# Nancy Swick v. Department of Defense

> Merit Systems Protection Board · May 12, 2023

URL: https://www.frixlaw.com/law-library/cases/9394239

## Case

- **Court:** Merit Systems Protection Board
- **Decided:** May 12, 2023
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9394239

## How later opinions describe it (automated extraction)

- holding that an example of an involuntary resignation based on coercion is a resignation induced by a threat to take disciplinary action that the agency knows could not be substantiated
- finding that the applicable statute “does not bar absolute performance standards”

## Opinion text

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

NANCY J. SWICK, DOCKET NUMBER
Appellant, DC-1221-17-0008-W-1

v.

DEPARTMENT OF DEFENSE, DATE: May 12, 2023
Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Earl Mitchell, Trafford, Pennsylvania, for the appellant.

Anette H. Veldhuyzen, Esquire, Fort Belvoir, Virginia, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which
dismissed for lack of jurisdiction her request for corrective action in an individual
right of action (IRA) appeal. 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 on an erroneous interpretation of

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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 except as expressly MODIFIED by
this Final Order to find that the appellant was a permanent employee , but did not
make a nonfrivolous allegation that her resignation was involuntary, and did not
prove that she exhausted administrative remedies before the Office of Special
Counsel (OSC), and we AFFIRM the initial decision.

BACKGROUND
¶2 Effective November 28, 2011, the agency appointed the appellant by
reinstatement to a competitive-service position as a Nurse at the Fort Belvoir
Community Hospital. Initial Appeal File (IAF), Tab 11 at 53. The position was
subject to completing a 1-year probationary period beginning on the date of her
appointment. Id. On December 13, 2012, the appellant’s supervisor issued the
appellant a memorandum detailing four complaints she had received about the
appellant, and she informed the appellant that she was pursuing disciplinary
action and would implement a performance improvement plan (PIP) as soon as
possible. 2 IAF, Tab 6 at 85-86. On December 26, 2012, the appellant submitted a
letter of resignation, effective January 4, 2013. IAF, Tab 11 at 51, Tab 13 at 14.

2
The memorandum at issue is dated December 18, 2012; however, the appellant alleges
that her supervisor provided the memorandum to her on December 13, 2012, which the
agency does not dispute. IAF, Tab 6 at 10, 85-86; Petition for Review File, Tab 4 at 6.
3

¶3 On February 11, 2016, the appellant filed a complaint with OSC in which
she alleged that the agency had committed 18 prohibited personnel practices.
IAF, Tab 6 at 21-67. The alleged prohibited personnel practices included
allegations that the agency had failed to provide the appellant with a performance
plan and rating, issued a December 13, 2012 memorandum threatening to place
her on a PIP and pursue disciplinary action against her, reassigned her patients
and placed her on administrative duties, illegitimately renewed her nursing
credentials, provided inaccurate information to an investigator with the
Commonwealth of Virginia Board of Nursing, and ordered her to undergo a
psychiatric examination. Id. at 26, 30-32. The appellant also alleged that she had
suffered a constructive discharge. Id. at 32.
¶4 By letter dated June 29, 2016, the OSC Complaints Examining Unit notified
the appellant that it had made a preliminary determination to close its inquiry into
her complaint and provided her with an opportunity to respond within 13 days of
the date of the letter. Id. at 19-20. On July 27, 2016, the appellant’s
representative provided OSC with a declaration from the appellant and additional
documentation referenced in the declaration in support of her request for OSC to
reverse its preliminary determination. Id. at 69-84. By letter dated August 30,
2016, the Complaints Examining Unit notified the appellant that it had received
her July 27, 2016 response and had made a final determination to close its file.
Id. at 18.
¶5 On October 4, 2016, the appellant filed this IRA appeal alleging that the
agency’s prohibited personnel practices caused her to resign, and thus she was
subjected to an involuntary removal. IAF, Tab 1 at 5-17. She requested a
hearing. Id. at 2. The administrative judge issued an order notifying the
appellant of the elements and burdens of proof, and directing her to file evidence
and argument, to establish Board jurisdiction over her IRA appeal . IAF, Tab 3
at 2-7. The appellant filed a response to the order in which she alleged that the
agency perceived her as a whistleblower because she was “about to divulge acts
4

