                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     KARIN WENG,                                     DOCKET NUMBER
                         Appellant,                  CB-7121-13-0180-V-1

                  v.

     DEPARTMENT OF LABOR,                            DATE: March 12, 2015
                 Agency.



                THIS FINAL ORDER IS NO NPRECEDENTIAL 1

           Karin Weng, Rockville, Maryland, pro se.

           Laura K. Teresinski, Esquire, and Rolando Valdez, Esquire, Washington,
             D.C., for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1        Pursuant to the Board’s instructions in its April 17, 2014 Order, the
     administrative judge issued an August 28, 2014 recommendation on the
     appellant’s allegation of an involuntary resignation.      For the reasons set forth



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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     below, we ADOPT the administrative judge’s recommendations in this Final
     Order and DISMISS the appellant’s request for review for lack of jurisdiction.
¶2         The pertinent background for this case is set forth in our Order forwarding
     the matter to the regional office for an addendum proceeding on the issues of
     Board    jurisdiction   over   the   appellant’s   alleged   involuntary   resignation,
     discrimination, and reprisal claims. Weng v. Department of Labor, MSPB Docket
     No. CB-7121-13-0180-V-1 (V-1 File), Order (Apr. 17, 2014). We found that the
     arbitrator erred in his legal analysis by not allowing additional evidence to be
     presented in accordance with Board law relating to allegations of an involuntary
     resignation; and therefore there was a question of whether we had jurisdiction
     over the appeal. Id. at 3, 7. We forwarded the matter to the Washington Regional
     Office (WRO) to make recommended findings on the appellant’s involuntary
     resignation claim and, if the administrative judge found that the Board had
     jurisdiction over this claim, to make further findings on her discrimination and
     reprisal claims. Id. at 8.
¶3         An administrative judge at WRO issued a recommendation decision that
     found the appellant failed to make a nonfrivolous allegation that her resignation
     was involuntary and recommended that the case be dismissed for lack of
     jurisdiction.   Weng v. Department of Labor, MSPB Docket No. CB-7121-13-
     0180-H-1 (H-1 File), Tab 27, Recommendation Decision (RD) at 5-6. 2                The
     administrative judge found that the appellant, who was represented by counsel
     during this period, did not provide a responsive pleading to the jurisdictional
     order that required her to make a nonfrivolous allegation of Board jurisdiction
     over her alleged involuntary resignation and that the appellant’s statement that
     she was resigning based on the advice of her union representative was not an
     allegation of involuntariness. RD at 2-5. The administrative judge also found

     2
       The recommendation decision was in itially issued erroneously as an initial decision,
     however, WRO issued an erratum order advising the parties that the decision was a
     recommendation and of their right to file exceptions with the Board. I d., Tab 29.
                                                                                        3

     that the appellant had a choice between unpleasant alternatives, but the choice
     between unpleasant alternatives did not render her resignation involuntary. RD
     at 5. She found that the appellant did not allege that she was subject to working
     conditions so intolerable that she was forced to resign. RD at 5. Because the
     appellant did not make a nonfrivolous allegation of jurisdiction that her
     resignation was involuntary, the administrative judge recommended that the case
     be dismissed for lack of jurisdiction. RD at 5-6.
¶4        After she issued the recommendation, the administrative judge informed the
     parties that the recommendation would be forwarded back to the Board and that
     the parties could file exceptions to the recommendation with the Clerk of the
     Board within 20 days of the issuance of the recommendation. H-1 File, Tab 29.
     The appellant has filed exceptions to the administrative judge’s recommended
     decision.   V-1 File, Tab 13.     The agency has responded to the appellant’s
     exceptions, and the appellant submitted a reply to the agency’s response. V-1
     File, Tabs 14, 16.
     The appellant failed to make a nonfrivolous allegation that her resignation was
     involuntary due to agency misinformation.
¶5        In her submission to the administrative judge, the appellant argued that the
     agency’s failure to correct the information regarding her resignation’s effect on
     her appeal rights resulted in her relying on misinformation and rendered her
     resignation involuntary. H-1 File, Tab 13 at 11-12. The administrative judge did
     not address this argument in her recommendation decision. We disagree with the
     appellant’s argument that her resignation was involuntary due to agency
     misinformation.
¶6        An employee’s resignation is presumed to be a voluntary action and, as
     such, outside the Board’s appellate jurisdiction.      Aldridge v. Department of
     Agriculture, 111 M.S.P.R. 670, ¶ 7 (2009). An involuntary resignation, however,
     is tantamount to a removal and, accordingly, is appealable to the Board. Id. To
     establish entitlement to a jurisdictional hearing, an appellant need not allege facts
                                                                                            4

