                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     LOUIS PEASLEY,                                  DOCKET NUMBER
                   Appellant,                        DC-0752-15-0305-I-1

                  v.

     SMALL BUSINESS                                  DATE: October 23, 2015
       ADMINISTRATION,
                  Agency.



                  THIS ORDER IS NONPRECEDENTIAL 1

           Louis Peasley, Springfield, Virginia, pro se.

           Claudine Landry, Esquire, Washington, D.C., for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                     REMAND ORDER

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



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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     REMAND the case to the regional office for further adjudication in accordance
     with this Order.

                        DISCUSSION OF ARGUMENTS ON REVIEW
¶2         In February 2014, the appellant transferred to the agency to accept a
     Supervisory Financial Program Analyst position. Initial Appeal File (IAF), Tab 7
     at 216.     Beginning in October 2014, the appellant submitted three written
     resignations. Id. at 65, 106, 118, 125. He withdrew the first two requests. Id.
     at 106, 118, 120-21.      His third and final resignation letter was effective
     December 8, 2014. Id. at 65. The agency processed the appellant’s separation
     accordingly. Id. at 57, 59, 62.
¶3         The appellant filed a Board appeal in January 2015, checking the boxes to
     indicate that he was challenging a negative suitability determination and
     constructive discharge. IAF, Tab 1 at 3. He also indicated that he had filed a
     whistleblower complaint with the Office of Special Counsel (OSC) in
     October 2014, but that he had not received notification that it had made a decision
     or terminated its investigation.   Id. at 4.   The appellant provided a narrative
     explanation of his allegations, including claims of disability discrimination and
     whistleblower reprisal, along with corresponding evidence. Id. at 5, 7-24.
¶4         The administrative judge issued a show cause order, directing the appellant
     to meet his jurisdictional burden. IAF, Tab 3. She provided information about
     his burden with respect to suitability and involuntary resignation appeals.     Id.
     at 1-5. The administrative judge also noted that it was unclear if the appellant
     was attempting to file an individual right of action (IRA) appeal pursuant
     to 5 U.S.C. § 1221, and informed him that, if that was his intent, he could file a
     separate appeal after exhausting his administrative remedy with OSC.            Id.
     at 1 n.1.
¶5         After permitting the appellant to submit further argument and evidence, the
     administrative judge denied his request for a hearing and dismissed his appeal,
                                                                                                 3

     finding that he failed to present nonfrivolous allegations of Board jurisdiction.
     IAF, Tab 8, Initial Decision (ID) at 1.             The appellant has filed a petition for
     review. Petition for Review (PFR) File, Tab 1. 2 The agency filed a response, and
     the appellant filed an untimely reply. 3 PFR File, Tabs 3, 6.
     The administrative judge failed to address the appellant’s filing of an equal
     employment opportunity (EEO) complaint.
¶6         Below, the agency asserted that the appellant filed a formal EEO complaint
     alleging hostile treatment and constructive discharge on December 4, 2014, prior
     to filing this appeal.      IAF, Tab 7 at 28.          The appellant did not dispute this
     assertion. However, the administrative judge failed to further develop or address
     the issue.
¶7         When an employee who has been affected by an action that is appealable to
     the Board believes that the action was the result of prohibited discrimination, he
     must elect between filing a mixed-case complaint with the agency or filing a
     mixed-case appeal directly with the Board, and whichever is filed first is
     considered an election to proceed in that forum.                  Shapiro v. Department of
     Veterans     Affairs,   114 M.S.P.R.         585,    ¶7     (2010);   5 C.F.R.    § 1201.154;
     see 29 C.F.R. § 1614.302(b).           The same applies to claims of prohibited
     discrimination     in    the     context      of     an     alleged   constructive     action.
     Shapiro,     114 M.S.P.R.      585,   ¶ 7;    see    Ball    v.   Department     of   Veterans


     2
       The appellant titled his filing as “reopening an appeal dismissed without prejudice.”
     PFR File, Tab 1 at 1. The Clerk of the Board notified the appellant that the initial
     decision did not dismiss his appeal without prejudice, so his filing would be construed
     as a petition for review. PFR File, Tab 2 at 1.
     3
       The Clerk of the Board informed the appellant that he could submit a reply within
     10 days after the date of service of an agency response. PFR File, Tab 2 at 1. The
     agency served the appellant with its response on June 5, 2015. PFR File, Tab 3 at 13.
     On June 16, 2015, the appellant requested an extension of time to reply, but because the
     appellant was already untimely, the Clerk of the Board denied that request. PFR File,
     Tab 4 at 3, Tab 5 at 1. Despite that denial, the appellant submitted a reply on June 24,
     2015, more than 1 week after the deadline for doing so. PFR File, Tab 6. We have not
     considered this untimely reply.
                                                                                           4

