Opinion

John F Petek v. Department of Veterans Affairs

Court: Merit Systems Protection Board
Filed: Aug 19, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.5%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JOHN F. PETEK, DOCKET NUMBER

Appellant, SF-0752-20-0312-I-1

DEPARTMENT OF VETERANS DATE: August 19, 2024

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

John Valente , Glens Falls, New York, for the appellant.

Mickel-Ange Eveillard , Los Angeles, California, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member

FINAL ORDER

The appellant has filed a petition for review of the initial decision, which

dismissed his constructive removal appeal for lack of jurisdiction. Generally, we

grant petitions such as this one only in the following circumstances: the initial

decision contains erroneous findings of material fact; the initial decision is based

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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. 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. For the

reasons set forth below, we VACATE the administrative judge’s finding that the

appellant submitted no credible evidence regarding his allegations of

discrimination, and we AFFIRM the initial decision as MODIFIED to clarify and

supplement the administrative judge’s jurisdictional analysis. Except as

expressly indicated in this Final Order, the initial decision of the administrative

judge is the Board’s final decision.

BACKGROUND

In a March 29, 2019 letter, the agency proposed the appellant’s removal

from his Chief of Social Work Services position based on the following two

charges: (1) failure to follow supervisory instructions (2 specifications); and

(2) inappropriate conduct (5 specifications). Initial Appeal File (IAF), Tab 6

at 64-67. In a November 27, 2019 letter, the agency informed the appellant that a

decision had been made to remove him effective December 2, 2019, based on the

sole charge of inappropriate conduct. Id. at 18-20.

In December 2019, the appellant appealed his removal to the Board. IAF,

Tab 5 at 5; Petek v. Department of Veterans Affairs, MSPB Docket No. SF-0714-

20-0155-I-1, Initial Appeal File (0155 IAF), Tab 1. During the pendency of the

appeal before the administrative judge, the agency issued a February 12, 2020

letter, informing the appellant of the following: the agency’s November 27, 2019

decision letter was rescinded; he would be reinstated as Chief of Social Work

Services effective February 16, 2020; and he was expected to return to work on

February 18, 2020. IAF, Tab 17 at 10. In a February 13, 2020 letter, the agency

further notified the appellant that he would be detailed effective February 18,

2020, until further notice, and that, as previously instructed, he was not to have

any contact with any social work staff or to conduct any social work service

duties. Id. at 11. The appellant responded in a February 16, 2020 letter,

declining the agency’s “offer of employment” and, in the alternative, resigning

from his position immediately. 2 IAF, Tab 6 at 62. The agency gave the appellant

instructions for requesting leave if he was unable to return, id. at 28-52, but the

appellant, through his representative, reiterated in a February 21, 2020 email that,

“given the [a]gency’s position,” the appellant’s February 16, 2020 letter “serve[d]

as his immediate resignation letter,” IAF, Tab 17 at 7. The appellant’s

resignation was effective February 16, 2020. Id. at 5.

The agency moved to dismiss the 0155 removal appeal. 0155 IAF, Tab 23

at 4. The agency explained that it began the process of rescinding the removal

action because the removal decision letter had only referenced the inappropriate

conduct charge and did not mention the failure to follow instructions charge. Id.

at 5. The appellant opposed the motion, arguing among other things that because

of his outstanding claims for compensatory damages based on discrimination, the

agency’s rescission of the removal did not moot his appeal. 0155 IAF, Tab 25

at 4-5. The administrative judge agreed that the appeal was not moot because of

the pending discrimination and retaliation claims involving potential damages and

because the agency had not submitted sufficient proof regarding the payment of

appropriate back pay. 0155 IAF, Tab 26 at 4. The agency thereafter submitted

additional evidence regarding back pay. 0155 IAF, Tab 27. On February 27,

In the resignation letter, the appellant stated that, “[i]n addition to other factors[,] I am

not currently medically cleared to work.” IAF, Tab 6 at 62.

