UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

LAFRANCES L. BAILEY-MOORE,

Appellant,

v. 

DEPARTMENT OF THE NAVY,

Agency. 

DOCKET NUMBER

SF-0752-15-0640-I-1

DATE: January 22, 2016

THIS FINAL ORDER IS NONPRECEDENTIAL1

LaFrances L. Bailey-Moore, Jacksonville, Florida, pro se. 

Loren Baker, Barstow, California, for the agency. 

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

FINAL ORDER

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

dismissed her involuntary resignation appeal for lack of jurisdiction. Generally, 

we grant petitions such as this one only when: the initial decision contains 

erroneous findings of material fact; the initial decision is based on an erroneous 

interpretation of statute or regulation or the erroneous application of the law to 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

the facts of the case; the administrative judge’s rulings during either the course of 

the appeal or the initial decision were not consistent with required procedures or 

involved an abuse of discretion, and the resulting error affected the outcome of 

the case; or new and material evidence or legal argument is available that, despite 

the petitioner’s due diligence, was not available when the record closed. See

title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. 

§ 1201.115). After fully considering the filings in this appeal, we conclude that 

the petitioner has not established any basis under section 1201.115 for granting 

the petition for review. Therefore, we DENY the petition for review and 

AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. 

§ 1201.113(b). 

BACKGROUND

¶2 Effective June 3, 2015, the appellant resigned from her GS-09 Supervisory 

Public Safety Emergency Dispatcher position in Barstow, California. Initial 

Appeal File (IAF), Tab 5 at 9. Beginning in late April 2015, the appellant 

requested and received sick leave while in Jacksonville, Florida, where she had 

traveled for personal reasons. IAF, Tab 7 at 1, 36, 66. However, her supervisor 

declined to approve sick leave after May 26, 2015, and placed her in an absent 

without official leave (AWOL) status beginning that date. Id. at 12-13, 18-19, 

25, 32-38, 56-68, 70-71, 75-76. On her resignation form, the appellant indicated 

that she was resigning because the agency did not approve a request for 

“emergency leave” or “correct [her] AWOL” from the prior pay period.

2 IAF,

Tab 5 at 9. 

¶3 The appellant subsequently filed a Board appeal. IAF, Tab 1 at 1-3. In an 

acknowledgment order, the administrative judge ordered the appellant to file 

 2 Regarding the AWOL, the appellant may have been referring to leave requested for 

May 15, 2015, which her supervisor advised her was corrected after he initially

designated it as unauthorized in error. IAF, Tab 7 at 36. 
3

evidence and argument establishing why the appeal should not be dismissed for 

lack of jurisdiction. IAF, Tab 2 at 3-4. In response, the appellant claimed that 

she involuntarily resigned from her position, pointing to a number of work-related 

matters ranging from mistreatment by her subordinates to improper classification 

of her position. IAF, Tab 3 at 5-6. She further alleged that she had filed a 

complaint with the Office of Special Counsel (OSC), id. at 5, and submitted

evidence to support her allegations, id. at 7-161. The administrative judge then 

issued a jurisdiction order apprising the appellant of the burden of proving the 

Board’s jurisdiction over her involuntary resignation and retaliation claims. IAF,

Tab 4. He ordered the appellant to file evidence and argument on the 

jurisdictional issue. Id. at 3, 9. In response, the appellant filed a narrative 

statement detailing the alleged instances of discrimination, retaliation, and 

harassment that she alleged forced her to resign, and providing further 

documentation. IAF, Tab 7. The agency argued that the administrative judge 

should dismiss the appeal for lack of jurisdiction. IAF, Tab 5 at 4-6, Tab 6

at 2-4. 

¶4 Without holding the requested hearing, the administrative judge issued an 

initial decision dismissing the appeal for lack of jurisdiction. IAF, Tab 3 at 5,

Tab 9, Initial Decision (ID) at 1, 13. Specifically, he found that the appellant 

failed to nonfrivolously allege Board jurisdiction based on an involuntary 

resignation. ID at 10-12. He further found that she failed to nonfrivolously 

allege jurisdiction over an individual right of action (IRA) appeal. ID at 12-13. 

Finally, he found that the Board lacked jurisdiction over her discrimination and 

retaliation claims absent an otherwise appealable action. ID at 13. 

