                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     ANTHONY HAASZ,                                  DOCKET NUMBER
                 Appellant,                          NY-0752-15-0313-I-1

                  v.

     DEPARTMENT OF VETERANS                          DATE: August 17, 2016
       AFFAIRS,
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL *

           Alan E. Wolin, Jericho, New York, for the appellant.

           Christopher P. Richins, Brooklyn, New York, 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 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


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

                                                BACKGROUND
¶2             The appellant retired, effective October 4, 2014, after over 33 years of
     service, most recently as a WS-09 Maintenance Mechanic Supervisor at the
     agency’s East Orange campus of the Veterans Affairs New Jersey Healthcare
     System.          Initial Appeal File (IAF), Tab 1, Tab 10 at 12.            In this appeal, the
     appellant alleged that he involuntarily retired because his supervisor repeatedly
     failed to select him for promotions, lateral assignments, and details. IAF, Tab 1
     at 6. He also asserted that his supervisor “perpetrated a continuing hostile work
     environment” by, for example, refusing to upgrade the appellant’s WS-09
     position,        failing    to    assign   him   to   temporary    supervisory    details,   and
     micro‑managing the performance of his subordinates.                   Id.   The appellant also
     claimed that his supervisor spoke down to him, disregarded the medical staff’s
     assessment of his performance, and failed to properly reward or recognize his
     performance. Id. Because he believed that the discrimination and hostile work
     environment that his supervisor allegedly perpetrated would not change and that
     his career was therefore at a “dead end,” he decided to retire. Id. at 6-7.
                                                                                      3

¶3        Without holding the requested hearing, the administrative judge dismissed
     the appeal for lack of jurisdiction, finding that the appellant failed to
     nonfrivolously allege that his working conditions were so intolerable that the
     agency left him no choice but to retire. IAF, Tab 18, Initial Decision (ID). The
     administrative judge also found nothing in the record to indicate that the agency
     coerced the appellant’s retirement under duress and further observed that his
     nonselection for several positions “did not strip the appellant of his free choice”
     to either remain in the agency’s employ or to retire. ID at 6.
¶4        In his petition for review, the appellant argues that the administrative judge
     made conclusions more appropriate for a decision on the merits rather than a
     decision on jurisdiction, specifically challenging the findings that he could have
     either chosen to stay on the job to await another opportunity for promotion or
     requested a transfer to a different supervisor. Petition for Review (PFR) File,
     Tab 1 at 5-6. He also claims that the administrative judge improperly denied him
     a hearing at which he would have disproved those findings and established that a
     reasonable person would have had no choice but to retire under these
     circumstances. Id. at 6-7. The agency responded in opposition to the appellant’s
     petition for review and the appellant replied to the agency’s response. PFR File,
     Tabs 3-4.

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶5        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 his
     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. 258, ¶ 8 (2009), aff’d, 361 F. App’x 134
                                                                                        4

     (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.
     E.g., Markon v. Department of State, 71 M.S.P.R. 574, 577-78 (1996).
¶6         The U.S. Court of Appeals for the Federal Circuit has consistently
     maintained that “[t]he doctrine of coercive involuntariness is a narrow one,
     requiring that the employee satisfy a demanding legal standard.”                E.g.,
     Conforto v. Merit Systems Protection Board, 713 F.3d 1111, 1121 (Fed. Cir.
     2013); Garcia v. Department of Homeland Security, 437 F.3d 1322, 1329
     (Fed. Cir. 2006) (en banc). In Conforto, the court further stated, “An employee’s
     dissatisfaction with the options that an agency has made available to him is not
     sufficient to render his decision to resign or retire involuntary.”         Conforto,
     713 F.3d at 1121.    Accordingly, the court explained, “coerced involuntariness
     does not apply if the employee resigns or retires because he does not like agency
     decisions such as ‘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 . . . that he feels he has no realistic option but to leave.’”         Id.
     at 1121‑22 (quoting Staats v. U.S. Postal Service, 99 F.3d 1120, 1124 (Fed. Cir.
     1996)). Moreover, the coercion must arise from improper acts by the agency. Id.
     at 1122.
¶7         The touchstone of the voluntariness analysis is whether, after considering
     the   totality of   the   circumstances,   factors   operated   on   the   employee’s
     decision-making process that deprived him of freedom of choice. E.g., Searcy v.
     Department of Commerce, 114 M.S.P.R. 281, ¶ 12 (2010). Factors the Board will
     consider include undue time pressure on retirement decisions and agency bad
     faith in encouraging retirement, as well as unreasonably difficult working
     conditions caused by the agency.           Jones v. Department of the Treasury,
     107 M.S.P.R. 466, ¶ 10 (2007).        To establish entitlement to a hearing on
     jurisdiction, an appellant need not allege facts that, if proven, definitely would
     establish that the retirement was involuntary; he need only allege facts that, if
                                                                                        5

