UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

JENNIFER L. KEEN,

Appellant,

v.

DEPARTMENT OF THE AIR FORCE,

Agency.

DOCKET NUMBER

AT-0752-15-0473-I-1

DATE: December 29, 2016

THIS FINAL ORDER IS NONPRECEDENTIAL1

Neil C. Bonney, Esquire, Virginia Beach, Virginia, for the appellant. 

Daniel J. Watson and James R. Haslup, Eglin Air Force Base, Florida, for 

the agency. 

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

FINAL ORDER

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

dismissed for lack of jurisdiction her involuntary resignation appeal. 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 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

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 and AFFIRM the initial

decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). 

¶2 The appellant previously was employed by the agency as a GS-12 Security 

Specialist. Initial Appeal File (IAF), Tab 12 at 17. On March 26, 2015, the 

deciding official for the agency issued a decision notice removing the appellant 

from her position for the Use of Abusive, Vulgar or Offensive Language in the 

Workplace, Deliberate Discrimination Based on Race or Color Creating and 

Perpetuating a Hostile or Offensive Work Environment, and Conduct 

Unbecoming a Civilian Employee. Id. at 4. The appellant resigned on the day 

she received the removal decision, before her removal was effected. Id. at 17. 

¶3 The appellant filed a Board appeal arguing that her resignation was 

involuntary. IAF, Tab 1 at 3. The administrative judge issued an order that 

informed the appellant of the criteria required to meet her burden of proving 

jurisdiction over her appeal, and the agency filed a motion to dismiss her appeal 

for lack of jurisdiction. IAF, Tab 3 at 1-3, 9. After holding a hearing, the 

administrative judge dismissed the appeal for lack of jurisdiction. IAF, Tab 37, 

Initial Decision (ID) at 1. The appellant filed a petition for review claiming bias 

by the administrative judge and restating some of the arguments that she made on 

appeal. Petition for Review (PFR) File, Tab 1. The agency responded in 

opposition to the appellant’s petition. PFR File, Tab 3. 
3

The appellant has not established that the administrative judge was biased. 

¶4 In making a claim of bias or prejudice against an administrative judge, a 

party must overcome the presumption of honesty and integrity that accompanies 

administrative adjudicators. Oliver v. Department of Transportation, 1 M.S.P.R. 

382, 386 (1980). The party must show that any such bias constitutes extrajudicial 

conduct rather than conduct arising in the administrative proceedings before him. 

Ali v. Department of the Army, 50 M.S.P.R. 563, 568 (1991). The appellant 

argues on review that, because of “her highly despicable and racist comments,” 

the administrative judge disliked her. PFR File, Tab 1 at 16. In support of her 

argument of bias, the appellant argues that the administrative judge “did 

everything he could” to rule against her based on unreviewable credibility 

determinations. Id. However, the mere fact that the administrative judge ruled 

against the appellant in making his credibility determinations is insufficient

evidence of bias. The appellant fails to identify any improper comments or 

actions by the administrative judge that plausibly indicate favoritism. See 

Rolon v. Department of Veterans Affairs, 53 M.S.P.R. 362, 366-67 (1992). We 

therefore reject the appellant’s suggestion that the administrative judge is biased 

in favor of the agency. 

The appellant failed to prove that the Board has jurisdiction over her appeal. 

¶5 It is well settled that resignations are presumed to be voluntary actions and 

thus outside of the Board’s appellate jurisdiction. A forced resignation, however, 

is tantamount to a removal that is appealable to the Board. See Aldridge v. 

Department of Agriculture, 111 M.S.P.R. 670, ¶ 7 (2009). An appellant must 

show by preponderant evidence that a resignation was involuntary and thus within 

the Board’s jurisdiction. Id.; see Shoaf v. Department of Agriculture, 260 F.3d 

1336, 1341 (Fed. Cir. 2001). To overcome the presumption of voluntariness 

which normally attaches to a resignation, an appellant must show that her

decision to resign was the result of agency misrepresentation, coercion, or duress. 

