                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     PAUL MENARD,                                    DOCKET NUMBER
                         Appellant,                  SF-0752-13-4803-I-1

                  v.

     DEPARTMENT OF THE INTERIOR,                     DATE: August 27, 2014
                 Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Paul Menard, Bellingham, Washington, pro se.

           Martha F. Ansty, Esquire, Essex Junction, Vermont, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     dismissed his involuntary resignation 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


     1
        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 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. Except as expressly modified by this Final Order,
     we AFFIRM the initial decision.
¶2         The appellant’s duty station was Glen Jean, West Virginia. Initial Appeal
     File (IAF), Tab 5, Subtab 4t at 1. In November of 2010, the appellant moved to
     Montana, at his own expense, for personal reasons. IAF, Tab 8 at 2, 5. However,
     the   agency executed     a   telework   arrangement,   primarily   to    temporarily
     accommodate his personal needs.       Id.; IAF, Tab 5, Subtab 4s.        Although he
     continued to work for the West Virginia office, the agency changed the
     appellant’s duty station of record to his new home in Montana.           IAF, Tab 5,
     Subtab 4p.
¶3         By at least February of 2012, the agency was no longer satisfied with the
     telework arrangement. See IAF, Tab 5, Subtab 4m at 1. Not wanting to return to
     West Virginia, the appellant suggested a variety of options to facilitate his
     separation. Id. at 1-3. Among them, he requested a change in duty station to
     Bellingham, Washington, to accommodate both a job search and his family’s
     wishes. Id. at 2. The agency changed his duty station and telework agreement
     accordingly. IAF, Tab 5, Subtab 4k, Subtab 4l at 3. However, the appellant
     cancelled his plans to move, and the agency cancelled the change in duty station
     for his convenience. IAF, Tab 5, Subtab 4f; see IAF, Tab 8 at 6 (containing an
                                                                                             3

     explanation from the appellant that his move to Washington did not happen
     because of the terms of a lease and a family medical issue).
¶4           In May of 2012, the agency notified the appellant that it would be
     terminating his telework arrangement based on agency needs, effective June of
     2012. IAF, Tab 5, Subtab 4j. The agency provided advance notice to give the
     appellant time to arrange his return to West Virginia. Id.
¶5           Days before he was scheduled to appear for work in West Virginia, the
     appellant requested a temporary extension of the telework arrangement to
     accommodate his family. IAF, Tab 5, Subtab 4g. The agency denied this request,
     citing an urgent need at the West Virginia office and the exhaustion of tasks that
     could be completed remotely.        IAF, Tab 8 at 3.      Consequently, the appellant
     submitted a letter of resignation, effective July 2, 2012. IAF, Tab 5, Subtab 4c.
¶6           The appellant filed an appeal with the Board in August of 2013. IAF, Tab 1
     at 5. The administrative judge issued an acknowledgment order, construing the
     appeal as one of involuntary resignation 2 and directing the appellant to meet his
     burden of proving that the Board had jurisdiction over his claim. 3 IAF, Tab 2
     at 2.   The appellant responded, arguing that his resignation was the result of
     duress, coercion, and misrepresentation by the agency.           IAF, Tab 4 at 4.     He
     alleged that the agency misrepresented its actions as the cancelling of the

     2
       The narrative included in the appellant’s initial appeal also alleged that he was forced
     to take leave from June 17, 2012, until July 2, 2012. IAF, Tab 1 at 5. However, the
     allegation was intertwined with the appellant’s argument that his work environment had
     become hostile and forced his resignation. Id. The appellant’s pleadings did not appear
     to assert his leave as a claim separate from his allegation of involuntary resignation.
     Moreover, the record contains no indication that his leave was forced. Instead, the
     evidence of record indicates that the agency allowed the appellant to take leave until
     July 2, 2012, to accommodate his return to West Virginia from Montana. IAF, Tab 8 at
     1; see Yarnell v. Department of Transportation, 109 M.S.P.R. 416, ¶ 10 (2008) (an
     employee’s voluntary placement in a leave status is not appealable).
     3
       The order also directed the appellant to prove the timeliness of his appeal, as it had
     been filed more than a year after his resignation. IAF, Tab 2 at 3. However, because
     the judge found that the Board lacked jurisdiction, the judge’s dismissal did not address
     the timeliness of the appeal. IAF, Tab 10, Initial Decision (ID) at 1 n.1.
                                                                                           4

     telework arrangement when it should have instead provided him rights associated
     with a directed reassignment or reduction in force (RIF). Id. at 6. According to
     the appellant, this coerced him into resigning.        Id.   The agency submitted a
     motion to dismiss. IAF, Tab 9 at 4-10.
¶7         Without holding a hearing, the administrative judge dismissed the appeal
     for lack of jurisdiction. ID. He concluded that the appellant failed to present a
     nonfrivolous allegation that his resignation was involuntary.          ID at 9.    The
     appellant has filed a petition for review. Petition for Review (PFR) File, Tab 1.
     The agency has filed a response. PFR File, Tab 3.

