                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     WILLIAM FRENCH,                                 DOCKET NUMBER
                  Appellant,                         DC-0752-15-0655-I-1

                  v.

     ENVIRONMENTAL PROTECTION                        DATE: November 10, 2015
       AGENCY,
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL *

           Ericka Dorsey, Washington, D.C., for the appellant.

           Emily Hubbard, 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 for lack of jurisdiction the appellant’s appeal of his alleged involuntary
     retirement. Generally, we grant petitions such as this one only when: the initial
     decision contains erroneous findings of material fact; the initial decision is based


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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         The appellant contended in his appeal that his May 4, 2012 retirement from
     his GS-7 Office Assistant position was involuntary because the agency subjected
     him to a hostile working environment based on his age and disability. Initial
     Appeal File (IAF), Tab 1. After affording the appellant notice that his appeal
     might not be within the Board’s jurisdiction, the administrative judge ordered the
     appellant to submit evidence and argument establishing a nonfrivolous allegation
     of jurisdiction. IAF, Tab 3. In response, the appellant contended that he had no
     choice but to retire after the agency proposed his removal. IAF, Tab 7 at 5. He
     also asserted that the agency directed him to report to an upper-level supervisor
     (the Chief Administrative Law Judge [CALJ]), rather than his first-line supervisor
     of record, the CALJ instructed him to work at the receptionist’s desk, the CALJ
     rarely gave him work assignments, the CALJ criticized him for being away from
     his desk, the CALJ denied sick leave requests and placed the appellant in an
     absence without leave (AWOL) status, the CALJ placed him on leave restriction,
     he was denied training, the agency proposed his removal on February 29, 2012,
     and the agency created a hostile working environment based on the appellant’s
     age and disability. Id. at 4-6. The administrative judge found that the appellant
                                                                                              3

     failed to make a nonfrivolous allegation of jurisdiction and he dismissed the
     appeal for lack of jurisdiction without a hearing. IAF, Tab 11, Initial Decision
     (ID) at 6-9.
¶3         An employee-initiated action, such as a retirement, is presumed to be
     voluntary unless the appellant presents sufficient evidence to establish that the
     action was obtained through duress, coercion, or misinformation, or if the
     appellant demonstrates that the employer engaged in a course of action that made
     working conditions so difficult or unpleasant that a reasonable person in the
     appellant’s position would have felt compelled to retire. Vaughan v. Department
     of Agriculture, 116 M.S.P.R. 493, ¶ 11 (2011); see Miller v. Department of
     Homeland Security, 111 M.S.P.R. 325, ¶ 8 (2009), aff’d, 361 F. App’x 134 (Fed.
     Cir. 2010). The reasonable person test is an objective test and does not depend on
     the appellant’s subjective characterization of the agency’s actions. See Markon v.
     Department of State, 71 M.S.P.R. 574, 577-78 (1996).                 Furthermore, when an
     appellant      raises   allegations   of   discrimination      in    connection   with   an
     involuntariness claim, evidence of discrimination may be considered only in
     terms of the standard for voluntariness.         Id. at 578.        Thus, in an involuntary
     retirement appeal, evidence of discrimination 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 retire. Id.
¶4         Below, the appellant provided little facts, and no evidence, in support of his
     claim that his retirement was involuntary.          For example, he stated that his
     reporting chain was changed so he came under the direct supervision of the
     CALJ. The appellant did not explain why he found this objectionable, and he
     has not provided enough information for the Board to evaluate whether a
     reasonable person in his position would find the change in supervision not merely
     objectionable, but creating working conditions so intolerable that one would feel
     compelled to retire. See Staats v. U.S. Postal Service, 99 F.3d 1120, 1124 (Fed.
                                                                                       4

     Cir. 1996) (holding that the doctrine of coercive involuntariness does not apply to
     a case in which an employee decides to resign or retire because he does not want
     to accept a new assignment, a transfer, or other measures that the agency is
     authorized to adopt, even if those measures make continuation in the job so
     unpleasant for the employee that he feels that he has no realistic option but to
     leave).   The same is true for the appellant’s other allegations.       He has not
     explained why a reasonable person in his position would find having to work at a
     receptionist’s desk and being expected to remain at his work station to be
     intolerable. See Miller v. Department of Defense, 85 M.S.P.R. 310, ¶ 32 (2000)
     (finding that dissatisfaction with work assignments, feeling unfairly criticized, or
     difficult or unpleasant working conditions are generally not so intolerable as to
     compel a reasonable person to resign). He asserted that the agency denied his
     sick leave requests, placed him in an AWOL status, and put him on leave
     restriction, but his claim that it was common knowledge that he has an
     unspecified chronic medical condition does not explain why the agency was
     wrong to engage in these actions, much less that the agency’s actions were
     egregious enough to make a reasonable person feel he had no choice but to resign.
     See Terban v. Department of Energy, 216 F.3d 1021, 1026 (Fed. Cir. 2000)
     (determining that, where the appellant claimed that his retirement was involuntary
     because the agency threatened to convert his leave status to AWOL, he had to
     show by preponderant evidence that the agency’s threat was made without a
     reasonable basis).
¶5         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 or her ultimate choice of resignation, unless the employee can
     show that the agency knew or should have known that the reason for the
     threatened removal could not be substantiated. Schultz v. U.S. Navy, 810 F.2d
     1133, 1136-37 (Fed. Cir. 1987); Harris v. Department of Veterans Affairs,
     114 M.S.P.R. 239, ¶ 8 (2010). Here, however, the appellant makes only a bare
                                                                                      5

     allegation that the agency knew that the proposed removal could not be
     substantiated. He does not explain the reasons the agency gave him for proposing
     his removal, and he makes no factual allegations that would even suggest that the
     agency was aware that it could not prove its charges. See Garcia v. Department
     of Homeland Security, 437 F.3d 1322, 1329 (Fed. Cir. 2006) (concluding that a
     resignation is not involuntary if the employee had a choice of whether to resign or
     contest the validity of the agency action); Miller, 111 M.S.P.R. 325, ¶ 10. We
     find, therefore, that the administrative judge correctly dismissed this appeal for
     lack of jurisdiction.
¶6         On review, the appellant greatly expands on the factual allegations he made
     below. All of these new arguments are based on facts that were known to him
     while his appeal was pending before the administrative judge.       Generally, the
     Board will not consider an argument raised for the first time in a petition for
     review absent a showing that it is based on new and material evidence not
     previously available despite the party’s due diligence. Banks v. Department of
     the Air Force, 4 M.S.P.R. 268, 271 (1980). The appellant here has not attempted
     to show due diligence, and we have not relied on his new arguments on review.
¶7         Nevertheless, even if we were to consider them, they do not affect the
     outcome of the case. 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. See, e.g., Williams v. Department of Agriculture, 106 M.S.P.R. 677, ¶ 10
     (2007). The appellant’s new allegations, even if he were able to prove them,
     would not show that his retirement was involuntary. For example, the appellant
     admits on review that he did not always provide the agency with medical
     documentation each time he was absent because he found the requirement
     excessive and unnecessary. Petition for Review (PFR) File, Tab 1 at 11-12. If
     the appellant were able to prove every allegation he raises for the first time on
     review, he would have established that he was unhappy and frustrated in his new
     position, but he still would not have shown that a reasonable person in his
                                                                                         6

     position would have found the working environment so intolerable that he had no
     choice but to resign.
¶8         For the above-noted reasons, we find that the administrative judge correctly
     dismissed the appeal for lack of jurisdiction without holding the appellant’s
     requested hearing. In light of this disposition, we need not consider whether the
     appeal was timely filed.

                     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.