pertaining to 5 U.S.C. § 2302(b)” and that agency management viewed her
continued presence in her position as a threat because they feared that she might
reveal to upper-level management the alleged prohibited personnel practices they
had committed. IAF, Tab 10 at 5-19. She also alleged that the agency likely
believed she knew about the alleged prohibited personnel practices when she
stated during a December 13, 2012 counseling session that she would resign and
did not return to work or respond to attempts to contact her after that date. Id.
at 19. Finally, the appellant alleged that the agency had abused its authority by
requiring that she work under illegal conditions and unachievable standards, or be
fired, and she had no choice but to resign. Id. at 18. The agency moved to
dismiss the appeal for lack of jurisdiction on the grounds that the appellant had
failed to nonfrivolously allege that she made a protected disclosure, engaged in
protected activity, or that the agency perceived her as having made protected
disclosures, and that she had failed to nonfrivolously allege that her resignation
was involuntary. IAF, Tab 13 at 9-12.
¶6 The administrative judge issued an initial decision dismissing the appeal for
lack of jurisdiction based on the written record. IAF, Tab 14, Initial Decision
(ID). The administrative judge first found that the appellant resigned during her
probationary period, and thus she was not an employee under 5 U.S.C. § 7511 and
so she lacked standing to pursue an involuntary resignation appeal. ID at 2-3.
The administrative judge then considered the appellant’s claims to the extent they
alleged that the involuntary resignation and other events she identified were taken
against her in retaliation for whistleblowing activity. ID at 3-9. The
administrative judge assumed for the purposes of determining jurisdiction that the
appellant had exhausted her administrative remedies before OSC, but he found
that the appellant did not present a nonfrivolous allegation that she made a
protected disclosure, engaged in protected activity, or was perceived as a
whistleblower, and thus the Board lacked jurisdiction over her IRA appeal. Id.
5

¶7 The appellant has filed a petition for review in which she argues that the
administrative judge erred in finding that she was a probationary employee and
that she did not make a nonfrivolous allegation that she was perceived as a
whistleblower. She further asserts that she has made a nonfrivolous allegation
that her resignation was the product of misinformation and coerc ion. Petition for
Review (PFR) File, Tab 1. The agency has responded in opposition to the
petition. PFR File, Tab 4. As set forth below, we find that the appellant was a
tenured employee at the time of her resignation, but she has not made a
nonfrivolous allegation that her resignation was involuntary. We also find that
the administrative judge properly concluded that the appellant did not make a
nonfrivolous allegation that she made a protected disclosure, engaged in protected
activity, or was perceived as a whistleblower; moreover, we find that the
appellant failed to exhaust her administrative remedies concerning her claim that
she was perceived as a whistleblower.

DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge erred in finding that the appellant was a probationary
employee.
¶8 On review, the appellant asserts that the administrative judge erred in
finding that she was terminated during her probationary period , and thus lacked
standing to pursue her claim of an involuntary resignation, because she had
completed 1 year of current, continuous service. PFR File, Tab 1 at 11 -12. The
agency has not disputed the appellant’s assertion. PFR File, Tab 4. The Board’s
jurisdiction is limited to those matters over which it has been given jurisdiction
by law, rule, or regulation. Maddox v. Merit Systems Protection Board, 759 F.2d
9, 10 (Fed. Cir. 1985). To qualify as an “employee” with appeal rights under
5 U.S.C. chapter 75, an individual in the competitive service, such as the
appellant, must show that she either is not serving a probationary or trial pe riod
under an initial appointment or has completed 1 year of current, continuous
service under an appointment other than a temporary one limited to 1 year or less.
6

5 U.S.C. § 7511(a)(1)(A); Dodson v. Department of the Navy, 111 M.S.P.R. 504,
¶ 4 (2009). The Standard Form 50 appointing the appellant to the Nurse position
dictated that she was to complete a 1-year probationary period beginning on
November 28, 2011. IAF, Tab 11 at 53. The appellant served continuously under
this appointment until January 4, 2013, when she resigned. IAF, Tab 11 at 51,
Tab 13 at 14. When she resigned, the appellant had completed her 1-year
probationary period and had completed 1 year of current, continuous service in a
permanent position. 3 Id. Accordingly, we find that the appellant was an
employee within the meaning of 5 U.S.C. chapter 75 and had standing to
challenge her alleged involuntary resignation.

The appellant has not made a nonfrivolous allegation of Board jurisdiction over
her involuntary resignation claim.
¶9 On review, the appellant argues that her resignation was involuntary
because the agency threatened her with placement on a PIP and a disciplinary
action, both of which could not be substantiated. PFR File, Tab 1 at 5-11.
Below, the administrative judge observed that the appellant had raised a claim
that her resignation was involuntary but found that the appellant lacked standing
to pursue the claim and did not address it further. ID at 2-3. The administrative
judge did not notify the appellant of her burden of proof and the elements to make
a nonfrivolous allegation that her removal was involuntary; however, this error