¶5 The appellant has filed a petition for review. Petition for Review (PFR) 

File, Tab 1. She also has submitted new documentation on review. PFR File, 
4

Tabs 3, 7. The agency has filed a response in opposition, PFR File, Tab 5, to 

which the appellant has replied, PFR File, Tab 6. 3

 

DISCUSSION OF ARGUMENTS ON REVIEW

¶6 In her petition for review, the appellant claims that she was denied a 

hearing and disputes the administrative judge’s finding that the Board lacks 

jurisdiction over her appeal. PFR File, Tab 1 at 3. Specifically, she alleges that 

the Board has jurisdiction over her equal employment opportunity (EEO) and 

OSC complaints. Id. at 3-7. She also reiterates her argument that she was forced 

to resign due to her work environment. Id. at 6-7; PFR File, Tab 6 at 3-4. For the 

reasons discussed below, we find that the administrative judge properly dismissed 

the appeal without holding a hearing because the appellant failed to make a 

nonfrivolous allegation of Board jurisdiction.

The appellant has failed to make a nonfrivolous allegation of Board jurisdiction 

over her involuntary resignation claim. 

¶7 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). In an involuntary resignation 

claim such as this one, the appellant has the burden of proving the Board’s 

jurisdiction by a preponderance of the evidence. 4

 Freeborn v. Department of 

Justice, 119 M.S.P.R. 290, ¶ 9 (2013); 5 C.F.R. § 1201.56(b)(2)(i)(A). Generally, 

 3 The appellant’s pleading is titled, “Cross Petition for Review.” A cross petition for 

review is a pleading that is filed by a party when another party has already filed a 

timely petition for review. 5 C.F.R. § 1201.114(a)(2). Because the appellant is the 

party that filed a petition for review, she cannot also file a cross petition for review, and 

we instead consider her pleading to be a reply to the agency’s response. See 5 C.F.R. 

§ 1201.114(a)(4). 

4 A preponderance of the evidence is the degree of relevant evidence that a reasonable 

person, considering the record as a whole, would accept as sufficient to find that a 

contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q). 
5

if an appellant makes a nonfrivolous allegation5 of Board jurisdiction over an 

appeal, she is entitled to a jurisdictional hearing. See Garcia v. Department of 

Homeland Security, 437 F.3d 1322, 1344 (Fed. Cir. 2006) (en banc). 

¶8 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). However, an employee may establish 

Board jurisdiction over an involuntary resignation by proving that she lacked a 

meaningful choice in the matter and the agency’s wrongful actions deprived her 

of that choice. Bean v. U.S. Postal Service, 120 M.S.P.R. 397, ¶¶ 8, 11 (2013). 

Among the ways that an employee can establish involuntariness is by proving that 

the agency obtained the action through duress or coercion. Searcy, 114 M.S.P.R. 

281, ¶ 12. The touchstone of a 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. Id. Intolerable working 

conditions may render an action 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 that employee’s position 

would have felt compelled to resign. Id. 

¶9 As the administrative judge properly found, the appellant has failed to make 

a nonfrivolous allegation that her resignation was involuntary. ID at 10-12. The 

appellant argued below, and reiterates on review, that the alleged incidents of 

harassment and discrimination that occurred between her promotion to a 

supervisory position in November 2014, and her resignation in June 2015, forced 

her to resign. IAF, Tab 3 at 5-6, Tab 5 at 9-10, Tab 7 at 1-7; PFR File, Tab 1 

at 6-7, Tab 6 at 3-4. The specific incidents the appellant raised include her 

performance of work while off duty, the agency’s failure to follow administrative 

 5 A nonfrivolous allegation is an assertion that, if proven, could establish the matter at 

issue. 5 C.F.R. § 1201.4(s). 
6

guidelines, improper classification of her position,

6 lack of training for her 

position, lack of support from her supervisors in dealing with her subordinates, 

abuse by her subordinates in the grievance process, the destruction of a posted 

work schedule, and nepotism. IAF, Tab 3 at 5-6, Tab 7 at 1-7, 41, 68, 70-71, 74; 

PFR File, Tab 1 at 6-7, Tab 6 at 3-4. 

¶10 However, an employee is not guaranteed a working environment free of 

stress. 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 working conditions generally are not so intolerable as to 

compel a reasonable person to resign. Id.; see, e.g., Brown v. U.S. Postal Service, 

115 M.S.P.R. 609, ¶¶ 13-15 (finding that the appellant failed to make a 

nonfrivolous allegation of an involuntary retirement where she alleged that 

members of management set her up to fail a supervisory assignment with 

inadequate resources), aff’d, 469 F. App’x 852 (Fed. Cir. 2011); Searcy, 

114 M.S.P.R. 281, ¶ 13 (finding that the appellant’s allegations that his 

supervisor denied his request for advanced leave, spoke to him in a disrespectful 

way, and did not provide him any assistance with his work assignments did not 

evince intolerable working conditions). Further, the fact that the appellant was 

on leave—albeit some of it designated as AWOL—forat least a month prior to her 

resignation undermines her claim that incidents in the workplace forced her to 

resign. See Axsom v. Department of Veterans Affairs, 110 M.S.P.R. 605, ¶ 16 

(2009) (finding that alleged incidents of harassment, retaliation, and 

discrimination figured only tangentially into an appellant’s decision to resign, if 

at all, where they preceded the decision to resign by several months). 

