Jacquitta Duncan v. Department of Transportation

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JACQUITTA DUNCAN, DOCKET NUMBER

Appellant, DA-0752-16-0358-I-1

v.

DEPARTMENT OF DATE: May 25, 2023

TRANSPORTATION,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Jacquitta Duncan, Fort Worth, Texas, pro se.

Mary Kate Bird, El Segundo, California, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member 2

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

Member Leavitt’s name is included in decisions on which the three -member Board

completed the voting process prior to his March 1, 2023 departure.

2

FINAL ORDER

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

dismissed her appeal for lack of jurisdiction, finding that the appellant did not

establish that her resignation was involuntary. 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 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 to supplement the analysis on the appellant’s allegation that the

agency failed to accommodate her by denying her request to telework , we

AFFIRM the initial decision.

BACKGROUND

¶2 From September 20, 1992, until her resignation on January 13, 2015, the

appellant was employed as a Mechanical Engineer with the Federal Aviation

Administration. Initial Appeal File (IAF), Tab 8 at 98, 235; Hearing Recording

(HR) (testimony of the appellant). In January 2014, a year prior to her

resignation, the appellant was diagnosed with depression, anxiety, chronic stress,

and was in a “severe emotional state.” IAF, Tab 17 at 60, 64; HR (testimony of

the appellant). In March 2014, the appellant requested leave under the Family

and Medical Leave Act (FMLA). IAF, Tab 17 at 58-62. In her FMLA request,

3

the appellant’s doctor stated that she could not perform any work during a flare

up of her condition, which would occur approximately one to three times a month

and that each flare up would last 1 to 4 days. Id. at 61. In June 2014, the

appellant submitted an updated FMLA request which stated that she would be

entirely incapacitated from May 30 through July 31, 2014. Id. at 63-66. Then, on

July 30, 2014, the appellant submitted letters from two different doctors

confirming that she was unable to return to work at the time. IAF, Tab 19

at 20-21. Additionally, one of the appellant’s doctors recommended that the

agency provide her with a reasonable accommodation when she could return to

work, specifically, that she be transferred to a different department under a

different supervisor and be given full-time telework. Id. at 20. Even though the

appellant had already used her 12 weeks of FMLA protected leave, the agency

granted the appellant leave without pay (LWOP) from August 1 until

September 15, 2014, at which time she returned to the office. 3 Id. at 22, 26; HR

(testimony of the appellant).

¶3 On October 6, 2014, the appellant’s second-line supervisor denied her

request for reasonable accommodation, explaining that the agency had no

obligation to provide her with an accommodation becau se her medical evidence

indicated she could perform the essential functions of her position under a

different supervisor. IAF, Tab 19 at 28-29. The agency also reviewed the

appellant’s request for full-time telework under its policy and the applicable

collective bargaining agreement, and denied the request. Id. at 31; HR (testimony

of first-line supervisor). It explained that most telework agreements in the office

were for 1 or 2 days a week because too much time away from the office resulted

in an unacceptable impact to the organization and to group/team inter action and

performance. IAF, Tab 19 at 31. The agency also noted that the nature of an

engineer’s work did not lend itself to teleworking more than 2 days a week. Id.

3

The agency apparently also approved the appellant’s participation in the voluntary

leave transfer program. IAF, Tab 19 at 26.

4

Finally, the agency explained that the appellant was in the process of re -engaging

with the office after an extended period of leave, that closer communication with

her supervisor was needed to ensure that she timely completed her assignments,

and that the appellant’s attendance since her return had been inconsistent. Id.

Accordingly, the agency denied the request for full-time telework. Id.

¶4 On or around December 16, 2014, the appellant provided her second-line

supervisor with a letter from her doctor, which stated that the agency’s denial of

accommodations caused the appellant’s further mental deterioration and

emotional distress, leaving the appellant “with no other option but to remove

herself from the stressor” and “resign from her employment as soon as possible.”

