UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

PATTI FENSTERMACHER,

Appellant,

v.

DEPARTMENT OF LABOR,

Agency.

DOCKET NUMBER

PH-0752-16-0469-I-1

DATE: March 15, 2023

THIS FINAL ORDER IS NONPRECEDENTIAL1

Sigmund Kozierachi, Philadelphia, Pennsylvania, for the appellant.

Jennifer L. Bluer, Esquire, Philadelphia, Pennsylvania, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member2

FINAL ORDER

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

dismissed her alleged involuntary retirement appeal for lack of jurisdiction . 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

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 and AFFIRM the initial decision, 

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

BACKGROUND

¶2 Effective September 30, 2014, the appellant retired from her position as a 

GS-7 Economic Assistant. Initial Appeal File (IAF), Tab 17 at 79. Thereafter, 

she filed a formal complaint of discrimination alleging that the agency 

discriminated against her and subjected her to a hostile work environment that 

forced her to retire. IAF, Tab 7 at 20-33. The agency’s Civil Rights Center 

issued a final agency decision (FAD) dated August 15, 2016, finding that the 

appellant failed to establish that the agency subjected her to unlawful disparate 

treatment or a hostile work environment based on age, disability, or prior equal 

employment opportunity (EEO) activity and failed to establish that her retirement 

amounted to a constructive discharge. IAF, Tab 6 at 21-82, Tab 7 at 4-18. The 

FAD notified the appellant of her right to appeal her alleged constructive 

discharge to the Board, and this appeal timely followed. IAF, Tab 1, Tab 7 at 18. 
3

¶3 The administrative judge issued a jurisdictional order informing the 

appellant that the Board lacks jurisdiction over voluntary actions, such as 

retirements, and ordering her to submit evidence and argument amounting to a 

nonfrivolous allegation that her retirement was involuntary because of duress, 

coercion, or misrepresentation by the agency. IAF, Tab 2 at 2-3. In response, the 

appellant alleged that, from 2012 through September 2014, her supervisor and the 

Assistant Commissioner of the Bureau of Labor Statistics (Assistant 

Commissioner) engaged in a series of events that made her working conditions 

intolerable and forced her to retire. IAF, Tab 23 at 4-7. The agency moved to 

dismiss the appeal for lack of jurisdiction. IAF, Tab 8. 

¶4 The administrative judge issued an initial decision finding that the appellant 

failed to nonfrivolously allege that her retirement was involuntary. IAF, Tab 26, 

Initial Decision (ID). Therefore, he denied her request for a hearing and 

dismissed the appeal for lack of jurisdiction. ID at 4. The appellant has filed a 

petition for review of the initial decision and a supplement to her petition for 

review, the agency has responded in opposition, and the appellant has replied to 

the agency’s response. Petition for Review (PFR) File, Tabs 1, 3-5.

3

 

 

3

The appellant requested and received a 30-day extension of time to file a supplement 

in support of her petition for review. PFR File, Tab 1 at 4, Tab 2 at 1. Thereafter, she 

timely filed a supplemental petition for review, which includes 52 pages of documents 

dated between 2010 and 2014. PFR File, Tab 3 at 17-69. The Board generally will not 

consider evidence submitted for the first time on review absent a showing that the 

documents and the information contained in the documents were unavailable before the 

record closed despite due diligence, and that the evidence is of sufficient weight to 

warrant an outcome different from that of the initial decision. See Cleaton v. 

Department of Justice, 122 M.S.P.R. 296, ¶ 7 (2015), aff’d, 839 F.3d 1126 (Fed. Cir. 

2016); 5 C.F.R. § 1201.115(d). Here, the appellant has not alleged or shown that the 

documents, which all predate the November 5, 2016 close of the record, were

unavailable below or that they are material to the dispositive issue on review. IAF, 

Tab 2 at 3, Tab 4; PFR File, Tabs 1, 3, 5. Therefore, we do not consider them for the 

first time on review.
4

DISCUSSION OF ARGUMENTS ON REVIEW

¶5 Generally, the Board lacks the authority to review an employee’s decision 

to resign or retire, as these decisions are presumed to be voluntary acts. Brown v. 