     The appellant failed to nonfrivolously allege that his resignation was involuntary
     due to coercion. 4

¶8         The Board’s jurisdiction is not plenary; it is limited to those matters over
     which it has been given jurisdiction by law, rule or regulation. Maddox v. Merit
     Systems Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). An appellant has the
     burden of proving, by preponderant evidence, 5 that his appeal is within the
     Board’s jurisdiction. 5 C.F.R. § 1201.56(a)(2)(i).
¶9         An employee-initiated action, such as a resignation, is presumed to be
     voluntary and thus outside the Board’s jurisdiction. Gibeault v. Department of
     the Treasury, 114 M.S.P.R. 664, ¶ 6 (2010).              In order to overcome the
     presumption that a resignation was voluntary, an appellant must show that: (1) the
     resignation was the product of misinformation or deception by the agency; or
     (2) the resignation was the product of coercion by the agency.                Vitale v.


     4
        The appellant’s petition for review appears premised on allegations of
     misrepresentation rather than coercion. See PFR File, Tab 1 at 5-6. However, to the
     extent that he intended to intertwine arguments of misrepresentation and coercion, as he
     did below, we will address each. See Hosozawa v. Department of Veterans Affairs,
     113 M.S.P.R. 110, ¶ 7 (2010) (pro se filings are to be construed liberally).
     5
      A preponderance of the evidence is the degree of relevant evidence that a reasonable
     person, considering the record as a whole, would accept as sufficient to find that a
     contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.56(c)(2).
                                                                                              5

      Department of Veterans Affairs, 107 M.S.P.R. 501, ¶ 19 (2007). An appellant is
      entitled to a jurisdictional hearing if he makes a nonfrivolous allegation 6 that the
      Board has jurisdiction over his appeal. Gibeault, 114 M.S.P.R. 664, ¶ 6.
¶10         In his initial appeal, the appellant asserted that “the agency created a hostile
      work environment through repeated misrepresentation of facts, false accusations,
      hostile posturing, and punitive acts,” coercing him to resign. IAF, Tab 4 at 4, 6.
      According to the appellant, he was “duped into a game of bait-and-switch.” Id. at
      5. However, the administrative judge concluded that the appellant’s resignation
      was not involuntary due to coercion, ID at 8-9, and we agree.
¶11         To establish involuntariness on the basis of coercion, an appellant must
      show that the agency effectively imposed the terms of the resignation, the
      appellant had no realistic alternative but to resign, and his resignation was the
      result of improper acts by the agency.        Vitale, 107 M.S.P.R. 501, ¶ 19.        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 him of freedom of choice. Id.
¶12         One example of an involuntary resignation based on coercion is a
      resignation induced by a threat to take a disciplinary action that the agency knows
      cannot be substantiated. Staats v. U.S. Postal Service, 99 F.3d 1120, 1124 (Fed.
      Cir. 1996). A resignation also is coerced where an agency takes steps against an
      employee, “not for any legitimate agency purpose but simply to force the
      employee to quit.” Id. However, “[t]he doctrine of coercive involuntariness is a
      narrow one.” Id. An employee’s decision to resign to avoid a transfer that an
      agency has the authority to direct is not involuntary, even if it makes the job “so
      unpleasant for the employee that he feels that he has no realistic option but to