2020, the appellant notified the administrative judge that, based on the rescission

of the removal and the agency’s statement regarding the processing of his back

pay and benefits, he was withdrawing his appeal. 0155 IAF, Tab 28 at 4. In a

February 27, 2020 initial decision, the administrative judge dismissed the

appellant’s removal appeal as withdrawn. 0155 IAF, Tab 29, Initial Decision

(0155 ID) at 1-2. 3

In March 2020, the appellant filed the instant appeal of an allegedly

involuntary resignation, and he requested a hearing. IAF, Tab 1 at 1-6. The

administrative judge informed the appellant that the Board may not have

jurisdiction over his appeal, apprised him of his jurisdictional burden regarding

an involuntary resignation claim, and ordered him to file evidence and/or

argument on the jurisdictional issue. IAF, Tab 2 at 2-4. The appellant responded.

IAF, Tab 5. The agency moved to dismiss the appeal for lack of jurisdiction.

IAF, Tab 12 at 4-9. Without holding the requested hearing, the administrative

judge issued an initial decision granting the agency’s motion and dismissing the

appeal for lack of jurisdiction. IAF, Tab 22, Initial Decision (ID) at 1, 15.

The appellant has filed a petition for review. Petition for Review (PFR)

File, Tab 1. 4 The agency has filed a response. PFR File, Tab 3.

DISCUSSION OF ARGUMENTS ON REVIEW

We will consider the appellant’s factual allegations that he has raised for the first

time on review.

For the first time on review, the appellant alleges certain factual

information regarding the circumstances surrounding the agency’s order for him

to return to work, which he claims he was prevented from providing due to the

administrative judge’s dismissal of his prior Board appeal. PFR File, Tab 1

The initial decision became the Board’s final decision on April 2, 2020, when neither

party filed a petition for review by that date. 0155 ID at 2.

The appellant does not dispute, and we discern no reason to disturb, the administrative

judge’s finding that the Board lacks jurisdiction over this appeal as an individual right

of action appeal. PFR File, Tab 1 at 4-19; ID at 13-15.

at 17-19. The appellant further claims for the first time on review that another

employee, who had contacted a social work employee after having been told not

to communicate with social work employees, did not receive punishment. Id.

at 17. He asserts that this information was contained in the agency’s discovery

response. Id. In addition, he argues that the parties were not able to complete

discovery because the administrative judge did not rule on the appellant’s motion

to compel discovery before issuing the initial decision. Id.; IAF, Tab 18.

The Board generally will not consider an argument raised for the first time

in a petition for review absent a showing that it is based on new and material

evidence not previously available despite the party’s due diligence. Banks

v. Department of the Air Force, 4 M.S.P.R. 268, 271 (1980). Nevertheless, we

will consider the appellant’s factual allegations described above insofar as they

relate to the dispositive jurisdictional issue. See, e.g., Lovoy v. Department of

Health & Human Services, 94 M.S.P.R. 571, ¶ 30 (2003) (considering the

agency’s arguments raised for the first time on review because they implicated

the Board’s jurisdiction). To the extent the appellant challenges the

administrative judge’s denial of his motion to compel as moot and the

administrative judge’s delay in so ruling in the initial decision, we discern no

prejudice to the appellant’s substantive rights because he has not alleged that he

has been precluded from raising any other relevant factual information on review.

PFR File, Tab 1 at 17; ID at 3 n.3; see Thomas v. U.S. Postal Service,

116 M.S.P.R. 453, ¶ 4 (2011) (explaining that, to obtain reversal of an initial

decision on the ground that the administrative judge abused his discretion in

excluding evidence, the petitioning party must show on review that relevant

evidence, which could have affected the outcome, was disallowed); Karapinka

v. Department of Energy, 6 M.S.P.R. 124, 127 (1981) (finding that an

administrative judge’s procedural error is of no legal consequence unless it is

shown to have adversely affected a party’s substantive rights) .

We affirm, as modified, the administrative judge’s finding that the appellant has

failed to nonfrivolously allege that he resigned due to intolerable working

conditions.