3
In this case, the agency appointed the appellant by reinstatement to a
competitive-service position. IAF, Tab 11 at 53. The appellant would not be required
to serve a probationary period under her most recent appointment if she was reinstated
pursuant to 5 C.F.R. § 315.401 and “during any period of service which affords a
current basis for reinstatement, [she] completed a probat ionary period or served with
competitive status under an appointment which did not require a probationary period.”
5 C.F.R. § 315.801(a)(2); Dodson, 111 M.S.P.R. 504, ¶ 9. Although the appellant
previously may have completed such a period of service, she has not provided proof of
it. However, we need not ascertain whether she completed such a period of service
because we find that she completed both her 1-year probationary period and 1 year of
current, continuous service under the appointment at issue and is thus an employee with
appeal rights.
7

was not prejudicial to the appellant’s substantive rights because the agency’s
jurisdictional response was sufficient to place the appellant on notice of the
elements and burdens of proof of such a claim so as to afford her the opportunity
to meet her burden for the first time on review. IAF, Tab 13 at 11; see Yost v.
Department of Health and Human Services, 85 M.S.P.R. 273, 277 (2000) (holding
that the administrative judge’s failure to properly inform an appellant of the
Board’s jurisdictional requirements may not be prejudicial when the appellant is
put on notice by the agency’s motion to dismiss of what he must allege to
establish jurisdiction), aff’d, 4 F. App’x 900 (Fed. Cir. 2001). Accordingly, we
address the appellant’s argument that her resignation was involuntary but find
that she has not made a nonfrivolous allegation that the Board has jurisdiction
over the action.
¶10 An employee-initiated action, such as a resignation, is presumed to be
voluntary and thus outside the Board’s jurisdiction. Searcy v. Department of
Commerce, 114 M.S.P.R. 281, ¶ 12 (2010). An involuntary resignation, however,
is tantamount to a removal and is thus within the Board’s jurisdiction. Adams v.
U.S. Postal Service, 108 M.S.P.R. 250, ¶ 9 (2008), aff’d, 309 F. App’x 413 (Fed.
Cir. 2009). An appellant may overcome the presumption of voluntariness by
presenting sufficient evidence to establish that the action was obtained through
duress or coercion or show that a reasonable person would have been misled by
the agency. Searcy, 114 M.S.P.R. 281, ¶ 12.
¶11 If an appellant makes a nonfrivolous allegation casting doubt on the
presumption of voluntariness, she is entitled to a hearing at which she must prove
jurisdiction by a preponderance of the evidence. Garcia v. Department of
Homeland Security, 437 F.3d 1322, 1344 (Fed. Cir. 2006) (en banc). To meet the
nonfrivolous standard, an appellant need only plead allegations of fact that, if
proven, could show jurisdiction. Pariseau v. Department of the Air Force,
113 M.S.P.R. 370, ¶ 14 (2010). Mere pro forma allegations are insufficient to
meet the standard. Id. In determining whether the appellant has made a
8

nonfrivolous allegation, the administrative judge may consider the agency’s
documentary submissions. Id. However, to the extent that the agency’s evidence
constitutes mere factual contradiction of the appellant’s otherwise adequate prima
facie showing of jurisdiction, the administrative judge may not weigh evidence
and resolve conflicting assertions of the parties, and the agency’s evidence may
not be dispositive. Id.
¶12 On review, the appellant contends that her supervisor misinformed her when
she threatened the appellant in the December 13, 2012 memorandum and
accompanying meeting with a PIP and disciplinary action that could not be
substantiated, and she resigned to avoid the threatened PIP and disciplinary
action. PFR File, Tab 1 at 5-11. Although the appellant’s argument appears to be
premised on allegations of coercion rather than misinformation, to the extent she
intended to allege that her resignation was the result of the agency’s
misinformation, we find that the appellant has not made a nonfrivolous allegation
that her resignation was involuntary due to misinformation. An appellant who
claims that an involuntary action resulted from misinformation must show that the
agency made misleading statements, and that she reasonably relied on the
misinformation to her detriment. Aldridge v. Department of Agriculture,
111 M.S.P.R. 670, ¶ 8 (2009). The appellant need not show that the agency was
intentionally misleading. Id. However, an agency is required to provide accurate
information to permit the appellant to make an informed, and thus voluntary,
decision regarding resignation. Id.
¶13 Although the appellant argues that the threatened PIP and disciplinary
action could not be substantiated, she has not alleged that the factual information
provided to her by her supervisor in the December 13, 2012 meeting and
memorandum was inaccurate. PFR File, Tab 1 at 5-11. Specifically, the
appellant has not alleged that the agency threatened to place her on a PIP and
with disciplinary action but did not in fact intend to take either of the actions. Id.
The appellant contends that she did not have an opportunity to exam ine or
9