     which, if proven, definitely would establish that the resignation was involuntary;
     she need only allege facts which, if proven, could establish such a claim. Frison
     v. Department of the Army, 94 M.S.P.R. 431, ¶ 4 (2003).
¶7        To establish Board jurisdiction over a constructive adverse action, such as
     an involuntary resignation, an appellant must show that:               (1) she lacked a
     meaningful choice in the matter; and (2) it was the agency’s wrongful actions that
     deprived the employee of that choice. Bean v. U.S. Postal Service, 120 M.S.P.R.
     397, ¶ 8 (2013). An appellant may overcome the presumption of voluntariness by
     presenting sufficient evidence to establish that the action was obtained through
     duress or coercion or show that a reasonable person would have been misled by
     the agency. Searcy v. Department of Commerce, 114 M.S.P.R. 281, ¶ 12 (2010).
     The touchstone of the voluntariness analysis is whether, considering the totality
     of circumstances, factors operated on the employee’s decision-making process
     that deprived her of freedom of choice.        Id.        Application of this totality of
     circumstances test must be gauged by an objective standard rather than by the
     employee’s purely subjective       evaluation.            Heining v. General Services
     Administration, 68 M.S.P.R. 513, 519-20 (1995). Furthermore, it is well settled
     that most resignations are not constructive removals and that the “‘doctrine of
     coercive involuntariness is a narrow one’ requiring that the employee ‘satisfy a
     demanding    legal   standard.’”      Garcia         v.     Department    of   Homeland
     Security, 437 F.3d 1322, 1329 (Fed. Cir. 2006) (en banc).
¶8        An agency is required to provide accurate information to permit an
     employee to make an informed, and thus voluntary, decision regarding her
     resignation. Salazar v. Department of the Army, 115 M.S.P.R. 296, ¶ 9 (2010). A
     decision made “with blinders on,” based on misinformation or lack of
     information, cannot be binding as a matter of fundamental fairness and due
     process.   Freeborn v. Department of Justice, 119 M.S.P.R. 290, ¶ 10 (2013)
     (quoting Covington v. Department of Health & Human Services, 750 F.2d 937,
     943 (Fed. Cir. 1984)). The Board has stated that the principles set forth in our
                                                                                        5

     reviewing court’s decisions in Scharf v. Department of the Air Force, 710 F.2d
     1572, 1574-75 (Fed. Cir. 1983), and Covington require an agency to provide
     information that is not only correct in nature but adequate in scope to allow an
     employee to make an informed decision and that this includes an obligation to
     correct any erroneous information on which it has reason to know an employee is
     relying. Freeborn, 119 M.S.P.R. 290, ¶ 10.
¶9        Here, it is undisputed that the appellant’s union was the source of any
     misinformation she received regarding her ability to appeal if she resigned. V-1
     File, Tab 1, Subtab 19, Subtab 26 at 89-91. While the appellant may feel that she
     was misled by the union representatives, they are not representatives of the
     agency and their acts cannot be imputed to the agency. See Green v. Department
     of Veterans Affairs, 112 M.S.P.R. 59, ¶ 9 (2009). The appellant argued in her
     response to the administrative judge that the agency was obligated to correct the
     erroneous advice given to her. H-1 File, Tab 13 at 11-12. However, the agency’s
     obligation is only triggered when it knows the appellant is relying on the
     misinformation.   Willis v. Department of the Air Force, 56 M.S.P.R. 433, 440
     (1993), aff’d, 29 F.3d 645 (Fed. Cir. 1994) (Table). The appellant has not alleged
     that the agency knew her union representatives had advised her that she could
     continue to pursue her appeal if she resigned her position. In fact, the appellant
     testified at the arbitration hearing that she had never discussed the option of
     resigning with agency officials. V-1 File, Tab 1, Subtab 26 at 94-95. In addition,
     the appellant stated that she met with her union representatives who advised her
     to resign and that she immediately returned to her desk and sent an email at
     3:45 p.m. that stated she was resigning effective at 4 p.m. that day. Id. at 90-91.
     The appellant provided little, if any, time for the agency to respond, even if it had
     been aware of her reliance on the union’s misinformation.        Finally, it is well
     established Board law that the appellant is responsible for the errors of her chosen
     representatives. Sofio v. Internal Revenue Service, 7 M.S.P.R. 667, 670 (1981).
                                                                                           6