Id. at 32-33, 36. Several days later, on December 22, 2014, the appellant

presented a letter to her second-line supervisor, stating: “[I]f I do not receive

reasonable accommodations immediately for my serious medical condition

(depression and anxiety) please accept this letter as my resignation effective

January 13, 2015.” 4 Id. at 36. She explained that she needed her primary

accommodation of reassignment to a different supervisor, or alternatively,

full-time telework. Id. In response, the second-line supervisor explained that the

appellant presented no additional or new information that would support a change

in the agency’s decision to deny her reasonable accommodation request. Id.

at 37. Accordingly, the agency processed the appellant’s resignation effective

January 13, 2015. IAF, Tab 8 at 98.

¶5 The appellant filed a timely appeal of her resignation to the Board, alleging

that it was involuntary due to the agency’s failure to accommodate her disability

4

The appellant’s original letter provided January 13, 2014, as the resignation date.

IAF, Tab 8 at 102. The agency’s administrative officer returned the letter, and the

appellant corrected the date to January 13, 2015, before the effective date of her

resignation. IAF, Tab 19 at 36; HR (testimony of the appellant, testimony of the

administrative officer).

5

and subjecting her to discrimination and retaliation. 5 IAF, Tab 1 at 6. The

administrative judge found that the appellant made a nonfrivolous allegation of

involuntariness, and granted her a jurisdictional hearing. IAF, Tab 13 at 1-2.

¶6 After holding a hearing, the administrative judge found that the appellant’s

December 22, 2014 letter constituted her resignation and dismissed the appeal for

lack of jurisdiction, finding that the appellant failed to establish that her

resignation was involuntary. IAF, Tab 28, Initial Decision (ID). The appellant

filed a timely petition for review. Petition for Review (PFR) File, Tab 1. The

agency responded to the appellant’s petition, and the appellant replied to the

agency’s submission. PFR File, Tabs 3-4.

ANALYSIS

The appellant’s December 22, 2014 letter was appropriately interpreted as a

resignation letter.

¶7 Before the administrative judge, the appellant argued that the December 22,

2014 letter was not, in fact, a resignation letter, but that it was “merely an attempt

to be accommodated.” IAF, Tab 10 at 7. In the initial decision, the

administrative judge determined that the letter expressed the appellant’s “definite

and unequivocal intent to resign” if her accommodations were denied. ID at 18.

As the agency did not give the appellant her requested accommodations, the

administrative judge found that the agency was entitle d to rely on the letter to

effect her resignation. Id. On review, the appellant reiterates her argument,

claiming that her letter was not an “affirmative resignation” but was submitted

with the intent to “seek help.” PFR File, Tab 1 at 12.

¶8 We disagree with the appellant’s contention that her December 22, 2014

letter was not a resignation letter. An employee is free to resign at any time, to

5

The appellant filed a formal equal employment opportunity complaint on April 11,

2015, alleging that she was forced to resign. IAF, Tab 1 at 20. The agency accepted

the complaint for processing and issued a final agency decision on April 6, 2016. IAF,

Tab 7 at 8. The appellant timely filed her Board appeal within 30 days of her receipt of

the final agency decision. 5 C.F.R. § 1201.154(b)(1); IAF, Tab 7 at 4-5, 10.

6

set the effective date of her resignation, and to have her reasons for resigning

entered into her official records. Balagot v. Department of Defense,

102 M.S.P.R. 96, ¶ 7 (2006); 5 C.F.R. § 715.202(a). An agency is entitled to rely

on an employee’s expression of a present intent to resign only when that

expression is unequivocal. Balagot, 102 M.S.P.R. 96, ¶ 7. In determining

whether an employee has effectively resigned, the Board considers the totality of

the circumstances. Id.

¶9 The Board has held that a conditional resignation may add uncertainty as to

whether the statement expresses a present or future intent to resign. Hammond v.

Department of the Navy, 50 M.S.P.R. 174, 181 (1991). However, we do not find

that the appellant’s language in the December 22, 2014 letter was uncertain. The

appellant plainly conveyed an ultimatum to the agency: grant her requested

accommodations or she would resign effective January 13, 2015. IAF, Tab 19

at 36. The inclusion of the effective date of the resignation is further evidence

that the appellant intended to resign should her demands not be met. See

McDermott v. Department of Justice, 82 M.S.P.R. 19, ¶ 10 (1999) (finding that

the appellant’s letter indicated a definite and unequivocal intent to res ign, in part,

because it included an effective date for her resignation); cf. Hammond,

50 M.S.P.R. at 181 (finding that uncertainty as to the effective date of a

conditional resignation may exist if an employee does not specify that the

effective date for the resignation will be the date upon which the condition is

fulfilled or some other date).

