The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ALICIA ARNOLD, DOCKET NUMBER
Appellant, DC-0752-24-0067-I-1
v.
DEPARTMENT OF THE ARMY, DATE: November 20, 2025
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Alicia Arnold , Alexandria, Virginia, pro se.
Michael E. Hokenson , Fort Belvoir, Virginia, for the agency.
BEFORE
Henry J. Kerner, Vice Chairman
James J. Woodruff II, Member
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her involuntary resignation appeal for lack of jurisdiction. For the
reasons discussed below, we GRANT the appellant’s petition for review,
VACATE the initial decision, and REMAND the case to the regional office for
further adjudication in accordance with this Remand Order.
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
DISCUSSION OF ARGUMENTS ON REVIEW
An employee-initiated action, such as a resignation, is presumed to be
voluntary, and thus outside the Board’s jurisdiction. See Shoaf v. Department of
Agriculture, 260 F.3d 1336, 1340-41 (Fed. Cir. 2001). Nevertheless, the Board
has recognized that employee-initiated actions that appear voluntary on their face
are not always so and, assuming the jurisdictional requirements of 5 U.S.C.
chapter 75 are otherwise met, the Board may have jurisdiction over such actions
as constructive adverse actions. See Bean v. U.S. Postal Service, 120 M.S.P.R.
397, ¶ 7 (2013). All constructive adverse actions have two things 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. Id., ¶ 8. In
analyzing voluntariness, the touchstone is whether, considering the totality of the
circumstances, factors operated on the employee’s decision-making process that
deprived her of freedom of choice. Vitale v. Department of Veterans Affairs,
107 M.S.P.R. 501, ¶ 19 (2007); see Bean, 120 M.S.P.R. 397, ¶¶ 8, 11 (explaining
that the agency’s wrongful actions must have deprived the employee of a
meaningful choice). In assessing voluntariness, the Board must consider all
surrounding circumstances, including the events not immediately preceding the
resignation. See Shoaf, 260 F.3d at 1342.
When discrimination or retaliation is alleged in connection with a claim of
involuntariness, evidence of discrimination or retaliation may only be addressed
insofar as it relates to the issue of voluntariness and not whether such evidence
meets the test for proof of discrimination and reprisal under Title VII. Markon v.
Department of State, 71 M.S.P.R. 574, 578 (1996). Thus, allegations of
discrimination and retaliation go to the ultimate question of whether, considering
all the circumstances, working conditions were made so difficult by the agency
that a reasonable person in the appellant’s position would have felt compelled to
resign. See id.
3
Here, 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 her resignation. Initial Appeal File (IAF), Tab 14, Initial Decision
at 16-17 & n.5. In Shoaf v. Department of Agriculture, 260 F.3d 1336, 1342
(Fed. Cir. 2001), the U.S. Court of Appeals for the Federal Circuit explained that,
in determining whether an appellant would have felt compelled to resign, a
tribunal should “consider the totality of the circumstances,” to include “events
not immediately preceding the leave of employ.” Additionally, in Trinkl v. Merit
Systems Protection Board, 727 F. App’x 1007, 1010-11 (Fed. Cir. 2018), 2 the
Federal Circuit explained that weighing the relative probative value of allegations
is appropriate only following a jurisdictional hearing.
Here, considering all the appellant’s allegations collectively, we find that
she made nonfrivolous allegations that the agency’s wrongful actions deprived
her of meaningful choice regarding her resignation. To this end, the appellant
alleged, among other things, that she had been subjected to a toxic work
environment wherein her supervisor had, among other things, discriminatorily
denied her leave requests and her requests to attend necessary training, and had
made false accusations against her. IAF, Tabs 1, 5-6. Accordingly, we remand
this matter for a hearing. See Thomas v. Department of the Navy, 123 M.S.P.R.
628, ¶ 11 (2016) (stating that, in a constructive adverse action appeal, if an
appellant makes a nonfrivolous allegation of fact that could establish Board
jurisdiction, she is entitled to a hearing).
2
The Board may follow a nonprecedential decision of a court when, as here, it finds the
reasoning persuasive. Gilewicz v. Department of Homeland Security, 2024 MSPB 7, ¶ 5
n.6.
4
ORDER
For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________ ________
Gina K. Grippando
Clerk of the Board
Washington, D.C.