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

04-3114 DIANA M. WILLIAMS, Petitioner,

v. DEPARTMENT OF THE TREASURY, Respondent.

__________________________ DECIDED: January 26, 2005

__________________________

Before LOURIE, SCHALL, and PROST, Circuit Judges

. SCHALL, Circuit Judge

. DECISION Diana M. Williams petitions for review of the final decision of the Merit Systems Protection Board (“Board”) that dismissed for lack of jurisd iction (i) her appeal of her alleged involuntary resi gnation from her positi on with the Department of the Treasury (“agency”), and (ii) her claims under the Wh istleblower Protection Act of 1989 (“WPA”), Pub. L. No. 101-12, 103 Stat 16 (1989) (codified at 5 U.S.C. § 2302(b)(8)). Williams v. Dep’t of the Treasury , No. DA-1221-02-0555-W-1 (M.S. P.B. Oct. 23, 2003). We affirm

.DISCUSSION
I. Effective June 4, 2001, Ms. Williams re ceived a career-condition al appo intment to the posit ion of Secretary (Office Automation), GS-0318-05, with the Internal Rev e nue Service. The appoint ment was subject to a o ne-year probationary perio d. By letter dated Nov e mber 6, 2001, the agency inform ed Ms. Williams that she was being terminated during her probationary period, e ffective November 21, 2001. The letter informed Ms. Williams that she h ad the rig h t to appeal her termination to th e Board if
she believed that it was based on partisan political reas ons or on her marital status. On November 20, 2001, Ms. Willia ms submitted her resignation, e ffective that day. In her letter of resignatio n, Ms. Williams stated t hat she was resigning for health reas ons. Howev e r, in 2002, Ms. Willia ms fil ed an appea l with the Board. In an Acknowledgement Order dated July 19, 2002, the administ rative judge (“AJ”) to whom the appea l was ass i gned informed Ms. William s that the Board might not have jurisdiction over her appeal. T he Order explained that a resi gnation is presumed to be a voluntary action and thus not appealable to the Board

. The Order also explained the limited appeal rights that are av ailable to an employee who is terminated during his or her probationary period. In addition, Ms. Wi lliams was told that she had the burden of establishing the Board’s jurisdiction, as well as what she would have to prove in order to establish j u risdiction. On August 19, 200 2, the AJ issued a Second Order Regarding Jurisdiction . In that Order, the AJ agai n informed Ms. Willia ms of what she was required to do in order to establish Board jurisdiction over her appeal.

04-3114 2After considering the documentary record , the AJ issued an initial decis i on on October 31, 2002 in which s he co nclude d th at Ms. Williams had n o t establis h ed that her resignation was involuntary. Williams v. Dep’t of the Treasury , No. DA-1221-02-0555- W-1 (M.S.P.B. Oct. 31, 2002) (“ Initial De cision ”). The AJ als o stated that, assuming arguendo that Ms. Williams had establish e d that her r e signat ion was involu ntary, she still had no t alleged a n y facts suggesting th at the decision to terminate her employme nt during her probationar y period was based on partisan political reasons or her marital status, the only two grounds upon whic h a probationary em ployee may appeal a removal ac tion based upon events occu rring during the probationary period. See 5 C.F.R. § 1201.3(a)(8). Finally, the AJ reje cted the WPA claims t hat Ms. Williams had asserted in her appeal. The AJ therefore dismissed the appea l for lack of jurisdiction. The AJ ’s initial dec ision bec ame the fina l decision of t he B oard on October 23, 2003 after the Bo ard den ied M s

. Williams’ petition f o r review for failure t o meet the criteria for review set forth at 5 C.F.R. § 1201.115( d). This app eal followed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
II. Our scope of review in an appeal from a decision of the Board is limited. Specifica lly , we must affirm the Board’s d e ci sion unless we find it to be arbitrary, capricious, an abuse of discret ion, or otherwise not in a ccordanc e with law; obtained without procedures required by law, rule or regulation having been fo llo wed; or unsupported by subst antial ev idence. 5 U.S.C. § 7703(c); see Ke wley v. De p’t of Healt h & Human Servs. , 153 F.3d 1357, 1361 (Fed. Cir. 1998).