See Salazar v. Department of Army, 115 M.S.P.R. 296, ¶ 9 (2010). For the 
4

reasons explained below, we find that the administrative judge correctly 

dismissed this appeal for lack of jurisdiction. 

The administrative judge correctly found that the appellant failed to prove that 

her resignation was involuntary because of agency misinformation. 

¶6 When, as here, the appellant claims that her decision to resign was the 

result of agency misinformation, she must show that: (1) that the agency made 

misleading statements; and (2) she reasonably relied on the misinformation to her 

detriment. Id. An appellant, however, need not show that the agency 

intentionally misled her, and an agency is required to provide accurate 

information to permit an employee to make an informed, and thus volunt ary, 

decision regarding her retirement or resignation. Id. 

¶7 On review, the appellant reasserts the argument she made on appeal that her 

resignation was the result of agency misinformation. IAF, Tab 8 at 4; PFR File,

Tab 1 at 8-14. Specifically, the appellant argues that an agency personnel 

specialist advised her that her official record would indicate a removal unless she 

resigned before it became effective. PFR File, Tab 1 at 8. The appellant argues 

that the specialist did not tell her that her official record would show that she 

resigned pending an adverse action and would include information about the 

removal. Id. at 9-12. The appellant also argues that the specialist misinformed 

her that she would retain her Board appeal rights if she resigned.2 Id. at 12-14.

¶8 We have reviewed the initial decision and agree with the administrative 

judge that the appellant has failed to show that her resignation was involuntary as 

a result of agency misinformation. ID at 15. The administrative judge found that 

the appellant’s misinformation claims were based on two conversations that she 

had with a personnel specialist on January 29, 2015, and March 26, 2015, and a 

brief conversation that the appellant had with her supervisor on March 26 before 

 

2

The appellant does not object to the administrative judge’s finding that the agency 

did not mislead or deceive her about her deferred retirement options, and we find no 

reason to disturb those findings. ID at 14-15. 
5

she resigned. ID at 7. After listening to the testimony of the appellant, her 

former supervisor, and the personnel specialist concerning what was discussed in 

the parties’ respective conversations, the administrative judge found the agency 

witnesses’ testimony more credible than the appellant’s testimony. ID at 11. 

¶9 The administrative judge based his credibility determinations on his 

observations of the demeanor of the witnesses at the hearing, and the Board must 

defer to an administrative judge’s credibility determinations when they are based, 

explicitly or implicitly, on observing the demeanor of witnesses testifying at a 

hearing. ID at 11-14; see Haebe v. Department of Justice, 288 F.3d 1288, 1301 

(Fed. Cir. 2002). The Board may overturn such determinations only when it has 

“sufficiently sound” reasons for doing so. Haebe, 288 F.3d at 1301. 

¶10 The administrative judge found that the agency’s personnel specialist 

credibly testified that, during a January 29, 2015 meeting about the proposal to 

remove the appellant, she informed the appellant that she could appeal to the 

Board if the removal was effected. ID at 10, 13. The administrative judge noted 

an inconsistency in the testimony of the personnel specialist in response to a 

hypothetical question on cross-examination about the appellant’s appeal rights. 

ID at 12-13. However, the administrative judge credited the personnel 

specialist’s testimony that she did not remember discussing the appellant’s appeal 

rights at the March 26, 2015 meeting and that, if she did, she would have referred 

the appellant to the removal decision letter.3 ID at 11-13. The administrative 

judge found that the personnel specialist provided a declaration consistent with 

her testimony, she was a seasoned personnel specialist, and she had no motive to 

encourage the appellant to resign or to provide her with misleading information. 

ID at 13 & n.5. 

¶11 The Board has considered the excerpts from the personnel specialist’s 

testimony, which the appellant submits on review as proof that she received 

 

3

The removal decision letter accurately stated the appellant’s appeal rights. IAF,

Tab 12 at 4-5. 
6

misleading information about her appeal rights. PFR File, Tab 1 at 13. But 

considering the personnel specialist’s testimony as a whole, in context with the 

questions asked and answered concerning this issue, we find no reason to disturb 

the administrative judge’s well-reasoned demeanor‐based findings on this issue. 