      Affairs, 68 M.S.P.R. 482, 484 (1995) (observing that an appellant’s election in a
      construction resignation appeal was not binding if it was made without knowledge
      of her options). If an employee elects to file his complaint with the agency, the
      right to subsequently pursue the matter before the Board vests when the agency
      issues a final decision on the discrimination complaint or 120 days have passed
      since    the   filing   of   the   complaint.    Miranne    v.   Department    of   the
      Navy, 121 M.S.P.R. 235, ¶¶ 12-13 (2014).
¶8            Under the circumstances presented here, it appears that the appellant may
      now choose to proceed before the Board regardless of the status of his EEO
      complaint.       See Stribling v. Department of Education, 107 M.S.P.R. 166,
      ¶¶ 15-16 (2007) (forwarding a petition for review for docketing as a refiled
      removal appeal where 120 days had passed since the appellant filed an EEO
      complaint regarding her removal); 5 C.F.R. § 1201.154(c) (providing that an
      administrative judge will dismiss a premature mixed-case appeal without
      prejudice to its later refiling, or alternatively, may hold an appeal for a short time
      to allow it to become timely). On remand, the administrative judge should verify
      that the appellant filed a formal EEO complaint concerning his constructive
      removal claim. If so, the administrative judge should confirm that the appellant
      is now electing to proceed before the Board.
      The administrative judge must reconsider the appellant’s potential whistleblower
      retaliation claim.
¶9            As previously discussed, the appellant’s initial appeal indicated that he filed
      a whistleblower complaint with OSC. IAF, Tab 1 at 4. The administrative judge
      informed the appellant that he could file a separate IRA appeal without notifying
      him of the corresponding jurisdictional burden or considering if the appellant was
      attempting to raise an affirmative defense to his alleged involuntary resignation
      claim. Id.
¶10           Under 5 U.S.C. § 7121(g), an employee who claims to have suffered
      whistleblowing reprisal regarding an adverse action may elect no more than one
                                                                                            5

      of the following remedies: a direct appeal to the Board; a negotiated grievance
      procedure pursuant to 5 U.S.C. § 7121; or a request for corrective action under
      5 U.S.C. chapter 12, subchapters II and III, i.e., an OSC complaint, potentially to
      be followed by an IRA appeal. Savage v. Department of the Army, 122 M.S.P.R.
      612, ¶ 17 (2015). Ordinarily, an individual who first requests corrective action
      from OSC will be deemed to have made a binding election to proceed in that
      forum. 5 U.S.C. § 7121(g)(4)(C). In such a case, the jurisdictional requirements
      for an IRA appeal apply, even if the contested personnel action would have been
      directly appealable to the Board. Savage, 122 M.S.P.R. 612, ¶ 17. This principle
      applies equally to alleged constructive actions.         Id.    However, an election
      under 5 U.S.C. § 7121(g) is binding only if made knowingly and voluntarily. Id.,
      ¶ 18. Therefore, the administrative judge erred in failing to obtain information
      regarding the nature of the appellant’s OSC complaint and to clarify if the
      appellant was raising whistleblower reprisal as an affirmative defense in this
      constructive adverse action appeal or attempting to bring a separate IRA appeal
      regarding a distinct personnel action.
¶11         On remand, the administrative judge must develop the record concerning
      the appellant’s whistleblower complaint to OSC.                If his OSC complaint
      challenged a distinct personnel action, the regional office should docket a
      separate, now-ripe IRA appeal and provide the appellant with the appropriate
      burden for establishing jurisdiction. 4     See Jundt v. Department of Veterans
      Affairs, 113 M.S.P.R. 688, ¶¶ 6-7 (2010) (discussing the OSC exhaustion
      requirement for IRA appeals and the Board’s practice of adjudicating an appeal
      that becomes ripe while pending with the Board). However, if the OSC complaint
      pertains to the constructive removal claim currently before us, the administrative


      4
        The appellant indicated that he filed his OSC complaint in “10/2014.” IAF, Tab 1
      at 4. His first two letters of resignation, though later withdrawn, were dated October 6
      and 22, 2014. IAF, Tab 7 at 118, 125. The appellant’s final letter of resignation was
      dated December 8, 2014, and effectuated the same day. Id. at 57, 65.
                                                                                             6

      judge must determine whether that complaint constitutes a binding election
      under 5 U.S.C. § 7121(g). Savage, 122 M.S.P.R. 612, ¶ 18. If the appellant made
      a binding election to first seek corrective action from OSC, the jurisdictional
      requirements for an IRA appeal apply. Id., ¶ 17. If the appellant did not make a
      binding election by first seeking corrective action from OSC, his claim may
      proceed as a direct appeal to the Board. See id., ¶ 18.
      The appellant presented nonfrivolous allegations of involuntariness.
¶12         The administrative judge found that the appellant failed to present
      nonfrivolous allegations of Board jurisdiction and, therefore, dismissed his appeal
      without a hearing. ID at 3-5. We find that, if the claim is properly before the
      Board as a chapter 75 appeal, see supra ¶¶ 8, 11, the appellant’s involuntary
      resignation allegations warrant a jurisdictional hearing. 5
¶13         The appellant has the burden of proving the Board’s jurisdiction by
      a preponderance of the evidence.           Hosozawa v. Department of Veterans
      Affairs, 113 M.S.P.R. 110, ¶ 5 (2010); 5 C.F.R. § 1201.56(b)(2)(i)(A).               An
      employee-initiated action, such as a retirement or resignation, is presumed to be
      voluntary, and thus outside the Board’s jurisdiction.          Hosozawa, 113 M.S.P.R.
      110, ¶ 5. An involuntary resignation, however, is equivalent to a forced removal
      and therefore is within the Board’s jurisdiction.        Id.    A constructive adverse
      action claim generally has two things in common:           (1) the employee lacked a
      meaningful choice in the matter; and (2) it was the agency’s wrongful actions that
      deprived him of that choice. Bean v. U.S. Postal Service, 120 M.S.P.R. 397, ¶ 8
      (2013).   The employee may overcome the presumption that a resignation is
      voluntary by showing that it was the result of the agency’s misinformation,
      deception, or coercion. Hosozawa, 113 M.S.P.R. 110, ¶ 5.

