                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     ANTHONY W. BROUSSARD,                           DOCKET NUMBER
                  Appellant,                         AT-0351-15-0673-I-1

                  v.

     UNITED STATES POSTAL SERVICE,                   DATE: August 26, 2016
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Anthony W. Broussard, Columbia, South Carolina, pro se.

           Greg Allan Ribreau, Charlotte, North Carolina, 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 reduction-in-grade 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 interpretation of statute or regulation or the erroneous application

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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         The appellant was employed as an EAS-21 Vehicle Maintenance Facility
     (VMF) Manager at the Columbia, South Carolina VMF.                Initial Appeal File
     (IAF), Tab 1 at 7, Tab 9 at 68. During the first week of May 2015, the agency
     announced that it would be restructuring its VMF organization and that a
     reduction in force (RIF) might be necessary. IAF, Tab 9 at 48-49, 51-52, 58,
     70-99.    The appellant’s position was one of the positions proposed to be
     eliminated.      Id. at 89.     On May 22, 2015, the appellant requested a
     noncompetitive reassignment to the posted EAS‑19 VMF Manager position at the
     Columbia, South Carolina VMF. Id. at 68. Effective May 30, 2015, the agency
     processed the appellant’s noncompetitive placement in the EAS-19 VMF Manager
     position. 2 Id. at 66.
¶3         On July 6, 2015, the appellant appealed the reduction in grade to the Board
     and requested a hearing.      IAF, Tab 1.   The administrative judge informed the


     2
       Although the appellant was reassigned to the lower-graded position, he received saved
     grade and pay for 2 years. IAF, Tab 9 at 64, 66, 91. Thus, his Postal Service Form 50
     reflects that he occupies an EAS-21 level position. Id. at 64, 66.
                                                                                          3

     appellant that an employee’s acceptance of a lower-graded position generally is
     considered to be voluntary and not subject to the Board’s jurisdiction, and
     ordered the appellant to submit evidence and argument establishing Board
     jurisdiction over his appeal. IAF, Tab 10. In response, the appellant contended
     that his acceptance of the lower-graded position was involuntary because he was
     forced to choose between accepting a reduction in grade or facing a “RIF that
     affected only [his] position in [his] very limited career field . . . with no chance of
     placement for over a hundred miles, and with an inevitable dismissal from the
     Postal Service.” IAF, Tab 15 at 1-2. He also asserted that his decision to request
     a reassignment to a lower-graded position was based on erroneous or misleading
     information by agency management. Id.; IAF, Tab 19 at 1‑3. Without holding
     the requested hearing, the administrative judge dismissed the appeal for lack of
     jurisdiction, finding that the appellant failed to establish that his acceptance of
     the lower‑graded position constituted an appealable involuntary reduction in
     grade. IAF, Tab 21, Initial Decision (ID).
¶4         The appellant has filed a petition for review of the initial decision, and the
     agency has responded in opposition to his petition for review.            Petition for
     Review (PFR) File, Tabs 1, 3.
¶5         To constitute an appealable action, a reduction in grade or pay must be
     involuntary. Goodwin v. Department of Transportation, 106 M.S.P.R. 520, ¶ 12
     (2007).   The Board will grant a hearing to determine whether an appellant
     involuntarily   accepted    a   lower-graded     position   only   if   the   appellant
     nonfrivolously alleges that his acceptance was the result of duress, coercion, or
     misrepresentation by the agency.       See id.   Nonfrivolous allegations of Board
     jurisdiction are allegations of fact that, if proven, could establish a prima facie
     case that the Board has jurisdiction over the matter at issue. Id. To meet the
     nonfrivolous standard, an appellant need only plead allegations of fact that, if
                                                                                      4

