                      UNITED STATES OF AMERICA
                   MERIT SYSTEMS PROTECTION BOARD


SALVADORE GENDUSA, 1                             DOCKET NUMBER
            Appellant,                           DA-0752-14-0444-I-1

             v.

DEPARTMENT OF VETERANS                           DATE: June 8, 2015
  AFFAIRS,
            Agency.


        THIS FINAL ORDER IS NONPRECEDENTIAL 2

      Terrence J. Johns, New Orleans, Louisiana, for the appellant.

      Brandi M. Powell, New Orleans, Louisiana, for the agency.




1
  The appellant died on December 29, 2014, before the initial decision was issued. The
appellant’s spouse filed a petition for review, followed by a timely motion for the
Board to accept her as a substitute party. Petition for Review (PFR ) File, Tabs 1, 4-5,
7. We grant her motion. The appellant’s interests were not extinguished by his death.
See 5 C.F.R. § 1201.35(a). Although he cannot be reinstated to employment, issues
such as back pay for the period between his resignation and his death and attorney fees
are either pending or may arise from this appeal. See Estate of Kravitz v. Department of
the Navy, 110 M.S.P.R. 97, ¶ 2 n.1 (2008). Because the appellant’s spouse has been
substituted in this matter, we refer to all assertions and arguments made by her as made
by “the appellant.”
2
   A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

                                          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 for lack of jurisdiction the appellant’s constructive removal appeal.
     Generally, we grant petitions such as this one only when: the initial decision
     contains erroneous findings of material fact; the initial decision is based on an
     erroneous interpretation of statute or regulation or the erroneous application of
     the law to the facts of the case; the 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, and based on the
     following points and authorities, 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).
¶2         The appellant filed this appeal after resigning from the agency, effective
     February 15, 2013.     Initial Appeal File (IAF), Tab 1.       He alleged that his
     resignation was involuntary and thus a constructive removal. Id. After a hearing,
     the administrative judge dismissed the appeal for lack of jurisdiction.         IAF,
     Tab 30, Initial Decision (ID) at 1, 11.
¶3         On review, the appellant generally asserts that the administrative judge
     “misrepresented the evidence and testimony.” PFR File, Tab 1 at 4. However,
     the administrative judge correctly found that the appeal is not within the Board’s
                                                                                       3

     jurisdiction. The Board’s jurisdiction is limited to matters over which it has been
     given jurisdiction by law, rule, or regulation.          Maddox v. Merit Systems
     Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985).         The Board does not have
     jurisdiction over all actions that are alleged to be incorrect.         Weyman v.
     Department of Justice, 58 M.S.P.R. 509, 512 (1993).          An appellant bears the
     burden of proving by preponderant evidence that his appeal is within the Board’s
     jurisdiction. 5 C.F.R. § 1201.56(a)(2)(i).
¶4           An employee-initiated action such as a resignation or retirement is
     presumed to be voluntary and, as such, outside of the Board’s jurisdiction.
     Putnam v. Department of Homeland Security, 121 M.S.P.R. 532, ¶ 21 (2014). A
     resignation that is involuntary, however, is equivalent to a forced removal and
     falls within the Board’s jurisdiction.       Id.   An appellant who claims that his
     retirement was involuntary may rebut the presumption of voluntariness in a
     variety of ways, including by showing that the retirement was the result of
     intolerable working conditions. Id. Here, the appellant was a Clerk, GS-0303-03,
     with the Police Service at the agency’s New Orleans Veterans Affairs Medical
     Center. IAF, Tab 1 at 2, 7, Tab 10 at 46, 63. He alleged that the facility director,
     J.C., met with him in the presence of his union representative on February 15,
     2013.     IAF, Tab 1 at 7. He alleged that she advised him that the agency no
     longer needed his services and that he had no choice but to retire or resign his
     position. Id. The appellant asserted that he had been harassed and discriminated
     against for more than a year by management officials, including R.K., chief of the
     Police Service. IAF, Tab 4 at 4. He explained that agency managers repeatedly
     told him that he was too old to be working. Id. He further explained that the
     union had to force management to allow him to attend treatment appointments for
     his service-connected post-traumatic stress disorder (PTSD) and, on several
     occasions, he was denied opportunities to see his physician. Id. The appellant
     additionally asserted that he suffered a mild heart attack on September 10, 2012,
                                                                                          4