      6
        Nonfrivolous allegations of Board jurisdiction are allegations of fact which, if proven,
      could establish a prima facie case that the Board has jurisdiction over the matter at
      issue. Gibeault, 114 M.S.P.R. 664, ¶ 6.
                                                                                       6

      leave.”   Id.   The employee’s decision is not made involuntary merely by the
      requirement that he choose between two unattractive alternatives. Id.
¶13        Here, the record is filled with evidence that the appellant’s move to
      Montana was intended as a temporary accommodation to meet his personal needs.
      See, e.g., IAF, Tab 8 at 5-6, 9 (acknowledging that the move to Montana was to
      accommodate the appellant’s personal needs, was not intended to be permanent,
      and was to be reevaluated a year after its inception). The record also establishes
      that the appellant’s return to West Virginia was necessary to meet organizational
      needs.    See, e.g., id. at 3-4 (detailing organizational changes, including the
      passing of another agency employee, that made the physical presence of the
      appellant’s position in West Virginia critical, and indicating that the agency had
      no more tasks that could be performed remotely). Finally, the record establishes
      that the agency provided the appellant with almost 1-month’s advance notice to
      return to West Virginia, after previously advising him that the telework
      arrangement was nearing its close. IAF, Tab 5, Subtab 4m at 1-3 (February 23,
      2012 email from the appellant preparing for an end to the telework arrangement),
      Subtab 4j (May 9, 2012 notice directing the appellant to return to West Virginia
      by June 4, 2012), Tab 8 at 1, 3 (June 8, 2012 letter reflecting discussions dating
      from February 2012 of the planned termination of the telework arrangement and
      permitting the appellant to take leave as needed before reporting to West Virginia
      by July 2, 2012).
¶14        None of the evidence in the record suggests that the agency took steps to
      force the appellant to quit. While the appellant may have preferred to stay in
      Montana, he failed to nonfrivolously allege that his decision to resign rather than
      return to West Virginia was coerced.

      The appellant failed to nonfrivolously allege that his resignation was involuntary
      due to misinformation.

¶15        The appellant alleged, both below and on petition for review, that his
      resignation was involuntary due to misinformation. IAF, Tab 4 at 4, 6; PFR File,
                                                                                              7

      Tab 1 at 6. According to the appellant, he was “deprived of critical information”
      regarding the directive to return to West Virginia, which prevented him from
      making an informed decision. PFR File, Tab 1 at 6. We disagree. 7
¶16         To establish involuntariness on the basis of misinformation, an appellant
      must show that the agency provided misinformation, he materially relied on that
      misinformation, and his reliance was to his detriment.            Paige v. U.S. Postal
      Service, 106 M.S.P.R. 299, ¶ 9 (2007).            Here, the appellant’s argument is
      premised on the assertion that the agency was not only cancelling a telework
      arrangement, it was also subjecting him to a directed reassignment or a RIF. IAF,
      Tab 4 at 6; PFR File, Tab 1 at 6. He suggests that the agency never informed him
      that it could require his return to West Virginia by simply cancelling the telework
      agreement. PFR File, Tab 1 at 6.
¶17         Although the appellant alleges that he was misinformed about the agency’s
      ability to require his return to West Virginia and that this resulted in his
      resignation, the record reflects otherwise.          As detailed above, the record
      establishes that the telework arrangement was intended to be temporary. Two
      weeks after receiving official notice that his telework arrangement would not be
      continued, the appellant responded to the agency by letter stating, in pertinent
      part, that his move to Montana was intended to be a temporary solution to his
      personal needs, and that he would have to return to West Virginia or be “off the
      roles” at some point. IAF, Tab 8 at 5-6, 9. The letter also includes the remark, “I
      do not dispute the agency’s authority to terminate our telework agreement or
      reassign me.” Id. at 5.
¶18         While the appellant puts great emphasis on the fact that the duty station on
      his Standard Form 50 listed his home in Montana, the location of the position
      continued to be listed as Glen Jean, West Virginia.           IAF, Tab 5, Subtab 4k.
      Further, the telework agreement provided that the agency could suspend it and
      7
        We modify the initial decision, which did not specifically address this argument, to
      include our finding that the appellant’s resignation was not the result of misinformation.
                                                                                        8

      “require the employee to resume working at the official duty station.” IAF, Tab
      5, Subtab 4l at 6. The appellant was well-informed that the arrangement was
      temporary. See, e.g., IAF, Tab 5, Subtab 4m at 2 (stating, “[i]f I were single and
      unencumbered I would move back tomorrow,” while indicating that personal
      circumstances made the move difficult), Subtab 4r (email chain in which the
      agency expressed its reluctance to change the appellant’s duty station and the
      appellant advised that it was necessary for him for residency and tax reasons),
      Tab 8 at 9 (acknowledging that a claim of relocation expenses to return to West
      Virginia would “violate the spirit and intent of our agreement” (emphasis in
      original)). Therefore, the appellant failed to meet his burden of nonfrivolously
      alleging that his resignation was involuntary due to misinformation.

