NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

THASHA A. BOYD,

Petitioner,

v.

DEPARTMENT OF LABOR,

Respondent.

______________________ 

2014-3015

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. AT0752120513-I-1.

______________________ 

Decided: April 11, 2014

______________________ 

THASHA A. BOYD, of Kennesaw, Georgia, pro se.

ANTONIA R. SOARES, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department 

of Justice, of Washington, DC, for respondent. With her

on the brief were STUART F. DELERY, Assistant Attorney 

General, BRYANT G. SNEE, Acting Director, and DEBORAH 

A. BYNUM, Assistant Director.

______________________ 

Before DYK, PROST, and REYNA, Circuit Judges.
2 BOYD v. LABOR

PER CURIAM. 

Thasha A. Boyd appeals from a final order of the Merit Systems Protection Board (“Board”) denying her petition for review of the Board’s July 13, 2012 initial decision 

dismissing her involuntary resignation claim for lack of 

jurisdiction. Boyd v. Dep’t of Labor, No. AT0752120513-I1 (M.S.P.B. Sept. 17, 2013) (“Final Order”). For the 

reasons that follow, we affirm.

BACKGROUND

Ms. Boyd was previously employed as an Immigration 

Services Officer with the U.S. Citizenship and Immigration Service at the GS-11 level. In February 2010, she 

assumed the GS-12 position of Immigration Program 

Analyst with the Department of Labor’s Atlanta National 

Processing Center (“ANPC”). She worked there until 

March 17, 2010, when she was demoted back to a GS-11 

position because management had discovered that she did 

not have the specialized experience required for the GS-12 

position. She appealed her demotion to the Board, which 

ultimately reversed the demotion because the agency had 

failed to provide her with notice and an opportunity to 

respond. 

Throughout Ms. Boyd’s tenure at ANPC, she filed 

several complaints with management regarding harassment by other employees and contractors’ staff, and her 

coworkers and contract staff also filed several complaints 

against her. For example, in November 2011, a contract 

employee named Kathleen Kurth filed a complaint 

against Ms. Boyd, alleging that she had intentionally 

bumped into Ms. Kurth’s shoulder when Ms. Kurth had 

discovered Ms. Boyd going through documents on her 

desk. Ms. Boyd filed a cross-complaint that Ms. Kurth 

had harassed her by hitting her on the arm when she was 

trying to leave Ms. Kurth’s cubicle. On February 16, 

2012, the Department of Labor (“Labor”) proposed to 

suspend Ms. Boyd for ten days for the physical altercation 
 BOYD v. LABOR 3

with Ms. Kurth. Then, in April 2012, another employee, 

Ms. Tracey Harbour, filed a complaint against Ms. Boyd, 

alleging that she had held the stairway door closed and 

would not allow Ms. Harbour to enter the office. Shortly 

thereafter, Ms. Boyd’s supervisor told her that he needed 

to speak with her about the allegations filed against her 

by Ms. Harbour and others. On April 11, 2012, Ms. Boyd 

submitted her resignation, effective that day.

Ms. Boyd filed an appeal with the Board, alleging that 

her resignation was involuntary because Labor made her 

working conditions so difficult that a reasonable person in 

her position would have been compelled to resign. The 

administrative judge assigned to her case granted Ms. 

Boyd a jurisdictional hearing to establish that her resignation was in fact involuntary. At the hearing, Ms. Boyd 

declined to testify, but instead submitted a written statement. Several witnesses testified about their alleged 

confrontations with Ms. Boyd. Ultimately, the administrative judge concluded that Ms. Boyd had failed to establish that a reasonable person in her position would have 

felt compelled to resign, and thus the Board lacked jurisdiction over her appeal. Boyd v. Dep’t of Labor, No. 

AT0752120513-I-1 (M.S.P.B. July 31, 2012) (“Initial 

Decision”) at 13. Ms. Boyd filed a petition for review of 

that decision with the Board. The Board affirmed the 

administrative judge’s decision and denied the petition for 

review. Final Order at 2.

Ms. Boyd timely appealed the Board’s final order. We 

have jurisdiction under 28 U.S.C. § 1295(a)(9).

DISCUSSION

Our review of Board decisions is limited by statute. 

