                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     LUTRELL DENSON,                                 DOCKET NUMBER
                  Appellant,                         PH-0752-14-0671-I-1

                  v.

     UNITED STATES POSTAL SERVICE,                   DATE: April 3, 2015
                   Agency.



                THIS FINAL ORDER IS NO NPRECEDENTIAL 1

           Lutrell Denson, Philadelphia, Pennsylvania, pro se.

           Robert L. Sawicki, Philadelphia, Pennsylvania, 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 alleged 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 interpretation of statute or regulation or the erroneous application of

     1
        A nonprecedential order is one that the Board has determined does not add
     sign ificantly 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 Parties may cite nonprecedential orders,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 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        Effective September 1, 2013, the appellant retired from her position of
     Supervisor, Customer Services.     Initial Appeal File (IAF), Tab 5 at 34.       She
     subsequently filed an equal employment opportunity (EEO) complaint alleging
     that she was discriminated against based on her race, sex, and age and that such
     discrimination elevated her stress to the extent that she was forced to retire. Id.
     at 32-33; see IAF, Tab 6 at 26-27. On April 2, 2014, the agency issued a final
     agency decision (FAD) finding no discrimination and that a reasonable person in
     the appellant’s position would not have felt compelled to retire.       IAF, Tab 1
     at 9-26. The appellant filed this appeal of the FAD and requested a hearing. Id.
     at 1-6. In separate acknowledgment and jurisdiction orders, the administrative
     judge informed the appellant that a retirement is presumed to be voluntary and
     not within the Board’s jurisdiction. IAF, Tabs 2, 4. The administrative judge
     stated that the appellant would be granted a jurisdictional hearing only if she
     made a nonfrivolous allegation of fact that could support a prima facie case of
     involuntariness.   IAF, Tabs 2, 4.     The administrative judge also ordered the
     appellant to file evidence and argument on the jurisdictional issue. IAF, Tabs 2,
     4. In response to the jurisdiction order, the agency submitted a narrative response
     and a motion to dismiss the appeal for lack of jurisdiction. IAF, Tab 5. The
                                                                                            3

     appellant also filed a narrative statement and evidence on the jurisdictional issue.
     IAF, Tab 6.     Without holding the requested hearing, the administrative judge
     issued an initial decision dismissing the appeal because the appellant failed to
     make a nonfrivolous allegation of jurisdiction. IAF, Tab 7, Initial Decision (ID)
     at 1, 8-9.
¶3         The appellant has filed a petition for review. Petition for Review (PFR)
     File, Tab 1.    The agency has filed a response to the petition for review in
     opposition. PFR File, Tab 3. The appellant has filed a reply to the agency’s
     response. PFR File, Tabs 4-7. 2
     The administrative judge properly dismissed the appeal because the appellant
     failed to make a nonfrivolous allegation of jurisdiction.
¶4         An employee-initiated action, such as a retirement, is presumed to be
     voluntary and thus outside the Board’s jurisdiction.         Vitale v. Department of
     Veterans Affairs, 107 M.S.P.R. 501, ¶ 17 (2007). An involuntary retirement is
     tantamount to a removal, however, and is therefore subject to the Board’s
     jurisdiction. Id. To overcome the presumption that a retirement is voluntary, an
     employee     must   show that     the   retirement   was the      product of agency
     misinformation, deception, or coercion.            Id., ¶ 19.     The touchstone of
     voluntariness analysis is whether, considering the totality of the circumstances,
     factors operated on the employee’s decision-making process that deprived her of
     freedom of choice. Id. Application of this totality of the circumstances test must
     be gauged by an objective standard rather than the employee’s purely subjective
     evaluation. Heining v. General Services Administration, 68 M.S.P.R. 513, 519-20
     (1995).


