Keisha Roache v. Department of Homeland Security

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

KEISHA ROACHE, DOCKET NUMBER

Appellant, DC-0752-15-0481-I-1

v.

DEPARTMENT OF HOMELAND DATE: September 9, 2015

SECURITY,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Leicester Bryce Stovell, Esquire, Washington, D.C., for the appellant.

Letitia Byers, Esquire, Washington, D.C., for the agency.

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 her alleged involuntary resignation appeal for lack of jurisdiction.

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

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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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).

DISCUSSION OF ARGUMENTS ON REVIEW

¶2 The appellant, a former GS-09 Staff Assistant with the agency, filed a

Board appeal alleging that her resignation was involuntary. 2 Initial Appeal File

(IAF), Tab 1 at 1, 4, 6. On her initial appeal form, the appellant alleged that she

resigned after the agency “refused her request that she not be required to meet

alone with her supervisor,” who she claimed had “spoken rudely” to her and

“threatened her,” causing her to fear for her safety. Id. at 6. The appellant

further alleged that the agency subjected her to a hostile work environment based

on her race and sex, and in reprisal for filing grievances. 3 Id. She contended

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On her initial appeal form, the appellant also indicated that the agency had denied her

a within-grade increase. Initial Appeal File (IAF), Tab 1 at 4, 6. The regional office

docketed this claim as a separate appeal. See IAF, Tab 4, Initial Decision at 2 n.1. On

April 13, 2015, the administrative judge issued an initial decision dismissing that

appeal for lack of jurisdiction. Roache v. Department of Homeland Security, MSPB

Docket No. DC-531D-15-0508-I-1, Initial Decision (Apr. 13, 2015). The appellant has

not filed a petition for review of that initial decision.

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On her initial appeal form, the appellant further alleged that she had filed a complaint

with the Equal Employment Opportunity Commission (EEOC), in which she claimed,

among other things, that she was constructively discharged. IAF, Tab 1 at 6. She

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that, as part of the hostile work environment, management unjustifiably denied

her a within-grade increase and placed her on a performance improvement plan.

Id. The appellant further alleged that agency management “harassed [her] by

constantly mismanaging her work, performance, job duties and leave usage, all in

the context of race and gender discrimination, with incidents occurring on

virtually a daily basis.” Id.

¶3 The administrative judge issued an acknowledgment order, which informed

the appellant of the elements and burden of proof necessary to establish

jurisdiction over an involuntary resignation appeal, and ordered her to submit

evidence and argument that raised a nonfrivolous allegation that her appeal was

within the Board’s jurisdiction. IAF, Tab 2 at 3-5. After the appellant failed to

respond to the order, the administrative judge dismissed the appeal for lack of

jurisdiction without holding the requested hearing, finding that the appellant

failed to raise a nonfrivolous allegation that her resignation was involuntary.

IAF, Tab 4, Initial Decision (ID); see IAF, Tab 1 at 2.

¶4 The appellant has filed a petition for review, in which she argues that she

raised nonfrivolous allegations on her initial appeal form sufficient to entitle her

to a jurisdictional hearing. Petition for Review (PFR) File, Tab 1 at 3, 10-11.

The agency has responded to the petition for review. 4 PFR File, Tab 3.

alleged that an EEOC administrative judge dismissed her complaint as a mixed-case

complaint. Id.

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The agency filed its response on June 8, 2015, which was electronically served on the

appellant’s representative, who had registered as an e-filer. PFR File, Tab 3 at 15-16;

IAF, Tab 1 at 3. Pursuant to the Board’s regulations, any reply to a response to a

petition for review must be filed within 10 days after the date of service of the

response. 5 C.F.R. § 1201.114(e); see 5 C.F.R. §§ 1201.4(i)-(j), (l) (defining “date of

service” to include the date of electronic submission for e-filing), 1201.14(m)(2)

(documents served electronically on registered e-filers are deemed received on the date

of electronic submission). The appellant did not file a reply to the agency’s response

until June 22, 2015, 4 days after the last day for timely filing had passed. PFR File,

Tab 4 at 8. The appellant has not attempted to establish good cause for her untimely

filing. PFR File, Tab 4. Accordingly, we GRANT the agency’s motion to strike the

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¶5 An employee-initiated action, such as a resignation, is presumed to be

voluntary and thus outside the Board’s jurisdiction. Hosozawa v. Department of

Veterans Affairs, 113 M.S.P.R. 110, ¶ 5 (2010). An involuntary resignation,

however, is equivalent to a forced removal and therefore is within the Board’s

jurisdiction. Id. To establish Board jurisdiction over a constructive adverse

action, such as an involuntary resignation, an appellant must show that: (1) she

lacked a meaningful choice in the matter; and (2) it was the agency’s wrongful

actions that deprived her of that choice. Bean v. U.S. Postal

Service, 120 M.S.P.R. 397, ¶ 8 (2013). The touchstone of the voluntariness

analysis is whether, considering the totality of the circumstances, factors operated

on the employee’s decision-making process that deprived her of freedom of

choice. Searcy v. Department of Commerce, 114 M.S.P.R. 281, ¶ 12 (2010).