      5
        Although the appellant indicated that he also was disputing a negative suitability
      determination in his initial appeal, IAF, Tab 1 at 3, the administrative judge found that
      the agency did not make any suitability determination, ID at 4-5. Therefore, the
      administrative judge concluded that the appellant presented no basis for considering his
      case as an appeal of a negative suitability determination, id., and we agree.
                                                                                         7

¶14         To establish involuntariness on the basis of coercion, the appellant must
      establish that the agency imposed the terms of the resignation, he had no realistic
      alternative but to resign, and the resignation was the result of improper actions by
      the agency. Id. If the employee claims that his resignation was coerced by the
      agency’s creating intolerable working conditions, he must show that a reasonable
      employee in his position would have found the working conditions so oppressive
      that he would have felt compelled to resign. Id. Once the appellant presents
      nonfrivolous allegations of Board jurisdiction—allegations of fact which, if
      proven, would establish the Board’s jurisdiction—he is entitled to a hearing at
      which he must prove jurisdiction by a preponderance of the evidence. Id.
¶15         The administrative judge concluded that, while the appellant was unhappy
      with his supervisor and performance appraisal, his allegations did not reflect
      conditions so pervasively unpleasant and difficult that he had no choice but to
      resign. ID at 4. However, in doing so, the administrative judge failed to address
      many of the appellant’s specific arguments, including claims of discrimination
      and reprisal. See Neice v. Department of Homeland Security, 105 M.S.P.R. 211,
      ¶8   (2007)   (observing   that,   in   determining   whether   an   appellant   was
      constructively discharged, the Board will consider any evidence of discrimination
      or retaliation together with all the other evidence bearing on the voluntariness of
      a resignation).
¶16         Pro se filings are to be construed liberally. Hosozawa, 113 M.S.P.R. 110,
      ¶ 7. Here, the appellant alleged that the agency singled him out to change his
      tour of duty, despite requests for accommodation, exacerbating a preexisting
      medical condition. IAF, Tab 1 at 5, 21, 24. He also submitted a letter from his
      treating physician, which describes a deteriorating medical condition and suggests
      that it may be due to his work situation. Id. at 13. The appellant further alleged
      that his supervisor, C.L., retaliated against him due to his reportedly uncovering
      and disclosing that C.L. had been violating agency regulations and authorizing
                                                                                                      8

      unlawful payments to recipients of Federal funding for years.                      Id. at 5, 8-12,
      15-20, 22-24.
¶17           Under these specific circumstances, we find that the appellant has
      nonfrivolously      alleged     that     his     resignation       was   involuntary.         See
      Hosozawa, 113 M.S.P.R. 110, ¶ 7 (remanding for a jurisdictional hearing where
      the appellant alleged, inter alia, that her resignation was involuntary because the
      agency denied her request for a reasonable accommodation); Coufal v.
      Department of Justice, 98 M.S.P.R. 31, ¶¶ 26-29 (2004) (finding that the
      appellant’s allegations that she was forced to retire because of harassment,
      whistleblower reprisal, and failure to grant her request to reassign her for medical
      reasons    warranted    a     jurisdictional     hearing);     Hernandez      v.     U.S.   Postal
      Service, 74 M.S.P.R. 412, 417-19 (1997) (remanding for a jurisdictional hearing
      as to the voluntariness of an employee’s resignation where he alleged coercion
      based     upon    the   agency’s       failure   to   grant    a    request    for     reasonable
      accommodation). Therefore, if the administrative judge determines that the claim
      is properly before the Board as a chapter 75 appeal, see supra ¶¶ 8, 11, the
      appellant is entitled to a jurisdictional hearing and the administrative judge must
      specifically consider the appellant’s claims of discrimination and retaliation as
      they pertain to the issue of involuntariness.                The administrative judge may
      consider the additional evidence the appellant submitted with his petition for
      review if she finds it relevant and material to the involuntariness issue. PFR File,
      Tab 1 at 5-103.

                                                  ORDER
¶18           For the reasons discussed above, we remand this appeal to the regional
      office for further adjudication. In her remand initial decision, the administrative
                                                                            9

judge may adopt her prior findings regarding the appellant’s claim that he was
subjected to a negative suitability determination.




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