Under 5 U.S.C. § 7703(c), we may only reverse a Board 

decision if we find the decision to be (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required 

by law; or (3) unsupported by substantial evidence. Ward 
4 BOYD v. LABOR

v. U.S. Postal Serv., 634 F.3d 1274, 1278 (Fed. Cir. 2011). 

“The [Board’s] determination that it lacked jurisdiction is 

a question of law that the court reviews de novo.” Bennett 

v. Merit Sys. Prot. Bd., 635 F.3d 1215, 1218 (Fed. Cir. 

2011) (citing Forest v. Merit Sys. Prot. Bd., 47 F.3d 409, 

410 (Fed. Cir. 1995)). “Before the Board, an appellant 

bears the burden of establishing Board jurisdiction.” 

Fields v. Dep’t of Justice, 452 F.3d 1297, 1302 (Fed. Cir. 

2006).

An employee initiated action such as resignation is 

presumed to be voluntary and, thus, outside the Board’s 

jurisdiction. Garcia v. Dep’t of Homeland Sec., 437 F.3d 

1322, 1329 (Fed. Cir. 2006) (en banc); 5 C.F.R. 

§ 752.401(b)(9). “[T]his presumption will prevail unless 

plaintiff comes forward with sufficient evidence to establish that the resignation was involuntarily extracted.” 

Garcia, 437 F.3d at 1329 (citation omitted). Thus, the 

Board only possesses jurisdiction over an employee’s 

appeal “if the employee proves, by a preponderance of the 

evidence, that [his or her action] was involuntary and 

thus tantamount to [a forced enumerated adverse action].” Id. at 1329-30 (alterations in original) (citing 

Shoaf v. Dep’t of Agric., 260 F.3d 1336, 1341 (Fed. Cir. 

2001)). 

[T]o establish involuntariness on the basis of coercion this court requires an employee to show: 

(1) the agency effectively imposed the terms of the 

employee’s resignation or retirement; (2) the employee had no realistic alternative but to resign or 

retire; and (3) the employee’s resignation or retirement was the result of improper acts by the 

agency.

Shoaf, 260 F.3d at 1341. The test is an objective one; the 

employee must “establish that a reasonable employee 

confronted with the same circumstances would feel co-
 BOYD v. LABOR 5

erced into resigning.” Middleton v. Dep’t of Defense, 185 

F.3d 1374, 1379 (Fed. Cir. 1999). 

Ms. Boyd challenges the Board’s decision on several 

grounds, none of which is persuasive.1 

First, Ms. Boyd raises numerous challenges to the 

administrative judge’s factual findings, as affirmed by the 

Board. For example, she argues that there are inconsistencies in the evidence because her supervisor testified 

that she did not observe certain incidents between Ms. 

Boyd and other employees that other witnesses testified 

to having happened. Pet’r Br. 1. However, without more, 

the mere fact that some witnesses observed an incident 

while others did not does not render the testimony inconsistent. Similarly, Ms. Boyd relies heavily on the lack of 

documentary evidence to corroborate certain portions of 

the testimony. In particular, she notes that “Michael 

Holston’s testimony that Appellant physically accosted 

Kim Starling” is unsupported by documentary evidence 

because “the Notice and Final Determination of the 10-

day suspension issued against Appellant make no mention of incidents with Michael Holston, Kim Starling or 

any other employees and Appellant.” Pet’r Br. Continuation 2. But that is unsurprising, as the suspension was 

based only on the incident with Ms. Kurth. And moreover, there is no requirement that reliable testimonial 

evidence be corroborated by documentary evidence. Ms. 

Boyd’s other arguments regarding the administrative 

judge’s factual findings are no more compelling. Thus, 

she has failed to demonstrate that the Board or adminis1 Ms. Boyd filed virtually identical informal briefs 

in both this case and No. 2014-3022, which relates to her 

Individual Right of Action appeals under the Whistleblower Protection Act. We have attempted to determine 

which of her arguments relates to each appeal and have 

addressed them in the corresponding opinions. 

 
6 BOYD v. LABOR

trative judge incorrectly decided or failed to take into 

account any relevant facts.

Second, Ms. Boyd argues that the administrative 

judge committed several legal errors. Many of her arguments focus on the standard the administrative judge 

applied in making his credibility determinations. Ms. 