challenge the complaints contained in the December 13, 2012 memorandum, but
she does not allege that the complaints are inaccurate. Id. We thus conclude that
the appellant has not made a nonfrivolous allegation that the agency made
misleading statements that led to her purportedly involuntary resignation.
¶14 The appellant’s argument that the agency threatened her with a PIP and a
disciplinary action that could not be substantiated, which we interpret to allege
that the agency coerced her resignation, is also unpersuasive. To establish
involuntariness on the basis of coercion, an employee must show that the agency
effectively imposed the terms of her resignation, she had no realistic alternative
but to resign, and her resignation was the result of improper acts by the agency.
Brown v. U.S. Postal Service, 115 M.S.P.R. 609, ¶ 10, aff’d, 469 F. App’x 852
(Fed. Cir. 2011). If an employee’s working conditions are so intolerable that she
is forced to resign, her resignation is involuntary and constitutes a constructive
removal. Id. Thus, the Board must determine whether, considering the totality of
the circumstances, the employee’s working conditions were made so difficult that
a reasonable person in her position would have felt compelled to resign. Id.
¶15 An appellant may show that a resignation was based on coercion when the
resignation is induced by a threat to take an adverse or performance-based action
that the agency knows could not be substantiated or when the agency takes steps
against an employee “not for any legitimate agency purpose but simply to force
the employee to quit.” Staats v. U.S. Postal Service, 99 F.3d 1120, 1124 (Fed.
Cir. 1996) (holding that an example of an involuntary resignation based on
coercion is a resignation induced by a threat to take disciplinary action that the
agency knows could not be substantiated); Barthel v. Department of the Army,
38 M.S.P.R. 245, 251 (1988) (holding that, if the appellant could show that the
agency knew that the reasons for the proposed 5 U.S.C. chapter 43 removal could
not be substantiated, the proposed action would be purely coercive and would
10

render his resulting retirement involuntary). 4 However, the doctrine of coerced
involuntariness is “a narrow one.” Staats, 99 F.3d at 1124. It does not apply if
the employee resigns because [s]he “does not want to accept [measures] that the
agency is authorized to adopt, even if those measures make continuation in the
job so unpleasant . . . that [s]he feels that [s]he has no realistic option but to
leave.” Id. Likewise, “the fact that an employee is faced with an unpleasant
situation or that h[er] choice is limited to two unattractive options does not make
[her] decision any less voluntary.” Id.
¶16 Here, the agency’s December 13, 2012 memorandum informed the appellant
of four complaints lodged against her about her patient care during November and
December 2012 and informed her that disciplinary action and a PIP would be
forthcoming. IAF, Tab 6 at 85-86. The appellant does not assert that the agency
proposed any disciplinary action or issued her a PIP prior to her resignation .
Although a PIP is a precursor to a performance-based action, it is not itself a
performance-based action. 5 See 5 C.F.R. § 432.104 (providing that if an

4
We recognize that the agency never proposed a separation action against the appellant,
but it is reasonable to conclude that, in light of the discussion of a potential PIP, any
such action could have been proposed pursuant to chapter 43. See 5 C.F.R. §§ 432.104,
432.105. In the past, the Board has held that there is no requirement that an agency
establish the unacceptability of pre-PIP performance in analyzing a performance-based
action under chapter 43. See, e.g., Thompson v. Department of the Navy, 89 M.S.P.R.
188, ¶ 19 (2001). However, in Santos v. National Aeronautics and Space
Administration, 990 F.3d 1355, 1360-61 (Fed. Cir. 2021), the U.S. Court of Appeals for
the Federal Circuit held that, to support an advers e action under chapter 43, an agency
“must justify institution of a PIP” by showing that the employee’s performance was
unacceptable before the PIP. We emphasize that, here, the issue before the Board is not
whether the agency could substantiate a potential chapter 43 action, but, rather, whether
the appellant nonfrivolously alleged that her resignation was involuntary. Thus, as set
forth above, the appellant’s allegation that any proposed PIP could not be substantiated
should be and is considered here only as it relates to the issue of voluntariness. As
explained above in greater detail, we find that the appellant’s allegations concerning the
justifications for a potential PIP do not amount to a nonfrivolous allegation that her
resignation was involuntary. See infra ¶¶ 17-20.
5
The appellant asserts that Gonzales v. Department of Housing and Urban
Development, 64 M.S.P.R. 314 (1994), supports her contention that the threat to place
11

employee’s performance is determined to be unacceptable in one or more critical
elements, the agency shall, inter alia, notify the employee that unless her
performance in the critical elements improves and is sustained at an acceptable
level, she may be reduced in grade or removed, and provide her with a reasonable
opportunity to demonstrate acceptable performance); see also Shores v.
Department of the Air Force, 4 F. App’x 911, 913 (Fed. Cir. 2001)
(nonprecedential) (explaining that the threat of a PIP would not support a finding
of coercion because it is not itself a disciplinary action) . 6 Because the agency did
not propose an adverse or performance-based action at the time of the appellant’s
resignation, and because we are not adjudicating a chapter 43 action, we need not
determine whether any such action could be substantiated. See supra ¶ 15 n.4.
¶17 Nevertheless, we have considered whether the totality of the circumstances
surrounding the appellant’s resignation would support a finding that the agency
coerced her resignation, including whether the agency took any actions without a
legitimate purpose to force her to quit. See Staats, 99 F.3d at 1124. Below, the
appellant contended that her resignation was based solely on her supervisor’s
threats during their meeting on December 13, 2012. IAF, Tab 10 at 15-16. The
appellant alleged that on that date, in addition to her supervisor’s issuing the
memorandum threatening disciplinary action and a PIP, her supervisor gave her a
performance plan with absolute standards. Id. at 15. Additionally, the appellant
alleged that at the end of the meeting, she asked her supervisor “if she was going
to be fired” and her supervisor said, “[Y]es, if you keep making mistakes.” Id.
at 53. The appellant then informed her supervisor that she was resigning; her

