                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     TONYA L. JEFFERSON,                             DOCKET NUMBER
                   Appellant,                        AT-0752-14-0788-I-1

                  v.

     DEPARTMENT OF VETERANS                          DATE: September 25, 2015
       AFFAIRS,
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Daphne D. Ivery, Atlanta, Georgia, for the appellant.

           Neil S. Deol, Esquire, Decatur, Georgia, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The agency has filed a petition for review of the initial decision, which
     found that the agency constructively removed the appellant from her position.
     For the reasons discussed below, we GRANT the agency’s petition for review,
     REVERSE the initial decision, and DISMISS the appeal for lack of jurisdiction.


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

¶2         Effective March 25, 2014, the appellant resigned from her GS-9 Legal
     Administrative Specialist position. Initial Appeal File (IAF), Tab 4 at 6. She
     subsequently filed a constructive removal appeal with the Board, asserting that
     she was forced to resign because the agency failed to reasonably accommodate
     her disability, which caused her health to decline severely. 2 IAF, Tab 1 at 4, 6.
     She requested a hearing. Id. at 2.
¶3         After holding the requested hearing, the administrative judge issued an
     initial decision finding that the agency constructively removed the appellant from
     her position.   IAF, Tab 17, Initial Decision (ID).         She found that:      (1) the
     appellant is an individual with a disability; (2) the agency could have granted the
     appellant the reasonable accommodation she requested without undue hardship,
     yet unjustifiably failed to provide it; (3) the accommodation the appellant
     requested did not conflict with the agency’s collectively bargained seniority
     system; and (4) the agency’s actions were discriminatory and made the
     appellant’s working conditions so difficult that a reasonable person in her
     position would have felt compelled to resign.         ID at 5-9.    The administrative
     judge ordered the agency to cancel the appellant’s resignation; restore her to her
     previous position, effective March 25, 2014; and pay her the appropriate amount
     of back pay. ID at 9. She also ordered interim relief. ID at 10-11.
¶4         The agency has filed a petition for review. Petition for Review (PFR) File,
     Tab 3. It argues that the administrative judge erred in finding that the appellant
     resigned involuntarily based on a failure to accommodate because: (1) the


     2
       The appellant first amended an equal employment opportunity (EEO) complaint to
     include an allegation that her resignation constituted a constructive discharge, which
     the agency processed as a mixed case. IAF, Tab 4 at 7. However, it is unclear whether
     her appeal was timely filed because, among other things, we cannot determine whether
     the agency issued a final agency decision before she filed her Board appeal and, if so,
     when. See 5 C.F.R. § 1201.154(b) (a Board appeal must be filed within 30 days of the
     appellant’s receipt of the final agency decision). In any event, we need not decide the
     timeliness issue because we dismiss this appeal for lack of jurisdiction. See Fletcher v.
     Office of Personnel Management, 118 M.S.P.R. 632, ¶ 10 n.2 (2012).
                                                                                       3

     appellant failed to engage in the interactive process; (2) the administrative judge
     misconstrued the law to require the agency to provide the appellant with the
     accommodation of her choosing; (3) the administrative judge failed to recognize
     that the accommodation the appellant requested was by law unreasonable because
     it conflicted with the seniority provisions of the collective bargaining agreement;
     and (4) the appellant’s failure to await the outcome of an equal employment
     opportunity (EEO) complaint she filed regarding the alleged failure to
     accommodate renders her resignation voluntary.        Id.   The appellant did not
     respond, except to challenge the agency’s certification of interim relief.     PFR
     File, Tab 5.
     The agency has complied with the interim relief order.
¶5         In the initial decision, the administrative judge ordered the agency to
     provide the appellant with interim relief, in the event that either party filed a
     petition for review, including: (1) effecting the appellant’s appointment to the
     position of Legal Administrative Specialist, GS-901-09, retroactive to the date of
     the initial decision; and (2) providing the appellant with the pay and benefits of
     this position while any petition for review is pending. ID at 10-11.
¶6         Where the appellant is the prevailing party in an initial decision that grants
     interim relief, any petition or cross petition for review filed by the agency must
     be accompanied by a certification that the agency has complied with the interim
     relief order either by providing the required interim relief or by satisfying the
     requirements of 5 U.S.C. § 7701(b)(2)(A)(ii) and (B). Archerda v. Department of
     Defense, 121 M.S.P.R. 314, ¶ 11 (2014).      The agency is only required to take
     appropriate administrative action by the deadline for filing the petition for review
     that will result in the issuance of a paycheck for the interim relief period and is
     not required to have paid the appellant by the deadline. Id., ¶ 13. An agency’s
     inadvertent, minor mistake in providing an appellant with interim relief can be
     excused if promptly corrected. Moore v. U.S. Postal Service, 78 M.S.P.R. 80, 84
     (1998). If an agency fails to comply with an interim relief order, the Board has
                                                                                        4

