                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     TERESA R. DORSEY-WILLIAMS,                      DOCKET NUMBER
                   Appellant,                        SF-0752-16-0034-I-1

                  v.

     DEPARTMENT OF THE AIR FORCE,                    DATE: September 12, 2016
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Teresa R. Dorsey-Williams, Roseville, California, pro se.

           Jeffrey Joseph Lorek, Esquire, Joint Base Andrews, Maryland, 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 her appeal of an allegedly involuntary resignation 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


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     on an erroneous interpretation of statute or regulation or the erroneous application
     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).

                                          BACKGROUND
¶2           The appellant was an Information Technology Specialist who worked at the
     agency’s Osan Air Base in the Republic of Korea. 2 In May 2013, the Air Force
     Office of Special Investigations (AFOSI) contacted and interviewed her in
     connection with an ongoing investigation regarding drug use and/or distribution
     by military and/or civilian personnel at the base. In June 2013, Korean police
     interviewed the appellant based on suspicion she had violated the Korean Drug
     Control Act (Marijuana). No criminal charges were filed against her as a result of
     either investigation.      In early April 2014, AFOSI conducted a search of the
     appellant’s cellular phone, which, in the agency’s judgment, contained six photos
     apparently related to drug use and/or distribution, including an excerpt from a
     text message in which the appellant indicated she had a marijuana cigarette rolled
     up in the trunk of her car. 3 On April 7, 2014, agency civilian personnel office

     2
       Except where otherwise noted, the information in this paragraph is taken from the
     initial decision and is not in dispute.
     3
         As discussed below, the appellant disputes the contents of the phone on review.
                                                                                         3

     staff advised the appellant that management felt she needed to be removed and
     that it would be better for her if she resigned, that the agency could assist her in
     her return to the United States if she did so, and told her she had until the next
     day to decide what to do.         On April 8, 2014, the appellant orally advised the
     agency that she would resign, and she submitted a letter of resignation the
     following day. 4 On April 20, 2014, the appellant tried to enter Osan Air Base and
     learned that she had been barred from entry per a verbal instruction from the base
     commander. On April 29, 2014, the appellant received notice that her security
     clearance and access to classified information was suspended. The appellant left
     Korea and returned to the United States on May 13, 2014, at the agency’s
     expense. On May 14, 2014, the base commander issued a written letter barring
     the appellant from Osan Air Base or any other U.S. military installation in Korea
     for 20 years.
¶3           The appellant filed an appeal with the Board in October 2015, alleging that
     her resignation was involuntary. Based on the written record, 5 the administrative
     judge found that the appellant failed to establish by preponderant evidence that
     her resignation was involuntary. As an initial matter, the administrative judge
     concluded that the appellant’s claims concerning her verbal barment from Osan
     Air Base on April 20, 2014, the suspension of her security clearance and access to
     classified information on April 29, 2014, the agency civilian personnel office
     staff causing her job offer with the U.S. Army to be rescinded in May, and the
     written barment dated May 14, 2014, warrant little consideration concerning
     whether her resignation was voluntary, because all of these events occurred after
     the appellant submitted her resignation on April 9, 2014.        Initial Appeal File,


     4
       The April 8, 2014 letter of resignation set an effective date of April 30, 2014. The
     appellant submitted another signed resignation on April 30, 2014, setting an effective
     date of May 20, 2014. The administrative judge found that it was immaterial whether
     April 30, 2014, or some later date was the correct one.
     5
         The appellant waived her right to a hearing.
                                                                                            4

