                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     FRANK J. SILVA,                                 DOCKET NUMBER
                         Appellant,                  AT-0752-15-0028-I-1

                  v.

     DEPARTMENT OF JUSTICE,                          DATE: June 5, 2015
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL *

           Frank J. Silva, Yazoo City, Mississippi, pro se.

           Jenifer Grundy Hollett, 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 his involuntary demotion 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 regulation or the erroneous application of the law to

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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 appellant worked for the agency’s Bureau of Prisons (BOP) from 1987
     to 1992 and beginning again in 1997. See Initial Appeal File (IAF), Tab 1 at 14.
     In June 2011, he accepted a position as a GS-13 Complex Captain at the BOP
     facility in Yazoo City, Mississippi. See id., IAF, Tab 7 at 52. Approximately 4
     months later, the appellant requested reassignment to the GS-12 Unit Manager
     position at the same facility.    IAF, Tab 7 at 112.     The agency approved and
     effectuated that request. Id. at 114.
¶3         In January 2012, the appellant filed a discrimination complaint with the
     agency. Id. at 52-53. After investigating his allegations, in August 2014, the
     agency issued a final decision, concluding that the appellant was neither
     subjected to a hostile work environment nor constructively demoted to the GS-12
     Unit Manager position based on race. Id. at 13, 24-40.
¶4         In September 2014, the appellant filed the instant Board appeal.         IAF,
     Tab 1.   The administrative judge dismissed the appeal without holding the
     requested hearing.    IAF, Tab 12, Initial Decision (ID); see IAF, Tab 1 at 2
     (hearing request). The administrative judge concluded that the appellant was not
     entitled to a hearing on jurisdiction because he failed to present a nonfrivolous
     allegation that his demotion was involuntary. ID at 7.
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¶5        The appellant has filed a petition for review. Petition for Review (PFR)
     File, Tab 3. The agency has filed a response, to which the appellant has replied.
     PFR File, Tabs 5, 9.

     The administrative judge properly dismissed the appeal for lack of jurisdiction.

¶6        The appellant disputes the administrative judge’s conclusion that his
     demotion was voluntary and outside the Board’s jurisdiction. PFR File, Tab 3 at
     15-32. We find no merit to his arguments.
¶7        The Board lacks jurisdiction over appeals of employees’ voluntary actions.
     Bean v. U.S. Postal Service, 120 M.S.P.R. 397, ¶ 7 (2013). However, the Board
     has always recognized that employee-initiated actions that appear voluntary on
     their face are not always so. Id. The Board may have jurisdiction over such
     actions under 5 U.S.C. chapter 75 as “constructive” adverse actions.          Bean,
     120 M.S.P.R. 397, ¶ 7. For example, even if an employee applies for and accepts
     a reduction in grade, that action may nevertheless be appealable to the Board if
     the employee can show that the agency deprived him of any meaningful choice in
     the matter. Id. (citing Jones v. Department of Agriculture, 117 M.S.P.R. 276,
     ¶ 15 (2012); Goodwin v. Department of Transportation, 106 M.S.P.R. 520, ¶ 15
     (2007)).
¶8        One way of overcoming the presumption of voluntariness is by showing that
     a requested action was the product of coercion by the agency. See Staats v. U.S.
     Postal Service, 99 F.3d 1120, 1124 (Fed. Cir. 1996). However, “the doctrine of
     coercive involuntariness is a narrow one.” Id. “[T]he fact that an employee is
     faced with an unpleasant situation or that his choice is limited to two unattractive
     options does not make the employee’s decision any less voluntary.”          Id.    In
     addition, the test for involuntariness is an objective one, requiring that a
     reasonable employee in the same circumstances would have felt coerced into
     acting similarly.   See generally Conforto v. Merit Systems Protection Board,
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      713 F.3d 1111, 1121 (Fed. Cir. 2013) (noting that the standard is an objective one
      in the context of an alleged resignation).
¶9          Jurisdiction is established in constructive adverse action appeals by
      showing: (1) the employee lacked a meaningful choice in the matter; and (2) it
      was the agency’s wrongful actions that deprived the employee of that choice.
      Bean, 120 M.S.P.R. 397, ¶¶ 8-11. If an appellant makes a nonfrivolous allegation
      casting doubt on the voluntariness of his action, he is entitled to a hearing at
      which he must prove jurisdiction by a preponderance of the evidence. See Harris
      v. Department of Veterans Affairs, 114 M.S.P.R. 239, ¶ 9 (2010). To meet the
      nonfrivolous standard, an appellant need only plead allegations of fact that, if
      proven, could show jurisdiction. Id. However, merely pro forma allegations are
      insufficient to meet the standard. Id.
¶10         In determining whether the appellant has made the requisite nonfrivolous
      allegation, the administrative judge may consider the agency’s documentary
      submissions. Id. Yet, to the extent that the agency’s evidence constitutes mere
      factual contradiction of the appellant’s otherwise adequate prima facie showing of
      jurisdiction, the administrative judge may not weigh evidence and resolve
      conflicting assertions of the parties, and the agency’s evidence may not be
      dispositive. Id.
¶11         Here, the appellant’s initial pleading implicated coercion, alleging that his
      demotion was involuntary due to the agency’s “constant harassment and berating”
      of him over the 4 months leading up to his request for a reduction in grade
      because he is not an African American. IAF, Tab 1 at 3. With the allegation, the
      appellant included the final agency decision on his complaint of discrimination
      finding that the record did not support his claim that he was subjected to a hostile
      work environment or constructively demoted because of his race. Id. at 12-29.
¶12         The agency disputed the appellant’s allegations and submitted the
      statements made by relevant parties during the aforementioned discrimination
      investigation. IAF, Tab 7. Subsequently, the administrative judge informed the
                                                                                        5