      discretion to dismiss the petition, but is not required to do so. Erickson v. U.S.
      Postal Service, 120 M.S.P.R. 468, ¶ 11 (2013).
¶7          With its petition for review, the agency filed: (1) a declaration from agency
      counsel averring under penalty of perjury that the agency has complied with the
      interim relief order; (2) a letter to the appellant informing her of her interim
      appointment and instructing her to report for duty; (3) a Standard Form (SF) 52
      requesting the appellant’s interim appointment, retroactive to February 2, 2015;
      and (4) an SF-50 documenting the same. PFR File, Tab 3 at 12-17.
¶8          The appellant challenged the agency’s certification of interim relief.
      Specifically, she asserted that the agency did not fully comply with the interim
      relief order because it:   (1) placed her on leave without pay (LWOP) from
      February 23, 2015, to February 27, 2015, totaling 36 hours; and (2) had not
      processed her request for the continuation of her dental and vision insurance.
      PFR File, Tab 5 at 4-5.
¶9          Pursuant to 5 C.F.R. § 1201.116(b), the Clerk of the Board issued an order
      affording the agency an opportunity to respond to the appellant’s challenge. PFR
      File, Tab 6. In response, the agency submitted evidence that the 36-hour charge
      to LWOP was corrected in March 2015. PFR File, Tab 7 at 5-6. As to dental and
      vision insurance, the agency asserted that employees bear the responsibility to
      initiate such benefits, that it advised the appellant of this information on several
      occasions, and that it also provided the appellant with the contact information to
      do so. Id. at 4.
¶10         The appellant filed a reply, submitting evidence that largely supports the
      agency’s assertions. Namely, she submitted email correspondence indicating that
      she enrolled for dental and vision benefits on March 31, 2015. PFR File, Tab 8
      at 11-16. She also provided the Leave and Earnings Statement for the pay period
      ending March 7, 2015, that reflects 36 hours of LWOP, as well as the Leave and
      Earnings Statement for the following pay period reflecting that no LWOP had
      been taken to date, which suggests that the error was corrected. Id. at 8-9. She
                                                                                       5

      contends that the agency delayed her wages and her ability to sign up for dental
      and vision benefits because it misspelled her last name on her appointment
      paperwork. Id. at 4; see id. at 6 (the “s” was omitted from the appellant’s last
      name in box 1 of the SF-50 documenting her appointment).            However, she
      attached evidence that the agency corrected this error on March 10, 2015. PFR
      File, Tab 8 at 7.
¶11         Based on the foregoing, we find that the agency has complied with the
      interim relief order. The agency clearly took appropriate administrative action,
      prior to filing its petition for review, to effectuate the appellant’s interim
      appointment. See PFR File, Tab 3 at 14-16. Whether the appellant received all of
      the payment she was due by the time the agency filed its petition for review is
      irrelevant.   See Archerda, 121 M.S.P.R. 314, ¶ 13.    Regardless, the issues the
      appellant raises regarding the 36 hours of LWOP and her vision and dental
      insurance both appear to have been corrected no later than March 31, 2015, less
      than a month after the agency filed its petition for review. See Omites v. U.S.
      Postal Service, 87 M.S.P.R. 223, ¶¶ 7-8 (2000) (finding that the agency’s delay in
      paying back pay for 2.5 months after issuance of the initial decision did not
      constitute noncompliance with the interim relief order because the agency
      promptly initiated administrative action for the payment; the delayed receipt of
      payment was inadvertent; and, even assuming arguendo that it constituted
      noncompliance, the Board would exercise its discretion not to dismiss the
      agency’s petition for review). To the extent that the agency’s misspelling of the
      appellant’s name contributed to any delay, this minor error was promptly
      corrected and there is no evidence that it was anything but inadvertent.
      Therefore, we will not exercise our discretion to dismiss the agency’s petition for
      review.
      The appellant has not shown that her resignation was involuntary.
¶12         Medical documentation the appellant provided to the agency indicates that
      her medical condition and the side effects of the medication she takes for that
                                                                                             6