U.S. Postal Service, 115 M.S.P.R. 609, ¶ 9, aff’d, 469 F. App’x 852 (Fed. Cir. 

2011). An involuntary resignation or retirement, however, is tantamount to a 

removal and is therefore subject to the Board’s jurisdiction. Vitale v. Department 

of Veterans Affairs, 107 M.S.P.R. 501, ¶ 17 (2007). An employee may overcome 

the presumption of voluntariness by showing that her resignation or retirement

was the product of misinformation or deception by the agency, or of coercive ac ts 

by the agency, such as intolerable working conditions or the unjustified threat of 

an adverse action. SanSoucie v. Department of Agriculture, 116 M.S.P.R. 149, 

¶ 14 (2011). If the employee makes a nonfrivolous allegation of jurisdiction, i.e., 

an allegation that, if proven, could establish the Board’s jurisdiction, she is 

entitled to a hearing at which she must prove jurisdiction by a preponderance of 

the evidence.4 Vitale, 107 M.S.P.R. 501, ¶ 18. 

¶6 When, as here, an employee alleges that intolerable working conditions 

forced her to retire, the Board will find her retirement involuntary only if she 

demonstrates that the agency engaged in a course of action that made working 

conditions so difficult or unpleasant that a reasonable person in her position

would have felt compelled to retire. Id., ¶ 20. The doctrine of coerced 

involuntariness is “a narrow one” and does not apply if the employee retires 

because she “does not want to accept [measures] that the agency is authorized to 

adopt, even if those measures make continuation in the job so unpleasant . . . that 

[she] feels that [she] has no realistic option but to leave.” Staats v. U.S. Postal 

Service, 99 F.3d 1120, 1124 (1996). The touchstone of the “voluntariness” 

 

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

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. Vitale, 107 M.S.P.R. 501, ¶ 19. 

¶7 Here, in her formal EEO complaint and her response to the administrative 

judge’s order on jurisdiction, the appellant alleged that her supe rvisor and the 

Associate Commissioner created intolerable working conditions from 2012 

through 2014 by, among other things: finding that she failed a November 6, 2012 

“Commodities and Services Observation” (observation); harassing her about 

failing the observation; informing her 7 months later in May 2013 that she had 

not actually failed the observation; rating her at an “effective level” on her 

2012-2013 annual performance review; failing to timely reimburse her for travel 

expenses and damages sustained to her vehicle while on work duty; delaying her 

promotion; questioning her travel vouchers, sick leave, and overtime usage ;

admonishing her on one occasion for not informing her supervisor in advance that 

she would be taking sick leave; placing her on two “unofficial” performance 

improvement plans (PIP); violating her reasonable accommodation that allowed 

her to work from home by instructing her to code housing units that she was 

unable to personally visit as “unable to contact” instead of reassigning them to 

another employee, which negatively affected her production record; overloading 

her with work; causing a reduction in the number of hours she was available to 

work without reducing her workload on one occasion; postponing an EEO 

meeting because it would have caused her to go into overtime; and subjecting her 

to two investigative interviews. IAF, Tab 7 at 20-33; Tab 23 at 4-7. She further 

alleged that all of the agency’s actions were discriminatory and retaliatory and 

created a hostile work environment. IAF, Tab 7 at 20-33. 