 6 To the extent that the appellant is attempting to assert that her position was 

improperly classified, we consider that claim only in the context of her alleged 

involuntary resignation. Saunders v. Merit Systems Protection Board, 757 F.2d 1288, 

1290 (Fed. Cir. 1985) (observing that the Board lacks jurisdiction over 

classification appeals). 
7

¶11 The appellant also reiterates her allegations that the agency improperly 

denied her annual and sick leave and placed her in an AWOL status in retaliation 

for filing an EEO complaint. IAF, Tab 3 at 6, Tab 7 at 1; PFR File, Tab 1 at 7,

Tab 6 at 3. However, even if the appellant’s AWOL status was unwarranted, the 

agency’s actions were not coercive because she could have chosen to contest 

them rather than resigning. See Garcia, 437 F.3d at 1329 (explaining that a 

resignation is not involuntary if the employee had a choice of whether to resign or 

contest the validity of the agency action) (citation omitted); see, e.g., Axsom, 

110 M.S.P.R. 605, ¶¶ 13-14 (finding that the agency’s request for medical 

documentation and threat of AWOL did not render the appellant’s resignation 

involuntary). The agency only had begun designating the appellant’s leave as 

AWOL during the week prior to her resignation, and she has neither alleged nor 

provided evidence that the agency threatened her with an adverse action based on 

the AWOL designation. IAF, Tab 7 at 25, 33-34, 36, 60, 64, 70-71. Considering 

the totality of the circumstances, we find that the appellant has failed to make a 

nonfrivolous allegation of an involuntary resignation. 

The appellant has failed to make a nonfrivolous allegation of Board jurisdiction 

over an IRA appeal. 

¶12 The Board has jurisdiction over an IRA appeal if the appellant exhausts her 

administrative remedies before the OSC and makes nonfrivolous allegations that: 

(1) she made a disclosure described under 5 U.S.C. § 2302(b)(8), or engaged in 

protected activity described under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D); 

and (2) the disclosure or protected 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(e)(1); Yunus v. Department of Veterans 

Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001). An appellant who meets her 

jurisdictional burden is entitled to a hearing on the merits. Carney v. Department 

of Veterans Affairs, 121 M.S.P.R. 446, ¶ 11 (2014). 
8

¶13 Below, the appellant stated that she filed a complaint with OSC. IAF, Tab 3

at 5. In a jurisdiction order, the administrative judge then properly informed the 

appellant of her burden of establishing jurisdiction over an IRA appeal. IAF,

Tab 4 at 3-9. The appellant submitted an OSC letter acknowledging that she had 

contacted the OSC Disclosure Unit, which was forwarding her allegations to 

OSC’s Complaints Examining Unit for processing; however, she did not 

substantively respond to the administrative judge’s order. IAF, Tab 7 at 11. In 

the initial decision, the administrative judge found that the appellant failed to 

adequately explain how she exhausted her administrative remedies before OSC. 

ID at 12-13; see 5 U.S.C. § 1214(a)(3); Garrison v. Department of Defense,

101 M.S.P.R. 229, ¶ 6 (2006). 

¶14 On review, the appellant argues that the Board has jurisdiction over her 

OSC complaint and submits another OSC letter stating that her complaint is under 

active consideration. PFR File, Tab 1 at 3, 6, Tab 6 at 6. Although she may now 

have exhausted her OSC remedy because 120 days have passed since she filed her 

OSC complaint, she still has not identified her protected disclosure or activity or 

that it was a contributing factor in the agency’s decision to take or fail to take a 

personnel action. IAF, Tab 4 at 4-9. 