     Tab 13, Initial Decision (ID) at 17. In so ruling, the administrative judge cited
     legal authority for the proposition that the most probative indicator of
     involuntariness generally will be a relatively short time period between coercive
     acts preceding an employee’s exit. ID at 17-18. The administrative judge found
     the appellant’s claim of being denied advanced leave in March 2012 to be
     incomplete, inconsistent with her own account, and contradicted by other
     evidence in the record. ID at 18-19.
¶4         The administrative judge concluded that the appellant failed to demonstrate
     that a reasonable person in her position would have felt compelled to resign for
     several reasons because:        (1) there was nothing improper in the agency
     conducting an investigation concerning the use and distribution of illegal drugs
     by its employees or enlisted members using agency facilities; (2) allegations of
     unwarranted investigations generally do not rise to the level of intolerable
     working conditions for purposes of a claim of involuntary resignation; (3) the
     appellant’s claims that her Miranda, Kalkines, and Garrity rights, 6 as well as her
     Fourth Amendment rights, were violated were unworthy of credence; (4) the
     appellant’s claims concerning AFOSI implicated two interactions over the course
     of a year and, even with the second incident being contemporaneous with her
     resignation, and even assuming AFOSI subjected her to difficult or unpleasant
     conditions, the fact is that its interactions with her were relatively isolated, which
     would militate against a finding of intolerable working conditions; and (5) there
     was nothing improper in the agency’s reliance on the AFOSI search and seizure

     6
        See Miranda v. Arizona, 384 U.S. 436 (1968) (holding that, prior to police
     questioning, detainees must be advised of their constitutional right to an attorney and
     against self-incrimination); see also Kalkines v. United States, 473 F.2d 1391 (Ct. Cl.
     1973) (discussing Kalkines warnings, which are provided when an employee is warned
     that he or she may be removed for failing to answer questions in an investigation, but
     his or her responses may not be used in a future criminal prosecution); Garrity v.
     New Jersey, 385 U.S. 493, 499-500 (1967) (explaining that Garrity warnings involve
     situations when public employees are told that they have the right to remain silent in an
     investigation, and any statements made could subject them to administrative or
     criminal liability).
                                                                                         5

     of the appellant’s cellular phone. ID at 19-21. The administrative judge observed
     that, while the appellant certainly had a difficult choice in deciding whether to
     resign or to stay and fight the threatened removal, she remained at all times free
     to fight any possible charges against her instead of accepting the offer to resign,
     and, under the circumstances, the agency’s offer of consideration to resign in the
     form of assisting her with her return to the United States did not compromise her
     volition. ID at 21-22.
¶5            The administrative judge cited authority for the proposition that, to show
     coercion in the face of a threat of removal, an employee bears the burden of
     proving that the agency knew the reason for the threatened removal could not be
     substantiated; mere rebuttal of the grounds for a threatened removal fails to meet
     this burden, an appellant must show that the agency knew or believed the action
     could not be sustained or that an arguable basis for removal did not exist. ID
     at 23.     The administrative judge found that the appellant failed to make any
     showing that her resignation was coerced under these standards. Id. Finally, the
     administrative judge analyzed whether the time pressure created by the appellant
     having to decide in 24 hours whether to resign or stay and fight an adverse action
     made the resignation coercive and concluded that it did not. ID at 25-27.
¶6            The appellant filed a timely petition for review, to which the agency filed a
     response, to which the appellant filed a reply. Petition for Review (PFR) File,
     Tabs 1, 3-4. 7




     7
      The appellant’s petition for review was a conclusory two-page document that asserted,
     without evidence or argument, that she “was railroaded into resigning.” PFR File,
     Tab 1 at 4. We have, however, considered her more expansive arguments in her
     subsequent reply to the agency’s response.
                                                                                               6