      appellant of the applicable standards for a constructive adverse action appeal and
      ordered him to file evidence and argument to meet his burden. IAF, Tab 8. In
      response, the appellant claimed that one supervisor warned him of possible
      discipline or demotion if he continued to make mistakes, and another supervisor
      asked him if he had ever considered taking a demotion, suggesting it might be
      better for him. IAF, Tab 10 at 2-3. The appellant indicated that he feared what
      might happen if he did not take the reduction in grade. Id. at 3. He described his
      interactions with supervisors as including “constant and daily barrages and
      ranting . . . with the constant threat of demotion” to the Unit Manager position he
      ultimately requested. Id.
¶13        Considering the evidence before him, the administrative judge concluded
      that, even if the events transpired exactly as the appellant alleged, such facts did
      not amount to nonfrivolous allegations of involuntariness. ID at 5-6. Instead, the
      administrative judge found that the allegations described, at most, unpleasant
      circumstances. ID at 6. We agree.
¶14        The appellant argues that the administrative judge failed to consider his
      claims of discrimination and reprisal as affirmative defenses. PFR File, Tab 3
      at 15. However, when discrimination and reprisal are alleged in connection with
      a determination of voluntariness, it is well settled that such allegations may only
      be addressed insofar as they relate to the issue of voluntariness.       Markon v.
      Department of State, 71 M.S.P.R. 574, 578 (1996).        The administrative judge
      noted that standard in his show cause order, IAF, Tab 8 at 3, and properly applied
      it in concluding that the appellant failed to nonfrivolously allege that his
      demotion was involuntary, ID at 4-6.
¶15        Next, the appellant alleges that the administrative judge’s decision contains
      erroneous findings of material facts. PFR File, Tab 3 at 17. Specifically, he
      disputes the administrative judge’s notation that, before coming to the Board, the
      appellant filed a formal equal employment opportunity complaint and the agency
      concluded that no discrimination had occurred. Id. We are unable to discern any
                                                                                        6

      error in the fact the appellant has identified as incorrect.           Compare id.
      (referencing ID at 2 (noting that the agency issued a final decision on the
      appellant’s discrimination complaint finding no discrimination)), with IAF, Tab 1
      at 12-29 (the final agency decision, finding no discrimination). Moreover, even if
      the notation did include an error, it is of no consequence.            See 5 C.F.R.
      § 1201.115(a) (the Board may grant a petition for review for a factual error of
      sufficient weight to warrant an outcome different from that of the initial
      decision). We find that the fact at issue here was merely background information,
      provided in the decision as part of an introduction to the case. See ID at 2.
¶16        Finally, the appellant’s petition generally recounts allegations of what he
      found to be difficult or unpleasant working conditions leading up to his request
      for a demotion. PFR File, Tab 3 at 16-32. He suggests that the administrative
      judge failed to consider the totality of the circumstances and erroneously accepted
      the agency’s witness statements as fact. Id. at 16, 20. We disagree.
¶17        As discussed above, although the appellant alleged that his demotion was
      involuntary, the information he provided merely describes a stressful and
      unpleasant situation, in which he felt unfairly criticized and worried that he might
      be subjected to future discipline. See IAF, Tab 1, Tab 10 at 2-3. We agree with
      the administrative judge’s conclusion that those claims, even if true, are not the
      type that would cause a reasonable employee in the same circumstances to feel
      forced into requesting a demotion.        See ID at 6; see generally Miller v.
      Department of 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).     Therefore, the appellant’s claims do not amount to
      nonfrivolous allegations of involuntariness. Compare Baldwin v. Department of
      Veterans Affairs, 109 M.S.P.R. 392, ¶¶ 18-20 (2008) (appellant’s allegations that
      the agency unjustifiably      threatened him with discipline and conducted
      unwarranted investigations targeting him did not amount to nonfrivolous
      allegations that he was coerced into resigning), with Harris, 114 M.S.P.R. 239, ¶
                                                                                        7