      condition cause insomnia, “morning somnolence,” and poor concentration,
      making it unsafe for her to drive to work in the morning. IAF, Tab 8 at 42. Thus,
      her physician recommended that she be permitted to participate in a van pool to
      commute to work, so as to avoid morning driving. Id. The appellant requested to
      modify her work schedule as a reasonable accommodation that would allow her to
      participate in a van pool operated by her neighbor. IAF, Tab 12 at 13-14, 20;
      Hearing Compact Disc (HCD) (testimony of the appellant). The van pool arrived
      at work at approximately 7:00 a.m. and the appellant needed to end her work day
      at 4:30 p.m. to ride home with the van pool. HCD (testimony of the appellant).
      Accordingly, she requested to change her tour of duty, from 8:00 a.m. - 5:30 p.m.,
      to 7:00 a.m. - 4:30 p.m. Id.; IAF, Tab 8 at 24-29, Tab 12 at 6-22, 26-27. To
      allow the appellant time to find alternate transportation that would accommodate
      her regular tour of duty, the agency temporarily granted this request from
      May 2013,       until   February   2014,   when   it   directed   her   to   resume   her
      8:00 a.m. - 5:30 p.m. schedule. IAF, Tab 8 at 24-29, Tab 12 at 6-22, 26-27. The
      appellant resigned less than 2 months later, stating in her resignation letter that
      she was resigning “under extreme duress brought on by work related stressors
      which aggravated health related issues.” 3 IAF, Tab 4 at 18.
¶13        A decision to resign is presumed to be a voluntary act outside the Board’s
      jurisdiction, and the appellant bears the burden of establishing by preponderant
      evidence that her resignation was involuntary and therefore tantamount to a
      forced removal. Hosozawa v. Department of Veterans Affairs, 113 M.S.P.R. 110,
      ¶ 5 (2010).      One way for an employee to overcome the presumption that a
      resignation is voluntary is to show that it was the result of coercion by the
      agency.   Id.     If an employee claims that her resignation was coerced by the
      agency’s creating intolerable working conditions, she must show that a reasonable

      3
        There is no medical evidence in the record to support the appellant’s claim that the
      agency’s alleged failure to accommodate her disability exacerbated her alleged
      disability or otherwise caused her health to decline.
                                                                                              7

      person in her position would have found the working conditions so oppressive
      that she would have felt compelled to resign. Id.
¶14         When an appellant raises a discrimination allegation in connection with a
      claim of involuntariness, the Board may address the allegation only insofar as it
      relates to the issue of voluntariness and not whether the evidence establishes
      discrimination under a Title VII standard. Id.; Conover v. Department of the
      Army, 78 M.S.P.R. 605, 612 (1998). In other words, even if an agency’s actions
      are discriminatory, the appellant still must show how those actions coerced her
      resignation.   See Tripp v. Department of the Air Force, 59 M.S.P.R. 458, 461
      (1993). Thus, an agency’s failure to accommodate an eligible employee is simply
      a factor to be considered in assessing whether a resignation was involuntary. 4
      Brown v. U.S. Postal Service, 115 M.S.P.R. 609, ¶ 16, aff’d, 469 F. App’x 852
      (Fed. Cir. 2011), cert. denied, 133 S. Ct. 414 (2012). For the reasons set forth
      below, we find that the appellant failed to satisfy this burden.
¶15         The appellant testified that she was able to ride with the 7:00 a.m. shift van
      pool even when working the 8:00 a.m. shift. HCD (testimony of the appellant).
      She said that she ordinarily slept in the van on the way to work, so she simply
      continued sleeping until 7:45 a.m. to start work at 8:00 a.m.            Id.   Thus, she
      explained, her need for a schedule change was not to facilitate her arrival at work,
      but rather, to enable her to take the 4:30 p.m. van pool home at the end of the
      day. Id. She stated that her husband, uncle or son could pick her up when she