¶10 Additionally, the events leading up to the appellant’s resignation confirm

that she intended to resign on January 13, 2015, if she did not receive her

requested accommodations. As noted, because the appellant initially wrote the

wrong year for the effective date of her resignation, the administrative officer

returned the letter to her to correct the effective date of her resignation to

January 13, 2015, which she did without objection. HR (testimony of the

administrative officer, testimony of the appellant); IAF, Tab 19 at 36. Next, the

7

updated medical documentation provided by the appellant stated that her only

option was to resign after her accommodations were not granted. IAF, Tab 19

at 33. Furthermore, the appellant’s first-line supervisor discussed the appellant’s

pending resignation with her and her union representative the day prior to the

effective date of her resignation, and there is no evidence in the record that the

appellant attempted to withdraw her resignation during this meeting. 6

HR (testimony of the appellant, testimony of the first-line supervisor).

¶11 Finally, the appellant’s claim that her resignation was not an “affirmative

resignation” because she never met with Human Resources is unpersuasive. PFR

File, Tab 1 at 12. The appellant has not identified any support for the proposition

that a specific process, such as meeting with an employee of a particular office, is

a prerequisite for a resignation to be effective. To the contrary, as noted, an

employee may resign at any time. Balagot, 102 M.S.P.R. 96, ¶ 7; 5 C.F.R.

§ 715.202(a). A specific or formalized process is not necessary, as illustrated by

the Board’s holding in Robinson v. U.S. Postal Service, 50 M.S.P.R. 433, 438-39

(1991), that an oral statement to the employee’s supervisors was sufficient to

constitute a resignation. 7 In any event, the record shows that, contrary to the

appellant’s assertions, she did meet with the agency’s administrative officer on

6

The appellant’s first-line supervisor held a meeting with the appellant and her union

representative on January 12, 2015. HR (testimony of the appellant, testimony of the

first-line supervisor). In that meeting, the first-line supervisor asked the appellant if

she still intended to resign. HR (testimony of the appellant, testimony of the first -line

supervisor). According to the first-line supervisor, the appellant confirmed that she

intended to resign; however, the appellant claims her representative responded that, if

the appellant did not receive her accommodations, she would be forced to resign.

HR (testimony of the appellant, testimony of the first -line supervisor). In any event,

both witnesses testified that resignation was discussed the day prior to the appellant’s

resignation. HR (testimony of the appellant, testimony of the first -line supervisor).

7

Similarly, the Board explained in Sanderson v. Office of Personnel Management,

72 M.S.P.R. 311, 316 (1996), aff’d, 129 F.3d 134 (Fed. Cir. 1997) (Table), that a

written resignation is not necessary when an employee’s words and actions express a

clear intent to resign, further confirming that the Board has not required any formalized

process for an agency to accept and process an employee’s resignation.

8

the day of her resignation, and there is no evidence in the record that suggests the

appellant, during this meeting, or at any other time, expressed a desire to

withdraw her resignation. 8 HR (testimony of the administrative officer, testimony

of the appellant, testimony of the union representative).

¶12 In sum, we agree with the administrative judge that the agency acted

properly in construing the appellant’s December 22, 2014 letter as a resignation

letter and properly relied on the letter in effectuating the appellant’s resignation

on January 13, 2015.

The appellant failed to establish that her resignation was involuntary.

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

voluntary, and thus outside the Board’s jurisdiction, unless the employee presents

sufficient evidence to establish that the action was obtained through duress or

coercion or shows that a reasonable person would have been misled by the

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

Staats v. U.S. Postal Service, 99 F.3d 1120, 1123-24 (Fed. Cir. 1996) (stating that

a decision to resign or retire is presumed to be voluntary and thus out side of the

Board’s jurisdiction). 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,

114 M.S.P.R. 281, ¶ 12. Our reviewing court has made clear that “the doctrine of

coercive involuntariness is a narrow one.” 9 Staats, 99 F.3d at 1124. The fact that

8

During the January 13, 2015 meeting, the administrative officer claims that she asked

the appellant whether she wanted to resign and the appellant confirmed that she did.