her on a PIP was tantamount to threatening an adverse action; however, Gonzales
addresses whether a PIP is a personnel action within the meaning of 5 U.S.C.
§ 2302(a)(2)(A), not whether it is an action within the meaning of 5 U.S.C. chapters 43
or 75. Gonzales, 64 M.S.P.R. at 319.
6
The Board may follow a nonprecedential decision of the Federal Circuit when, as here,
it finds its reasoning persuasive. Morris v. Department of the Navy, 123 M.S.P.R. 662,
¶ 13 n.9 (2016).
12

supervisor replied, “Well, why don’t you think about it, and stick around at least
during the holidays.” Id. at 15, 53.
¶18 The appellant contends that the agency could not threaten to place her on a
PIP because it did not place her on performance standards during her probationary
period, and she did not receive an annual performance rating. PFR File, Tab 1
at 7-8. It is true that if an agency determines an employee’s performance to be
unacceptable in one or more critical elements, it must notify the employee of
those critical elements, inform her of the performance requirements or standards
that must be attained to demonstrate acceptable performance in the position, and
afford her a reasonable opportunity to demonstrate performance. See 5 C.F.R.
§ 432.104. The appellant submitted evidence that the agency had implemented
performance standards and had evaluated her performance throughout 2012,
including a November 2012 performance assessment, and notified her of
performance concerns as early as August 2012. IAF, Tab 7 at 32-43, 52. The
appellant does not contend that these concerns were unwarranted. In the
performance plan implemented on December 13, 2012, portions of the critical
elements do appear to contain absolute standards. There is no prohibition against
absolute performance standards; rather, performance standards must be
reasonable, based on objective criteria, and communicated to the employee in
advance. Guillebeau v. Department of the Navy, 362 F.3d 1329, 1337 (Fed. Cir.
2004) (finding that the applicable statute “does not bar absolute performance
standards”). The appellant does not contend that the performance standa rds in
her December 13, 2012 performance plan were unreasonable or subjective , and
she acknowledges receiving the plan. IAF, Tab 10 at 15, Tab 11 at 41-47.
Accordingly, we find that the appellant has not set forth facts that would show
that the agency lacked a legitimate basis for notifying her of its intent to place her
on a PIP or was otherwise improperly undermining her performance.
¶19 The appellant also contends that the agency could not substantiate a
disciplinary action because she did not have an opportunity to challenge the
13

complaints set forth in the December 13, 2012 memorandum, and imposing
disciplinary action requires the results of a performance appraisal. PFR File,
Tab 1 at 8-11. The agency had not proposed an adverse action against the
appellant; therefore, she was not entitled to challenge the complaints, which she
has not alleged are untrue. See 5 U.S.C. § 7513(b) (providing that an employee
against whom an action is proposed is entitled to a reasonable time to answer).
Additionally, although an employee’s performance may be considered in
determining the penalty in an adverse action, there is no requirement that the
agency complete a performance appraisal before taking such a n action. See, e.g.,
Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305 (1981) (providing that
an employee’s past work record, including performance on the job, is relevant for
consideration in determining the appropriateness of a penalty for discipline).
Accordingly, we find that the appellant has not set forth facts that could show that
the agency acted improperly or that she had no choice but to resign in the face of
the forthcoming action.
¶20 Further, during the meeting between the appellant and her supervisor,
although the supervisor stated that the appellant’s removal was a future
possibility, she also indicated that the appellant had the opportunity to improve
her performance and avoid such an action. IAF, Tab 10 at 53. Additionally,
when the appellant informed her supervisor that she intended to resign, her
supervisor asked her to take additional time to consider her decision and to
continue working while she mulled over that decision. Id. at 15, 53. Although
the conversation was undoubtedly an unpleasant one, there is no indication that
the appellant had no alternative but to resign. Instead of resigning based on
speculation that she would be removed, the appellant could have contested an
action she thought was invalid if it occurred. 7 See Brown, 115 M.S.P.R. 609, ¶ 15

7
Moreover, there is no indication that the appellant was under an unreasonable time
constraint in deciding whether to resign. An appellant’s decision to resign may be
considered involuntary if she did not have sufficient time to reflect about her alternative
14

