Opinion

Teresa Salgado v. Department of the Army

Court: Merit Systems Protection Board
Filed: May 19, 2026
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 40.7%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

TERESA L. SALGADO, DOCKET NUMBER

Appellant, SF-0752-24-0477-I-1

DEPARTMENT OF THE ARMY, DATE: May 19, 2026

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Brook L. Beesley , Alameda, California, for the appellant.

John J. Banaghan , Fort Bragg, North Carolina, for the agency.

Kristopher Motchenbacher , Esquire, Jolon, California, for the agency.

Bernard Gotmer , Fort Hunter Liggett, California, for the agency.

BEFORE

Henry J. Kerner, Vice Chairman

James J. Woodruff II, Member

FINAL ORDER

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

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

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

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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 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 and

AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.

§ 1201.113(b).

An employee may establish Board jurisdiction over a constructive adverse

action by proving that she lacked a meaningful choice in the matter and that the

agency’s wrongful actions deprived her of that choice. Bean v. U.S. Postal

Service, 120 M.S.P.R. 397, ¶¶ 8, 11 (2013). If the appellant presents a

nonfrivolous allegation of Board jurisdiction, she is entitled to a hearing at which

she must prove jurisdiction by preponderant evidence. Hosozawa v. Department

of Veterans Affairs, 113 M.S.P.R. 110, ¶ 5 (2010). In the initial decision, the

administrative judge found that the appellant nonfrivolously alleged that the

agency engaged in wrongful acts but she did not nonfrivolously allege that she

had no meaningful choice but to resign. Initial Appeal File (IAF), Tab 11, Initial

Decision (ID) at 9-11. The appellant challenges this finding on review and

asserts that she was denied discovery that would have enabled her to establish

jurisdiction. Petition for Review (PFR) File, Tab 1.

Specifically, the appellant repeats her allegation on review that the

agency’s actions caused her significant distress, resulting in her need to take

1 week of leave. PFR File, Tab 1 at 8. Even if true, we find that this does not

render her resignation involuntary, either on its own or when considering the

totality of the circumstances. See Vitale v. Department of Veterans Affairs,

107 M.S.P.R. 501, ¶¶ 25-26 (2007) (observing that the alleged worsening of the

appellant’s medical condition by the apprehension caused by the agency’s actions

was insufficient to render her decision to retire involuntary); Miller v.

Department of Defense, 85 M.S.P.R. 310, ¶ 32 (2000) (stating that an employee is

not guaranteed an environment free of stress). Rather, we agree with the

administrative judge, for the reasons discussed in the initial decision, that the

appellant has not nonfrivolously alleged that she had no option but to resign. ID

at 9-11. 2 Notably, the appellant had a pending equal employment opportunity

(EEO) complaint at the time of her resignation, and she has not alleged that

awaiting resolution of the complaint would have been futile. See Axsom v.

Department of Veterans Affairs, 110 M.S.P.R. 605, ¶ 17 (2009) (finding that a

resignation was not involuntary because the appellant did not prove that the

agency was handling his EEO complaints inequitably or that the EEO process

would have been futile).

The appellant also asserts on review that she was prejudiced by her

inability to obtain discovery of certain information, including information

concerning the agency’s treatment of comparators. 3 PFR File, Tab 1 at 9-10. She

We have considered the appellant’s assertion that the administrative judge improperly

weighed evidence in denying jurisdiction. PFR File, Tab 1 at 6. To the extent the

administrative judge weighed the probative value of the passage of time between the

agency’s alleged coercive acts and the appellant’s resignation, ID at 9, such

consideration was error. At the jurisdictional stage, the Board may not weigh the

probative value of an allegation that supports a claim of involuntariness because of the

passage of time. Trinkl v. Merit Systems Protection Board, 727 F. App’x 1007, 1010-11

(Fed. Cir. 2018). However, any such error was harmless because, even without

considering the passage of time, the appellant has not nonfrivolously alleged that she

had no reasonable alternative but to resign. See Panter v. Department of the Air Force,

22 M.S.P.R. 281, 292 (1984).

Before the administrative judge, the appellant stated that she wished to engage in

discovery but did not identify or describe the type of information she sought. IAF,

Tab 5 at 5.

asserts these facts relate to her claims of discrimination and retaliation. Id.

Evidence of discrimination or retaliation may be considered insofar as it relates to

the issue of voluntariness, i.e., whether under all of the circumstances, working

conditions were rendered so intolerable that a reasonable person in the

employee’s position would have felt compelled to resign. Markon v. Department

of State, 71 M.S.P.R. 574, 578 (1996). The administrative judge considered the

appellant’s allegations that she was subjected to discrimination and retaliation.

ID at 5-8. Even assuming the appellant nonfrivolously alleged that her

supervisor’s two instructions to work mandatory overtime and the resulting

reprimand were discriminatory or retaliatory, the appellant has not nonfrivolously

alleged, for the reasons explained in the initial decision and described above, that

she had no reasonable alternative but to resign. Thus, her arguments about

discovery are insufficient to warrant a different result. See Todd v. Department of

Defense, 63 M.S.P.R. 4, *9 (1994) (affirming the initial decision dismissing the

appeal for lack of jurisdiction, which was issued before the parties initiated

discovery), aff’d, 55 F.3d 1574 (Fed. Cir. 1995); cf. Parker v. Department of

Housing and Urban Development, 106 M.S.P.R. 329, ¶ 9 (2007) (remanding an

appeal for the parties to engage in discovery where the appellant established that

the information sought in discovery was relevant to the issue of Board

jurisdiction). 4 Accordingly, we deny the appellant’s petition for review and

affirm the initial decision.

The appellant has also asserted on review that the administrative judge improperly

granted the agency’s motion for an extension of time to file a response to his orders

without giving the appellant 10 days to respond. PFR File, Tab 1 at 6. The appellant

has not established that the administrative judge abused his discretion in granting the

agency’s motion or that she was prejudiced by this decision. See Karapinka v.

Department of Energy, 6 M.S.P.R. 124, 126-27 (1981). The administrative judge’s

ruling permitted the appellant to serve discovery requests at any time on or before the

extended deadline. See 5 C.F.R. § 1201.71 (explaining that parties are expected to start

and complete discovery with a minimum of Board intervention).

NOTICE OF APPEAL RIGHTS 5

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 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).

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.

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. 6 The court of appeals must receive your

petition for 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 following