                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     PAMELA J. PETROSKEY,                            DOCKET NUMBER
                   Appellant,                        AT-0752-16-0443-I-1

                  v.

     SOCIAL SECURITY                                 DATE: September 9, 2016
       ADMINISTRATION,
                   Agency.



         THIS FINAL ORDER IS NONPRECEDENTIAL *

           Pamela J. Petroskey, Palmetto, Florida, pro se.

           Ashley M. Johnson, Esquire, Atlanta, Georgia, 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,
     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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

                      DISCUSSION OF ARGUMENTS ON REVIEW
¶2         On January 31, 2015, the appellant retired from her position as a GS-12
     Technical Expert. Initial Appeal File (IAF), Tab 1 at 1, 8. Thereafter, she filed a
     formal equal employment opportunity (EEO) complaint alleging, among other
     things, that she had been forced to retire due to a hostile work environment and
     harassment based on age (over 40) and gender. Id. at 8-13; IAF, Tab 11 at 16-30.
     On March 25, 2016, the agency issued a final agency decision finding that the
     appellant failed to show that the agency forced her to retire and finding that the
     agency did not constructively discharge her when she retired and that she failed to
     prove that the agency discriminated against her as alleged. IAF, Tab 1 at 8‑20.
¶3         On April 11, 2016, the appellant timely appealed her alleged involuntary
     retirement to the Board and requested a hearing. IAF, Tab 1. The administrative
     judge issued a jurisdictional order informing the appellant that the Board lacks
     jurisdiction over voluntary actions, such as resignations and retirements, and
     ordered her to submit evidence and argument amounting to a nonfrivolous
     allegation that her retirement was involuntary because of duress, coercion, or
                                                                                               3

     misrepresentation by the agency.           IAF, Tab 6.   The parties responded to the
     jurisdictional order, and the agency moved to dismiss the appeal for lack of
     jurisdiction. IAF, Tabs 10-11.
¶4         In an initial decision, the administrative judge found that the appellant
     failed to make a nonfrivolous allegation that her retirement was involuntary and
     dismissed the appeal for lack of jurisdiction without holding the appellant’s
     requested hearing. IAF, Tab 12, Initial Decision (ID). The administrative judge
     also found that, absent an otherwise appealable action, the Board lacked
     jurisdiction to address the appellant’s discrimination claims.             ID at 8.     The
     appellant has filed a petition for review of the initial decision, and the agency has
     responded in opposition. Petition for Review (PFR) File, Tabs 1, 4.
¶5         Generally, the Board lacks the authority to review an employee’s decision
     to retire, which is presumed to be a voluntary act.                Brown v. U.S. Postal
     Service, 115 M.S.P.R. 609, ¶ 9, aff’d, 469 F. App’x 852 (Fed. Cir. 2011).
     However, an appellant may overcome the presumption of voluntariness by
     showing that her retirement was the product of misinformation or deception by
     the agency, or of coercive acts by the agency, such as intolerable working
     conditions or the unjustified threat of an adverse action.                  SanSoucie v.
     Department of Agriculture, 116 M.S.P.R. 149, ¶ 14 (2011). An appellant is only
     entitled to a jurisdictional hearing over an alleged involuntary retirement if she
     makes    a   nonfrivolous     allegation    casting   doubt   on    the   presumption    of
     voluntariness.   Id., ¶ 16.     Nonfrivolous allegations of Board jurisdiction are
     allegations of fact that, if proven, could show Board jurisdiction over the matter
     at issue. Id.
¶6         To establish involuntariness on the basis of coercion, an employee must
     show that the agency effectively imposed the terms of the employee’s retirement,
     the employee had no realistic alternative but to retire, and the employee’s
     retirement was the result of improper acts by the agency. Staats v. U.S. Postal
     Service, 99 F.3d 1120, 1124 (Fed. Cir. 1996); Vitale v. Department of Veterans
                                                                                       4