HR (testimony of administrative officer). In their testimony, the appellant and her

union representative confirmed that they met with the admi nistrative officer on

January 13, 2015, but only recall discussing her leave balances. HR (testimony of the

administrative officer, testimony of the appellant, testimony of the

union representative).

9

Although the employee in Staats claimed that his retirement from the U.S. Postal

Service was involuntary, the court makes clear that its discussion regarding the

9

an employee is faced with an unpleasant situation or that her choice is limited to

two unattractive options does not make the employee’s decision any less

voluntary. Id. However, intolerable working conditions may render an acti on

involuntary 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 the employee’s position would have felt compelled to resign.

Searcy, 114 M.S.P.R. 281, ¶ 12.

¶14 When, as in this case, an appellant claims that the agency coerced her

resignation by engaging in acts of discrimination, including harassment and

failing to reasonably accommodate her disability, and retaliated against her for

protected activity, PFR File, Tab 1 at 8-12; HR (testimony of the appellant); IAF,

Tab 1 at 6, the Board will consider those claims only insofar as those allegations

relate to the issue of voluntariness and not whether they would establish

discrimination or reprisal as an affirmative defense. Brown v. U.S. Postal

Service, 115 M.S.P.R. 609, ¶ 10, aff’d, 469 F. App’x 852 (2011). That is,

evidence of discrimination may be considered only in terms of the standard for

voluntariness in a particular situation—not whether such evidence meets the test

for proof of discrimination or reprisal established under Title VII. Markon v.

Department of State, 71 M.S.P.R. 574, 578 (1996). Thus, evidence of

discrimination goes to the ultimate question of coercion—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. at 577.

purported involuntariness of the retirement at issue in that case applies to allegations of

an involuntary resignation as well. Staats, 99 F.3d at 1122-24.

10

The appellant failed to show that the denial of her reasonable

accommodation request of assignment to a new supervisor created

working conditions so intolerable that a reasonable person would

have felt compelled to resign.

¶15 The appellant asserts that the agency created intolerable working conditions

and thus coerced her resignation by denying her reasonable accommodation

requests “to telework . . . and/or be reassigned” to a different supervisor. IAF,

Tab 19 at 36. However, an agency is not obligated to reassign an employee to a

different supervisor as a reasonable accommodation. 10 See Alden v. Department

of Veterans Affairs, EEOC Appeal No. 0120080620, 2011 WL 2515256, *5

(June 16, 2011) (stating that an employer does not have to provide an employee

with a new supervisor as a reasonable accommodation). 11 Additionally, while the

appellant may have found it difficult working with her assigned supervisor, an

employee is not guaranteed a stress-free working environment. Miller v.

Department of Defense, 85 M.S.P.R. 310, ¶ 32 (2000). Dissatisfaction with work

assignments, a feeling of being unfairly criticized, or difficult or unpleasant

10

We acknowledge that the issue of reassignment to a new supervisor as a reasonable

accommodation is not presented in this case as an affirmative defense to an adverse

action, but rather in support of the appellant’s claim of an involuntary r esignation based

on intolerable working conditions. Nonetheless, it bears noting that the Board generally

defers to the Equal Employment Opportunity Commission (EEOC) on issues of

substantive discrimination law, unless EEOC’s decision rests on civil servi ce law for its

support or is so unreasonable that it amounts to a violation of civil service law.

Pridgen v. Office of Management and Budget, 2022 MSPB 31, ¶ 40. This case does not

involve either exception.

11

While assignment to a different supervisor is not required, reassignment to a vacant

position is an accommodation specifically listed in the Americans with Disabilities Act.

Before considering reassignment as a reasonable accommodation, employers should

first consider those accommodations that would enable an employee to remain in his/her

current position. Reassignment is the reasonable accommodation of last resort and i s

required only after it has been determined that: (1) there are no effective

accommodations that will enable the employee to perform the essential functions of

his/her current position, or (2) all other reasonable accommodations would impose an

undue hardship. See EEOC Enforcement Guidance on Reasonable Accommodation and

Undue Hardship Under the Americans with Disabilities Act (Oct. 17, 2002) (citing 29

C.F.R. pt. 1630 app. § 1630.2(o) (1997); S. Rep. No. 101-116, at 31 (1989); H.R. Rep.