¶15 To the extent that the appellant is alleging that the agency denied her leave 

and placed her in an AWOL status in retaliation for filing an EEO complaint, her 

EEO complaint cannot form the basis of an IRA appeal. PFR File, Tab 1 at 7,

Tab 6 at 3. Reprisal for filing an EEO complaint is a prohibited personnel 

practice under 5 U.S.C. § 2302(b)(1) and (b)(9), not 5 U.S.C. § 2302(b)(8). See 

Mahaffey v. Department of Agriculture, 105 M.S.P.R. 347, ¶ 20 n.8 (2007) 

(clarifying that a claim of retaliation for filing an EEO complaint may be pursued 

under either 5 U.S.C. § 2302(b)(1) or (b)(9)). The Whistleblower Protection 

Enhancement Act of 2012 (WPEA) extended the Board’s jurisdiction over IRA 

appeals to claims of reprisal for filing complaints seeking to remedy a protected 

disclosure, but not to other types of complaints. 5 U.S.C. §§ 1221(a), 
9

2302(b)(9)(A); Mudd v. Department of Veterans Affairs, 120 M.S.P.R. 365, ¶ 7 

(2013). Because the appellant’s informal EEO complaint does not itself seek to 

remedy whistleblower reprisal, we find that it is not protected activity under the 

WPEA, and thus, cannot form the basis of an IRA appeal. PFR File, Tab 6 at 8-9. 

Accordingly, we agree with the administrative judge’s finding that the appellant 

has failed to nonfrivolously allege jurisdiction over an IRA appeal. ID at 13. 

¶16 After considering the appellant’s arguments on review, we agree with the 

administrative judge’s finding that the appellant failed to make a nonfrivolous 

allegation of Board jurisdiction and we affirm the initial decision. 7

The Board lacks jurisdiction over the appellant’s informal EEO complaint. 

¶17 The appellant alleges that the Board has jurisdiction over her informal EEO 

complaint because the agency did not agree to alternative dispute resolution, was 

slow in processing her claim, and has provided little guidance. PFR File, Tab 1

at 3-5, Tab 6 at 3-4. However, the Board lacks the independent authority to 

review an informal EEO complaint or an agency’s EEO complaint process. See

5 C.F.R. §§ 1201.2-1201.3. Although the Board has the authority to review 

discrimination claims raised in a mixed-case appeal when it has jurisdiction over 

the underlying action, as we have found above, the appellant has failed to make a 

nonfrivolous allegation of Board jurisdiction over an otherwise appealable action. 

5 U.S.C. § 7702(a)(1); Lethridge v. U.S. Postal Service, 99 M.S.P.R. 675, ¶ 8

(2005); see 5 C.F.R. §§ 1201.3(a)-(b) (listing matters that fall within the Board’s 

appellate jurisdiction), 1201.151(a) (defining the scope of the Board’s jurisdiction 

in mixed-case appeals as limited to those raising a personnel action appealable to 

 7 The letter submitted by the appellant on review from the Federal Labor Relations 

Authority does not provide a reason to disturb the initial decision because it is

immaterial to the dispositive jurisdictional issue. PFR File, Tab 6 at 5; see Harrison v. 

Department of Transportation, 16 M.S.P.R. 135, 136 n.1 (1983) (finding that no law, 

rule, or regulation has created an independent right to appeal a claim of an agency’s 

unfair labor practice to the Board); Russo v. Veterans Administration, 3 M.S.P.R. 345, 

349 (1980); see also 5 C.F.R. § 1201.115(d). 
10

the Board). Thus, the appellant’s allegations regarding her informal EEO 

complaint, and the documentation she has provided concerning EEO matters,

do not provide a reason to disturb the initial decision, and are not material to our 

jurisdictional determination. PFR File, Tab 6 at 7-15, Tab 7; see Russo v. 

Veterans Administration, 3 M.S.P.R. 345, 349 (1980) (finding that the Board 

will not grant a petition for review based on new evidence absent a showing that 

it is of sufficient weight to warrant an outcome different from that of the initial 

decision); see also 5 C.F.R. § 1201.115(d). 

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision by the U.S.

Court of Appeals for the Federal Circuit. You must submit your request to the 

court at the following address: 

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, DC 20439

The court must receive your request for review no later than 60 calendar days 

after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27, 

2012). If you choose to file, be very careful to file on time. The court has held 

that normally it does not have the authority to waive this statutory deadline and 

that filings that do not comply with the deadline must be dismissed. See Pinat v. 

Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991). 

If you need further information about your right to appeal this decision to 

court, you should refer to the Federal law that gives you this right. It is found in 

title 5 of the U.S. Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. Dec. 27, 

2012). You may read this law as well as other sections of the U.S. Code, at our 

website, http://www.mspb.gov/appeals/uscode.htm. Additional information is 

available at the court’s website, www.cafc.uscourts.gov. Of particular relevance 
11

is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained 

within the court’s Rules of Practice, and Forms 5, 6, and 11.

If you are interested in securing pro bono representation for 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 

Merit Systems Protection Board neither endorses the services provided by any 

attorney nor warrants that any attorney will accept representation in a given case. 

FOR THE BOARD:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board