     Affairs, 107 M.S.P.R. 501, ¶ 19 (2007). The touchstone of the “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. Vitale, 107 M.S.P.R. 501, ¶ 19.
¶7        When, as here, the employee alleges that the agency took actions that made
     her working conditions so intolerable that she was driven to an involuntary
     retirement, the Board will find her retirement involuntary only if she
     demonstrates that the agency engaged in a course of action that made her working
     conditions so difficult or unpleasant that a reasonable person in her position
     would have felt compelled to resign or retire.        Id., ¶ 20.   In making this
     determination, the Board will consider allegations of discrimination and reprisal
     only insofar as they relate to the issue of voluntariness and not whether they
     would establish discrimination or reprisal as an affirmative defense. Id.
¶8        In the appellant’s EEO complaint, she alleged that the agency harassed her
     and subjected her to a hostile work environment when, from May 2014 through
     January 31, 2015, her supervisors:     (1) criticized her and gave her a written
     reprimand for starting work before 7:00 a.m.; (2) failed to pay her overtime on
     the two to four times per year when they asked her to open the office door in the
     morning for her coworkers; (3) assigned her more cases than they assigned to
     younger employees and did not give her “desk days” to catch up on her work, as
     they did for male employees; (4) told her she could not wear tennis shoes in the
     office on one occasion; (5) told her that she had not properly explained something
     to a claimant on one occasion; and (6) gave her an incorrect performance
     appraisal in October 2014. IAF, Tab 1 at 8-13, Tab 11 at 16-29. The appellant
     claimed that these incidents forced her to retire because she “could not work
     under those conditions any longer and it was affecting [her] health.”          IAF,
     Tab 11 at 29. In response to the administrative judge’s jurisdictional order, the
     appellant asserted that she was “compelled to retire under duress” because “[t]he
     bullying, sex and age discrimination, as well as the hostile work environment
                                                                                        5

      caused [her] great emotional stress,” which “caused [her] physical pain, stress
      eating, chest pains, anxiety, panic attacks and sleeplessness.” IAF, Tab 10 at 1.
      She also stated that she was “diagnosed with an ulcer due to stress in
      January 2015.” Id.
¶9         As noted above, the administrative judge determined that the appellant
      failed to nonfrivolously allege that her retirement was involuntary. ID at 6-8. In
      so finding, the administrative judge explained that, even if true, the events
      described by the appellant, such as disagreements over work hours and
      assignments, job performance, and office attire, amounted to routine workplace
      occurrences between employees and supervisors. ID at 7. The administrative
      judge also found that nothing in the record suggested that the appellant was
      deprived of free choice in deciding to retire. ID at 7-8. On review, the appellant
      reiterates her contention that the agency subjected her to a hostile work
      environment and complains that her supervisors “purposefully overloaded” her
      with work and ignored her requests for assistance, which caused her stress and
      anxiety, and left her “no choice but to retire.” PFR File, Tab 1 at 3-5.
¶10        It is well settled, however, that an employee is not guaranteed a stress-free
      work environment and dissatisfaction with work assignments, a feeling of being
      unfairly criticized, or difficult or unpleasant working conditions generally are not
      so intolerable as to compel a reasonable person to resign. Brown, 115 M.S.P.R.
      609, ¶ 15; Miller v. Department of Defense, 85 M.S.P.R. 310, ¶ 32 (2000).
      Likewise, an employee’s dissatisfaction with her performance rating would not
      compel a reasonable person to resign.      See Neice v. Department of Homeland
      Security, 105 M.S.P.R. 211, ¶ 9 (2007). Here, the appellant has alleged that she
      was dissatisfied with her supervisors, her work assignments, work schedule, one
      performance evaluation, and the lack of overtime pay on two to four occasions
      per year. She has further alleged that her work environment was stressful and
      that the stress exacerbated her medical conditions. However, we agree with the
      administrative judge that she has failed to make a sufficient allegation of a
                                                                                     6

      coercive or improper act on the agency’s part that could have left a reasonable
      person in her position with no other choice but to retire. See Staats, 99 F.3d at
      1124 (explaining that the narrow doctrine of coercive involuntariness applies
      when a decision to retire “was the result of improper acts by the agency” and not
      merely when an employee retires because “he does not want to accept [actions]
      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”); Vitale, 107 M.S.P.R. 501, ¶ 26 (finding that, although an
      agency official may have caused an appellant apprehension, which exacerbated
      his medical ailments, he failed to establish that his working conditions were so
      intolerable that a reasonable person in his position would have felt compelled to
      retire).
¶11         Based on the foregoing, we find that the administrative judge properly
      dismissed this appeal for lack of jurisdiction without holding a hearing.

                      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).
                                                                                  7

      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 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.