     2
       On October 23, 2014, the Clerk of the Board received the appellant’s reply to the
     agency’s response. PFR File, Tab 4. On March 9, 2015, the Clerk of the Board issued
     a notice advising the parties that a portion of the appellant’s reply had been misplaced;
     the notice requested that the appellant re-submit the reply and that the agency submit a
     copy of the appellant’s reply as served on the agency. PFR File, Tab 5. The parties
     complied with the request. PFR File, Tabs 6-7.
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¶5        To establish involuntariness on the basis of coercion, an employee must
     show that the agency effectively imposed the terms of the retirement, the
     employee had no realistic alternative but to retire, and the retirement was the
     result of improper acts by the agency. Vitale, 107 M.S.P.R. 501, ¶ 19. Where, as
     here, intolerable working conditions are alleged, the Board will find an action
     involuntary only if the employee demonstrates that the agency engaged in an
     improper 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
     retire. See id., ¶ 20; see also Bean v. U.S. Postal Service, 120 M.S.P.R. 397, ¶ 11
     (2013) (an appellant must show improper agency action in a constructive adverse
     action appeal). The Board addresses allegations of discrimination and reprisal in
     connection with an alleged involuntary retirement only insofar as those
     allegations relate to the issue of voluntariness. Vitale, 107 M.S.P.R. 501, ¶ 20.
¶6        The appellant bears the burden of establishing the Board’s jurisdiction by a
     preponderance of the evidence.       Id., ¶ 17; 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 retirement only if she 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). Nonfrivolous allegations
     of Board jurisdiction are allegations of fact that, if proven, could establish a
     prima facie case that the Board has jurisdiction over the matter at issue. Green v.
     Department of Veterans Affairs, 112 M.S.P.R. 59, ¶ 6 (2009).
¶7        In her EEO complaint, the appellant made the following six allegations of
     the agency’s improper conduct: (1) she was improperly granted leave without
     pay (LWOP) under the Family and Medical Leave Act (FMLA) instead of FMLA
     sick leave; (2) her postmaster ceased communicating with her when she returned
     from FMLA LWOP and did not discuss her schedule with her; (3) her postmaster
     yelled at her, saying, “if you cannot get this mail up you’re out!”; (4) her manager
     gave her a Letter of Warning regarding her authorization for an employee to work
                                                                                       5

     his non-scheduled day without proper higher level authorization; (5) her
     postmaster spoke about her in a meeting of all supervisors without giving her a
     chance to respond after she personally pushed mail off a truck when she was
     short-staffed; and (6) her manager placed her on a performance improvement plan
     (PIP). See IAF, Tab 1 at 14-18. In her response to the jurisdiction order, the
     appellant reasserted the six allegations and provided supplementary background
     information surrounding the agency’s conduct. IAF, Tab 6. In finding that the
     appellant did not make nonfrivolous allegations of intolerable working
     conditions, the administrative judge reasoned that “the appellant’s assertions
     relate to disagreements she had with her supervisors’ attempts to correct her
     scheduling and performance issues” and that the appellant “was afforded an
     opportunity to improve her performance but did not allow the PIP to run its
     course” and instead made the voluntary decision to retire. ID at 8.
¶8        We agree that the appellant failed to nonfrivolously allege intolerable
     working conditions. We find that a reasonable person in the appellant’s position
     would not have felt compelled to retire. See Miller v. Department of Defense,
     85 M.S.P.R. 310, ¶ 32 (2000) (finding that 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). Her contentions do not nonfrivolously allege that the agency effectively
     denied her freedom of choice because she voluntarily chose to retire instead of
     completing the PIP. To the extent that she believed that she would be subject to
     future disciplinary action 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 Schultz v. U.S. Navy,
     810 F.2d 1133, 1136 (Fed. Cir. 1987) (“[W]here an employee is faced merely
     with the unpleasant alternatives of resigning or being subject to removal for
     cause, such limited choices do not make the resulting resignation an involuntary
     act.”); see also Holman v. Department of the Treasury, 9 M.S.P.R. 218, 220
                                                                                        6