No. 101-485, pt. 2, at 63 (1990)).

11

working conditions are generally not so intolerable as to compel a reasonable

person to resign. Id.

¶16 Moreover, the appellant’s decision to resign was not a rash one.

She submitted her resignation letter on December 22, 2014, with the effective

date of January 13, 2015. IAF, Tab 19 at 36. Thus, she had 22 days to reconsider

and withdraw her resignation, but she did not do so. This opportunity to reflect

on her resignation cuts against a finding of involuntariness. See Lamb v. U.S.

Postal Service, 46 M.S.P.R. 470, 476-77 (1990) (finding that a resignation

was not coerced when, in part, the appellant had ample opportunity to reflect on

the consequences of his resignation and to make a decision).

We modify the initial decision to find that, even if the agency failed

to accommodate the appellant when it denied her request for

full-time telework, the appellant ultimately failed to show that the

agency created working conditions so intolerable that a reasonable

person would have felt compelled to resign.

¶17 The appellant also argues that the denial of her accommodation request for

full-time telework created intolerable working conditions that would have

compelled a reasonable person to resign. IAF, Tab 19 at 36; PFR File, Tab 1

at 7-8. We are not persuaded by the appellant’s argument. A resignation may be

an involuntary action within the Board’s jurisdiction if an agency improperly

denied an employee’s request for a reasonable accommodation of a medical

condition. See, e.g., Hosozawa v. Department of Veterans Affairs, 113 M.S.P.R.

110, ¶ 7 (2010). However, an agency’s failure to accommodate an eligible

employee is simply a factor to be considered in assessing whether a resignation

was involuntary. Brown v. U.S. Postal Service, 115 M.S.P.R. 609, ¶ 16, aff’d,

469 F. App’x 852 (Fed. Cir. 2011). The Board examines the totality of the

circumstances by an objective standard to determine voluntariness and does not

rely on the employee’s purely subjective evaluation. Coufal v. Department of

Justice, 98 M.S.P.R. 31, ¶ 22 (2004).

12

¶18 As an initial matter, we find that the agency’s explanation for denying the

appellant a reasonable accommodation in denying her request for full-time

telework to be unpersuasive. As a Mechanical Engineer, the appellant was

responsible for providing support to mechanical systems in various agency

facilities. HR (testimony of the appellant). Specifically, the ap pellant created

blueprint designs to upgrade or replace mechanical systems that would be bid on

by contractors, and then she assisted in overseeing the completion of these

projects. Id. The appellant was part of a team of engineers, which included

engineers in other fields, such as structural and electrical engineers. Id. The

agency denied her request for telework by explaining that full -time telework was

not conducive to the position of Mechanical Engineer because “the lack of

face-to-face conversation can diminish the group/team interaction and

organizational performance” and that “many of [the] job tasks are not easily

quantifiable and contact with other employees and customers is not predictable.”

IAF, Tab 19 at 31. As set forth above, the agency also explained that most

telework agreements in the office were for 1 or 2 days a week because too much

time away from the office resulted in an unacceptable impact to the organization

and to group/team interaction and performance. Id.

¶19 The Equal Employment Opportunity Commission (EEOC) has found

telework to be a well-established reasonable accommodation. U.S. Equal

Employment Opportunity Commission, Work at Home/Telework as a Reasonable

Accommodation, ¶ 4, http://www.eeoc.gov/facts/telework.html. 12 Moreover, an

12

Although EEOC’s guidance does not have the force of law and therefore does not

warrant deference under Chevron, U.S.A., Inc. v. Natural Resources Defense Council,

Inc., 467 U.S. 837 (1984), it is nonetheless “entitled to respect” under Skidmore v. Swift

and Co., 323 U.S. 134 (1944), to the extent that its interpretation of the statute it

administers has the “power to persuade.” See Christensen v. Harris County, 529 U.S.

576, 587 (2000) (quoting Skidmore, 323 U.S. 134). We find EEOC’s interpretation of

the Americans with Disabilities Act persuasive and therefore entitled to Skidmore

deference. See Solamon v. Department of Commerce, 119 M.S.P.R. 1, ¶ 9 (2012)

(granting Skidmore deference to OPM advisory opinion).

