UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

ANDREW WELHOUSE,

Appellant,

v.

DEPARTMENT OF AGRICULTURE,

Agency.

DOCKET NUMBER

CH-0752-12-0387-I-2

DATE: August 19, 2014

THIS ORDER IS NONPRECEDENTIAL1

John Durishan, Esquire, Atlanta, Georgia, for the appellant.

Patricia Ann McNamee, Washington, D.C., for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Anne M. Wagner, Vice Chairman

Mark A. Robbins, Member

REMAND ORDER

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

dismissed his involuntary retirement appeal for lack of jurisdiction. For the 

reasons discussed below, we GRANT the appellant’s petition for review. We 

VACATE the initial decision, except to the extent that we AFFIRM the 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

administrative judge’s finding that the appellant failed to nonfrivolously allege 

that he was coerced into retirement because the agency discriminated against him 

based on sex and age, and REMAND the case to the Central Regional Office for 

further adjudication in accordance with this Order.

DISCUSSION OF ARGUMENTS ON REVIEW

¶2 On December 15, 2009, the agency advised the appellant that he would be 

permanently reassigned from his GS-11 Farm Loan Officer position in Juneau, 

Wisconsin, to the same position and pay grade in Viroqua, Wisconsin, effective 

January 31, 2010. Initial Appeal File, MSPB Docket No. CH-0752-12-0387-I-1 

(IAF I-1), Tab 8 at 12-13. According to the appellant, Viroqua is approximately 

145 miles from Juneau. IAF I-1, Tab 1 at 8. The agency advised the appellant 

that he may be separated from federal service if he declined the reassignment, but 

that, under those circumstances, he may be entitled to a discontinued service 

retirement. IAF I-1, Tab 8 at 12. On December 17, 2009, the appellant e-mailed 

agency management officials indicating that he would not be 50 years old, and 

would therefore be ineligible for a discontinued service retirement, until 

approximately 6 months after his reassignment. Initial Appeal File, MSPB 

Docket No. CH-0752-12-0387-I-2 (IAF I-2), Tab 4 at 24. He stated that he was 

“giv[ing] serious consideration to declining [the] reassignment” because it 

imposed a “significant hardship,” and asked whether it would be possible to delay 

the effective date of his reassignment so that he would be eligible to collect “an 

immediate (reduced) annuity.” Id. Then, on January 7, 2010, the agency 

cancelled the December 15, 2009 directed reassignment notice. IAF I-1, Tab 8 

at 16.

¶3 On June 10, 2010, the agency issued a new letter, advising the appellant 

that he would be permanently reassigned from Juneau to Viroqua, effective 

August 15, 2010. 2

 Id. at 17-18. The appellant failed to report for duty in Viroqua 

 2 The appellant reached age 50 on July 26, 2010. See IAF I-1, Tab 8 at 29 (Box 3).
3

on the date specified, so the agency charged him with being absent without leave

and thereafter proposed his removal for refusing the directed reassignment. IAF 

I-1, Tab 1 at 12-13, Tab 11 at 37. On October 19, 2010, the agency approved the 

appellant’s retirement, retroactive to August 15, 2010, before issuing a decision 

on the proposed removal. IAF I-1, Tab 8 at 29.

¶4 The appellant subsequently filed an appeal with the Board, alleging that his 

retirement was involuntary. IAF I-1, Tab 1. He requested a hearing. Id. at 2. He 

did not dispute the agency’s contention that his reassignment was necessary 

because the Juneau office was closed pursuant to a reorganization; however, he 

asserted that the agency had no legitimate business reason to reassign him to 

Viroqua and could have instead reassigned him to its office in Fond du Lac, 

Wisconsin, which was within his commuting area. Id. at 8-11. He contended that 

the agency’s failure to reassign him to Fond du Lac constituted discrimination 

based on age and sex. Id.; IAF I-2, Tab 4 at 11. 

¶5 The administrative judge dismissed the appellant’s appeal for lack of 

jurisdiction, without holding the requested hearing, finding that the appellant 

failed to make a nonfrivolous allegation that his retirement was involuntary. IAF 

I-2, Tab 5, Initial Decision (ID). The administrative judge made no finding as to 

the timeliness of the appellant’s appeal, although the agency moved to dismiss the 

appeal as untimely filed. ID at 7.