      11 (appellant was entitled to a jurisdictional hearing based upon an allegation that
      she accepted a reduction in grade under the threat of a removal action that the
      agency knew or should have known could not be substantiated); Swinford v.
      Department of Transportation, 107 M.S.P.R. 433, ¶ 15 (2007) (appellant was
      entitled to a jurisdictional hearing based upon an allegation that he retired only
      after his supervisor threatened to abolish his job, threatened to make things
      difficult if he did not retire, placed him on a performance improvement plan 2
      weeks after becoming eligible for retirement, and denied his requested sick
      leave).
¶18         In reasserting that his demotion was involuntary, the appellant has
      submitted a large amount of evidence that he did not submit below. See PFR File,
      Tab 3, Subtabs A-O. Generally, the Board 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); 5 C.F.R.
      § 1201.115. The Board, however, may consider such evidence if it implicates the
      Board’s jurisdiction and warrants an outcome different from that of the initial
      decision.   Schoenig v. Department of Justice, 120 M.S.P.R. 318, ¶ 7 (2013).
      After reviewing the appellant’s evidence, we find nothing that warrants a
      different outcome. The evidence fails to establish that his requested demotion
      was involuntary or even nonfrivolously alleges the same. See, e.g., PFR File, Tab
      3, Subtab A (the Equal Employment Opportunity Commission’s dismissal of the
      appellant’s complaint), Subtab B (correspondence regarding the exchange of
      pleadings between the appellant, the agency, and the administrative judge),
      Subtab C (documents related to the appellant’s 2011 promotion), Subtab D
      (organizational charts and position descriptions), Subtab E (salary tables), Subtab
      F (forms documenting the appellant’s demotion), Subtab G (information about
      Pacific Islanders). Accordingly, we find that dismissal for lack of jurisdiction,
      without a hearing, remains appropriate.
                                                                                       8

      The administrative judge did not exhibit any bias or prejudice against the
      appellant.

¶19        The appellant alleges that the administrative judge was biased against him.
      PFR File, Tab 3 at 11-14. We disagree.
¶20        There is a presumption of honesty and integrity on the part of
      administrative judges that can only be overcome by a substantial showing of
      personal bias, and the Board will not infer bias based on an administrative judge’s
      rulings on issues. Williams v. U.S. Postal Service, 87 M.S.P.R. 313, ¶ 12 (2000).
      In addition, an administrative judge’s conduct during the course of a Board
      proceeding warrants a new adjudication only if the administrative judge’s
      comments or actions evidence a deep-seated favoritism or antagonism that would
      make fair judgment impossible. Simpkins v. Office of Personnel Management,
      113 M.S.P.R. 411, ¶ 5 (2010).
¶21        Among other things, the appellant alleges that the administrative judge’s
      bias is evidenced by his acceptance of the agency’s untimely jurisdictional reply.
      PFR File, Tab 3 at 11-14; see IAF, Tab 8 at 1-4 (jurisdictional order setting
      December 2, 2014, as the deadline for filing the agency’s response), Tab 11
      (agency’s response dated December 4, 2014).            He also alleges that the
      administrative judge characterized him as “not being cooperative” regarding the
      exchange of pleadings. PFR File, Tab 3 at 12. We find that, even if accepted as
      true, the appellant’s allegations fail to overcome the presumption of honesty and
      integrity afforded administrative judges.

                      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:
                                                                                  9

                          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 your appeal to
the 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
                                                                                 10

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.