Boyd insists that, rather than consider all of the factors 

enumerated in Hillen v. Department of the Army, 35 

M.S.P.R. 453 (1987), the administrative judge based his 

conclusion solely on the witnesses’ “demeanor.” Pet’r Br. 

1, Pet’r Br. Continuation 6-7. Moreover, Ms. Boyd insists 

that the administrative judge inappropriately discounted 

her own evidence because there were a greater number of 

witnesses on the other side. Pet’r Br. Continuation 10-11. 

We disagree.

Hillen explains that an administrative judge making 

a credibility determination must consider the following 

factors: 

(1) [t]he witness’s opportunity and capacity to observe the event or act in question; (2) the witness’s 

character; (3) any prior inconsistent statement by 

the witness; (4) a witness’s bias, or lack of bias; (5) 

the contradiction of the witness’s version of events 

by other evidence or its consistency with other evidence; (6) the inherent improbability of the witness’s version of events; and (7) the witness’s 

demeanor. 

35 M.S.P.R. at 458. The administrative judge did exactly 

that. In his opinion, he noted that he found the testimony 

of two witnesses—Mr. Holston and Ms. Kurth—credible 

because (a) the record contained no evidence contradicting 

their testimony; (b) they testified in a straightforward, 

consistent, and believable manner; (c) their testimony was 

not inherently improbable; and (d) there was no reason to 

question their opportunity and capacity to observe the 

events in question. Initial Decision at 10. Similarly, he 
 BOYD v. LABOR 7

did not err in discounting the probative value of Ms. 

Boyd’s own testimony, which was provided only in the 

form of a hearsay written statement. Consistent with the 

factors laid out in Borninkhof v. Department of Justice, 5 

M.S.P.R. 77, 87 (1981), the administrative judge noted 

that Ms. Boyd was available to testify but chose not to, 

that she was not a disinterested party, that there was a 

lack of corroborating evidence, and that there was significant (and credible) contradictory evidence. Initial Decision at 9-12. Moreover, because the administrative 

judge’s credibility determinations were based on a full 

consideration of all of the proper factors, the Board did 

not err in deferring to those determinations. Thus, neither the administrative judge nor the Board committed 

legal error in crediting the testimony of the hearing 

witnesses over Ms. Boyd’s out-of-court hearsay statement. 

Ms. Boyd also argues that the administrative judge

violated our ruling in Whitmore v. Department of Labor, 

680 F.3d 1353 (Fed. Cir. 2012), by failing to identify every 

piece of record evidence he considered in reaching his

decision. Pet’r Br. Continuation 8. It is true that in 

Whitmore we admonished that “[a]ny determination by an 

administrative judge that is based on findings made in 

the abstract and independent of the evidence which fairly 

detracts from his or her conclusions is unreasonable and, 

as such, is not supported by substantial evidence.” 680 

F.3d at 1376. However, in that case we found that there 

was “considerable countervailing evidence” that the 

administrative judge had “manifestly ignored, overlooked, 

or excluded.” Id. The same is not true here. In this case, 

the administrative judge did consider Ms. Boyd’s written 

statement, he merely concluded—entirely appropriately—

that it was of limited probative value. 

Next, Ms. Boyd argues that the Board erred by finding that her involuntary resignation claim is “undercut” 

by the fact that many of the events she complained of took 

place more than six months prior to her resignation. Pet’r
8 BOYD v. LABOR

Br. Continuation 14-15. But, as the government notes, we 

have previously stated that “the most probative evidence 

of involuntariness will usually be evidence in which there 

is a relatively short period of time between the employer’s 

alleged coercive act and the employee’s retirement.” 

Terban v. Dep’t of Energy, 216 F.3d 1021, 1042 (Fed. Cir. 

2000). Thus, there was no legal error in the Board’s 

simple observation that certain (though admittedly not 

all) of Ms. Boyd’s allegations occurred well before her 

resignation.

We have considered Ms. Boyd’s remaining arguments 

and find them unpersuasive. We find no reason to conclude that the Board’s findings were unsupported by 

substantial evidence or were not in accordance with law.

CONCLUSION

For the foregoing reasons, we conclude that the Board 

correctly denied Ms. Boyd’s petition for review and affirmed the dismissal of her appeal for lack of jurisdiction. 

Accordingly, we affirm.

AFFIRMED

COSTS

Each party shall bear its own costs.