
     the presumption that her retirement was voluntary with evidence showing that her
     retirement was the result of agency misrepresentation, coercion, or duress. Id.
     For the reasons set forth below, we agree with the administrative judge that the
     appellant has not established that she retired involuntarily based on any of
     these criteria.
                                                                                      6

¶9         A decision to retire made with blinders on based on misinformation or lack
      of information cannot be binding as a matter of fundamental fairness and due
      process. Freeborn v. Department of Justice, 119 M.S.P.R. 290, ¶ 10 (2013). An
      agency must provide information that is not only correct in nature but adequate in
      scope to allow an employee to make an informed decision. Id. The appellant
      claims that the agency delayed in providing full and accurate information
      regarding the VERA/VSIP, thus impeding her ability to make an informed
      decision as to whether to accept the reassignment. PFR File, Tab 1 at 7. The
      VERA/VSIP was not approved until June 2014 and, as such, it appears that
      eligible employees did not receive letters regarding this option until mid-June
      2014. IAF, Tab 8 at 21. However, the appellant did not apply for retirement until
      January 2015, so we discern no basis to conclude that this brief delay in her
      receipt of information regarding the VERA/VSIP affected her decision to retire.
      Indeed, she does not contend that she would have accepted the VERA/VSIP had
      she received the information sooner.      To the contrary, she states that she
      ultimately chose not to accept it because it would have required her to repay the
      incentive payment received if she began working for the government within
      5 years, a term to which she did not want to agree. PFR File, Tab 1 at 7.
¶10        Where an agency threatens a removal action knowing that it cannot be
      substantiated, an employee’s retirement in the face of such a removal is the
      product of coercion and is deemed involuntary.          Schultz v. United States
      Navy, 810 F.2d 1133, 1136-37 (Fed. Cir. 1987). A directed reassignment must be
      bona fide and based upon legitimate management considerations in the interest of
      the service. Ketterer v. Department of Agriculture, 2 M.S.P.R. 294, 299 (1980).
      Thus, if an appellant can show that the agency knew or should have known that
      its reasons for reassigning her were not bona fide and based upon legitimate
      management considerations in the interest of the service, then she can show that
      the agency knew or should have known that it could not substantiate its threat of
      removal for declining the reassignment and that the threatened removal was
                                                                                              7

      coercive. Jones, 107 M.S.P.R. 466, ¶ 12. On review, the appellant appears to
      assert that the directed reassignment was not bona fide and based upon legitimate
      management considerations because only regional employees were required to
      relocate, whereas headquarters employees performing the same work were not.
      However, we agree with the administrative judge that the agency presented
      sufficient evidence to rebut this argument. ID at 5-6. The agency’s Director of
      Compensation Benefits and Policy, who ordered the reassignment, explained that
      there were two benefits specialists in Washington, D.C., who were not reassigned.
      IAF, Tab 19 at 20. One employee’s position was policy focused and the agency
      determined that it was more appropriate for the position to remain at headquarters
      where policy is made. Id. The other employee primarily serviced executives,
      most of whom worked at the headquarters location. Id. The agency decided that,
      before extending the consolidated benefits function to executives, it first would
      implement it for “rank and file employees” to determine whether it was working.
      Id.   We find the appellant’s bare assertion that regional and headquarters
      employees “all did the same job,” PFR File, Tab 1 at 6, insufficient to rebut the
      agency’s stated reasons for reassigning her and numerous other employees.
¶11         We discern no basis to conclude that the appellant was otherwise coerced.
      She claims that the agency improperly accused her of abusing sick leave and told
      her that she would be placed on leave restriction. 4          PFR File, Tab 1 at 8-9.
      Although she never received a leave restriction letter, she nonetheless “felt
      threaten[ed].” Id. at 9. We cannot conclude that the threat of leave restriction
      rendered the appellant’s working conditions so intolerable that a reasonable
      person in her position would have felt compelled to retire.               See Vitale v.
      Department of Veterans Affairs, 107 M.S.P.R. 501, ¶ 20 (2007). To the extent

      4
        The administrative judge did not address this argument in the initial decision. We
      discern no harm because, for the reasons stated herein, we find that it does not warrant
      a different outcome in this matter. See Panter v. Department of the Air Force,
      22 M.S.P.R. 281, 282 (1984) (finding that an adjudicatory error that is not prejudicial to
      a party’s substantive rights provides no basis for reversal of an initial decision).
                                                                                         8

      that the appellant is arguing that the agency threatened to take an action that it
      knew it could not sustain, she has not provided sufficient evidence. Below, she
      stated that she only used 22 hours of leave between September 2014 and
      November 2014, when the threat occurred. IAF, Tab 13 at 7. Even if true, this
      fact does not, on its own, establish that the agency did not have a legitimate basis
      to place her on leave restriction. Cf. Schultz, 810 F.2d at 1136. The appellant’s
      contention that the agency should have done more to avoid reassigning her is
      equally unavailing.    Given the absence of evidence that the agency invoked
      reassignment as a veil to effect the appellant’s separation, we cannot interfere
      with the agency’s legitimate authority to exercise its discretion to reassign
      employees. See Ketterer, 2 M.S.P.R. at 462 n.8; see also 5 C.F.R. § 335.102.
¶12         We are sympathetic to the fact that the appellant may not have been in a
      position to relocate based on her family situation, her health, or her finances.
      However, these difficulties do not render her retirement involuntary.            The
      doctrine of coercive involuntariness is a narrow one and does not apply to a case
      in which an employee decides to retire because she does not want to accept a
      geographical transfer, or other measures the agency is authorized to adopt, even if
      those measures make continuation in the job so unpleasant for her that she feels
      that she has no realistic option but to leave. Staats v. U.S. Postal Service, 99 F.3d
      1120, 1124 (Fed. Cir. 1996).       The fact that an employee is faced with an
      unpleasant situation or that her choice is limited to two unattractive options
      does not make her decision any less voluntary. Id.; see Sainz v. Department of
      Justice, 32 M.S.P.R. 678, 682 n.3 (finding that the fact that an employee is faced
      with two unpleasant alternatives does not constitute duress or coercion sufficient
      to render an action involuntary), aff’d, 835 F.2d 870 (Fed. Cir. 1987) (Table).
      Accordingly, we must affirm the dismissal for lack of jurisdiction.
                                                                                    9

                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.
     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
                                                                               10

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.