13

agency is not permitted to rely upon its own policies for telework in denying an

accommodation. The agency has not shown that the appellant would have been

unable to perform the essential duties of her position at home. The EEOC’s

guidance states that “[a]n employer should not . . . deny a request to work at

home as a reasonable accommodation solely because a job involves some contact

and coordination with other employees.” Id.

¶20 Notwithstanding the agency’s unpersuasive analysis in this regard, the

appellant has not shown that this rendered her working conditions so intolerable

that a reasonable person in her position would have felt compelled to resign. 13

See Vitale v. Department of Veterans Affairs, 107 M.S.P.R. 501, ¶ 26 (2007)

(finding that, although an agency official may have caused the appellant

apprehension and exacerbation of his medical ailments, the appellant failed to

establish that his working conditions were so intolerable that a reasonable person

in his position would have felt compelled to retire).

The appellant failed to show that other agency actions created

working conditions so intolerable that a reasonable person would

have been compelled to resign.

¶21 The administrative judge correctly found that, although the appellant

subjectively believed that the agency’s actions were hostile, harassing,

discriminatory, and retaliatory, there was no objective evidence that the agency’s

actions rendered the appellant’s working conditions so intolerable that a

reasonable person in her position would have felt compelled to resign. ID

at 19-22. The appellant complained of various issues that occurred over

approximately a 2-year period, including being placed on leave restriction, being

charged absence without leave (AWOL), having her request for LWOP denied,

being threatened with disciplinary action, being improperly investigated, and

13

The appellant argues on review that the agency improperly questioned her medical

evidence. PFR File, Tab 1 at 7-8. As the sufficiency of the appellant’s medical

evidence does not impact our findings, we see no need to address whether the agency

improperly questioned the evidence.

14

having her first-line supervisor address her in a rude, inconsiderate and

condescending manner, all of which she claimed constituted harassment. 14

HR (testimony of the appellant); IAF, Tab 19 at 7-15, 30, 34-35, 38.

¶22 However, as previously stated, an employee is not guaranteed a stress-free

working environment, and being unfairly criticized, or unpleasant working

conditions are generally not considered to be so intolerable that they would

compel a reasonable person to resign. Miller, 85 M.S.P.R. 310, ¶ 32. Thus, we

agree with the administrative judge that, while the conditions the appellant

describes were no doubt unpleasant for her, they do not reach the high threshold

for finding her working conditions intolerable. ID at 21-22.

¶23 Further, as correctly noted by the administrative judge, the appellant had

several options available to her to fight the contested agency actions, including

filing an equal employment opportunity (EEO) complaint or a grievance. ID

at 20; see Axsom v. Department of Veterans Affairs, 110 M.S.P.R. 605, ¶ 17

(2009). The appellant was well aware of these options, as she had filed several

EEO complaints. IAF, Tab 8 at 65, 71. To the extent that the appellant argues

that she was forced to resign because her numerous other complaints had not

stopped the alleged mistreatment, this is an unpersuasive position as it does not

change the fact that the mechanisms for her to dispute agency actions still existed,

that the appellant was aware of these mechanisms, and that she knew how to use

these mechanisms. However, instead of choosing one these options, the appellant

elected to resign.

¶24 Also, as previously explained, the appellant’s decision to resign was not

rash, as she had 22 days to reconsider and withdraw her resignation, but did not

do so. This further weighs against finding her decision was involuntary. See

Lamb, 46 M.S.P.R. at 476-77.

14

While the specific examples listed occurred over a 2 -year period, the appellant also

claims that her relationship with her first-line supervisor was “not without complaint”

for the entire 13-year working relationship. IAF, Tab 19 at 30.

15

¶25 Additionally, on review the appellant asserts that the administrative judge

should have applied the reasonable person standard considering her medical

conditions, i.e., would a reasonable person with the appellant’s medical

conditions have felt compelled to resign. 15 PFR File, Tab 1 at 2-3. The appellant

does not cite any relevant legal authority supporting this interpretation of the

law. 16 Id. Further, it is well established that the reasonable person test must be

applied using an objective standard rather than by considering the employee’s

purely subjective evaluation. Coufal, 98 M.S.P.R. 31, ¶ 22; see Lawley v.