     after receiving a September 5, 2012 decision letter informing him of his removal
     for conduct unbecoming a federal employee. Id.; see IAF, Tab 10 at 60-62.
¶5         On September 19, 2012, management offered the appellant an abeyance
     agreement in lieu of removal. 3 IAF, Tab 10 at 56-59. He was transferred to the
     medical center’s Ambulatory Procedure Unit to work as a Medical Support
     Assistant, GS-0679-03, and he agreed not to incur any validated patient
     complaints within the 1-year term of the agreement. Id. at 56-57. The appellant
     alleged that, on December 20, 2012, management denied his request for light duty
     to accommodate knee injuries he sustained in military combat. IAF, Tab 4 at 4.
     Three patient complaints were filed against the appellant, and, though he
     contended that they lacked merit, management validated them. Id.; see IAF, Tab
     10 at 48-49, 52-55.     Accordingly, the agency found that he had breached the
     agreement and placed him on paid administrative leave effective January 23,
     2013. IAF, Tab 10 at 48-51. During this time, the agency’s Office of Inspector
     General investigated threats that the appellant allegedly made on R.K.’s life.
     IAF, Tab 4 at 4; see IAF, Tab 16, Subtabs C8, C22.
¶6         The appellant alleged that he met with J.C. on February 15, 2013,
     accompanied by a union representative. IAF, Tab 4 at 4. He averred that J.C.
     “seemed to indicate that she didn’t have enough evidence to substantiate any of
     the charges levied against [him],” but that neither she nor R.K. wanted him back,
     “so he would have no choice but to resign his position.” Id. He asserted that he
     accompanied his union representative to Human Resources, where a Supervisory
     Human Resources Specialist, D.R., prepared his resignation letter. Id.; see IAF,



     3
       The agreement provided, in part, that the agency would hold the September 5, 2012
     removal decision in abeyance for 1 year from the date it was executed. IAF, Tab 10
     at 56-57. The appellant agreed that any validated patient complaint received during the
     1-year period following execution of the agreement would be considered a breach of the
     agreement that would effectuate his removal. Id. at 57. He also agreed to waive his
     right to appeal the September 5, 2012 removal decision. Id.
                                                                                           5

     Tab 10 at 47. He asserted that he believed at the time that he had to sign the
     letter but later learned that his resignation was unnecessary. IAF, Tab 4 at 4.
¶7         On May 14, 2013, the appellant filed an equal employment opportunity
     (EEO) complaint alleging that his resignation was involuntary and claiming
     several bases for discrimination. 4 IAF, Tab 1 at 7, Tab 10 at 40-44, Tab 16,
     Subtab A4. This appeal arose from the mixed-case elements of his complaint.
     See IAF, Tab 10 at 43-45, Tab 16.            The Report of Investigation includes
     interrogatories and documentary evidence showing that the agency was unaware
     that the appellant had requested any accommodation. 5 See IAF, Tab 16, Subtabs
     B2 at 6, B4 at 3, B5 at 4, C17 at 1, 4-5.
¶8         Although the appellant proffered D.R. as a witness to “speak to whether
     [he] was forced” to resign, see IAF, Tab 23, she testified that she did not prepare
     the resignation letter and that he did not sign it in front of her. Hearing Compact
     Disc. Instead, she testified that A.F., the appellant’s union representative, told
     her that she would prepare the letter and witness his signature. Id. D.R. testified
     that she received the signed letter by email from A.F. Id. D.R. also testified that
     J.C. asked her to assist the appellant with preparing his retirement application.
     Id. In the process, she discovered that he was not yet eligible to retire. Id. She
     testified that she told A.F. and the appellant that he was not yet eligible to retire
     and researched whether his military service could be considered in determining
     his eligibility. Id.



     4
       The appellant claimed discrimination based on age (70), race (Caucasian), color
     (olive), national origin (Sicilian and German), mental disability (PTSD), physical
     disability (a heart condition and injuries sustained during the Korean War). IAF,
     Tab 16, Subtab A4. He claimed that: (1) he was subjected to ongoing harassment and
     ridicule regarding his age; (2) he resigned involuntarily after falsely being accused of
     misconduct; and (3) the agency failed to accommodate his physical condition when it
     required him to transport patients weighing up to 300 pounds. Id.
     5
       The appellant also did not file a medical release that would have allowed his medical
     information to be used in the EEO proceeding. See IAF, Tab 16, Subtab C19 at 2.
                                                                                       6

