                        Note: This disposition is nonprecedential.


  United States Court of Appeals for the Federal Circuit

                                        2006-3311

                                 DEBRA L. RETHABER,

                                                     Petitioner,

                                            v.

                        MERIT SYSTEMS PROTECTION BOARD,

                                                     Respondent,

                                           and

                        DEPARTMENT OF VETERANS AFFAIRS,

                                                     Intervenor.




      Trang Q. Tran, Tran Law Firm, L.L.P., of Houston, Texas, for petitioner.

      Calvin M. Morrow, Attorney, Office of the General Counsel, United States Merit
Systems Protection Board, of Washington, DC, for respondent. With him on the brief were
B. Chad Bungard, General Counsel, Rosa M. Koppel, Deputy General Counsel, and
Rosalyn L. Wilcots, Acting Associate General Counsel.

       Claudia Burke, Trial Attorney, Commercial Litigation Branch, Civil Division, United
States Department of Justice, of Washington, DC, for intervenor. With her on the brief were
Peter D. Keisler, Assistant Attorney General, Jeanne E. Davidson, Director, and Todd M.
Hughes, Assistant Director.

Appealed from: United States Merit Systems Protection Board
                       NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit

                                        2006-3311

                                 DEBRA L. RETHABER

                                                        Petitioner,

                                            v.

                       MERIT SYSTEMS PROTECTION BOARD,

                                                        Respondent,

                                           and

                       DEPARTMENT OF VETERANS AFFAIRS,

                                                        Intervenor.

                            ___________________________

                               DECIDED: May 15, 2007
                            ___________________________


Before NEWMAN, LOURIE, and GAJARSA, Circuit Judges.

PER CURIAM.

       Debra Rethaber (“Ms. Rethaber”) appeals the Merit Systems Protection Board’s

(“Board”) dismissal of her claim for a demotion to a lower pay grade. Rethaber v. Dep’t

of Veterans Affairs, No. DA-0752-06-0115-I-1 (Apr. 6, 2006). The Board determined

that Ms. Rethaber had not proven that her demotion was involuntary and therefore

dismissed her case for lack of jurisdiction. Id. We affirm.
                                      BACKGROUND

       Ms. Rethaber has been an employee of the Department of Veterans Affairs (“the

agency”) since December 2002. In March 2005 she was demoted from the position of

Rating Veterans Service Representative (“RVSR”) to the lower pay grade position of

Legal Instruments Examiner (“LIE”).

       Prior to Ms. Rethaber’s demotion she had received numerous written notices

regarding deficiencies in her performance as a RVSR. In September 2004 she was

placed on a performance assistance plan that lasted for thirty days as a result of her

failure to meet the required quality of work. At the end of the performance assistance

plan, Ms. Rethaber’s supervisor determined that her work did not meet the required

standards and placed her on a ninety day performance improvement plan.

Ms. Rethaber was notified that if her work still failed to meet the required standards at

the end of the performance improvement plan “she would be issued an unacceptable

performance rating and be subject to removal from her current position by

reassignment, demotion, or removal from employment.”

       At the end of the performance improvement plan, Ms. Rethaber’s supervisor

determined that she had failed to meet the required standards and issued her an

unacceptable rating. Ms. Rethaber was then issued a notice of proposed removal for

unacceptable performance. However, prior to making a final decision on the proposed

removal, the agency gave Ms. Rethaber a letter offering her the alternative of

transferring to another position. The letter listed two local positions that were available

for her, including the LIE position to which she was transferred, as well as five positions




2006-3311                                   2
that would require relocation. Each of the positions offered was at a lower pay grade

than her GVSR position. The letter included a preprinted response form.

       After meeting with her union representative, Ms. Rethaber returned the form to

the agency. Although none of the boxes on the form were checked and none of the

blanks were filled in, the following statement was typed onto the form:

       Let me make it unquestionably clear that I am electing to accept the
       agency’s offer of a position acceptable under threat of termination . . . .
       The position so elected is:
             1. Legal Instrument Examiner, GS-0996-09 ($60,642.00 PA).
             2. Claims Assistant, GS-0998-06 ($44,618.00 PA).

Although Ms. Rethaber refused to sign the form, the line indicating the Claims Assistant

position was crossed out. The cross out was initialed by Ms. Rethaber.

       The agency determined that Ms. Rethaber had thereby accepted the transfer to

the LIE position. It issued a decision notice to Ms. Rethaber stating that although her

work as an RVSR was “clearly unacceptable” she would be voluntarily transferred to the

LIE position.   Ms. Rethaber appealed that transfer to the Board, alleging that the

transfer was involuntary. Because the Board found that Ms. Rethaber had voluntarily

accepted the transfer, it dismissed the appeal for lack of jurisdiction.

       Ms. Rethaber filed an appeal to this court from the Board’s decision. This court

has jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).