Department of the Treasury, 84 M.S.P.R. 253, ¶ 9 (1999); see also Markon,

71 M.S.P.R. at 578. Accordingly, consistent with Board precedent, we agree with

the administrative judge that the appellant not shown that her working conditions

were so intolerable that a reasonable person would be compelled to resig n. ID

at 21-22.

15

We base this interpretation of the appellant’s argument on her reference to criminal

and tort law, which both contain a doctrine that an individual takes his victim as he

finds them, also known as the eggshell skull doctrine. Figueroa-Torres v.

Toledo-Davila, 232 F.3d 270, 275-76 (1st Cir. 2000) (analyzing the different circuits’

application of the eggshell skull doctrine in tort law); Brackett v. Peters, 11 F.3d 78, 81

(7th Cir. 1993) (finding that “in criminal law, as in tort law, the injurer takes his victim

as he finds him”). However, to the extent the appellant argues that the administrative

judge did not recognize or acknowledge her medical conditions, we find this to be an

incorrect characterization, as the administrative judge comprehensively addressed the

appellant’s medical conditions in the initial decision. ID at 3-16.

16

In support of her argument that the administrative judge erred by applying the

reasonable person standard, the appellant cites to Portner v. Department of Justice,

119 M.S.P.R. 365 (2013), overruled on other grounds by Singh v. U.S. Postal Service,

2022 MSPB 15, which addressed an appellant’s medical condition as a mitigating factor

in assessing the penalty in an adverse action appeal. PFR File, Tab 1 at 2-3; Portner,

119 M.S.P.R. 365, ¶¶ 17, 22. The appellant has not explained how that case, dealing

with the consideration of an employee’s medical condition in determining the

reasonableness of the penalty for an act of misconduct, has any bearing on the issue of

the voluntariness of her resignation.

16

The appellant failed to establish that her resignation was involuntary

based upon misinformation or deception by the agency.

¶26 A resignation is involuntary if, for example, the agency made misleading

statements upon which the employee reasonably relied to her detriment.

Wallendorf v. Department of the Treasury, 102 M.S.P.R. 59, ¶ 6 (2006). “A

decision made ‘with blinders on,’ based on misinformation or a lack of

information, cannot be binding as a matter of fundamental fairness and due

process.” Covington v. Department of Health and Human Services, 750 F.2d 937,

943 (Fed. Cir. 1984). The agency need not have been aware that its statements

were misleading, but may instead have provided them negligently or innocently.

Id. at 942.

¶27 On review, the appellant claims that the agency provided her with

misinformation about whether it convened a reasonable accommodation team

(ReAcT) to review her reasonable accommodation request. 17 PFR File, Tab 1

at 3-7. Specifically, the appellant asserts that the agency misled her to believe

that it was reviewing her reasonable accommodation request in accordance with

its established procedures and, had she known it was not, she “would have made

different and more informed decisions . . . which would have impacted [the]

present conditions of this case.” 18 Id. at 6. In support of her argument, the

appellant cites to allegedly contradictory testimony from agency witnesses made

17

A ReAcT consisted of representatives from the agency’s Civil Rights Office,

Regional Counsel, the Medical Department, and Labor Relations. HR (testimony of the

second-line supervisor).

18

The appellant did not raise the argument that her resignation was based on

misinformation below. 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. Clay v.

Department of the Army, 123 M.S.P.R. 245, ¶ 6 (2016). However, we have considered

the appellant’s arguments on review because it implicates the Board’s jurisdiction, an

issue that is always before the Board and may be raised by any party or sua sponte by

the Board at any time during a Board proceeding. Lovoy v. Department of Health and

Human Services, 94 M.S.P.R. 571, ¶ 30 (2003).

17

during the processing of her appeal regarding whether a ReAcT was assembled

and who was involved. Id. at 4-7.

¶28 As an initial matter, the record is not clear as to whether the testimony from

the agency’s witnesses was in fact contradictory. 19 Nevertheless, in order to show

that her resignation was involuntary as a result of misrepresentation, the appellant

has to show that she reasonably relied upon the agency’s misleading statements to

her detriment. Wallendorf, 102 M.S.P.R. 59, ¶ 6. We do not find that the

appellant met this burden.