¶6 The appellant has filed a petition for review, again alleging that the 

agency’s decision to reassign him was motivated by age and sex discrimination

and was not based on bona fide management considerations. Petition for Review 

File, MSPB Docket No. CH-0752-12-0387-I-2 (PFR File), Tab 1.

The appellant has not shown that he was coerced into retirement because the 

agency allegedly engaged in discriminatory conduct.

¶7 At the jurisdictional stage, the Board may only consider allegations of 

discrimination under Title VII in connection with an involuntary retirement 

appeal, insofar as they relate to the issue of voluntariness. Markon v. Department 
4

of State, 71 M.S.P.R. 574, 578-80 (1996). That is, the Board may consider 

evidence of discrimination to the extent that it demonstrates that an agency’s 

discriminatory conduct created working conditions which were so difficult that 

any reasonable employee would have felt coerced to resign or retire. Id. For the 

reasons discussed below, we find the appellant’s discrimination argument wholly 

insufficient to constitute a nonfrivolous allegation that his retirement was 

involuntary because he was coerced to retire.

¶8 In support of his argument, the appellant notes that a younger female 

employee was assigned to the Farm Loan Officer position in Fond du Lac, 

although he repeatedly expressed interest in, and was qualified for, the position. 

PFR File, Tab 1 at 13. The appellant also states that Viroqua is within the other 

employee’s commuting area 3 and that Fond du Lac is outside her commuting area, 

suggesting that the agency’s choice to reassign both of them outside of their 

respective local commuting areas was illogical and, therefore, a pretext for 

discrimination. Id. at 9; IAF I-1, Tab 5 at 12. Like the appellant, the employee 

was reassigned to a position outside her commuting area when the agency closed 

the office where her duty station was located. IAF I-2, Tab 4 at 45. The fact that 

a younger female was treated similarly to the appellant negates his discrimination 

claim. See Russell v. Department of Justice, EEOC App. No. 0120064049, 

2006 WL 3697905 at *1 (Dec. 5, 2006) (affirming a finding of no discrimination 

where the individual the complainant cited as a comparator was not similarlysituated to her and the record contained evidence that individuals outside of the 

complainant’s protected class were treated similarly under like circumstances). 4

 3 This appears to be in dispute. The younger female employee states that Viroqua is 

“approximately 90 to 120 minutes” away from her former duty station. IAF I-2, Tab 4 

at 46. For the purpose of this decision, we assume, without deciding, that the appellant 

is correct.

4 In addressing the appellant’s discrimination claim, we have cited to EEOC decisions. 

This is proper because the Board may defer to the EEOC concerning issues of 
5

¶9 The appellant also argues that the agency’s explanation for his reassignment 

to Viroqua—that the Fond du Lac office was better suited for the aforementioned 

younger female employee, who had fewer years of experience than the appellant, 

because it had a strong on-site management team—is a pretext for age and sex 

discrimination because the agency initially “informally offered” the position to an 

employee with 25 years of experience. PFR File, Tab 1 at 14. This employee is a 

male and is approximately 10 years older than the appellant. IAF I-2, Tab 4 

at 35. Thus, the appellant’s reliance on him also negates his discrimination claim 

because if, as the appellant contends, the agency offered the Farm Loan Officer 

position in Fond du Lac to an older male, this would suggest the absence of any 

discriminatory animus towards older and/or male employees. See McCreary v. 

Defense Logistics Agency, EEOC App. No. 0120070257, 2008 WL 1847390 at *4 

(Apr. 14, 2008) (complainant’s citing to an individual within his protected class 

who received more favorable treatment than he did created an inference that his 

protected class did not play a role in the agency action he alleged was 

discriminatory). We also note that the appellant has not disputed evidence in the 

record indicating that the agency (1) reassigned a Program Technician who was 

approximately 55 years old to the Fond du Lac office, which was within her local 

commuting area, and (2) reassigned two additional employees who were 

significantly younger than the appellant, one of whom was female, outside of 

their commuting areas, all of which further negates the appellant’s discrimination 

claims. IAF I-2, Tab 4 at 20, 36; see McCreary, 2008 WL 1847390 at *4.