¶8 In the initial decision, the administrative judge found that the appellant’s 

allegations of a distasteful work environment, personal conflicts with supervisors, 

and a sluggish bureaucratic agency that was slow to respond to her requests did 

not amount to a nonfrivolous allegation of intolerable work conditions. ID 
6

at 9-10. In particular, he noted that, although the appellant was frustrated by 

delays in correcting a purported error in her 2012 observation and in processing 

her reimbursements and promotion, she ultimately received the outcome she 

sought and that there was no evidence that the delays were a tactic used by the 

agency to force her into retirement. ID at 10. He further found that her apparent 

discontent with work assignments and instructions from her supervisors did not 

force her to retire. ID at 10-11. In addition, the administrative judge found that 

the appellant’s allegations of discrimination based on age and disability and 

retaliation for prior protected activity did not raise a nonfrivolous allegation of 

involuntariness. ID at 12-13. Thus, the administrative judge found that the 

appellant failed to make a nonfrivolous allegation that her retirement was 

involuntary. ID at 14. On review, the appellant challenges these findings and 

argues again that the previously described series of events establishes that her 

retirement was involuntary.5 PFR File, Tabs 1, 3, 5. For the reasons that follow, 

we find no basis to disturb the administrative judge’s well-reasoned determination 

that the appellant has failed to nonfrivolously allege intolerable working 

conditions that would have compelled a reasonable person to retire.

¶9 An employee is not guaranteed a stress-free working environment. Brown, 

115 M.S.P.R. 609, ¶ 15; 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 are generally not so 

intolerable as to compel a reasonable person to resign or retire. Brown, 

115 M.S.P.R. 609, ¶ 15; Miller, 85 M.S.P.R. 310, ¶ 32. Thus, the appellant’s 

 

5

The appellant also argues on review that the administrative judge mischaracterized the 

basis of her discrimination and retaliation claim, her position title, and her retirement 

date. PFR File, Tab 3 at 5-7. We have considered these allegations but find that they 

provide no basis to disturb the initial decision. See Panter v. Department of the Air 

Force, 22 M.S.P.R. 281, 282 (1984) (holding that an adjudicatory error that is not 

prejudicial to a party’s substantive rights provides no basis for reversal of an initial 

decision). 
7

allegations of an inconvenient and unpleasant work environment—such as 

management “overloading” her with work, failing to timely process her 

reimbursements and correct her observation, postponing a meeting, and 

questioning her regarding her use of sick leave, overtime, and travel vouchers—

do not evince the type of intolerable working conditions that would compel a 

reasonable person to retire. See Brown, 115 M.S.P.R. 609, ¶ 15. Likewise, her 

dissatisfaction with certain work assignments and instructions by her supervisor, 

such as directing her to code specific housing units as “unable to contact,” rather 

than reassigning them to another employee, do not render her working conditions 

intolerable. Id. 

¶10 The appellant’s allegations that the agency coerced her retirement by giving 

her an “effective” performance rating, delaying a promotion to which she 

believed she was entitled, and placing her on “unofficial” PIPs also fail to 

establish a nonfrivolous allegation of involuntariness. It is well settled that a

retirement is not involuntary if the employee had a choice of whether to retire or 

to contest the validity of the agency action. See Garcia v. Department of 

Homeland Security, 437 F.3d 1322, 1329 (Fed. Cir. 2006) (en banc) (quoting 

Christie v. United States, 518 F.2d 584, 587 (1975)). Moreover, “the fact that an 

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

two unattractive options does not make [her] decision any less voluntary.” 

Staats, 99 F.3d at 1124. Here, the appellant’s choice between challenging her 

performance rating, the delayed promotion, and the alleged unofficial PIPs

through the appropriate channels or retiring did not render her ultimate choice to 

retire involuntary. Id. Likewise, the appellant’s contention that her supervisor 

forced her to code certain housing unit visits as “unable to contact,” rather than 

reassigning them, which could have negatively affected her production rate , does 

not establish intolerable working conditions because she could have chosen to 

challenge any resulting agency action based on such production issues rather than 

retiring. Id.; Holman v. Department of the Treasury, 9 M.S.P.R. 218, 220 (1981) 
8

(concluding that fear of a possible future adverse action did not rebut the

presumption of voluntariness). 