(finding the appellant’s claims that she was apprehensive of the agency taking a
disciplinary action against her after she stopped reporting to work to be
insufficient to find that her retirement was involuntary, as she had th e option to
contest a future action). In considering the totality of the circumstances
surrounding the appellant’s resignation, we find that she has not set forth facts
that could show that a reasonable person would have felt compelled to resign.
See, e.g., Baldwin v. Department of Veterans Affairs, 109 M.S.P.R. 392, ¶¶ 19-20
(2008) (explaining that allegations of being assigned to onerous tasks, being
unjustifiably threatened with discipline, and being subjected to unnecessary
investigations did not suffice to make a nonfrivolous allegation of jurisdiction
over an involuntary resignation based on coercion).
¶21 Finally, in considering the appellant’s resignation, we have reviewed her
allegations that the agency retaliated against her by failing to provide her with a
performance plan and rating, by issuing the December 13, 2012 memorandum
threatening to pursue disciplinary action against her and place her on a PIP, by
reassigning her patients and auditing her patient charts, and by ordering her to
undergo a psychiatric examination, because it perceived her as a whistleblower.
PFR File, Tab 1 at 13-16. When an appellant raises allegations of reprisal for
whistleblowing activity in connection with a constructive removal claim,
evidence of reprisal goes to the ultimate question of coercion.
Coufal v. Department of Justice, 98 M.S.P.R. 31, ¶ 24 (2004). As set forth below,
we affirm the administrative judge’s finding that there is no evidence that the
appellant made protected disclosures, engaged in protected activity, or was

course of action before she was required to make her decis ion. See Soler-Minardo v.
Department of Defense, 92 M.S.P.R. 100, ¶¶ 7, 9-10 (2002) (finding that the appellant
was not under “extreme time pressure” when she accepted a demotion 10 days after the
agency proposed the demotion). Here, the absence of a pending adverse action and the
appellant’s supervisor’s urging the appellant to take additional time to consider her
decision indicate that the appellant did not make her decision under an unreasonable
time constraint and thus does not suggest the appellant felt compelled to resign.
IAF, Tab 10 at 15, 53.
15

perceived as a whistleblower; thus, we do not find that retaliation played a role in
the appellant’s resignation. Accordingly, we conclude that the appellant has not
made nonfrivolous allegations that cast doubt on the voluntariness of her
resignation; therefore, the Board lacks jurisdiction over her resignation. We now
turn to her IRA appeal. 8

The appellant did not exhaust her administrative remed ies before OSC concerning
her claim of whistleblower reprisal.
¶22 On review, the appellant appears to argue that she established the Board’s
jurisdiction over her IRA appeal because she disclosed prohibited personnel
practices in her OSC complaint and exhausted her administrative remedies before
OSC regarding two actions that constituted reprisal for whistleblowing: the
agency’s order that she complete a psychiatric exam and failure to provide her
with performance standards and a rating during her probationar y period. PFR
File, Tab 1 at 12-13. She also argues for the first time on review that she was
perceived as a whistleblower because one of her supervisors knew that the
agency’s human resources department would ask the appellant whether she was
provided with a performance plan and appraisal, and at that time, “the appellant
would disclose all that she knew regarding the matter[.]” Id. at 13-14.
¶23 To establish Board jurisdiction over an IRA appeal brought pursuant to the
Whistleblower Protection Enhancement Act of 2012 (WPEA), the appellant must
exhaust her administrative remedies before OSC and make nonfrivolous

8
The appellant filed her OSC complaint on February 11, 2016, before filing her
October 4, 2016 Board appeal. An appellant generally is limited to filing a Board
appeal, a grievance, or a complaint with OSC under 5 U.S.C. § 7121(g). However, an
appellant’s election is only binding if it was knowing and informed. Agoranos v.
Department of Justice, 119 M.S.P.R. 498, ¶ 16 (2013). Here, the appellant was not
advised that contesting her alleged constructive removal in an OSC complaint would
preclude a chapter 75 appeal before the Board. See id., ¶ 18. Further, if jurisdiction
never attached to the appellant's original choice, then it was not a true choice among
viable alternatives and is not binding. Scalera v. Department of the Navy, 102 M.S.P.R.
43, ¶ 9 (2006). Thus, the fact that the appellant filed a complaint with OSC does not
preclude her from raising an involuntary resignation claim under chapter 75 .
16