¶6 Where, as here, intolerable working conditions are alleged, the Board will

find an action involuntary only if the employee demonstrates that the employer or

agency engaged in a course of action that made working conditions so difficult or

unpleasant that a reasonable person in that employee’s position would have felt

compelled to resign. Markon v. Department of State, 71 M.S.P.R. 574, 577-78

(1996). Furthermore, when an appellant raises allegations of discrimination in

connection with an involuntariness claim, evidence of discrimination may be

considered at the jurisdictional stage only in terms of the standard for

voluntariness. Id. at 578. Thus, in an involuntary resignation appeal, evidence of

discrimination goes to the ultimate question of coercion, i.e., whether under all of

the circumstances working conditions were made so difficult by the agency that a

reasonable person in the employee’s position would have felt compelled to resign.

Id.

appellant’s untimely reply, and have not considered the reply in reaching our decision

in this matter. PFR File, Tab 5.

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¶7 An appellant is entitled to a hearing on the issue of Board jurisdiction over

an appeal of an alleged involuntary resignation only if she makes a nonfrivolous

allegation casting doubt on the presumption of voluntariness. Burgess v. Merit

Systems Protection Board, 758 F.2d 641, 643 (Fed. Cir. 1985). Nonfrivolous

allegations of Board jurisdiction are allegations of fact that, if proven, could

establish a prima facie case that the Board has jurisdiction over the matter at

issue. Deines v. Department of Energy, 98 M.S.P.R. 389, ¶ 11 (2005).

¶8 Applying these standards, we agree with the administrative judge that the

appellant failed to make a nonfrivolous allegation of Board jurisdiction over her

appeal. ID at 5. The appellant’s conclusory allegation that the agency subjected

her to a hostile work environment does not constitute a nonfrivolous allegation of

jurisdiction. 5 See Briscoe v. Department of Veterans Affairs, 55 F.3d 1571,

1573-74 (Fed. Cir. 1995) (bald allegations standing alone do not meet the

nonfrivolous allegation standard); see also Coleman v. Department of the

Army, 106 M.S.P.R. 436, ¶ 9 (2007) (pro forma allegations are insufficient to

satisfy the nonfrivolous standard).

¶9 Similarly, we agree with the administrative judge that the appellant’s vague

and generalized allegation below that her supervisor threatened her in an

unspecified manner, unsupported by any specific factual allegations, failed to

raise a nonfrivolous allegation of jurisdiction over her appeal. ID at 5; see

Marcino v. U.S. Postal Service, 344 F.3d 1199, 1204 (Fed. Cir. 2003) (mere

conclusory allegations, unsupported by evidence or argument, do not constitute

nonfrivolous allegations). For the first time on review, the appellant attempts to

supplement her conclusory allegations below claiming that her supervisor

threatened her by assuming “physically threatening postures” towards her during

5

Similarly, we find that the appellant’s assertion, raised in the first instance on review,

that an agency employee stated during an equal employment opportunity investigation

that the appellant’s supervisor was “motivated in his treatment of [the appellant] by

racial discrimination and socio-economic status,” is insufficient to raise a nonfrivolous

allegation of jurisdiction over her appeal. PFR File, Tab 1 at 7.

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meetings. PFR File, Tab 1 at 6-7. The Board need not consider this allegation, as

the appellant failed to raise it in response to the administrative judge’s order

below. See Mendoza v. Merit Systems Protection Board, 966 F.2d 650, 653 (Fed.

Cir. 1992) (“[a] petitioner who ignores an order of the administrative judge does

so at his or her peril”); see also Banks v. Department of the Air Force, 4 M.S.P.R.

268, 271 (1980) (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).

Moreover, this argument provides no basis for disturbing the initial decision, as

the appellant’s general allegation that she found her supervisor’s posture to be

threatening fails to raise a nonfrivolous allegation that her working conditions

were so intolerable that a reasonable person in her position would have felt

compelled to resign. See, e.g., Terban v. Department of Energy, 216 F.3d 1021,

1025 (Fed. Cir. 2000) (an alleged verbal confrontation between an employee and

his supervisor did not overcome the presumption that the employee’s retirement

was voluntary); cf. Swift v. U.S. Postal Service, 61 M.S.P.R. 29, 32-33 (1994) (an

appellant was entitled to a jurisdictional hearing where he presented medical

evidence supporting his claim that he resigned due to psychological conditions

caused by specified acts of harassment by his supervisor).

¶10 Finally, applying the standard set forth in Markon, we find that the

appellant’s allegations that her supervisor was rude to her and that the agency

denied her a within-grade increase, placed her on a performance improvement

plan, and mismanaged her work and leave usage are not the sort of actions that

would cause a reasonable person to conclude that they must resign. See IAF,

Tab 1 at 6; PFR File, Tab 1 at 6; Markon, 71 M.S.P.R. at 577. While the

appellant may have found that her working conditions were unpleasant, an

employee is not guaranteed a work environment that is free of stress. Miller v.

Department of Defense, 85 M.S.P.R. 310, ¶ 32 (2000). Having feelings of being

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unfairly criticized, or experiencing difficult or unpleasant working conditions, is

generally not so intolerable as to compel a reasonable person to resign. Id.

¶11 Based on the foregoing, we affirm the initial decision dismissing the appeal

for lack of jurisdiction without a hearing.

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.

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If you are interested in securing pro bono representation for an 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

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.