      Therefore, we find that the appellant has not made a nonfrivolous allegation that
      her involuntary resignation resulted from agency misinformation.
      The appellant failed to make a nonfrivolous allegation that her resignation was
      involuntary due to duress or coercion.
¶10        The appellant argues in her exceptions both that the administrative judge
      erred in limiting her analysis of duress to three elements and that she has
      submitted sufficient evidence and argument using these elements to make a
      nonfrivolous allegation of duress. V-1 File, Tab 13 at 12-14. The administrative
      judge recommended finding that the appellant had not made a nonfrivolous
      allegation, relying in part on the three elements for duress set forth in Fruhauf
      Southwest Garment Co. v. United States, 111 F. Supp. 945, 951 (Ct. Cl. 1953).
      RD at 4-5. We agree.
¶11        Three elements are generally common to all situations where the employee
      has tendered her resignation in the face of a threatened or proposed adverse
      action:   (1) one side involuntarily accepted the terms of another; (2) the
      circumstances permitted no other alternative; and (3) said circumstances were the
      result of coercive acts of the opposite party.      Heining, at 68 M.S.P.R. at 520
      (citing, among other cases, Fruhauf Southwest Garment Co., 111 F. Supp. at 951).
      However, in the case where intolerable working conditions are alleged, these
      elements must be tailored and/or expanded to fit the situation. Id. When, as here,
      an employee claims that her resignation was the result of intolerable working
      conditions, she must show that a reasonable employee in her position would have
      found the working conditions so oppressive that she would have felt compelled to
      resign. 3 See Hosozawa v. Department of Veterans Affairs, 113 M.S.P.R. 110, ¶ 5


      3
        “[W]here an employee is faced merely with the unpleasant alternatives of resigning or
      being subject to a removal for cause, such limited choices do not make the resulting
      resignation an involuntary act.” Schultz v. United States Navy, 810 F.2d 1133, 1136
      (Fed. Cir. 1987). However, if the appellant alleged that the agency knew that it could
      not substantiate the removal, then the agency’s action is coercive. I d. The appellant
      has not alleged that the agency knew that it could not substantiate her removal.
                                                                                      7

      (2010). The recommendation decision accurately reflects this legal analysis. RD
      at 4.
¶12           The appellant argues that the agency imposed the terms of her resignation
      and that she had no alternative but to resign from her position because the agency
      had issued a final decision to remove her. V-1 File, Tab 13 at 14-16. In addition,
      she cites to a case, which she alleges supports her position that she did not give
      up her appeal rights in her resignation letter. Id. at 16. Here, the appellant had
      the choice to resign or to challenge her removal; she elected to submit her
      resignation on the day of her removal. V-1 File, Tab 1, Subtab 19. The appellant
      knew how to challenge personnel actions, as evidenced by her citation to a
      district court settlement of $295,000 to resolve grievances during the period of
      her employment from 2009-2011.        H-1 File, Tab 13 at 6-7.   In addition, the
      appellant states in her exceptions that she has ten other grievances pending
      against the agency, where the union has invoked arbitration. V-1 File, Tab 13
      at 19. Therefore, we conclude that the appellant had the freedom to choose which
      action she wished to pursue, and she chose to resign.
¶13           The appellant argues that her situation was analogous to the Board’s
      decision in Scalese v. Department of the Air Force, 68 M.S.P.R. 247, 249 (1995).
      V-1 File, Tab 13 at 16. She points to her written statement, made in connection
      with her resignation, “I do not waive my appeal rights,” as evidence that she
      intended to appeal the decision similar to the appellant in Scalese. We do not
      find that, by making this statement, the appellant retained rights she otherwise
      waived. The appellant in Scalese retired on the same date as his removal was to
      be effective; therefore, he was able to challenge his removal under 5 U.S.C.
      § 7701(g), a provision that is inapplicable to the resignation at issue here. See
      Scalese, 68 M.S.P.R. at 248.      The Board specifically stated in Scalese that
      whether the agency constructively removed the appellant was not at issue. Id.
      at 249.
                                                                                        8