PFR File, Tab 3 at 11. 

¶12 Applying the Hillen analysis to resolve the credibility issues presented, the 

administrative judge found that the appellant was biased in her version of the 

events and he questioned her credibility based on her character and her demeanor 

at the hearing. ID at 11-15; see Hillen v. Department of the Army, 35 M.S.P.R. 

453, 458 (1987).4 The administrative judge also found that the appellant’s 

testimony was evasive, vague, self-serving and inconsistent with the established 

facts. ID at 14. For example, he noted that the agency’s decision letter 

specifically informed the appellant that her removal could not be appealed before 

the effective date, and he found it unlikely that the appellant believed that she 

could appeal the removal action because her resignation prevented her removal 

from going into effect. ID at 11 n.4, 12-13. 

¶13 Regarding the appellant’s argument that the agency misled her into

believing that resigning would keep the removal action out of her official records, 

the administrative judge credited the personnel specialist’s testimony that she 

did not recall discussing the appellant’s desire for a clean record with the 

appellant. ID at 10-13. The administrative judge also found that the agency 

provided the appellant with a request for personnel action to review concerning 

 

4

To resolve credibility issues, an administrative judge must identify the factual 

questions in dispute, summarize the evidence on each disputed question, state which 

version he believes, and explain in detail why he found the chosen version more 

credible, considering such factors as: (1) the 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. Hillen, 35 M.S.P.R. at 458. 
7

her resignation and the remarks section stated: “Agency finding: Resigned after 

receiving written notice on 26-MAR-2015 of proposal to separate for use of 

abusive, vulgar, or offensive language in the workplace and deliberate 

discrimination based on race/color creating hostile work environment.” ID at 4; 

IAF, Tab 12 at 15-16. The administrative judge considered the appellant’s 

testimony that she did not notice the agency’s remarks when she reviewed and 

signed the document, but found her claim improbable considering the gravity of 

the situation and the appellant’s alleged concern about obtaining a clean record. 

ID at 11-12. We agree with the administrative judge’s findings on this issue. 

¶14 Because the appellant has not shown that the administrative judge’s

findings are incomplete, inconsistent with the weight of the evidence, and not 

reflective of the record as a whole, we find no reason to disturb the administrative 

judge’s demeanor-based credibility determinations. See Faucher v. Department 

of the Air Force, 96 M.S.P.R. 203, ¶ 8 (2004). We therefore affirm the

administrative judge’s finding that the appellant failed to prove that the agency 

provided her with misleading information or that she reasonably relied upon that 

misinformation to her detriment. ID at 15. 

The appellant failed to prove that her resignation was involuntary because of 

agency coercion.

¶15 A resignation to avoid a threatened removal also may be considered coerced 

if the employee can show that the agency had no reasonable grounds for 

threatening the action. Lamb v. U.S. Postal Service, 46 M.S.P.R. 470, 475 

(1990). If the employee can show that the agency knew or should have known 

that the removal could not be sustained, the threatened action is deemed coercive. 

Id. On review, the appellant reasserts the argument she made on appeal that the 

agency knew or should have known that her removal could not be sustained 

because she previously was disciplined in May 2011 for the same misconduct. 

PFR File, Tab 1 at 14-16; IAF, Tab 1 at 4. 
8

¶16 To determine whether an appellant has been disciplined twice for the same 

misconduct, the Board must do more than simply compare the charges that the 

agency has brought against the appellant. Frederick v. Department of Homeland 

Security, 122 M.S.P.R. 401, 407 (2015). The Board must examine the factual 

specifications supporting the charges levied against the appellant, i.e. the 

underlying “cause” relied upon by the agency for taking the disciplinary action. 

Id. (internal citations omitted). Ultimately, the Board must find that the charges 

“depend on different facts.” Id. 