On petition for review, the appellant challenges the administrative judge’s

finding that he failed to nonfrivolously allege 5 that the agency made his working

conditions so difficult (due to alleged harassment, discrimination, and retaliation

for whistleblowing) that a reasonable person in his position would have felt

compelled to resign. PFR File, Tab 1 at 4-12; ID at 5-9. In particular, the

appellant argues that the administrative judge failed to consider the following

allegedly wrongful actions taken by the agency prior to his resignation: (1) the

investigation of him; (2) the March 2019 proposed removal; (3) the

December 2019 removal action; and (4) in February 2020, during the pendency of

his prior Board appeal, the agency’s rescission of his removal without rescinding

the March 2019 proposed removal, failure to return him to his Chief of Social

Work Services position, and order not to communicate with social work

employees and not to perform social work duties. 6 PFR File, Tab 1 at 4-12.

The appellant further argues that the administrative judge failed to

recognize the following alleged circumstances: he reasonably believed the

agency was going to continue pursuing his removal based on the same charges

underlying the proposed removal or based on new charges, id. at 5, 8-9; and he

never returned to work in February 2020 because he resigned on the effective date

of his reinstatement, id. at 6-7. In addition, the appellant reasserts his claim that

he resigned because, based on his prior employment history with the agency and

the limited information provided by the agency in February 2020 regarding his

A nonfrivolous allegation is an assertion that, if proven, could establish the matter at

issue. 5 C.F.R. § 1201.4(s).

Regarding some of these actions, the appellant claims that the administrative judge

failed to consider their probative value as recent actions that occurred close in time to

his resignation. PFR File, Tab 1 at 4-6. The appellant further claims that the

administrative judge failed to include some of these actions in considering his

allegations of discrimination because they were not a part of the Equal Employment

Opportunity Commission’s determination. Id. at 7-8, 11.

return to work and detail assignment, he reasonably believed that he was “not

returning to a healthy work environment.” Id. at 17-19; see IAF, Tab 1 at 6

(stating in his initial appeal that he was “returning to [an] intolerable and

psychologically unsafe working environment”). Further, the appellant argues that

the administrative judge improperly accepted the determination by the Equal

Employment Opportunity Commission (EEOC) on the merits of his

discrimination claims. PFR File, Tab 1 at 8, 11.

For the following reasons, we modify the initial decision to clarify and

supplement the administrative judge’s jurisdictional analysis regarding the

appellant’s claim that he resigned due to intolerable working conditions. All

constructive adverse action claims have the following two elements in common:

(1) the employee 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). However, we find that the

administrative judge improperly relied on Terban v. Department of Energy,

216 F.3d 1021, 1024 (Fed. Cir. 2000), in considering the relative probative value of

the appellant’s allegations based on their proximity in time to his resignation. ID

at 6, 8. In Trinkl v. Merit Systems Protection Board, 727 F. App’x 1007, 1010

(Fed. Cir. 2018), 7 our reviewing court found that, in determining whether an

employee nonfrivolously alleged circumstances such that a reasonable person in

his position would have felt compelled to resign, the Board erred by, among other

things, considering the relative probative value of his allegations over time. The

court explained that weighing allegations as more or less probative is appropriate

only following a jurisdictional hearing. Id. at 1010-11 (citing Terban, 216 F.3d

at 1024).

The Board has held that it may rely on unpublished decisions of the U.S. Court of

Appeals for the Federal Circuit if, as here, it finds the court’s reasoning persuasive.

E.g., Vores v. Department of the Army, 109 M.S.P.R. 191, ¶ 21 (2008), aff’d,

324 F. App’x 883 (Fed. Cir. 2009).

Further, we vacate the administrative judge’s finding that, given the

EEOC’s determination that the actions at issue were not discriminatory, the

appellant submitted no credible evidence regarding his allegations of

discrimination. ID at 6-7. In Ferdon v. U.S. Postal Service, 60 M.S.P.R. 325,

329 (1994), the Board held that, in determining whether an appellant has made a

nonfrivolous allegation of jurisdiction, an administrative judge may not weigh

evidence and resolve conflicting assertions of the parties and the agency’s

evidence may not be dispositive. Here, the appellant declared under penalty of

perjury that the agency’s alleged harassment, as described in his two prior equal

employment opportunity complaints, made his working conditions so difficult

that he was forced to resign. IAF, Tab 5 at 1, 3, 19-21. Therefore, we find that

the administrative judge improperly relied on the agency’s evidence of

EEOC decisions and weighed the evidence in making a credibility finding. ID

at 7 (citing IAF, Tab 12 at 10-20).

