                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     LEEMANUEL ALFRED                                DOCKET NUMBER
       WAKEFIELD,                                    CH-0752-14-0729-I-1
                  Appellant,

                  v.
                                                     DATE: March 12, 2015
     DEPARTMENT OF VETERANS
       AFFAIRS,
                 Agency.



             THIS FINAL ORDER IS NO NPRECEDENTIAL 1

           Leemanuel Alfred Wakefield, Chicago, Illinois, pro se.

           Timothy B. Morgan, Esquire, Chicago, Illinois, 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 his 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

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     erroneous 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 and AFFIRM the initial decision,
     which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2         The appellant was a Maintenance and Operations Supervisor for the
     agency’s Jesse Brown Medical Center (JBMC). See Initial Appeal File (IAF),
     Tab 1 at 1, Tab 9 at 21. In a letter dated May 28, 2013, the agency proposed his
     removal from service. 2     IAF, Tab 9 at 9-14.      On June 6, 2013, the appellant
     submitted a letter, electing to retire, effective June 12, 2013. Id. at 17.          The
     agency effectuated his retirement accordingly. Id. at 21.
¶3         The appellant appealed his separation to the Board. IAF, Tab 1. He alleged
     that the agency denied him access to critical medication and care, causing his
     constructive discharge. 3   Id. at 3.   He later alleged that the agency knew his
     proposed removal could not be substantiated. IAF, Tab 8 at 1.

     2
       The agency charged the appellant with (1) failure to fo llow proper procedures as an
     approving official for a government commercial purchase card; (2) negligent
     performance of duties; (3) inappropriate conduct as an approving official; and (4) lack
     of cooperation in an administrative investigation. IAF, Tab 9 at 9-13.
     3
       In his initial appeal, the appellant eluded to retaliation for protected activity, h is
     experience, and his age. IAF, Tab 1 at 3; see generally Axsom v. Department of
     Veterans Affairs, 110 M.S.P.R. 605, ¶ 12 (the Board addresses allegations of
     discrimination and reprisal in connection with an alleged invo luntary resignation only
     insofar as those allegations relate to the issue of voluntariness). However, he did not
                                                                                         3

¶4         The administrative judge directed the appellant to meet his jurisdictional
     burden of proof.     IAF, Tab 2 at 2.        After both parties responded to the
     jurisdictional order, the administrative judge dismissed the appeal for lack of
     jurisdiction. 4 ID at 1. The appellant has filed a petition for review. Petition for
     Review (PFR) File, Tab 1. The agency has not filed a response.
¶5         On review, the appellant again argues that he was forced to retire because
     the agency prevented him from receiving necessary medical treatment after
     proposing his removal from service. Id. at 4-5. He also reasserts his allegation
     that the agency knew his proposed removal could not be substantiated. Id. at 5.
     Finally, he seems to suggest that the agency erred in placing him on
     administrative leave while his proposed removal was pending. Id. We find no
     merit to these arguments.
¶6         An appellant has the burden of proving, by preponderant evidence, that his
     appeal is within the Board’s jurisdiction.      5 C.F.R. § 1201.56(a)(2)(i).       An
     employee-initiated action, such as a retirement, is presumed to be voluntary, and
     thus outside the Board’s jurisdiction. Staats v. U.S. Postal Service, 99 F.3d 1120,
     1123-24 (Fed. Cir. 1996).      An appellant may overcome the presumption by
     showing that: (1) his retirement was the product of misinformation or deception
     by the agency; or (2) his retirement was the product of coercion by the agency.
     Id. at 1124.
¶7         To prove involuntariness based upon coercion, as was alleged here, an
     appellant must show that the agency effectively imposed the terms of his
     retirement; he had no realistic alternative but to retire; and the retirement was the