¶11 In addition, the appellant’s allegation that she was forced to attend two 

investigative interviews, at which her supervisor and another individual 

“interrogated” her, does not constitute a nonfrivolous allegation of 

involuntariness. See Baldwin v. Department of Veterans Affairs, 109 M.S.P.R. 

392, ¶¶ 19-20 (2008) (finding that an appellant’s allegation that the agency 

subjected him to, among other things, “unwarranted investigations” did not 

constitute a nonfrivolous allegation of involuntariness). Moreover, her allegation 

that she was “interrogated” during these investigative interviews is vague and 

unsupported and, therefore, is insufficient to constitute a nonfrivolous allegation 

of involuntariness. See Marcino v. U.S. Postal Service, 344 F.3d 1199, 1204 

(Fed. Cir. 2003) (stating that “unsubstantial speculation in a pleading,”

unsupported by affidavits or other evidence, does not constitute a nonfrivolous 

allegation). 

¶12 Lastly, as the administrative judge correctly found, the appellant’s 

allegations that the agency’s actions were retaliatory or discriminatory are 

insufficient on their own to establish that her retirement was involuntary. ID 

at 10. The Board addresses discrimination and reprisal allegations in connection 

with an alleged involuntary retirement only insofar as they relate to the issue of 

voluntariness, i.e., whether, under all of the circumstances, the agency made the 

appellant’s working conditions so difficult that a reasonable person in her

position would have felt compelled to retire. Vitale, 107 M.S.P.R. 501, ¶ 20. 

Here, the appellant’s allegation that the agency acted in a retaliatory or 

discriminatory manner, even if true, does not establish that the agency engaged in 
9

a course of conduct that made her working conditions so difficult that a 

reasonable person in her position would have felt compelled to retire.

6

¶13 In light of the foregoing, we find that the administrative judge properly 

dismissed this appeal for lack of jurisdiction without holding the appellant’s 

requested hearing.

NOTICE OF APPEAL RIGHTS7

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. Failure to file within the applicable time 

limit may result in the dismissal of your case by your chosen forum.

Please read carefully each of the three main possible choices of review 

below to decide which one applies to your particular case. If you have questions 

 

6 On review, the appellant argues for the first time that the agency retaliated against her 

for alleged disclosures in 2013 and June 2014. PFR File, Tab 1 at 10, Tab 3 at 6, 13. 

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. Banks v. Department of the Air 

Force, 4 M.S.P.R. 268, 271 (1980). The appellant has made no such showing here. 

PFR File, Tab 1 at 10, Tab 3 at 6, 13. Moreover, her allegations of whistleblower 

reprisal do not establish that the agency coerced her retirement and, therefore, would 

not warrant a different outcome in this appeal. See Vitale, 107 M.S.P.R. 501, ¶ 20. 

7

Since the issuance of the initial decision in this matter, the Board may have updated 

the notice of review rights included in final decisions. As indicated in the notice, the 

Board cannot advise which option is most appropriate in any matter.
10

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 

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 
11

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. ____ , 137 S. Ct. 1975 (2017). If you have a 

representative in this case, and your representative receives this decision before 

you do, then you must file with the district court no later than 30 calendar days

after your representative receives this decision. If the action involves a claim of 

discrimination based on race, color, religion, sex, national origin, or a disabling 

condition, you may be entitled to representation by a court-appointed lawyer and 

to waiver of any requirement of prepayment of fees, costs, or other security. See

42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. 

Contact information for U.S. district courts can be found at their respective 

websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

Alternatively, you may request review by the Equal Employment 

Opportunity Commission (EEOC) of your discrimination claims only, excluding 

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the 

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, 

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

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 
12

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 

(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 Circuit or any court of appeals of 

competent jurisdiction.8 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: 

 

8

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. 
13

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. 

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:

Washington, D.C.

 /s/ for 

Jennifer Everling

Acting Clerk of the Board