     (1981), aff’d, 703 F.2d 584 (Fed. Cir. 1982) (Table). On review, the appellant
     challenges the imposition of the PIP as improper.       PFR File, Tab 1 at 13-14,
     Tab 6 at 11-12. The appellant’s placement on the PIP is outside the scope of the
     Board’s jurisdiction. See Shaishaa v. Department of the Army, 58 M.S.P.R. 450,
     454 (1992); see also 5 C.F.R. § 1201.3. Further, the appellant’s claims in this
     regard do not constitute a nonfrivolous allegation that she was subjected to
     circumstances that would have compelled a reasonable person to retire. Instead
     of retiring based on her speculation that a disciplinary action might occur in the
     future, she had an option of contesting an action she thought was invalid if and
     when it did occur. See Brown v. U.S. Postal Service, 115 M.S.P.R. 609, ¶ 15,
     aff’d, 469 F. App’x 852 (Fed. Cir. 2011) (unpublished); see also Garcia v.
     Department of Homeland Security, 437 F.3d 1322, 1329 (Fed. Cir. 2006) (a
     resignation is not involuntary if the employee had a choice of whether to resign or
     contest the validity of the agency action).
¶9        The appellant alleges on review that the agency denied her request for
     annual leave. PFR File, Tab 1 at 8. We find that her argument regarding annual
     leave does not nonfrivolously allege a working condition so intolerable as to
     compel a reasonable person to retire. She further alleges that the agency denied
     her request “to be reassigned to a limited duty position through Injury
     Compensation” because she had already accepted a permanent limited duty
     position.   PFR File, Tab 1 at 15, Tab 6 at 13.       We find that the appellant’s
     argument regarding reassignment is not a nonfrivolous allegation of intolerable
     working conditions because she already had a limited duty position that took
     account of her medical restrictions.     See PFR File, Tab 1 at 6, Subtab 2; cf.
     Morman v. Department of Defense, 90 M.S.P.R. 197, ¶¶ 9-10 (2001) (finding an
     appellant’s assertion that the agency refused to grant a medically-supported
     change in her work schedule was a nonfrivolous allegation of jurisdiction). She
     also alleges that her manager sent her an official directive letter compelling her to
     provide medical documentation to substantiate her absence from duty or be
                                                                                         7

      charged with being absent without leave (AWOL) and be subject to possible
      disciplinary action. PFR File, Tab 1 at 12, 14, Subtab 7. She alleges that the day
      she was absent for duty was her scheduled day off for therapy approved by the
      Department of Labor and paid through injury compensation and that she had
      informed her manager beforehand that she would be missing work under her
      doctor’s orders. PFR File, Tab 1 at 12, 14. We find that the appellant’s argument
      regarding the agency’s official directive letter does not nonfrivolously allege
      intolerable working conditions because the letter contemplates future actions,
      such as being charged with AWOL and subject to disciplinary action, which she
      could have contested if and when they occurred. See Brown, 115 M.S.P.R. 609,
      ¶ 15.     A reasonable person in the appellant’s position would not have felt
      compelled to retire based on the official directive letter. See id., ¶ 10.
¶10           Finally, the appellant asserts that she had no other option than to retire in
      order to control the mental and physical symptoms of her diagnosed
      post-traumatic stress disorder (PTSD). PFR File, Tab 1 at 2-15, Tab 6 at 12-14.
      She states that she did not raise this issue below because it was “stressful and
      difficult for [her] both mentally and physically to relive and recall” her PTSD
      history. PFR File, Tab 1 at 2-3. The administrative judge’s jurisdictional order
      expressly advised the appellant of when the record would close and that she
      would not accept any evidence or argument on the jurisdictional issue submitted
      after the close of record unless it was not readily available before the close of
      record.    IAF, Tab 4 at 3.    Because the appellant failed to raise this argument
      below and has not shown that evidence of her PTSD was unavailable despite her
      due diligence when the record closed, we will not address this claim further. See
      Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271 (1980); see also
      5 C.F.R. § 1201.115(d).
¶11           After a thorough review of the record, we find that the appellant did not
      make a nonfrivolous allegation that the agency forced her retirement, and her
                                                                                    8

decision to retire appears to have been entirely self-initiated. Accordingly, the
appellant does not provide reason to disturb the administrative judge’s decision.

                  NOTICE TO THE APPELLANT REGARDING
                     YOUR FURTHER REVIEW RIGHTS 3
     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.

3
   The administrative judge afforded the appellant m ixed-case review rights. ID
at 13-14. However, in the absence of Board jurisdiction, this is not a mixed case. We
have provided the appellant the proper review rights here. See, e.g., Axsom v.
Department of Veterans Affairs, 110 M.S.P.R. 605 (2009).
                                                                             9

     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 providin g 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.