After considering the totality of the alleged circumstances (including those

raised on review) and assuming them to be true, we find that the appellant has

failed to make a nonfrivolous allegation that he lacked a meaningful choice in the

decision to resign and it was the agency’s wrongful actions that deprived him of

that choice. Specifically, even viewing the appellant’s claims collectively as a

series of escalating incidents dating back to August 2016 and culminating in his

resignation in February 2020, we find that they do not rise to the level of coercion

necessary to overcome the presumption that his resignation was voluntary. PFR

File, Tab 1 at 4-12, 17-19; IAF, Tab 1 at 6, Tab 5 at 19-21, Tab 19 at 4-16; see,

e.g., Brown v. U.S. Postal Service, 115 M.S.P.R. 609, ¶ 15 (viewing the

appellant’s decision to retire in light of her claims of a continuing pattern of

harassment dating back many years), aff’d, 469 F. App’x 852 (Fed. Cir. 2011); cf.

Trinkl, 727 F. App’x at 1010 (finding that the Board should have viewed the

employee’s claims collectively as a series of escalating incidents culminating in

his retirement).

The Board has held that dissatisfaction with work assignments, a feeling of

being unfairly criticized, or difficult or unpleasant working conditions are

generally not so intolerable as to compel a reasonable person to resign. PFR File,

Tab 1 at 17-19; IAF, Tab 1 at 6; Miller v. Department of Defense, 85 M.S.P.R.

310, ¶ 32 (2000). Even if we consider the appellant’s statement that he was “not

currently medically cleared to work” in his February 16, 2020 resignation letter,

IAF, Tab 6 at 62, or his assertion on review that he “had [a] reasonable belief

[that he] was not returning to a healthy work environment,” PFR File, Tab 1

at 18, we are not persuaded that he made a nonfrivolous allegation that the

agency’s wrongful actions deprived him of a meaningful choice in the matter.

The basis for the appellant’s contention of an unhealthy or unsafe work

environment is not entirely clear. 8 There was no medical documentation in the

record to support his claim that he was not medically cleared to return to work,

even after the agency gave him instructions if he was requesting leave or was

otherwise unable to return. We are not persuaded that his allegations, standing

alone, demonstrate that the agency’s actions were wrongful or that he was

deprived of a meaningful choice in the matter. See, e.g., Moore v. U.S. Postal

Service, 117 M.S.P.R. 84, ¶ 11 (2011) (noting that the appellant was entitled to a

jurisdictional hearing in a constructive suspension appeal based upon intolerable

working conditions if she alleges facts which, if proven, demonstrate that she put

the agency on notice of the existence of the objectionable working conditions and

requested assistance or remediation from the agency).

For example, the appellant states briefly on review that the return to work order and

detail letter “raised reasonable anxiety and fear” because he had already been

effectively removed from performing his duties from September 18, 2018, to

December 2, 2019. PFR File, Tab 1 at 17. He also asserted before the administrative

judge that the agency violated his “privacy and confidential personnel information” by

disclosing to the union and its employees that an investigation of him was completed,

the investigation concluded that he was not doing his job, and he was placed on a

performance plan. IAF, Tab 19 at 7. He further alleged that the gossip in the

workplace, which allegedly included discussions of the appellant’s sexual orientation,

“impacted [his] reputation,” and “further isolate[ed]” him in the workplace. Id. at 14.

