                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     CHRISTOPHER S. BARRY,                           DOCKET NUMBER
                   Appellant,                        DC-0752-14-0040-I-1

                  v.

     DEPARTMENT OF THE INTERIOR,                     DATE: September 5, 2014
                 Agency.



                       THIS ORDER IS NONPRECEDENTIAL *

           Christopher S. Barry, Huntingtown, Maryland, pro se.

           Mel S. Hutson, Washington, D.C., for the agency.


                                           BEFORE

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


                                     REMAND ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     dismissed this involuntary resignation appeal for lack of jurisdiction.        For the
     reasons discussed below, we GRANT the appellant’s petition for review,



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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     VACATE the initial decision, and REMAND the case to the regional office for
     further adjudication in accordance with this Order.

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶2         The appellant filed an appeal in which he alleged that he involuntarily
     resigned from his position as the Director of the agency’s National Offshore
     Training and Learning Center because of a hostile work environment and
     discrimination based upon his sex, sexual orientation, and equal employment
     opportunity (EEO) activity. Initial Appeal File (IAF), Tab 1. The administrative
     judge subsequently informed the appellant of the elements and burdens of
     establishing jurisdiction over an involuntary resignation.      IAF, Tab 2 at 2-3.
     Based solely on the appellant’s initial appeal submission, which included the final
     agency decision (FAD) on the appellant’s EEO complaint, IAF, Tab 1 at 10-28,
     the administrative judge determined that the appellant failed to establish
     jurisdiction over his appeal, IAF, Tab 10, Initial Decision (ID). In his petition for
     review, the appellant reiterates that he had no choice but to resign, asserts that he
     complained of a hostile work environment months before any complaints were
     lodged about his own behavior, and further asserts that he was forced to work for
     the same individual against whom he had made a complaint. Petition for Review
     File, Tab 1 at 3. The agency did not respond.
¶3         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). The appellant bears
     the burden of proving, by a preponderance of the evidence, that the Board has
     jurisdiction over his appeal. 5 C.F.R. § 1201.56(a)(2)(i). An employee-initiated
     action, like the appellant’s retirement here, is presumed to be voluntary, and thus
     outside the Board’s jurisdiction, unless he presents sufficient evidence to
     establish that the action was obtained through duress or coercion or shows that a
     reasonable person would have been misled by the agency.          See Staats v. U.S.
                                                                                      3

     Postal Service, 99 F.3d 1120, 1123-24 (Fed. Cir. 1996); Levy v. Department of
     Homeland Security, 109 M.S.P.R. 444, ¶ 13 (2008).        The appropriate test for
     determining the voluntariness of actions like the one at issue here, i.e., a
     resignation initiated by an employee in a situation where there has been no threat
     of an adverse action, is whether, under all of the circumstances, working
     conditions were made so difficult by the agency that a reasonable person in the
     appellant’s position would have felt compelled to resign or retire.      See, e.g.,
     Markon v. Department of State, 71 M.S.P.R. 574, 577 (1996). 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. Levy, 109 M.S.P.R. 444, ¶ 13.
¶4         An appellant is entitled to a hearing on the issue of Board jurisdiction over
     an appeal of an alleged involuntary resignation or retirement only if he 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).
     To meet the nonfrivolous standard, an appellant need only plead allegations of
     fact that, if proven, could show jurisdiction. Pariseau v. Department of the Air
     Force, 113 M.S.P.R. 370, ¶ 14 (2010). When an appellant raises allegations of
     discrimination or reprisal in connection with an involuntariness claim, evidence
     of discrimination may be considered only in terms of the standard for
     voluntariness and not whether such evidence meets the test for proof of
     discrimination or reprisal established under Title VII.     Markon, 71 M.S.P.R.
     at 578.   Thus, evidence of discrimination or retaliation goes to the ultimate
     question of coercion, i.e., whether, under all of the circumstances, working
     conditions were made so difficult by the agency that a reasonable person in the
     employee’s position would have felt compelled to resign or retire. Id.
¶5         In his appeal, the appellant alleged that:    (1) he is a gay man; (2) he
     overheard management officials making disparaging remarks about gay people
     and he heard managers state that the training center was “run by a [expletive]”
                                                                                     4

     and an “idiot;” (3) his supervisors falsely told him during a performance review
     that employees under his supervision had complained that he had created a hostile
     work environment and that, unless he voluntarily stepped down as Director, an
     investigation of those complaints would ensue; and (4) when he refused to step
     down, he was involuntarily reassigned to work under the direct supervision of one
     of the supervisors who provided him with the false information and was a subject
     of the appellant’s EEO complaint.      IAF, Tab 1.    We find these allegations
     sufficient under the above-stated standards to satisfy the appellant’s evidentiary
     burden and to garner him a jurisdictional hearing.
¶6        In determining whether the appellant has made a nonfrivolous allegation of
     jurisdiction entitling him to a hearing, the administrative judge may consider the
     agency’s documentary submissions; however, to the extent that the agency’s
     evidence constitutes mere factual contradiction of the appellant’s otherwise
     adequate prima facie showing of jurisdiction, the administrative judge may not
     weigh evidence and resolve conflicting assertions of the parties and the agency’s
     evidence may not be dispositive. Ferdon v. U.S. Postal Service, 60 M.S.P.R. 325,
     329 (1994).   Here, however, in making his determination, the administrative
     judge improperly weighed the evidence and considered that information to
     resolve the conflicting assertions of the parties. See, e.g., Rivera v. Department
     of the Navy, 114 M.S.P.R. 52, ¶ 7 (2010). Specifically, the administrative judge
     considered the agency’s response, as set forth in the FAD, and credited the
     appellant’s supervisor’s contentions that:     (1) the agency investigated the
     appellant’s claims despite his lack of cooperation in providing requested
     information; (2) the primary issue with the appellant was that he was “dismissive”
     and would not listen to their suggestions; and (3) the supervisor was not aware of
     any anti-gay bias from agency management. ID at 12-13.
¶7        We also disagree with the administrative judge’s conclusion that the
     appellant failed to allege facts that would indicate that the agency improperly
     sought his resignation and exercised pressure on him to resign. ID at 14 (citing
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     Barnett v. U.S. Postal Service, 59 M.S.P.R. 125, 128 (1993)).       The appellant
     alleged that his supervisors falsely told him that employees under his supervision
     had complained that he had created a hostile work environment, that unless he
     stepped down as Director, an investigation would ensue, and that he was
     involuntarily reassigned to work for one of the supervisors who provided him
     with the false information and was a subject of the appellant’s EEO complaint.
     IAF, Tab 1. These allegations, if true, would strongly indicate that the agency
     sought his resignation under false pretenses and improperly exercised pressure on
     him to resign.      Only after conducting a jurisdictional hearing will the
     administrative judge be in a position to summarize the evidence on these disputed
     questions, state which version he believes, and explain in detail why he found the
     chosen version more credible.
¶8        Accordingly, we find that the appellant nonfrivolously alleged that his
     retirement was involuntary because it was either coerced or based on
     misinformation.    Therefore, the appeal must be remanded for a jurisdictional
     hearing.

                                         ORDER
          For the reasons discussed above, we REMAND this case to the regional
     office for further adjudication in accordance with this Remand Order.




     FOR THE BOARD:                           ______________________________
                                              William D. Spencer
                                              Clerk of the Board
     Washington, D.C.