¶17 The administrative judge compared the charges the agency relied upon in 

the proposed removal in 2015 and the proposed reprimand in 2011 and concluded 

that the appellant was not subjected to double punishment. ID at 17-19. Based 

on the deciding official’s testimony and the record evidence, the administrative 

judge also found that, as a result of the equal employment opportunity (EEO) 

investigation and the Office of Federal Operations’ decision finding that the 

appellant had engaged in race discrimination, the agency learned that the 

appellant’s improper conduct was much more pervasive than it previously had 

thought.

5

 ID at 2, 18. In contrast, the administrative judge found that the 

appellant offered nothing more to support her claim than her mere assertions that 

she already was punished. ID at 17. 

¶18 On review, the appellant provides no new evidence or argument proving 

that she previously was disciplined for the same misconduct underlying her 

removal. For example, the appellant argues that her proposed removal was based 

in part on a March 31, 2011 incident when she said, “stop slurping you 

[expletive] pig,” but she was verbally counseled for that misconduct on April 5, 

 

5

In reaching his decision, the administrative judge credited the deciding official’s 

testimony, which he based on his review of the EEO decision and the investigative 

record, that there was ample evidence of improper conduct by the appellant that went 

well beyond the appellant’s charged misconduct in her 2011 Letter of Reprimand. ID 

at 18. The administrative judge also compared the proposed reprimand in 2011 with the 

proposed removal in 2015. 
9

2011. PFR File, Tab 1 at 15. However, the administrative judge considered this 

evidence on appeal and correctly found that the appellant could not rely on her

April 2011 nondisciplinary letter of counseling to support her claim of double 

punishment. ID at 15 n.6, 18. A nondisciplinary letter of counseling is not 

considered an adverse action; therefore, the appellant’s counseling letter did not 

preclude the agency from taking later disciplinary action on the same basis. See 

id.; Social Security Administration v. Carr, 78 M.S.P.R. 313, 332 (1998), aff’d, 

185 F.3d 1318 (Fed. Cir. 1999). 

¶19 On review, the appellant also restates the argument she made on appeal that 

her July 5, 2011 reprimand covered the same racist statements that the agency 

relied upon in her removal. PFR File, Tab 1 at 15-16. We agree with the 

administrative judge’s finding that the appellant failed prove that the agency 

knew that her removal could not be sustained. ID at 18-19. The administrative 

judge noted that, when questioned on cross-examination regarding some of the 

specific statements that were cited in her proposed removal, the appellant 

admitted that those statements could not have served as the basis for her 2011 

reprimand because they were made after the reprimand was issued. ID at 16 n.8. 

The record supports the administrative judge’s finding that although the appellant 

was punished for similar misconduct in 2011, her proposed removal was based 

upon numerous other incidents of misconduct that took place in 2011 for which 

she had not been punished. ID at 15. 

¶20 We find that none of the appellant’s arguments and allegations of error on 

review present a basis for disturbing the administrative judge’s well-reasoned 

findings that the appellant failed to establish jurisdiction over her appeal and 

prove that her decision to resign was the involuntary result of agency 

misrepresentation or coercion. ID at 19; see Crosby v. U.S. Postal Service, 

74 M.S.P.R. 98, 105-06 (1997) (finding no reason to disturb the administrative 

judge’s findings when she considered the evidence as a whole, drew appropriate 

inferences, and made reasoned conclusions); Broughton v. Department of Health 
10

& Human Services, 33 M.S.P.R. 357, 359 (1987) (same). We therefore deny the 

petition for review. 

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: 

United States Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, DC 20439

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

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

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

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

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

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

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

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

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

Dec. 27, 2012). You may read this law as well as other sections of the

United States Code, at our website, http://www.mspb.gov/appeals/uscode.htm. 

Additional information is available at the court’s website, 

www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se 

Petitioners and Appellants,” which is contained within the court’s Rules of 

Practice, and Forms 5, 6, and 11. 

If you are interested in securing pro bono representation for 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 
11

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.

______________________________

Jennifer Everling

Acting Clerk of the Board