However, in the 0155 appeal, there is a February 13, 2020 note from the

appellant’s clinical psychologist. 0155 IAF, Tab 19 at 78. This note stated that

(1) the appellant began individual psychotherapy in January 2019 and “was

disabled” due to a work-related psychological condition (major depression and

generalized anxiety disorder), (2) he was discharged and returned to work in May

2019, (3) on February 11, 2020, the appellant “returned for evaluation and

treatment due to work-related stressors” and suffered from dysthymic disorder

and generalized anxiety disorder, (4) his current symptoms included, among other

things, concentration and memory impairments, severe fatigue, severe insomnia,

depressed affect, severe feelings of being treated unfairly at work, (5) he was

receiving “individual and didactic therapy,” (6) his prognosis was “fair,” and (7)

he will be unable to attend work-related responsibilities prior to March 14, 2020.

Id. Although we take official notice of this note, 5 C.F.R. § 1201.64, a different

outcome is not warranted. The appellant has not alleged that he presented the

clinical psychologist’s note to the agency or otherwise conveyed the contents

therein to the agency at any time before he resigned. Nor has the appellant

alleged that he requested and was denied any type of leave or accommodation

after receiving the agency’s February 12, 2020 letter, and he has failed to make a

nonfrivolous allegation that it would have been futile to make such a request.

Thus, we conclude that the appellant failed to make a nonfrivolous allegation that

the agency’s actions were wrongful or otherwise deprived the appellant of a

meaningful choice on the decision to resign. Cf. Hosozawa v. Department of

Veterans Affairs, 113 M.S.P.R. 110, ¶ 7 (2010) (finding that the appellant

nonfrivolously alleged that her resignation was involuntary because the agency

denied her request for a reasonable accommodation (telecommuting) that her

doctor said would have permitted her to continue to work full-time despite her

mental conditions, and the agency did not contend that telecommuting was not

feasible in light of the appellant’s responsibilities).

Further, the assumed fact that the agency did not rescind the March 2019

proposed removal and would have removed the appellant again does not rebut the

presumed voluntariness of his ultimate choice to resign. 9 See Baldwin

v. Department of Veterans Affairs, 109 M.S.P.R. 392, ¶ 12 (2008). At the time he

resigned, the agency was actively trying to return him to duty. To the extent that

he believed that the agency’s efforts were lacking in any way, he could have

raised such issues in opposing the agency’s attempts to moot his 2019 removal

appeal instead of withdrawing that appeal and summarily resigning. Moreover,

the appellant had the option of returning to work and contesting any alleged

harassment, discrimination, and retaliation, as he had done before, and appealing

any subsequent removal action to the Board. See Brown, 115 M.S.P.R. 609, ¶ 15

(finding that, instead of retiring based on her speculation that a disciplinary

action might occur in the future, the appellant clearly had an option of contesting

an action she thought was invalid if and when it did occur) ; Axsom v. Department

of Veterans Affairs, 110 M.S.P.R. 605, ¶ 17 (2009) (finding that the appellant had

the option to stand and fight the alleged discrimination, harassment, and

retaliation rather than resign).

We affirm as modified the administrative judge’s finding that the appellant has

failed to nonfrivolously allege that his resignation was coerced because the

agency had no reasonable grounds for threatening to remove him.

The appellant further challenges on review the administrative judge’s

finding that he failed to nonfrivolously allege that his resignation was coerced

because the agency had no reasonable grounds for threatening to remove him.

PFR File, Tab 1 at 12-19; ID at 9-13. Specifically, the appellant raises the

following arguments: (1) the administrative judge failed to recognize that the

agency never rescinded the March 2019 proposed removal and, thus, it was still

pending against him; (2) the administrative judge incorrectly analyzed the

As discussed below, we affirm the administrative judge’s finding that the appellant

has failed to nonfrivolously allege that his resignation was coerced because the agency

had no reasonable grounds for threatening to remove him.

evidence in considering whether the agency knew or should have known that it

could not sustain the charge of failure to follow supervisory instructions; (3) even

if the agency could support its contention that the appellant was instructed not to

contact other social work employees, the alleged conduct occurred off-duty and

off Government property; and (4) the administrative judge failed to consider that

another employee who had engaged in the same alleged conduct had not been

punished. PFR File, Tab 1 at 12-15, 17. None of these arguments warrants a

different outcome.