      4
        In the initial decision, the administrative judge appears to have conflated the standard
      for involuntary resignation appeals and the standard for involuntary disability
      retirement appeals. See ID at 5 (citing Okleson v. U.S. Postal Service, 90 M.S.P.R. 415,
      ¶ 8 (2001)). The latter standard is inapplicable in this appeal. See Rule v. Department
      of Veterans Affairs, 81 M.S.P.R. 282, ¶¶ 4-5 (1999) (remanding an appeal to afford the
      appellant an opportunity to establish jurisdiction where the administrative judge set
      forth the standard concerning the Board’s jurisdiction over involuntary resignation and
      retirement appeals generally, but did not provide the appellant with notice concerning
      the “special circumstances involved when an appellant claims that a disability
      retirement was involuntary”).          We discern no harm, however, because the
      administrative judge issued a jurisdictional order containing correct notice. IAF, Tab 7.
                                                                                           8

      worked until 5:30 p.m., but this required them to go out of their way and required
      her to spend money on gas for her uncle and son.                Id.   She stated in her
      prehearing submission that she had to wait “up to three hours after the end of her
      shift” to be picked up, but during her hearing testimony referenced only one
      occasion when she had to wait until 7:00 p.m. Id.; IAF, Tab 11 at 8. She testified
      that using public transportation would have involved taking two buses and a train
      because the area where she lives has limited mass transit options.                HCD
      (testimony of the appellant).      Accepting as true the appellant’s assertions, it
      appears that taking public transportation would have required approximately
      2.5 hours of travel time one way. See id. (the appellant testified that if she were
      to begin work at 9:00 a.m., she would have had to leave home at approximately
      6:30 a.m.).   It appears that her commute in the van pool was approximately
      45 minutes one way. See id. (the appellant testified that the van pool generally
      left at 6:15 a.m. to arrive in time for the 7:00 a.m. shift).
¶16         Even if the agency failed to accommodate the appellant’s disability when it
      directed her to resume her regular schedule, which we need not decide here, we
      do not agree with the administrative judge that this rendered the appellant’s
      working conditions so intolerable that a reasonable person in her position would
      have felt compelled to resign.      As to waiting for rides, the appellant did not
      indicate how long she had to wait on average or how frequently she had to wait
      for significant periods of time and, in any event, did not explain how or why
      waiting rendered her working conditions intolerable. As to the appellant’s claim
      that she had to give her family members gas money, we discern no basis to
      conclude that her overall commuting costs increased substantially. To the extent
      that her costs did increase, she did not indicate by how much or explain how the
      commuting costs rendered her working conditions intolerable.                  That the
      appellant’s family members may have had to go out of their way to pick her up
      has no relation to her working conditions. We also are not convinced that, had
      the appellant taken public transportation, a reasonable person would have found
                                                                                           9

      the increased commuting time intolerable; her daily commute home would have
      increased by a total of 1.75 hours, assuming that the evening van pool took
      45 minutes, whereas public transportation took 2.5 hours. 5 In sum, the appellant
      has not presented sufficient evidence for us to conclude that a reasonable person
      would have felt compelled to resign because of having to wait for a ride or take
      public transportation, rather than using a more convenient mode of transportation.
      Cf. Gerald v. University of Puerto Rico, 707 F.3d 7, 26 (1st Cir. 2013) (holding
      that the fact that an employee’s “commute increased by a couple hours and there
      was associated gasoline and tolls costs” due to a transfer did not render her
      working conditions so intolerable that a reasonable person in her place would feel
      forced to resign as opposed to staying on the job while seeking redress). 6
¶17         The record evidence also suggests that it was the mere fact that the agency
      directed the appellant to return to her regular schedule, more so than the actual