     proven, could show jurisdiction, though mere pro forma allegations are
     insufficient to satisfy the nonfrivolous standard. Id.
¶6         As noted above, one way of overcoming the presumption of voluntariness is
     by showing that the appellant’s acceptance of the lower-graded position was the
     product of coercion by the agency. See Staats v. U.S. Postal Service, 99 F.3d
     1120, 1124 (Fed. Cir. 1996) (discussing the standard in the context of an alleged
     involuntary resignation or retirement). To establish involuntariness on the basis
     of coercion, an employee must show that the agency effectively imposed the
     terms of the employee’s acceptance of the lower-graded position, that the
     employee had no realistic alternative but to accept the lower-graded position, and
     that his acceptance was the result of improper acts by the agency.         See id.
     However, “the doctrine of coercive involuntariness is a narrow one.” Id. “[T]he
     fact that an employee is faced with an unpleasant situation or that his choice is
     limited to two unattractive options does not make the employee’s decision any
     less voluntary.” Id. In addition, the test for involuntariness is an objective one,
     requiring that a reasonable employee in the same circumstances would have felt
     coerced into acting similarly. See generally Conforto v. Merit Systems Protection
     Board, 713 F.3d 1111, 1121 (Fed. Cir. 2013).
¶7         The appellant argues on review that, due to the agency’s “decision to
     severely limit the competitive area” and its “callous disregard” of Office of
     Personnel Management (OPM) guidelines, he had “no reasonable choice other
     than to take a downgrade, or be released from service on the date specified in the
     agency’s General RIF notice.” PFR File, Tab 1 at 4-5. He further argues that
     “being forced to ‘compete’ for a similar level position hundreds of miles out of
     state and at great personal expense . . . is also not a ‘reasonable’ option in
     accordance with OPM guidelines.” Id. at 6. As the administrative judge correctly
     determined, however, the appellant has failed to allege facts that, if proven,
     would establish that the agency acted improperly in setting the competitive area
     for the RIF.    ID at 5‑6.     Furthermore, as stated above, a choice between
                                                                                              5

     unpleasant     alternatives   does not    render     an   employee’s     choice   any less
     involuntary.       Staats, 99 F.3d at 1124; Soler ‑ Minardo v. Department of
     Defense, 92 M.S.P.R. 100, ¶ 9 (2002) (finding that the fact that the appellant was
     faced with either a demotion or a possible removal did not render her acceptance
     of the agency’s proposal involuntary). Here, the fact that the appellant chose to
     accept the lower-graded position to avoid the potential impact of a RIF does not
     render his decision to accept the lower-graded position prior to the RIF period
     involuntary. See Staats, 99 F.3d at 1124.
¶8         An employee also may rebut the presumption of voluntariness by showing
     that his acceptance of the lower-graded position resulted from reasonable reliance
     on    the    agency’s    misinformation.             Herrin   v.    Department     of   the
     Air Force, 95 M.S.P.R. 536, ¶ 10 (2004). A reduction in grade will be considered
     involuntary if the employee materially relied on the agency’s misinformation, to
     his   detriment,    based     on   an    objective     evaluation   of   the   surrounding
     circumstances. Id.
¶9         The appellant asserted below that his decision to request a reassignment to a
     lower‑graded position was based on erroneous or misleading information because
     a senior management official assured him that he would be promoted to a
     higher-graded position and that accepting the lower-graded position was merely a
     formality to allow him to stay on the agency rolls while the selections for the
     higher-graded positions were finalized. IAF, Tab 19 at 1-3. The administrative
     judge found, however, that the appellant failed to nonfrivolously allege that his
     acceptance of the lower-graded position was involuntary due to misinformation
     because he did not allege that the agency ever informed him that his chances for
     receiving a promotion following the reorganization were contingent upon his
     acceptance of a lower-graded position or that he would be separated if he
     remained in his former position rather than accepting the lower-graded position.
     ID at 6.    The administrative judge also found that, even if the appellant had
                                                                                             6

      remained in his former position and had been released from his competitive level
      during the RIF, he would have had reassignment rights that might have resulted in
      his being reassigned to a position that would have allowed him to remain on the
      agency’s rolls to compete for the higher-graded positions. Id. Additionally, the
      administrative judge noted that, by the appellant’s own admission, the agency
      offered the appellant one of the higher-graded positions resulting from the
      reorganization, but he rejected the offer because he refused to relocate from
      South Carolina to Gaithersburg, Maryland. ID at 6; see IAF, Tab 19 at 2.
¶10         The appellant argues on review that the administrative judge erred in
      finding that his acceptance of the lower-graded position was not involuntary due
      to misinformation because the RIF timeline indicated that employees in his
      position would be released by a specific date if they did not find a new position
      by then, and because, as a retired military veteran, he was not entitled to RIF
      protections and had no reassignment rights. 3         PFR File, Tab 1 at 6.      As the
      administrative judge noted, however, the appellant admitted that the agency
      offered him one of the EAS-25 positions, which he declined. ID at 6; see IAF,
      Tab 19 at 2. Thus, even if, as the appellant alleged, the agency assured him that
      he would receive a promotion after he accepted the lower-graded position, he has
      failed to nonfrivolously allege that the agency provided him incorrect information