¶14         The     appellant’s situation   is   more   analogous to   our   decisions in
      Green, 112 M.S.P.R. 59, and Gordon v. Veterans Administration, 19 M.S.P.R.
      532 (1984), aff’d, 790 F.2d 92 (Fed. Cir. 1986) (Table), where the Board found
      that it lacked jurisdiction over the purported removal appeals because each
      appellant voluntarily resigned on the effective dates of their removals.
      Green, 112 M.S.P.R. 59, ¶¶ 12-13; Gordon, 19 M.S.P.R. at 533. The Board has
      found that an employee cannot make an accepted agency action involuntary solely
      by writing the words “under duress” or “signed under protest.”         Reed v. U.S.
      Postal Service, 99 M.S.P.R. 453, ¶¶ 12, 15 (2005), aff’d, 198 F. App’x 966 (Fed.
      Cir. 2006).    For the same reason, the appellant’s statement in her resignation
      email does not automatically make her resignation involuntary.         The appellant
      must allege that the action was obtained through duress or coercion and not just
      that she selected between two unpleasant alternatives.     Loggins v. U.S. Postal
      Service, 112 M.S.P.R. 471, ¶ 12 (2009).
¶15         The appellant provides a chronology of her issues with her agency’s
      management in support of her claim that a hostile work environment made her
      working conditions intolerable. V-1 File, Tab 13 at 16-19. The appellant cites
      her numerous equal employment opportunity (EEO) complaints, arbitration
      awards, and settlements regarding agency actions from 2006 through 2010. Id.
      Even the most recent of these resolutions, a 2013 arbitration award, refers back to
      grievances from her 2009 and 2010 performance evaluations.         Id. at 18.   The
      appellant alleges that her working conditions became intolerable over a 6-year
      period leading up to her resignation, but she does not name any agency actions
      during 2011 and 2012, outside of being placed on a performance improvement
      plan. Id. at 19-20. An employee is not guaranteed a work environment free of
      stress.     Miller v. Department of Defense, 85 M.S.P.R. 310, ¶ 32 (2000).
      Dissatisfaction with work assignments, a feeling of being unfairly criticized, or
      difficult and unpleasant working conditions are generally not so intolerable as to
      compel a reasonable person to resign. Id. In addition, we have previously found
                                                                                         9

      that a lapse of time undercuts the appellant’s assertions that working conditions
      were intolerable and compelled resignation. See Searcy, 114 M.S.P.R. 281, ¶ 13.
      In Searcy, the Board found that a 5-month lapse of time between when the
      appellant filed his first EEO complaint and when he resigned undercut his
      involuntariness claim.    Id.   In the present appeal, the appellant has alleged
      intolerable working conditions for 6 years but provided no evidence of any
      coercive event in over a year prior to her resignation. V-1 File, Tab 13 at 16-20.
      The lack of any alleged incidents during this period of time weakens any
      inference that her working conditions had become so intolerable she had to
      resign. See Axsom v. Department of Veterans Affairs, 110 M.S.P.R. 605, ¶ 16
      (2009) (lack of incidents and reduced interaction with supervisors in the period
      leading up to resignation decision weakened inference that harassment and
      discrimination weighed heavily in the appellant’s decision to resign). Therefore,
      we find that the appellant failed to make a nonfrivolous allegation that her daily
      working conditions were so intolerable that a reasonable person in her position
      would have felt compelled to resign.
      Because the appellant has not established Board jurisdiction over her alleged
      adverse action, the Board cannot review her discrimination and reprisal claims or
      the arbitrator’s decision.
¶16         The appellant’s claims of discrimination based on disability and retaliation
      for engaging in protected activity are considered only as they related to the issue
      of   voluntariness   of   her   resignation.      See   Markon   v.   Department   of
      State, 71 M.S.P.R. 574, 578-79 (1996).         Only when it is established that the
      Board has jurisdiction over an appeal because there has been a constructive
      discharge may issues of discrimination and reprisal be adjudicated under the
      applicable standards for proof of discrimination and/or reprisal under Title VII, as
      the case is then a mixed case.      Id. at 580.    The administrative judge did not
      address the appellant’s discrimination claims in her recommendations. Because
      we have found that the appellant failed to make a nonfrivolous allegation that her
                                                                                            10

      resignation was involuntary, we find that the administrative judge did not err in
      failing   to   adjudicate    these   claims.       See    Collins    v.   U.S.    Postal
      Service, 100 M.S.P.R. 332, ¶ 17 (2005).
¶17         The Board has jurisdiction to review an arbitrator’s decision under 5 U.S.C.
      § 7121(d) only when the subject matter of the grievance is one over which the
      Board has jurisdiction, the appellant has alleged discrimination under 5 U.S.C.
      § 2302(b)(1) in connection with the underlying action, and a final decision has
      been issued.    Sadiq v Department of Veterans Affairs, 119 M.S.P.R. 450, ¶ 4
      (2013).   Because we find the appellant has failed to make a nonfrivolous
      allegation that her resignation was involuntary, the appellant has not alleged an
      appealable action over which the Board has jurisdiction. Therefore, the Board
      does not have jurisdiction to review the arbitrator’s decision, and the appellant’s
      request for review must be dismissed for lack of jurisdiction. 4
      None of the appellant’s procedural claims warrants remanding the case for
      additional adjudication.
¶18         The appellant argues that the Board’s treatment of her case by the WRO as
      an appeal resulted in confusion and hindered her ability to respond to the
      administrative judge’s order. V-1 File, Tab 13 at 7-8. The appellant states that
      her counsel could not determine from the acknowledgment order she received
      whether it was an appeal of an adverse action or a de novo review of the
      arbitrability issue. Id. at 7. In the Board’s order that forwarded this case to the
      WRO, the Board acknowledged that there was a question of whether it had
      jurisdiction over this case. V-1 File, Tab 10, Order at 3. The Board directed the
      administrative judge to conduct proceedings as necessary and to make findings
      regarding the Board’s jurisdiction. Id. at 8. We agree that the acknowledgment