      5
        The appellant testified that it would be unsafe for her to take public transportation
      because she could be sleepy or otherwise not fully alert due to her medical condition
      and medications. HCD (testimony of the appellant). However, she conceded that her
      doctor never prepared any documentation indicating that she could not use mass transit
      or ride a bus. Id. It also is unclear whether the appellant experienced these symptoms
      in the evening and, if so, how frequently or severely. The medical documentation she
      submitted to the agency stated that she experienced “morning somnolence,” that the van
      pool would allow her to “circumvent morning driving,” and that she was “most likely to
      have lingering side effects from current medications” in the morning. IAF, Tab 8 at 42;
      but see IAF, Tab 12 at 6 (medical documentation indicating that the appellant
      experiences “excessive daytime sleepiness”). Further, the appellant testified that she
      did not have any difficulty focusing at work once she was able to “shake off” any
      lingering side effects of her medication. HCD (testimony of the appellant). There also
      is no evidence that the appellant informed the agency that she believed public
      transportation to be infeasible. In any event, public transportation was not her only
      alternative. Based on the foregoing, the appellant’s assertion that it would have been
      unsafe for her to take public transportation does not alter our analysis as to the
      voluntariness of her resignation. Although not directly applicable here, we also note
      that the Board has stated that an employee is responsible for getting to and from her
      work site. See Letcher v. U.S. Postal Service, 22 M.S.P.R. 560, 563 (1984).
      6
        Other than decisions of the U.S. Court of Appeals for the Federal Circuit, the
      decisions of the circuit courts are not binding on the Board, but the Board may follow
      them if it finds their reasoning persuasive. Bowman v. Small Business Administration,
      122 M.S.P.R. 217, ¶ 13 n.8 (2015).
                                                                                          10

      effects of that action upon her, which prompted her to resign. Specifically, the
      appellant testified that she felt that the agency had betrayed her, was not taking
      care of her, and did not care about her because her request for a schedule change
      was reasonable and could have been granted. HCD (testimony of the appellant).
      She stated that she was a good employee and always “went above and beyond” for
      the agency, and it “wasn’t going to kill” the agency to allow her to leave at
      4:30 p.m.    Id.   We also note that the appellant’s resignation letter made no
      specific mention of her transportation issues or her accommodation request. IAF,
      Tab 4 at 18. The appellant’s dissatisfaction with the agency’s failure to facilitate
      her use of the mode of transportation she found most convenient, without more,
      does not render her resignation involuntary.
¶18         Based on the foregoing, we find that the appellant has not presented
      sufficient evidence for us to conclude that her resignation was involuntary. We
      therefore must DISMISS her appeal for lack of jurisdiction. 7 Because we lack
      jurisdiction, this is not a mixed case and the agency must recommence processing
      this matter as a non-mixed complaint.          See Miranne v. Department of the
      Navy, 121 M.S.P.R. 235, ¶ 14 (2014) (citing Blickenstaff v. Department of
      Justice, EEOC Appeal No. 01A42427, 2004 WL 1084919, at *2 (E.E.O.C. May 5,
      2004)); see also 29 C.F.R. § 1614.302(c)(2)(ii).
¶19         This is the final decision of the Merit Systems Protection Board in this
      appeal.     Title 5 of the Code of Federal Regulations, section 1201.113(c)
      (5 C.F.R. § 1201.113(c)).

      7
        We find it unnecessary to address with specificity the agency’s arguments that the
      appellant failed to engage in the interactive process, was not entitled to the
      accommodation of her choosing, and should have awaited the outcome of the EEO
      process before resigning, or that granting her desired accommodation was unreasonable
      because it conflicted with seniority provisions of the collective bargaining agreement.
      The main thrust of the agency’s petition for review, with which we agree, is that the
      administrative judge erred in finding that the appellant resigned involuntarily.
      Moreover, the question of whether the appellant resigned involuntarily implicates
      jurisdiction, an issue that is always before the Board. See Ney v. Department of
      Commerce, 115 M.S.P.R. 204, ¶ 7 (2010).
                                                                                 11

                   NOTICE TO THE APPELLANT REGARDING
                      YOUR FURTHER REVIEW RIGHTS
      You have the right to request review of this final decision by the United
States 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.
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 appeal to
the United States 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
                                                                               12

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.