      3
        The appellant submitted a copy of the June 2, 2015 General RIF Notice, which was not
      entered into the record below, showing that he was not eligible for veterans’ preference
      rights for RIF purposes. PFR File, Tab 1 at 13. The appellant explained that he did not
      submit this document below because he was “under the assumptions that the Board was
      fully aware of the appellant’s RIF status, to include rights, and protections, or in the
      case of a ‘retired’ Veteran, the lack of RIF protections,” and asked that the document be
      entered into the record. Id. at 6-7. Generally, the Board will not consider evidence
      submitted for the first time with the petition for review, absent a showing that it was
      unavailable before the record was closed despite the party’s due diligence. Avansino v.
      U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980); 5 C.F.R. § 1201.115. The Board,
      however, may consider such evidence if it implicates the Board’s jurisdiction and
      warrants an outcome different from that of the initial decision. Schoenig v. Department
      of Justice, 120 M.S.P.R. 318, ¶ 7 (2013). After reviewing the appellant’s evidence, we
      find nothing that warrants a different outcome.
                                                                                         7

      because the agency in fact offered him a promotion less than 2 months after he
      requested reassignment to the lower-graded position. 4          IAF, Tab 9 at 66.
      Moreover, the appellant’s contentions on review provide no basis to disturb the
      administrative judge’s findings that the appellant has not nonfrivolously alleged
      that he reasonably relied on the agency’s misinformation to his detriment. Even
      if his contentions on review are true—namely, that employees in his position
      would be released by a specific date if they did not find a new position by then
      and that he was not entitled to RIF protections or reassignment rights—he has
      failed to nonfrivolously allege that he is in a worse position than he would have
      been absent the agency’s alleged misinformation regarding when he would
      receive a promotion. 5 PFR File, Tab 1. Thus, we agree with the administrative
      judge that the appellant’s acceptance of the lower‑graded position was not
      involuntary based on misinformation.
¶11          An appellant’s acceptance of a lower-graded position also may be
      considered involuntary if he did not have sufficient time to reflect about his
      alternative course of action before he was required to make his decision.
      Soler ‑ Minardo, 92 M.S.P.R. 100, ¶ 7. Unreasonable time constraints have been
      found to constitute coercion. Id. The appellant appears to argue that the agency
      imposed an unreasonable time constraint of 21 days on him to either accept a
      lower-graded position or to be separated from service.       PFR File, Tab 1 at 7.


      4
         Although the agency offered the appellant an EAS-25 position in Gaithersburg,
      Maryland, in July 2015, the appellant alleged that, when he applied for it, it was
      “posted as Domiciled within the Area selected.” IAF, Tab 19 at 2. He stated that he
      later learned that “the requirements of the job changed after [it was] posted” and he
      would be required to relocate if he accepted the position. Id.; see IAF, Tab 19,
      Subtab E.     The appellant has not nonfrivolously alleged, however, that agency
      management assured him that he would receive a higher-graded position at any
      particular duty station. IAF, Tab 15 at 1-2, Tab 19 at 1-3.
      5
        The RIF timeline provided by the appellant reflects that the deadline to accept a
      reclassification downgrade with 2-year saved pay was June 5, 2015. IAF, Tab 19,
      Subtab A.
                                                                                         8

      Even if the appellant’s factual assertion is true, however, a 21-day period to
      consider his alternative course of action before he was required to make his
      decision   is not   an   unreasonable    time   constraint.     See,   e.g.,   Soler-
      Minardo, 92 M.S.P.R. 100, ¶ 10 (finding that a 10‑day period to decide between
      accepting a demotion or facing possible removal was not an unreasonable
      time constraint).
¶12         Finally, the appellant appears to argue on review that the administrative
      judge erred by failing to address his contention that the agency violated OPM’s
      guidelines, which require Federal agencies to “make every effort to find similar
      leve[l] employment within commuting distance when Agency reorganizations are
      made.”     PFR File, Tab 1 at 8-9.      Contrary to the appellant’s assertion, the
      administrative judge considered the appellant’s argument to the extent it
      pertained to the dispositive jurisdictional issue, i.e., whether the agency acted
      improperly as to render his acceptance of the lower-graded position involuntary.
      ID at 5. As discussed above, the administrative judge correctly determined that
      the appellant failed to nonfrivolously allege that his acceptance of the
      lower-graded position was involuntary, and therefore, the Board lacks jurisdiction
      over his appeal. ID at 5-6. We find that, absent an appealable action, the Board
      lacks jurisdiction to consider the appellant’s challenges to the agency’s
      reorganization. See Maddox v. Merit Systems Protection Board, 759 F.2d 9, 10
      (Fed. Cir. 1985) (explaining that the Board’s jurisdiction is limited to those
      matters over which it has been given jurisdiction by law, rule, or regulation).

                      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:
                                                                                    9

                          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. 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
                                                                                 10

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.