¶29 It appears that the agency provided two letters to the appellant specifically

regarding her reasonable accommodation request, and neither letter mentioned

that a ReAcT would be convened to review that request. IAF, Tab 19 at 17,

24-25. Furthermore, the agency’s denial of the appellant’s reasonable

accommodation request does not state that a ReAcT was involved in the

decision-making process. Id. at 28-29. Indeed, contrary to the appellant’s

assertion, the agency was under no obligation to convene a ReAcT, as the

agency’s reasonable accommodation policy provides that the first-line supervisor

is the decision maker for reasonable accommodation requests, and explains that

he or she “may” consult with the other resources, including human resources,

19

The appellant points to allegedly contradictory testimony by agency witnesses as to

whether a ReAcT was convened once, twice, or at all, to review her request for

accommodation. PFR File, Tab 1 at 4-7. On review, the appellant cites to numerous

depositions of witnesses to support a claim that these individuals made contradictory

statements; however, those deposition transcripts were not introduced into the record

before the Board. Id. Accordingly, we are unable to assess the accuracy of the

appellant’s claims, and thus, the appellant has not established that the witnesses

testified in an inconsistent fashion. In reviewing the hearing testimony, we do not find

the agency’s statements to be inconsistent. The second-line supervisor testified that she

convened a ReAcT twice to review the appellant’s request for accommodation.

HR (testimony of the second-line supervisor). At least one individual confirmed that a

ReAcT had been convened, and no individual affirmatively denied that the ReAcT was

convened a second time. HR (testimony of EEO specialist, testimony of labor relations

specialist); IAF, Tab 25 at 17-18, 21-22. Thus, we do not find the hearing testimony to

be inconsistent. PFR File, Tab 1 at 4-7.

18

legal, and medical personnel. IAF, Tab 8 at 209. In fact, the agency’s reasonable

accommodation policy has no provisions referencing a ReAcT. Id. at 206-17.

¶30 The only document in the record that references ReAcT is an October 15,

2014 email from the appellant’s second-line supervisor to the appellant regarding

the denial of her reasonable accommodation request, with the subject line

“REACT Outcome.” IAF, Tab 19 at 30. However, the record only contains the

appellant’s response and not the original email from the second -line supervisor.

Id. Furthermore, although the email is titled REACT Outcome, there is nothing

in the email itself that indicates that the appellant believed a ReAcT team was

convened. Id. Indeed, in the email, the appellant places the blame solely on her

second-line supervisor for denying her reasonable accommodation request. Id.

¶31 Finally, the appellant’s December 22, 2014 resignation letter listed the

agency’s denial of accommodations as the reason for her resignation, not the

process by which it came to that decision. Id. at 36. Therefore, by the

appellant’s own admission, she relied on the agency’s denial of her

accommodations in deciding to resign, not the process by which that decision was

made. Thus, we find that the record does not show that the agency provided the

appellant with misleading statements that she reasonably relied to her detriment. 20

¶32 Having carefully considered the record evidence, as set forth above, we find

that the appellant resigned from her position effective January 13, 2015, and that

20

The appellant alleges on review that the agency “constructively suspended” her for

more than 14 days when it denied her LWOP request and placed her in an AWOL status

from December 22, 2014, to January 8, 2015. PFR File, Tab 1 at 8-9. At no point

below did the appellant, who was represented by counsel, allege that she was

constructively suspended. Because the record on this issue was not developed in this

appeal, we decline to address it. However, if the appellant believes that she was

constructively suspended, she may file a Board appeal of that matter consistent with the

Board’s regulations. See Masdea v. U.S. Postal Service, 90 M.S.P.R. 556, 560 n.*

(2002) (noting that, while the appellant challenged an arbitration decision of the agency

removal action, the record reflected that there was also a suspension which may be

appealable to the Board, and directing the appellant to file a new appeal if he wished to

pursue an appeal of the suspension).

19

the appellant has not otherwise met her burden of showing that her resignation

was involuntary based on intolerable working conditions or misinformation

provided by the agency.

NOTICE OF APPEAL RIGHTS 21

The initial decision, as supplemented by this Final Order, 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 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. Failu re 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

21

Since the issuance of the initial decision in this matter, the Board may ha ve 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.

20

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,

and your representative receives this decision before you do, then you must file

21

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

22

(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. 22 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.

22

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.

23

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.