NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition is not citable as precedent. It is a public record. 

## United States Court of Appeals for the Federal Circuit

04-3472 TRENT M. BROWN, Petitioner,

v. DEPARTMENT OF VETERANS AFFAIRS, Respondent.

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DECIDED: February 14, 2005

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Before BRYSON, GAJARSA, and LINN, Circuit Judges

. PER CURIAM. Trent M. Brown (“Brown”) seeks review of the Merit Systems Protection Board (“Board”) decision dismissing his appeal for lack of jurisdiction for failure to make a nonfrivolous allegation that his working condition s were made so intolerable as to render his resignation involuntary. Brown v. Dep’t of Veterans Affairs , DC-0752-04-0466-I-1 (M.S.P.B. Aug. 16, 2004) (I nitial Decision). We affirm

.BACKGROUND Brown, an employee of the Department of Veterans Affairs (“Agency”) s i nce December 15, 1991, was a Dental Laborat ory Technic i an in the Central Dental Laboratory at the Departm ent of Veterans Affairs Medical Center. On December 4, 2002, Brown received a proposed removal le tter for his conduct on September 17-18, 2002. The cited conduct included: “(1) Failure to follow instructions, and (2) Disrespectful conduct towards other personnel .” A Last Chance Agreem ent (“LCA”)

was exec uted between Brown and the Agen cy on M a rch 7, 2003, with the express provision t hat “the [A ]gency may immediat ely remove [Brown] without a new notice period if he commits any misc onduct to inclu de but not limited to failure to follow instructions or [d]isrepectful conduct towards other per sonnel.” Additio n ally , under the terms of the LCA, Brown agreed to “waive his right to file a grievance or any appeal with the [Board] pertaining to his removal if he is removed from the Agency in accordanc e with the terms of this agreement.” Brow n’s propos ed removal was mitigated to a fourteen-day suspension that wo uld be held in abeyance fo r one year from the date that the LCA was executed. The LCA was se t to expire on March 7, 2004. On March 5, 2004, Brown was notifie d that he was to be removed from employment effective March 19, 2004, for viol ating the LCA. Spec ifically, the Agency alleged in the Request to Ex ecute the LCA that Brown: “(1) Le[ft] his workstation repeatedly during the workshif t (at other than scheduled breaks), without asking permission of the supervisor[;] (2 ) [Did n]ot follow[] instructions on standard procedures with casework, causing delays, repairs, and/or remakes[;] (3) [... was intentionally uncooperat ive and had a] poor a ttitude towards team efforts in the workplac e[; and] (4)

04-3472 2[Was d]isrespectful to supervis o r and other management officials during a recen t meeting.” In a handwritten letter dated Marc h 16, 2004, Brown resigned effective March 18, 2004, one day prior to the date of his scheduled removal. On April 14, 2004, Brown s ubmitt ed an appeal to the Board see k ing reinstatement, restored leave, and all references to removal expunged from his recor d

. Brown alleged that he wa s coerc ed into signing the LCA, and signed it only to keep his job. Brown also alleged that his punishm ent was excessive. In response, the Agency denied Br own’s allegations of coercion, contending that Brown was afforded and elected to have union represent ation during the LCA pr ocess. The Agency asserts that Brown’s appeal should be dismis s ed by the Board for lack of jurisdiction bec a use Brown voluntarily r e signed in lieu of being removed. The administrative judge (“AJ”) issued a Jurisdictional Show Cause O r der requiring Brown to as sert a non-frivolous all egation that the Board has jurisdiction over his appeal. Specifically, t he AJ noted that because Brow n signed the LCA, waivin g his future appeal rights if he violated the LCA, an appeal is allowed only if Brown makes a non-frivolous allegation “that he did not violate the [LCA], t hat the agency acted in bad faith, or that he did not vol untarily and freely enter into the [LCA].” In response to t h e Order, Brown alleged that the Board has jurisdiction to hear his appeal in spite of the LCA bec ause (1) he did not voluntarily ent er into the LCA; (2) he did not violate th e LCA; and (3) the Agency acted in bad faith in exec uting the LCA two days prior to the expiration of the LCA. The AJ then issued a Second Order to Show Cause al ong with an Order Regarding Motion to Stay Proceedings. Bec ause Br own resign ed prior to the removal

