The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
NATASHA N. GALLMAN, DOCKET NUMBER
Appellant, AT-0752-15-0519-I-1
v.
DEPARTMENT OF VETERANS DATE: September 30, 2015
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL *
Peter E. Shvetz, Columbia, South Carolina, for the appellant.
Edith W. Lewis, Columbia, South Carolina, 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 for lack of jurisdiction her appeal of her alleged involuntary
resignation. Generally, we grant petitions such as this one only when: 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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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. 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 After a series of absences, ostensibly for medical reasons, the appellant
resigned from her position on April 25, 2014. Initial Appeal File (IAF), Tab 7
at 16. On appeal, she contended that she was forced to resign because of an
intolerable working environment created by the agency’s harassment and
discrimination. IAF, Tab 1 at 11-12. After affording the appellant notice that her
appeal might not be within the Board’s jurisdiction, the administrative judge
ordered the appellant to submit evidence and argument establishing a
nonfrivolous allegation of jurisdiction. IAF, Tab 3. If the appellant presented a
nonfrivolous allegation of jurisdiction, she would be entitled to a hearing at
which she would have the opportunity to prove jurisdiction by preponderant
evidence. Id. After considering the appellant’s response, the administrative
judge found that the appellant failed to make a nonfrivolous allegation that her
resignation was involuntary and he dismissed the appeal for lack of jurisdiction.
IAF, Tab 8, Initial Decision (ID) at 1, 9.
¶3 An employee-initiated action, such as a resignation, is presumed to be
voluntary unless the appellant presents sufficient evidence to establish that the
action was obtained through duress, coercion, or misinformation, or if the
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appellant demonstrates that the employer engaged in a course of action that made
working conditions so difficult or unpleasant that a reasonable person in the
appellant’s position would have felt compelled to resign. Vaughan v. Department
of Agriculture, 116 M.S.P.R. 493, ¶ 11 (2011); see Miller v. Department of
Homeland Security, 111 M.S.P.R. 325, ¶ 8 (2009), aff’d, 361 F. App’x 134 (Fed.
Cir. 2010). The reasonable person test is an objective test and does not depend on
the appellant’s subjective characterization of the agency’s actions. See 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 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.
¶4 In her appeal and in her response to the administrative judge’s jurisdictional
order, the appellant contended that she was a disabled veteran with Post
Traumatic Stress Disorder, migraine headaches, and Major Depressive Disorder,
and that the agency improperly placed her in an absence without leave status
despite the fact that all of her absences were related to her medical conditions.
She asserted that the agency harassed her, although she did not explain what the
agency did to harass her. She also claimed that the agency did not offer her a
reasonable accommodation, although she did not state whether she ever requested
an accommodation or, if she did, what accommodations she sought. See IAF,
Tab 5 at 2. She further asserted that the agency was “careless, indifferent and
insensitive to [the] needs of its Veterans and their minority employees.” Id.;
see IAF, Tab 1 at 11.
¶5 On review, the appellant presents additional argument that she did not
submit to the administrative judge. All of this argument is based on facts that
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were known to the appellant while her appeal was pending before the
administrative judge. Generally, the Board 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). The appellant
here has not attempted to show due diligence and we have not relied on her
submissions on review.
¶6 Nevertheless, even if we were to consider them, they do not affect the
outcome of the case. A nonfrivolous allegation is an allegation of fact that, if
proven, could establish a prima facie case that the Board has jurisdiction over the
appeal. See, e.g., Williams v. Department of Agriculture, 106 M.S.P.R. 677, ¶ 10
(2007). The appellant has not presented allegations of fact subject to proof;
instead, she has presented the Board with her conclusions and interpretations
concerning the facts. Because the standard for involuntariness is an objective
one, the Board must consider the facts that led to the appellant’s subjective
conclusions to determine whether a reasonable person in her position would have
found working conditions so intolerable that she had no choice but to resign.
Because the appellant has not presented those facts, the Board is unable to
determine if her allegations meet the reasonable person test and, therefore, she
has not made a nonfrivolous allegation that her resignation was involuntary.
¶7 To the extent that the appellant contends that the agency harassed her by
requesting medical documentation for her absences, the doctrine of coercive
involuntariness does not apply when the appellant merely does not want to accept
an action that the agency is authorized to undertake. See Staats v. U.S. Postal
Service, 99 F.3d 1120, 1124 (Fed. Cir. 1996); Jones v. Department of Justice,
98 M.S.P.R. 86, ¶ 15 (2004), review dismissed, 125 F. App’x 1006 (Fed. Cir.
2005). To the extent that the appellant contends that she was forced to resign
because the agency was preparing to remove her or subject her to some other
form of disciplinary or adverse action, there is no evidence that the agency had
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proposed any action against her. The appellant’s apprehension at the possibility
of some future action does not render her resignation involuntary. See Brown v.
U.S. Postal Service, 115 M.S.P.R. 609, ¶ 15 (finding that the appellant’s
retirement was not involuntary where, instead of retiring based on her speculation
that the agency might remove her, she clearly had the option of contesting an
action she thought was invalid if and when it did occur), aff’d, 469 F. App’x 852
(Fed. Cir. 2011).
¶8 For the above-noted reasons, we find that the administrative judge correctly
dismissed the appeal for lack of jurisdiction without holding the appellant’s
requested 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
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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 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.