For example, even if we credit the appellant’s assertion that the agency did

not rescind the notice of proposed removal, and thus, it was still pending, the

record reflects that the agency has not issued a decision on the proposed removal.

Thus, there was no action taken pursuant to 38 U.S.C. § 714 or 5 U.S.C.

chapter 75 against the appellant at the time of his resignation. Even if the

appellant is correct, and the agency would have decided to impose the removal

based on one or both charges, the appellant could have challenged the removal

action before the Board as he did in his earlier appeal, MSPB Docket No. SF-

0714-20-0155-I-1. The fact that an employee is faced with the unpleasant choice

of either resigning or opposing an adverse action does not rebut the presumed

voluntariness of his ultimate choice of resignation. Green v. Department of

Veterans Affairs, 112 M.S.P.R. 59, ¶ 8 (2009).

We have considered the appellant’s allegation that the administrative judge

improperly analyzed the evidence. PFR File, Tab 1 at 13-15. In the initial

decision, the administrative judge noted that the failure to follow supervisory

instructions charge involved two allegations that the appellant failed to follow

instructions not to contact his former staff. ID at 10. The administrative judge

noted that the agency submitted evidence that the appellant met with his

supervisor on September 18, 2018, and he was advised that he was being placed

on a detail and instructed not to have contact with his former staff. Id. The

administrative judge acknowledged that the appellant denied being instructed not

to contact his former staff, but he concluded that “merely disputing the agency’s

evidence does not amount to a non[]frivolous allegation that the agency had no

basis for it.” ID at 11.

The administrative judge improperly weighed the parties’ evidence and

credited the agency’s evidence in assessing this claim. See Ferdon, 60 M.S.P.R.

at 329. We modify the initial decision and clarify that we are not relying on the

agency’s evidence in our assessment of this issue, nor are we weighing the

parties’ evidence. However, the appellant’s assertion on review that “the

evidence supports that he was never told he could not contact [s]ocial [w]ork

employees” on September 18, 2018, PFR File, Tab 1 at 14-15, is undermined by

his own submissions to the administrative judge, in which he admitted that he was

instructed on multiple occasions, both before and after September 18, 2018, not to

have any contact with staff. See, e.g., IAF, Tab 5 at 20 (stating that on April 13,

2017, he was “directed to not have contact with any social workers within or

outside of the [agency],” and that on “9/26/2018 and 9/27/2018,” he “received

emails from [the] Medical Center Director[] that stated[, among other things,] . . .

‘Cease and desist talking to all [Social Work Staff] until further notice’”), Tab 19

at 15 (acknowledging that the “Director issued instructions that [he] was not to

have any contact with other social work employees[] for over 365 consecutive

days”). 10 Because the appellant’s own evidence reflects that he was told on

multiple occasions not to contact other social work employees, we conclude that

he did not make a nonfrivolous allegation that the agency could not substantiate a

removal action based on a failure to follow supervisory instructions charge on the

grounds of a lack of notice.

The appellant alternatively asserts that the agency could not sustain the

charge of failure to follow instructions because the alleged misconduct occurred

off-duty and off Government property and any agency instruction would be

It appears that the “365 consecutive days” began on September 18, 2018, and ended

on December 2, 2019. PFR File, Tab 1 at 17.

inapplicable. PFR File, Tab 1 at 15. We understand the appellant to be arguing

that the agency’s instruction was unlawful. This argument is not persuasive.

Indeed, the Board has upheld removal based on an employee’s failure to follow

similar instructions. See, e.g., Lentine v. Department of the Treasury,

94 M.S.P.R. 676, ¶¶ 2-3, 5, 7-15 (2003) (affirming the removal penalty based on a

sustained charge of failure to follow the direct order of management, which

recited that the appellant was explicitly ordered not to contact another employee,

but he emailed the employee via America Online messenger service less than

1 month after the order was issued). Thus, the appellant has not nonfrivolously

alleged that the agency’s actions were wrongful in this regard.