      4
        Because the Board lacks jurisdiction to review the arb itrator’s decision, we VACATE
      those portions of our April 17, 2014 Order that initially granted the appellant’s request
      for review and that vacated the arbitration award. V-1 File, Tab 10, Order at 1, 7.
      Under 5 U.S.C. § 7121(d), the Board may only review an award over wh ich it has
      jurisdiction.
                                                                                       11

      order issued by the administrative judge was not sufficiently tailored to meet the
      present case in that it contained language referencing an initial appeal and rights
      under a timely-filed appeal that were not applicable to this case; however, the
      acknowledgment order provided clear notice to the appellant of her obligation to
      submit evidence and argument that the Board had jurisdiction over her case. H-1
      File, Tab 2 at 2-3. The acknowledgment order advised the appellant of the limits
      on Board jurisdiction in involuntary resignation cases. Id. The appellant filed a
      motion for clarification; however, it did not address the jurisdictional order and
      only sought a discovery order and approval to submit additional relevant evidence
      to pursue her claim. H-1 File, Tab 4 at 3. The administrative judge advised the
      appellant of what she must submit to make a nonfrivolous allegation of an
      involuntary resignation and to receive a hearing on the issue of jurisdiction. H-1
      File, Tab 2 at 2-3. We find no evidence that the administrative judge’s failure to
      rule on the appellant’s motion for clarification affected the appellant’s
      substantive rights or constituted error.      See Karapinka v. Department of
      Energy, 6 M.S.P.R. 124, 127 (1981) (an administrative judge’s procedural error is
      of no legal consequence unless it is shown to have adversely affected a party’s
      substantive rights).
¶19         Finally, the appellant argues that the administrative judge erred in her
      refusal to review all of the documents the appellant submitted prior to making her
      determination on jurisdiction. V-1 File, Tab 13 at 8. The appellant cites to a
      prior Board decision that stated that the administrative judge must consider
      evidence submitted towards proof of the involuntariness of her claim. Id. at 8-9
      (citing Markon, 71 M.S.P.R. at 580-81).        The appellant is correct that the
      administrative judge must consider evidence submitted; however, the appellant
      has the responsibility to articulate her claims with “reasonable clarity and
      precision” with substantive details establishing jurisdiction or risk being found to
      have failed to meet her burden of making a nonfrivolous allegation. See Ellison
      v. Merit Systems Protection Board, 7 F.3d 1031, 1036-37 (Fed. Cir. 1993)
                                                                                     12

      (discussing this requirement in the context of an appellant’s obligation to prove
      exhaustion of a complaint of whistleblower reprisal). In addition, it is not the
      Board’s obligation to pore through the record or to construe and make sense of
      allegations based on various parts of an extremely voluminous case file. Keefer
      v. Department of Agriculture, 92 M.S.P.R. 476, ¶ 18, n.2 (2002); see Corley v.
      Rosewood Care Center, Inc. of Peoria, 388 F.3d 990, 1001 (7th Cir. 2004) (“[W]e
      will not root through the hundreds of documents and thousands of pages that
      make up the record here to make [the plaintiff’s] case for him.”). The appellant
      provided a single response to the administrative judge’s jurisdictional order but
      did not direct the administrative judge to where in the voluminous pleadings and
      corrections the evidence of the appellant’s nonfrivolous allegation could be
      found.   H-1 File, Tab 13.    The administrative judge had no obligation to go
      beyond that and review every page to make the appellant’s case for her.
      Therefore, we find no error in the administrative judge’s action.
¶20        This is the final decision of the Merit Systems Protection Board on the
      appellant’s request for arbitration review.     Title 5 of the Code of Federal
      Regulations, section 1201.113(b) (5 C.F.R. § 1201.113(b)).

                      NOTICE TO THE APPELLANT REGARDING
                         YOUR FURTHER REVIEW RIGHTS
           You have the right to request the United States Court of Appeals for the
      Federal Circuit to review this final decision. 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
                                                                                 13

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 your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing 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.