     present any such arguments on review. See PFR File, Tab 1. Therefore, we will not
     address the allegations in this decision.
     4
       The appellant did not request a hearing. IAF, Tab 1 at 2. In addition, the
     administrative judge determined that a hearing was not necessary because the lack of
     jurisdiction was readily apparent from the documentary record. IAF, Tab 12, Initial
     Decision (ID) at 1 (citing Hardy v. Merit Systems Protection Board, 13 F.3d 1571, 1575
     (Fed. Cir. 1994)).
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      result of the agency’s improper acts. See id. The test for involuntariness is an
      objective one, requiring the appellant to show that a reasonable employee in the
      same circumstances would have felt coerced into resigning or retiring. Conforto
      v. Merit Systems Protection Board, 713 F.3d 1111, 1121 (Fed. Cir. 2013).
¶8         In arguing that the agency prevented him from receiving necessary medical
      treatment, the appellant relies on the agency’s May 29, 2013 letter. See IAF,
      Tab 9 at 8; PFR File, Tab 1 at 4-5.       The letter placed him in an authorized
      absence status, pending a resolution to his proposed removal. IAF, Tab 9 at 8. It
      included the following language: “While you are in authorized absence status
      you are not to report for duty, nor are you to be physically present in the [JBMC]
      facilities at any time, unless you have official business.” Id.
¶9         Despite the exception for “official business,” the appellant reportedly
      believed he was prohibited from seeking medical treatment because doing so
      would require his presence at JBMC. See id. at 17. His June 6, 2013 letter of
      retirement did not identify this belief as the reason for his retirement, but did ask
      that someone contact his physician for a prescription and indicated that he would
      come pick it up when his “patient status [was] restored” and he was “allowed to
      come in.”     Id.   However, the agency responded to that letter, before the
      appellant’s retirement was effectuated, ensuring him that his patient status was
      unaffected and that he could continue to use JBMC for his patient care needs. Id.
      at 18-19.
¶10        The administrative judge concluded that the appellant failed to prove, or
      nonfrivolously allege, that he was coerced into retiring by virtue of his access to
      JBMC for medical care. ID at 3. We agree. See Broughton v. Department of
      Health & Human Services, 33 M.S.P.R. 357, 359 (1987) (finding no reason to
      disturb the initial decision where the administrative judge considered the
      evidence as a whole, drew appropriate inferences, and made reasoned
      conclusions). A reasonable employee in the appellant’s circumstances would not
      have believed that the agency was prohibiting him from receiving necessary
                                                                                       5

      medical treatment in its May 29, 2013 letter and, therefore, coercing him into
      retirement.
¶11           The appellant’s next argument is that his retirement was involuntary by
      “threat of adverse action that the agency knew could not be substantiated.” IAF,
      Tab 8 at 1; PFR File, Tab 1 at 5. If an appellant shows that an agency knew that
      it would not prevail on a proposed adverse action, the proposed action is coercive
      and the resulting retirement is involuntary. Baldwin v. Department of Veterans
      Affairs, 109 M.S.P.R. 392, ¶ 12 (2008). However, the fact that an employee is
      faced with the unpleasant choice of either retiring or opposing a potential adverse
      action does not rebut the presumed voluntariness of his ultimate choice of
      retirement. Id.
¶12           Here, while the appellant suggested that his proposed removal could not be
      sustained, generally, he failed to present any substantive allegation as to the
      same. See IAF, Tab 8 at 1. As referenced in his petition for review, the appellant
      did submit evidence of the agency’s investigation into his purported misconduct.
      PFR File, Tab 1 at 5; see, e.g., IAF, Tab 3 (the agency’s investigative materials).
      However, he failed to explain, and we are unable to discern, why he believes the
      agency could not prevail on his proposed removal.          Instead, he made bare
      assertions that the proposal contained misleading statements, IAF, Tab 8 at 1, and
      that he was the only one charged despite others being involved, PFR File, Tab 1
      at 5.     Based upon the nature of the appellant’s claims, we agree with the
      administrative judge’s conclusion that the appellant failed to meet his burden of
      proving, or nonfrivolously alleging, that his retirement was coerced by virtue of
      an unwarranted proposal to remove him that could not be substantiated. See ID at
      3; see also Briscoe v. Department of Veterans Affairs, 55 F.3d 1571, 1573-74
      (Fed. Cir. 1995) (bald allegations standing alone do not meet the nonfrivolous
      allegation standard).
¶13           As to the appellant’s final argument, that the agency erred by placing him
      on administrative leave while his proposed removal was pending, PFR File, Tab 1
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at 5, we first note that he failed to raise this argument below, see IAF, Tab 1 at 3,
Tab 8 at 1. Generally, the Board will not consider an argument raised for the first
time in a petition for review absent a showing that it is based on new and material
evidence not previously available despite the party’s due diligence.       Banks v.
Department of the Air Force, 4 M.S.P.R. 268, 271 (1980). The appellant made no
such showing for this new argument. In any case, it is well-established that a
period of paid administrative leave is not appealable to the Board.        Alston v.
Social Security Administration, 95 M.S.P.R. 252, ¶ 7 (2003). Accordingly, the
appellant’s allegation is not one we can review.

                   NOTICE TO THE APPELLANT REGARDING
                      YOUR FURTHER REVIEW RIGHTS
         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.
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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 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.