                                            ANALYSIS
     The appellant has not shown that the initial decision contains erroneous findings
     of material fact.
¶7         The Board will grant a petition for review when the petitioner shows that
     the initial decision contained erroneous findings of material fact.               5 C.F.R.
     § 1201.115(a). 8 To be material, an alleged factual error must be of sufficient
     weight to warrant an outcome different from that of the initial decision. 5 C.F.R.
     § 1201.115(a)(1). A petitioner who alleges that the administrative judge made
     erroneous findings of material fact must explain why the challenged factual
     determination is incorrect and identify specific evidence in the record that
     demonstrates the error. 5 C.F.R. § 1201.115(a)(2). The petition for review must
     contain sufficient specificity to enable the Board to ascertain whether there is a
     serious evidentiary challenge justifying a complete review of the record. Tines v.
     Department of the Air Force, 56 M.S.P.R. 90, 92 (1992).
¶8         The appellant addresses, in one perfunctory paragraph, her contention that
     her resignation was involuntary, as follows:
            (1) Was I given some alternative to resignation; YES be fired;
            (2) was I or did I fully understand the nature of the choice that was
            given; (3) was not given a reasonable time in which to choose; (less
            than 24 hours) (4) whether the employee was permitted to select the
            effective date of the resignation; and (5) whether the employee was
            given time to get the advice of an attorney, the answer is NO.
     PFR File, Tab 4 at 5 (punctuation as in the original).
¶9         However, these sorts of conclusory assertions fall far short of explaining
     why the challenged factual determinations are incorrect and identifying specific
     evidence in the record that demonstrates the error. And the appellant’s arguments



     8
       The appellant does not argue that the initial decision was based on an erroneous
     interpretation of statute or regulation or the erroneous application of the law to the facts
     of the case, or that the administrative judge’s rulings during the appeal or in the initial
     decision constituted reversible error. See 5 C.F.R. § 1201.115(b), (c). The Board
     normally will consider only issues raised on review. 5 C.F.R. § 1201.115.
                                                                                        7

      lack the specificity to warrant an inference that there is a serious evidentiary
      challenge justifying a complete review of the record.
¶10        Although she does not label them as such, most of the appellant’s
      contentions on review are of the sort that would be pertinent in an adverse action
      proceeding against her. For example, she asserts that the base commander made
      inconsistent statements about his knowledge of the investigation of her and others
      and his involvement in the events leading to her resignation. PFR File, Tab 4
      at 6. She makes similar assertions regarding a civilian personnel official. Id. As
      the administrative judge stated in the initial decision, when an employee resigns
      in the face of a threat of a forthcoming removal, mere rebuttal of the grounds for
      a threatened removal fails to show coercion; an appellant must show that the
      agency knew or believed the action could not be substantiated, or that an arguable
      basis for removal did not exist.      Sullivan v. Department of Veterans Affairs,
      79 M.S.P.R. 81, 85 (1998); Garland v. Department of the Air Force, 44 M.S.P.R.
      537, 540 (1990).    The appellant’s contentions on review do not show that the
      agency knew or believed it could not substantiate a removal action or that an
      arguable basis for removal did not exist.
¶11        The appellant states that she has “new evidence,” namely that the telephone
      that was ultimately returned to her in 2016 is not the same one that was seized
      from her in 2013 and which allegedly contained the incriminating photographs.
      PFR File, Tab 4 at 6-8. As discussed in the preceding paragraph, this allegation
      might be material if she had not resigned and was facing an adverse action, but it
      does not show that the agency knew or believed when she resigned that it
      could not sustain a removal action.
¶12        In sum, we conclude that the appellant has not provided any basis for
      disturbing the administrative judge’s detailed analysis finding that her resignation
      was not involuntary. See Broughton v. Department of Health & Human Services,
      33 M.S.P.R. 357, 359 (1987) (noting that the Board will not disturb an
      administrative judge’s findings of fact when the initial decision reflects that she
                                                                                        8

      considered the evidence as a whole, drew appropriate inferences, and made
      reasoned conclusions on issues of credibility).

      The appellant’s affirmative defenses are without merit.
¶13        On review, the appellant again raises arguments that she was denied due
      process based on an allegedly incorrect penalty analysis and that she suffered
      title VII discrimination. PFR File, Tab 1 at 5. For the reasons discussed in the
      initial decision, which found that, absent an otherwise appealable action, the
      Board lacks jurisdiction to review such claims, we find that we cannot address
      these affirmative defenses. ID at 29 n.16.

                      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:
                                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.
                                                                                  9

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
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.