      The appellant’s allegation that he was subject to a directed reassignment does not
      bring his appeal within the Board’s jurisdiction.

¶19        The appellant argues that the agency subjected him to a directed
      reassignment, for which he should have been provided “regulations and
      entitlements.” IAF, Tab 4 at 6; see PFR File, Tab 1 at 6. He questioned the
      agency’s authority to force his return to West Virginia. PFR File, Tab 1 at 6.
¶20        Although the appellant alleged that he was due reassignment rights, the
      Board lacks jurisdiction over reassignments absent a reduction in grade or pay, or
      unless the reassignment resulted in a coerced resignation or a removal.          See
      Miller v. Department of Interior, 120 M.S.P.R. 426, ¶¶ 9-24 (2013) (an agency
      must have a bona fide reason for a directed geographic reassignment and may not
      reassign an employee as a veil to effect separation); Bishop v. Department of
      Commerce, 62 M.S.P.R. 138, 141-42 (1994). Here, the appellant’s grade and pay
      remained the same despite the directive to return to West Virginia from Montana.
      IAF, Tab 5, Subtabs 4e, 4p.      Further, as discussed above, we find that the
      appellant’s resignation was not coerced.     While the appellant alleges that his
      resignation was an involuntary result of the agency’s directive to return to West
      Virginia, he has not alleged that the agency had an improper motive for directing
                                                                                       9

      this return. Instead, the record establishes that the agency had a bona fide reason
      for requiring that he return to West Virginia. IAF, Tab 8 at 3; see IAF, Tab 5,
      Subtab 4m at 1 (email from the appellant acknowledging that the telework
      arrangement was negatively impacting the agency’s operations). Therefore, even
      if the cancellation of his telework arrangement amounted to a directed
      reassignment, as the appellant alleges, this does not bring his appeal within the
      Board’s jurisdiction.

      The appellant was not subjected to a RIF.
¶21        The appellant argues that he was subjected to a RIF, for which he should
      have been provided rights. IAF, Tab 4 at 6; PFR File, Tab 1 at 6. We disagree.
¶22        A RIF is an administrative procedure by which an agency eliminates jobs
      for certain listed reasons, including lack of work or reorganization, and releases
      employees from their competitive levels by furlough of more than 30 days,
      separation, demotion, or reassignment requiring displacement.      Burger v. U.S.
      Postal Service, 93 M.S.P.R. 582, ¶ 9 (2003), aff’d sub nom. Hayes v. U.S. Postal
      Service, 390 F.3d 1373 (Fed. Cir. 2004); 5 C.F.R. § 351.201(a)(2). An employee
      who has been furloughed for more than 30 days, separated, or demoted by a RIF
      may appeal to the Board. Bodus v. Department of the Air Force, 82 M.S.P.R.
      508, ¶ 7 (1999); 5 C.F.R. § 351.901.
¶23        As previously explained, the agency directed the appellant to return to West
      Virginia, but he was not furloughed for more than 30 days, separated, or demoted
      by a RIF. Further, where, as here, an agency action is directed at an individual,
      rather than a position, it is not a RIF. E.g., LaMell v. Armed Forces Retirement
      Home, 104 M.S.P.R. 413, ¶ 11 (2007); Baker v. Department of Homeland
      Security, 99 M.S.P.R. 92, ¶ 6 (2005). The agency merely ended the telework
      arrangement, as it was entitled to do, directing the appellant to return to West
      Virginia to continue performing the same position, at the same grade and pay.
                                                                                          10

      See IAF, Tab 5, Subtabs 4e, 4j. Therefore, the appellant was not subject to a RIF
      within the Board’s jurisdiction.
¶24         In conclusion, the appellant failed to meet his burden of proving that his
      resignation was involuntary, or that the agency subjected him to any other action
      within the Board’s jurisdiction. Therefore, we deny the petition for review and
      affirm the initial decision to dismiss the appeal for lack of Board jurisdiction.

                         NOTICE TO THE APPELLANT REGARDING
                            YOUR FURTHER REVIEW RIGHTS
            The initial decision, as supplemented by this Final Order, constitutes the
      Board's final decision in this matter. 5 C.F.R. § 1201.113. You have the right to
      request the United States Court of Appeals for the Federal Circuit to review this
      final decision.    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.
                                                                               11

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 court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing 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.