allegations that: (1) she made a protected disclosure described under 5 U.S.C.
§ 2302(b)(8) or engaged in protected activity as specified in 5 U.S.C.
§ 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the protected disclosure or activity
was a contributing factor in the agency’s decision to take or fail to take a
personnel action as defined by 5 U.S.C. § 2302(a). 5 U.S.C. §§ 1214(a)(3), 1221;
Salerno v. Department of the Interior, 123 M.S.P.R. 230, ¶ 5 (2016). Jurisdiction
in an IRA appeal is determined based on the written record. See Graves v.
Department of Veterans Affairs, 123 M.S.P.R. 434, ¶ 22 (2016) (holding that an
employee is not entitled to a jurisdictional hearing in an IRA appeal).
¶24 The Board’s jurisdictional inquiry generally begins by examining whether
the appellant has shown that she exhausted her administrative remedies before
OSC, as the Board’s jurisdiction over an IRA appeal is limited to those issues
raised before OSC. See Miller v. Federal Deposit Insurance Corporation ,
122 M.S.P.R. 3, ¶ 6 (2014) (“The first element of Board jurisdiction over an IRA
appeal is exhaustion by the appellant of his administrative remedies before
OSC”), aff’d, 626 F. App’x 261 (Fed. Cir. 2015). Under 5 U.S.C. § 1214(a)(3),
an appellant must seek corrective action from OSC before seeking corrective
action from the Board in an IRA appeal. Id., ¶ 6. To satisfy the exhaustion
requirement of 5 U.S.C. § 1214(a)(3), an appellant must provide OSC with a
sufficient basis to pursue an investigation. Chambers v. Department of
Homeland Security, 2022 MSPB 8, ¶¶ 10-11 .9 The Board’s jurisdiction is
limited to those issues that were previously raised with OSC. However,
appellants may give a more detailed account of their whistleblowing activities
before the Board than they did to OSC. Id. Appellants may demonstrate
exhaustion through their initial OSC complaint; evidence that they amended

9
The WPEA, which became effective on December 27, 2012, does not affect the
relevant holding in the cited authority, nor does it affect the relevant holdings in the
other authorities cited herein that were issued prior to the effective date of the WPEA.
See Pub. L. No. 112-199, 126 Stat. 1465 (2012).
17

the original complaint, including but not limited to OSC’s determination letter
and other letters from OSC referencing any amended allegations; and, their
written responses to OSC referencing the amended allegations. Id. Appellants
also may establish exhaustion through other sufficiently reliable evidence,
such as an affidavit or a declaration attesting that they raised with OSC the
substance of the facts in the Board appeal. Id.
¶25 Here, the administrative judge observed that the appellant had not provided
a copy of OSC’s notice that it had closed its inquiry, and he assumed that the
appellant had exhausted her administrative remedies before OSC and proceeded
to find that the appellant did not make a nonfrivolous allegation that she was
perceived as a whistleblower, made a protected disclosure, or engaged in
protected activity. ID at 6-9. However, the appellant submitted a copy of her
OSC complaint and supporting documentation, a supplemental declaration
submitted to OSC in support of her complaint, and OSC’s August 30, 2016 letter
closing its file regarding her complaint; accordingly, we believe there was
sufficient information to consider whether the appellant exhausted her
administrative remedies before OSC. IAF, Tab 6 at 18-84.
¶26 We find that the appellant did not exhaust her administrative remedies
because she did not allege whistleblower reprisal before OSC. The appellant
completed the section of OSC Form 11 pertaining to prohibited personnel
practices but did not complete the section pertaining to whistleblower reprisal.
IAF, Tab 6 at 23-49. The letter from the appellant’s representative referenced
5 U.S.C. § 2302(b)(1) and (12), which prohibit an employee who has the authority
to take, or direct others to take, recommend, or approve any personnel action,
from discriminating against an employee or applicant for employment, or from
taking, or failing to take, a personnel action if it violates any law, rule, or
regulation implementing or directly concerning merit systems principles,
respectively. Id. at 21-22. In her complaint, the appellant only alleged that the
agency discriminated against her on the basis of her disability and failed to
18

manage her performance in violation of multiple Army regulations, Federal
regulations, and statutes. Id. at 23-49. She did not allege in her complaint or
supplemental correspondence with OSC that the agency had retaliated against her
for whistleblowing. Id. at 23-84. Therefore, we find that the appellant did not
prove that she exhausted her administrative remedies before OSC concerning her
allegations of whistleblower reprisal. See Finston v. Health Care Financing
Administration, 83 M.S.P.R. 100, ¶ 9 (1999) (holding that the appellant’s OSC
complaint did not give OSC a sufficient basis on which to pursue an investigatio n
into a whistleblowing claim when his submissions to OSC did not mention
whistleblowing or other related terms, and he asked OSC to investigate an alleged
violation of 5 U.S.C. § 2302(b)(4)).
¶27 In addition to her failure to raise a claim of whistleblower reprisal, the
appellant did not allege any other facts that would give OSC a sufficient basis to
pursue an investigation on the basis that the agency retaliated against her because
an agency official perceived her as a whistleblower. An individual who is
perceived as a whistleblower is still entitled to the protections of the
Whistleblower Protection Act, even if she has not made protected disclosures.
Jensen v. Department of Agriculture, 104 M.S.P.R. 379, ¶ 11 n.3 (2007). While
portions of the analysis in such a case differ from a case in which the appellant
actually made a disclosure, the appellant must still establish that she exhausted
her remedies with OSC on the issue of whether the agency perceived her as a
whistleblower. Coufal, 98 M.S.P.R. 31, ¶ 18. Here, the appellant did not allege
in her OSC complaint or supplemental correspondence with OSC that any agency
official perceived her as a whistleblower, nor did she allege facts that wo uld give
OSC a sufficient basis to pursue an investigation on this ground. IAF, Tab 6
at 23-84. At most, the appellant alleged before OSC that her supervisors covered
up their mismanagement of her performance because they feared “reprisal” from
their supervisors, but at no time did she allege that agency management viewed
her as a potential source of a disclosure of this alleged mismanagement or
19