¶9         An appellant may prove a claim of involuntary resignation by showing that
      his working conditions were made so difficult by the agency that a reasonable
      person in his position would have felt compelled to resign, and his resignation
      was the result of improper acts by the agency. Axsom v. Department of Veterans
      Affairs, 110 M.S.P.R. 605, ¶ 12 (2009); see also Miller v. Department of Defense,
      85 M.S.P.R. 310 (2000). As the U.S. Court of Appeals for the Federal Circuit has
      observed, “The doctrine of coercive involuntariness is a narrow one, requiring
      that the employee satisfy a demanding legal standard.” Conforto v. Merit Systems
      Protection Board, 713 F.3d 1111, 1121 (Fed. Cir. 2013). In Conforto, the court
      further stated, “An employee’s dissatisfaction with the options that an agency has
      made available to him is not sufficient to render his decision to resign or retire
      involuntary.”   Id.   Accordingly, the court explained, “coerced involuntariness
      does not apply if the employee resigns or retires because he does not like agency
      decisions such as ‘a new assignment, a transfer, or other measures that the agency
      is authorized to adopt, even if those measures make continuation in the job so
      unpleasant . . . that he feels he has no realistic option but to leave.’”    Id. at
      1121-22 (quoting Staats v. U.S. Postal Service, 99 F.3d 1120, 1124 (Fed. Cir.
      1996)). Moreover, the coercion must arise from improper acts by the agency. Id.
      at 1122.
¶10        It is undisputed that the appellant was serving under an abeyance agreement
      in lieu of removal for an earlier disciplinary action. See IAF, Tab 10 at 56-59. It
      is also undisputed that he was notified that he was in breach of the agreement and
      that he subsequently signed a resignation letter. Id. at 47-51. Based in part on
      her assessments of witness credibility, see Hillen v. Department of the Army,
      35 M.S.P.R. 453, 458-62 (1987) (factors to be considered in assessing a witness’s
      credibility), the administrative judge found D.R.’s testimony regarding the
      circumstances of his resignation to be more credible than that of the appellant
      himself. ID at 9-10. Notably, the appellant withdrew his request for A.F. to
      testify at his hearing. IAF, Tab 21 at 2. The administrative judge thus properly
                                                                                       7

      credited D.R.’s version of events.    ID at 10.    The administrative judge also
      credited the testimony of R.K. and K.R., a Captain in the Police Service,
      regarding harassment that the appellant allegedly experienced while assigned to
      the Police Service. See id.. The administrative judge found it undisputed that the
      appellant did not have contact with these witnesses after October 2012 and they
      were not immediately involved in the events leading to his resignation. Id.; see
      IAF, Tab 16, Subtabs B3 at 4-11, B5 at 4-13.       The administrative judge thus
      properly found that, although the appellant experienced difficulties, he did not
      show that his working conditions were made so difficult by the agency that a
      reasonable person in his position would have been compelled to resign. ID at 11.
      Likewise, the record does not suggest that the agency acted improperly.
¶11        An employee is not guaranteed a working environment free of stress.
      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 or retire. Miller, 85 M.S.P.R. 310, ¶ 32.
      Although the appellant may have learned that he had incurred validated patient
      complaints and thus breached the abeyance agreement, credible testimony showed
      that his decision to resign was made with his union representative. Although he
      may have been under investigation for allegedly making threatening statements, it
      is well-settled that the fact that an employee is confronted with the unpleasant
      choice of resigning or facing disciplinary action does not affect the voluntariness
      of his ultimate choice to resign or retire.   See Schultz v. United States Navy,
      810 F.2d 1133, 1136 (Fed. Cir. 1987). The administrative judge considered the
      evidence as a whole, drew appropriate inferences, and made reasoned
      conclusions, dismissing the appeal for lack of jurisdiction.         Broughton v.
      Department of Health & Human Services, 33 M.S.P.R. 357, 359 (1987). Because
      the appeal was dismissed for lack of primary jurisdiction, the administrative
      judge properly declined to consider the appellant’s mixed-case claims of
                                                                                        8

      discrimination.    See ID at 11; see also Wren v. Department of the Army,
      2 M.S.P.R. 1, 2 (1980), aff’d, 681 F.2d 867, 871-73 (D.C. Cir. 1982).
¶12        Finally, the appellant argues that the administrative judge did not allow the
      appellant to call J.C. as a witness.      PFR File, Tab 1 at 3.         The agency
      representative indicated in the prehearing discussion that J.C. had left the service
      but that the agency was considering issuing a subpoena for her testimony. Id.;
      see IAF, Tab 21 at 2. The agency ultimately declined to do so. The appellant
      alleges that the administrative judge “rudely” told the appellant’s representative
      that he could pay to subpoena J.C., but “acted . . . as though it was too
      expensive.” PFR File, Tab 1 at 3. The appellant has not shown, however, that
      the administrative judge denied the request to issue a subpoena for J.C.’s
      testimony. Accordingly, we find that the appellant’s argument is unavailing.

                        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
                                                                                  9

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