     proven, could establish such a claim.        Frison v. Department of the Army,
     94 M.S.P.R. 431, ¶ 4 (2003).
¶8         We agree with the administrative judge that the appellant failed to
     nonfrivolously allege facts that, if proven, could rebut the presumption of
     voluntariness and entitle him to a hearing at which he could prove that his
     retirement was involuntary.     ID at 4-7; Burgess v. Merit Systems Protection
     Board, 758 F.2d 641, 643 (Fed. Cir. 1985) (finding that an appellant is entitled to
     a hearing on the issue of jurisdiction over an appeal of an allegedly involuntary
     retirement only if he makes a nonfrivolous allegation casting doubt on the
     presumption of voluntariness). Thus, the administrative judge properly dismissed
     the appeal without holding a hearing. Id. As the administrative judge correctly
     observed, despite all of the issues the appellant raised in his appeal, he could have
     simply remained in his position.      See Schultz v. U.S. Navy, 810 F.2d 1133,
     1136‑37 (Fed. Cir. 1987) (finding that 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 her ultimate choice of resignation). The
     frustrations the appellant describes do not change that fact and we find that a
     reasonable person under these circumstances would not have felt compelled to
     resign. Although the appellant contends on review that there would be no more
     opportunities for promotion, we agree with the administrative judge that he
     identified no evidence that this was the case, ID at 5-6, and we find the same is
     true for the appellant’s assertions that he could not be reassigned to a position
     with a different supervisor, PFR File, Tab 1 at 6-7; see 5 C.F.R. § 1201.4(s)
     (stating, in pertinent part, that a nonfrivolous allegation is one that is more
     than conclusory).
¶9         We also agree that the appellant failed to substantiate his claim that the
     agency discriminated against him on the basis of his age or that it retaliated
     against him for his prior equal employment opportunity activity.          ID at 6‑7.
                                                                                  6

When an appellant raises claims of discrimination and retaliation in connection
with a determination of voluntariness, evidence of discrimination or retaliation
may be addressed only insofar as it relates to the issue of voluntariness and not to
whether the evidence would establish discrimination or retaliation as an
affirmative defense. Pickens v. Social Security Administration, 88 M.S.P.R. 525,
¶ 6 (2001). Here, nothing that the appellant claims as either discriminatory or
retaliatory, even if true, changes the basic fact that he could have continued to
stay and perform in his position.       We conclude, as stated above, that the
appellant’s working conditions and the choices he had to face were not so
intolerable that a reasonable person in his position would have chosen to retire.
Consequently, we affirm the administrative judge’s determination to dismiss the
appeal for lack of jurisdiction.

                NOTICE TO THE APPELLANT REGARDING
                   YOUR FURTHER REVIEW RIGHTS
      You have the right to request review of this final decision by the U.S.
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
                                                                                  7

title 5 of the U.S. 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 U.S. 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 U.S. 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:                            ______________________________
                                          Jennifer Everling
                                          Acting Clerk of the Board
Washington, D.C.