otherwise perceived her as a whistleblower. Id. at 33. Accordingly, we find that
she did not exhaust administrative remedies before OSC with respect to her claim
that the agency perceived her as a whistleblower. See Coufal, 98 M.S.P.R. 31,
¶ 18 (finding that the Board lacked jurisdiction to consider the appellant’s
argument that she was perceived as a whistleblower because she did not raise this
argument in her complaint before OSC).

The administrative judge properly found that the appellant did not make a
nonfrivolous allegation that she was perceived as a whistleblower, made a
protected disclosure, or engaged in protected activity.
¶28 Although we find that the appellant failed to exhaust administrative
remedies before OSC, had she met the exhaustion requirement, the administrative
judge nevertheless properly found that the appellant did not make a nonfrivolous
allegation that she was perceived as a whistleblower, made a protected disclosure,
or engaged in protected activity. ID at 6-9. The appellant filed her OSC
complaint well after she resigned from her position and did not allege that she
made any disclosures during her employment with the agency. IAF, Tab 6
at 21-68. Rather, the appellant alleged throughout her jurisdictional response that
she was perceived as a whistleblower because she was “about to divulge acts
pertaining to 5 U.S.C. § 2302(b)” and her supervisors feared that she would
reveal their alleged prohibited personnel practices to upper management.
IAF, Tab 10 at 5-19. The Board has found that a variety of fact patterns can
support a finding that an individual was perceived as a whistleblower. King v.
Department of the Army, 116 M.S.P.R. 689, ¶ 7 (2011). The appellant in the
instant case appears to argue that certain agency officials believed that she made
or intended to make disclosures that evidenced the type of wrongdoing set forth
under 5 U.S.C. § 2302(b)(8). See Mausser v. Department of the Army,
63 M.S.P.R. 41, 44 (1994) (finding that the appellant may have been perceived as
a whistleblower because the agency knew about his list of “waste, fraud, and
20

abuse,” “safety issues,” and violations of “government regulations,” and of his
intention to disclose the list).
¶29 During the pendency of her appeal below, the appellant did not identify a
particular agency official who believed she engaged in whistleblowing, and she
did not provide any facts to support her allegation that her managers were afraid
that she would disclose their alleged prohibited personnel practices. IAF, Tab 10
at 5-20. For the first time on review, she alleges that a specific supervisor knew
that on November 28, 2012, the date on which her probationary period would end,
the human resources department would ask the appellant whether she had been
provided performance standards and her annual appraisal, and that she then would
disclose “all that she knew regarding the matter.” PFR File, Tab 1 at 13-14.
However, the appellant’s claim fails because she alleged below that the human
resources department did not ask about her rating and performance plan on the
date in question. In addition, she provides no other facts to support her
speculation that her supervisor may have believed that the human resources
department would ask the appellant about her performance standards and
appraisal on the date in question, or that the appellant would have intended to
disclose her lack of performance standards and an appraisal to the human
resources department. IAF, Tab 10 at 12-13.
¶30 The administrative judge also considered whether the appellant’s continued
presence in her position could constitute a protected activity, and we agree th at
the appellant failed to make a nonfrivolous allegation that she exercised her right
to any appeal, complaint, or grievance right granted by any law, rule, or
regulation; testified or otherwise lawfully assisted an individual in the exercise of
such a right; cooperated with or disclosed information to the inspector general of
an agency or to OSC; or refused to obey an order that would require her to violate
a law, rule, or regulation. ID at 8; see 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), (D).
Accordingly, we find that the appellant did not make a nonfrivolous allegation
that the agency perceived her as a whistleblower, or that she made a protected
21

disclosure or engaged in protected activity. We conclude that the Board lacks
jurisdiction over the appellant’s request for corrective action in her IRA appeal
and affirm the administrative judge’s dismissal of the appeal . 10

NOTICE OF APPEAL RIGHTS 11
The initial decision, as supplemented by this Final Ord er, 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
provide legal advice on which option is most appropriate for your situation an d
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.

10
We have reviewed the relevant legislation enacted during the pendency of this appeal
and have concluded that it does not affect the outcome of the appeal.
11
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.
22

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,
23

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
24

(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 Cir cuit or any court
of appeals of competent jurisdiction. 12 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 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.

12
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,
132 Stat. 1510.
25

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.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9394239. Public record. Not legal advice.