04-3472 3taking effect and the Board’s jurisdiction is controlled by the empl oyee’s status on the effective date of the action being appealed, the AJ required additional factual support for Brown’s claim of jurisdiction. Specifically Brown was required to “pres e nt a nonfrivolous allegation, supported by the production of factual ev idence, that his resignation was obtained through duress or coercion, that a reas onable per son would have been misled by the [A]genc y’s statem ents, or that some other condition precluded a voluntary decision.” The AJ stayed the deadlines r egarding dis c overy, and requested that the Agency s u pplement t he file with additional material to addr ess Brown’s allegation that he was removed while subject to the LCA as well as information related to Brown’s possible resignation. Brown, in r e sponse, asserted the sa me allegations he had made with respect to the initial Show Cause Order, and contended that his resignation was coerced and done under duress. Additionally , Brown as serted that a reasonable person would have been misled by the Agency’s conduct. On August 16, 2004, t he AJ issued an initial dec ision dismissing Brown’s appea l for lack of jurisdiction for fa ilure to make a non-frivolous allegation that his working conditions were made so into lerable as to render his resi gnation involuntary. In the absence of a petition of review, the initial decision b e came the final decis i on of the Board on September 20, 2004. Brown timely appealed to this court and we hav e jurisdiction under 28 U.S.C. § 1295(a)(9). DISCUSSI ON We must affirm the Board’s decision unless we determine that it is (1) arbitrary, capricious, an abuse of discretion, or otherwis e not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or

04-3472 4(3) unsupported by substantial evidenc e. See 28 U.S.C. § 7703(c) (2000); Killeen v. Office of Pers. Manag ement , 382 F.3d 1316, 1320 (Fed. Cir. 2004). As the petitioner, Brown bears the bur den of showing that the Board had jurisdiction in this matter. In order to be ent itled to a hearing on jurisdiction, the former employee must make a non-frivol ous allegat ion that, if proven at an evidentiary hearing, could establish Board jurisdiction. Staats v. Un ited Stat es Postal Serv. , 99 F

. 3d 1120, 1125 (Fed. Cir. 1996). Thus, Brown needed to present a non-frivolous allegation supported by affidavits or other credible evidence that would prove he resigned involuntarily. Employee resignations are pr esumed v o luntary, and usually , as here, are evidenc ed by a document si gned by the employee. Middleton v. Dep’t of Defense , 185 F.3d 1374, 1379 (Fed. Cir. 1999). To rebut the presumption that a resignation i s voluntary, sufficient evidence m u st be shown by the petitioner that the resignation was the product of (1) misinformation or decepti on by the agency; or (2) coercion by the
agency. Terban v. Dep’t of Energy , 216 F.3d 1021, 1024 (Fed. Cir. 2000). Brown argues that his resignation was coerced and therefore involuntary because it was made under the duress of false charges. In support, Brown cites to t h e lack of dates and specificity in the Report s of Contact (“R OC”) issued by t he Agency. The ROC outlined Brown’s behavior during a March 4, 2004 meeting bet ween Brown, Brown’s s u pervisor, and other management o fficials. The Agency, however, argues Brown resigned voluntarily when faced with removal pursuant to the LCA, and dismissa l of the appeal for lack of jurisdiction is proper because an employee who voluntarily resigns has no right to appeal to the Board. Staats , 99 F.3d at 1123-24.

04-3472 5In order to establish involuntariness on the basis of coercion, an employee m u st show (1) that the agency effectively impos ed the terms of the empl oyee’s resignation; (2) that the employ ee had no realistic alternative but to resign; and (3) that the employee’s resignation was the r e sult of improper acts by the agency. Schultz v. United States Navy , 810 F.2d 1133, 1136 (Fed. Cir. 1987). Under this standard, Brown’s argument that the lac k of dat es and spec ificity in the ROC amounts to Agency coercion is unavailing. Brown has not made a showing that the Agency imposed the terms of his resignation nor that the Agency acted improperly. In particular, Brown failed to offer any evidenc e t hat the Agency lacked a good faith bas is f o r believi ng that it could remove him for vi olating the LCA. The Agency submitted a sufficiently detailed ROC and properly notified Brown of his removal as a result of violating the LCA. Moreover, Brown did not dem onstrate that he had no realistic alt e rnative but to resign. The fact that an em ploy ee is faced with an inherent ly unpleasant situation or that his choice is limit ed to two unpleasant alternatives does not make an employee ’s resignation any less voluntary, C o vi ngton v. D ep’ t of H e al th and H u man S e rvs. , 750 F.2d 937, 942 (Fed. Cir. 1984), even with such limit ed choices as resigning or being subject to removal for cause. Schultz , 810 F.2d at 1136. Afte r Brown received the proposed removal letter on March 5, 2004, he s ubmitted his resignation to be effective on March 18, 2004, one day prio r to removal. Under Schu ltz , the result is c l ear, selecting one of two unpleas ant alter natives is not an involuntary act. Brown ass e rts several additi onal arguments related t o the LCA entered int o on March 7, 2003. These claims are not relevant for establis hing the Board’s jurisdiction,

04-3472 6but rather go to the merits of Brown’s case . Because Brown did not meet his burden of showing that the Board has jurisdiction, ne ither we nor the Boar d need to r each these arguments. CONCLUS ION We find that the Board’s dec ision dism issing Brown’s appeal for lac k of jurisdiction is suppor ted by substantial evidence. The Board’s decis ion was not arbitrary, capricious, an abuse of discretion, or otherwise no t in accordanc e with law. Accordingly, we affirm. No costs.

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