Finally, even if the agency did not punish another employee for similar

alleged misconduct, PFR File, Tab 1 at 17, the issue of disparate penalty is one of

several factors to consider in analyzing the penalty. See Douglas v. Veterans

Administration, 5 M.S.P.R. 280, 305-06 (1981) (identifying a nonexhaustive set

of penalty factors, including the consistency of the penalty with those imposed

upon other employees for the same or similar offenses); see also Connor

v. Department of Veterans Affairs, 8 F.4th 1319, 1326 (Fed. Cir. 2021) (stating

that the Board must consider the relevant Douglas factors when considering the

reasonableness of the penalty in a disciplinary action taken pursuant to 38 U.S.C.

§ 714). Even taking the appellant’s allegation of a disparate penalty as true, we

are not persuaded that this single penalty factor weighing in the appellant’s favor

constitutes a nonfrivolous allegation that the agency knew that it could not

substantiate a potential future removal action on this basis. 11

In conclusion, the appellant has not made a nonfrivolous allegation that he

lacked a meaningful choice in the decision to resign and that it was the agency’s

wrongful actions that deprived him of that choice. See Bean, 120 M.S.P.R. 397,

¶ 8. Accordingly, we affirm the dismissal of this appeal for lack of jurisdiction. 12

NOTICE OF APPEAL RIGHTS 13

The initial decision, as supplemented by this Final Order, constitutes the

Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain

review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of

your claims determines the time limit for seeking such review and the appropriate

forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following

summary of available appeal rights, the Merit Systems Protection Board does not

In a footnote in the initial decision, the administrative judge stated that it was

unnecessary to consider the appellant’s arguments regarding the second charge in the

notice of proposed removal, involving allegations of inappropriate conduct. ID at 12

n.9. The appellant contends on review, in the context of a different claim, that the

inappropriate conduct charge was without merit, and he asserts that the agency knew

that there were no legal grounds to terminate him on this basis. PFR File, Tab 1 at 10-

12. Even if we assume for the purposes of our analysis that the agency could not

substantiate the inappropriate conduct charge, the appellant has not nonfrivolously

alleged that the agency knew that it could not sustain the failure to follow supervisory

instructions charge or a removal action based on that single charge for the reasons

described herein. Cf. Barthel v. Department of the Army, 38 M.S.P.R. 245, 252 (1988)

(finding that the administrative judge erred by precluding the appellant from presenting

evidence challenging the merits and legitimacy of the agency’s proposed chapter 43

action in an attempt to show that his retirement was the product of agency duress in

proposing his separation).

Because the appellant raised a claim of discrimination in this constructive adverse

action appeal, and the Board has now issued a Final Order dismissing the appeal for

lack of jurisdiction, the agency is now required, under EEOC regulations, to reissue a

notice under 29 C.F.R. § 1614.108(f) giving the appellant the right to elect between a

hearing before an EEOC administrative judge and an immediate final decision. See

29 C.F.R. § 1614.302(b).

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

provide legal advice on which option is most appropriate for your situation and

the rights described below do not represent a statement of how courts will rule

regarding which cases fall within their jurisdiction. If you wish to seek review of

this final decision, you should immediately review the law applicable to your

claims and carefully follow all filing time limits and requirements. Failure to file

within the applicable time limit may result in the dismissal of your case by your

chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general . As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit 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, 10, 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

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination . This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims —by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on

race, color, religion, sex, national origin, or a disabling condition, you may be

entitled to representation by a court-appointed lawyer and to waiver of any

requirement of prepayment of fees, costs, or other security. See 42 U.S.C.

§ 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012 . This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in section

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),

(B), (C), or (D),” then you may file a petition for judicial review either with the

U.S. Court of Appeals for the Federal Circuit or any court of appeals of

competent jurisdiction. 14 The court of appeals must receive your petition for

The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expired on

December 27, 2017. The All Circuit Review Act, signed into law by the President on

July 7, 2018, permanently allows appellants to file petitions for judicial review of

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,

review within 60 days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the