                                       DISCUSSION

       This court must affirm the Board’s decision unless it is “(1) arbitrary, capricious,

an abuse of discretion, or otherwise not in accordance with law; (2) obtained without

procedures required by law, rule, or regulation having been followed; or (3) unsupported

by substantial evidence.” 5 U.S.C. § 7703(c); Barrett v. Soc. Sec. Admin., 309 F.3d




2006-3311                                     3
781, 785 (Fed. Cir. 2002). The Board’s determination that it lacked jurisdiction is a

question of law that we review de novo. Id. Ms. Rethaber has the burden of proving by

a preponderance of the evidence that the Board had jurisdiction to review her appeal.

See 5 C.F.R. § 1201.56(a)(2); Garcia v. Dep’t of Homeland Sec., 437 F.3d 1322, 1344

(Fed. Cir. 2006) (en banc).

      The Board’s jurisdiction is limited by statute. Garcia, 437 F.3d at 1327. It has

“jurisdiction to hear appeals over certain enumerated adverse action taken by an

agency against an employee.” Id.; see also 5 U.S.C. § 7513(d). Reductions in grade

and reductions in pay are among the enumerated adverse actions from which an

employee can appeal to the Board. 5 U.S.C. § 7512(3), (4); Garcia, 437 F.3d at 1327.

Such a reduction must be involuntary in order to be appealable. Garcia, 437 F.3d at

1328. An action that appears voluntary on its face may nonetheless be involuntary if it

was obtained through coercion by the agency. Id. at 1329.

      Ms. Rethaber argues that the Board has jurisdiction over her demotion because it

was not voluntary.    In support of her position that the demotion was involuntary,

Ms. Rethaber contends (1) that she did not accept the transfer to the lower pay grade

position, and (2) that even if she did accept the transfer, she did not do so voluntarily

because she was coerced by the agency.

      Ms. Rethaber argues that she did not accept the transfer to the LIE position

because she did not sign the transfer proposal form and that her initials on the form only

indicate that she had rejected one of the proposed options, not that she had accepted

the other option. However, Ms. Rethaber returned the transfer proposal form to the

agency with a statement that she was “electing to accept the agency’s offer of a position




2006-3311                                   4
acceptable under treat of termination.” The statement also declared that the position

elected was either the LIE position or an even lower grade Claims Assistant position.

The line listing the Claims Assistant position was crossed out and Ms. Rethaber initialed

that cross-out. A choice between two unpleasant options does not make the choice

coerced or involuntary. Garcia, 437 F.3d at 1329. We therefore find that the Board

properly determined that Ms. Rethaber had accepted the transfer to the LIE position.

      Ms. Rethaber also argues that her acceptance of the demotion was involuntary

because it was obtained through coercion by the Agency. An employee may show that

an adverse action was obtained though coercion by proving that the agency did not

have reasonable grounds to propose the adverse action in the first place. Terban v.

Dep’t of Energy, 216 F.3d 1021, 1026 (Fed. Cir. 2000); Staats v. U.S. Postal Serv.,

99 F.3d 1120, 1124 (Fed. Cir. 1996); Schultz v. U.S. Navy, 810 F.2d 1133, 1136 (Fed.

Cir. 1987). “If an employee can show that the agency knew that the reason for the

threatened removal could not be substantiated, the threatened action by the agency is

purely coercive.” Schultz, 810 F.2d at 1136.

      Here, Ms. Rethaber argues that the agency did not have reasonable grounds to

propose her removal because she was never told what was specifically wrong with her

rating decisions, as required by 5 U.S.C. § 4303(b)(1)(A)(i).        However, prior to

Ms. Rethaber’s removal she received formal written counseling memoranda, a

performance assistance plan, and a performance improvement plan all indicating that

the accuracy percentage of her ratings was below the required level.              These

communications advised Ms. Rethaber of required performance standards. Further,

Ms. Rethaber met with her supervisors on numerous occasions to discuss specific




2006-3311                                  5
errors with her ratings decisions.       Under these circumstances, we find that

Ms. Rethaber has not met her burden of proving that the agency knew that the reasons

for the threatened removal could not be substantiated.

       Ms. Rethaber also argues that she was coerced into accepting the demotion

because the agency did not give her time to consider her options. Ms. Rethaber is

correct in her statement that forcing an employee to make an immediate decision can

be improper and coercive.       Schultz, 810 F.2d at 1136 (holding that agency’s

requirement that resignation be submitted immediately was coercive).         However,

Ms. Rethaber was not forced to make an immediate decision. She was given until end

of the next business day to return her response to the transfer proposal. During the

time period between receiving the proposal and returning her decision, Ms. Rethaber

was able to meet with her union representative.          Under these circumstances, we

determine Ms. Rethaber has not met her burden of proving that the agency coerced her

into accepting the transfer.

                                    CONCLUSION

       We conclude that the Board properly determined that it lacked jurisdiction over

Ms. Rethaber’s appeal because she had voluntarily accepted a transfer to a position at

a lower pay grade and that her acceptance of that transfer was not coerced by the

agency. The decision of the Board is therefore affirmed.

       No costs.




2006-3311                                  6