¶10 Based on the foregoing, we AFFIRM the administrative judge’s finding that 

the appellant’s argument that his retirement was involuntary because he was 

coerced to retire due to age and sex discrimination does not constitute a 

nonfrivolous allegation of Board jurisdiction. See ID at 6.

 

substantive discrimination law. See, e.g., Wingate v. U.S. Postal Service, 

118 M.S.P.R. 566, ¶ 7 (2012).
6

The appellant has nonfrivolously alleged that his reassignment outside of his

commuting area was not based on bona fide management considerations.

¶11 When a retirement involves a directed reassignment, the Board has held that 

the involuntariness of the retirement may be established by showing that the 

reassignment had no solid or substantial basis in personnel practice or principle. 

Caveney v. Office of Administration, 57 M.S.P.R. 667, 670 (1993). A

reassignment must be “properly ordered due to bona fide management 

considerations in the interest of promoting the efficiency of the service.” Miller 

v. Department of the Interior, 120 M.S.P.R. 426, ¶ 11 (2013). Although an 

agency may exercise its management discretion to reassign its employees as 

necessary for the efficiency of the service, it may not use its discretionary 

reassignment authority as a veil to improperly pressure an employee to retire or 

resign. Caveney, 57 M.S.P.R. at 670; see McClelland v. Andrus, 606 F.2d 1278, 

1291 (D.C. Cir. 1979) (an agency must establish that a reassignment promotes the 

efficiency of the service, and the fact that an agency articulates a rational basis 

for a reassignment “does not eliminate the possibility that the transfer was a sham 

way of achieving a predetermined result”).

¶12 The appellant alleges that his reassignment to Viroqua was not based on 

bona fide management considerations, but rather, on agency management’s desire 

to make his reassignment as “difficult as possible.” PFR File, Tab 1 at 15. He 

contends that the agency “intentionally inconvenienced and badgered [him] by 

reassigning him to an office outside of his commuting area to coerce him into 

retirement.” Id. at 16. In support of this claim, he references the affidavit 5 of his 

 5 Although the former second-level supervisor affirms that the information contained in 

his affidavit is “true and complete,” it is not made under penalty of perjury. IAF I-1, 

Tab 11 at 38. However, we have considered it as documentary evidence which supports 

the appellant’s allegation of Board jurisdiction. See Alford v. Department of the Army, 

47 M.S.P.R. 271, 274 (1991) (the appellant submitted documentary evidence to support 

her allegation of Board jurisdiction and the Board thus found that the administrative 

judge erred in making factual findings concerning the weight of the evidence submitted 

by both parties because such determinations should not have been made until after a 

hearing).
7

former second-level supervisor, who was “present at meetings where relocations 

were discussed.” IAF I-1, Tab 11 at 35-36. The former second-level supervisor 

states his belief that agency officials “did not transfer the [appellant] to the Fond 

du Lac office because they wanted to make [his] transfer as difficult as possible” 

and that the appellant “could have been transferred within his local commuting 

area if [agency officials] wanted to work with him.” Id. at 36-37. He further 

states that the Farm Loan Manager in Fond du Lac, “had a personality conflict 

with” the appellant, noting that this should not constitute “an adequate 

justification to force the [appellant] to retire.” Id. at 38. 

¶13 We find that the foregoing constitutes a nonfrivolous allegation of Board 

jurisdiction over the appellant’s involuntary retirement appeal and that the 

appellant is therefore entitled to a jurisdictional hearing if his appeal was timely 

filed. See Coufal v. Department of Justice, 98 M.S.P.R. 31, ¶ 23 (2004). We 

therefore remand this appeal for further adjudication.

ORDER

For the reasons discussed above, we REMAND this case to the Central 

Regional Office for a jurisdictional hearing, and further adjudication if 

appropriate, in accordance with this Remand Order. On remand, the 

administrative judge should address the agency’s motion to dismiss the 

appellant’s appeal as untimely filed. See IAF I-1, Tab 8 at 10-11.

FOR THE BOARD:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board