04-3114 3A resignation is presumed to be voluntary and is beyond the Board's jurisdiction. See Braun v. Dep’t of Veterans Affairs , 50 F.3d 1005, 1007 (Fed. Cir. 1995). However, an involuntary resignation is tantamount to a removal, an adverse action vesting the Board with jurisdiction purs uant to 5 U.S.C. § 7512. Se e Staats v. United Stat es Postal Serv. , 99 F.3d 1120, 1123 (Fed. Cir. 1996) . In order to overcome the presumption of
voluntariness and demonstrate that a resi gnation was invo luntary, an appellant mus t show either (1) that the resignat ion was th e product of misinformation or deception by the agency , id. at 1124 (citing Covington v. Dep’t of Health & Human Servs. , 750 F.2d 937, 942 (Fed. Cir. 1984)), or (2 ) that the resignation was t he product of coercion by the
agency, id. (citing Dumas v. Merit Sys. Prot . Bd. , 789 F.2d 892, 894 (Fed. Cir. 1986)). The test for involuntariness is an objective one; it is not measured by the appellant' s subjective evaluation of his or her situation. Middleton v. Dep't of Defense , 185 F.3d 1374, 1379 (Fed. Cir. 1999). Involuntarines s ma y be established by a showing that an appellant's working conditions were made so intolerable t hat a reas onable per son in the appellant's position would have fe lt compelled to resign. Id. Before the Board, the basis for Ms. W illiams’ contention that her resignatio n was involuntary was her claim that her worki ng c onditions had been m ade intolerable by the conduct of her immediate supervisor towards her . The AJ rejected this claim, however, finding that Ms. Willia m s’ complaints ab out t he superv i sor were n o t credible “in light of
the contradictions ev ident in her own submis sions.” Initial Decision , a t 7

. T h e A J f u r t h e r determined: The dec is ion to terminate the appe llant’s employment during her probationar y period had been m ade. S he submitted her resignation only after she was faced with two unpleas ant alternatives , either res i gn or be terminated. See Sulliv an v. Departm ent of Veterans Affairs , 79 M.S.P.R.

04-3114 481, 85 (1998) (that the appellant was faced with u npleasant choic e s does not establish that her resignation wa s involuntary). She acknowledged that she was adv ised by the union president, not a m anagement official, that it would be in her best interest s to resign. It was the appellant’s choice to r e sign rather than accept the termi nation dec ision. Based on my review of the record, I find that her decision to resign was voluntary. Id. at 8. On appeal, Ms. Willia ms argues that she was entitled to a hearing because she made non-frivolous allegati ons of involuntariness. In addition, she notes that the AJ did not consider her appeal under the non-frivolous standard bu t, rather, decided the appeal based upo n a cred ibility determination. This, she cont ends, was error. Ms. Williams is correct that if an appellant makes a non-fr ivolous allegation that a resignation was involuntary, he or she has the right to a hearing on the issue of inv o luntarines s. Dick v. Dep’t of Veterans Affairs , 290 F

. 3d 1356, 1362 (Fed. Cir. 2002) . Ms. Williams also is correct that the AJ did not articulate t he non-frivolous standard. We see no reason, however, to disturb the decis ion of the Board on that ground. The AJ correctly considered Ms. Willia ms’ appeal bas ed upon the administrative record, see Spencer v. Dep’t of Navy , 327 F.3d 1354, 1356 (Fed. Cir. 2003), and we read the AJ’s decision a s effectively conclud i ng that Ms. Williams fa iled to make a non-frivolous a l legation of involuntariness, a conclusion supported by the record. Finally, assuming arguendo that Ms. W illiams had made a non-frivolous allegation of involunt ariness, the result of the appeal would have been no different. As the AJ pointed out, because Ms. Willia ms was separated d u ring her probationar y period, she could only invok e the jurisdicti on of the Board if sh e alleged that she wa s terminated for partisan political purposes or by reason of discr imination based upon her marital status. See 5 C.F.R. § 1201.3(a)(8). Ms . Willia ms alleged neither.

04-3114 5III. We now turn to Ms. Williams’ WP A claims. Shortly before receipt of the notice of proposed r e moval, Ms. Williams filed a comp laint wit h the Office of Special Counsel (“OSC”). Ms. Willia ms alleg e d that her s upervi sor took retaliatory person n el actions, in violation of the WPA, in respo n s e to a prot ected disc losure. Sp ecifically, Ms. Willia ms alle ged tha t she made two protected disclos ures . First, Ms. Willia ms asserted that he r supervisor, Ms. Esco, “had me investigated for falsifying tax doc uments.” Second, M s

. Williams alleged, as a protect ed disclosure, the followin g : Sandraly n e W. Esco information concer ning the refusal of my medical release. A meeting t ook place with Joseph Stack Territory manager and all the managers concerning my employment status. After OSC failed to ta ke action, Ms. Willia ms filed an Individu al Right of A c tion (“IRA”) with the Boar d. It appears the IRA was c o nsidered by the AJ as part of Ms. Williams’ appea l of her invo l untary resignatio n. With respect to Ms. Williams’ whistleblowing claim, the AJ stated: [A] review of the appellant’s complaint to OSC reveals that she did not engage in protected whistleblowing activities. Initial Dec i s i on , at 9. On appeal, Ms. Willia ms challen ges the Board’s decision with r e spect to her whistle b lo wing c l aim. We read the AJ’s decis ion as sta t ing that Ms. Williams failed t o make a non-frivolous allegatio n that she made a protected disclosure. The Board has jurisdiction over an IRA appeal if the appellant has exhausted his or her administrative remedies before OSC and makes “non-frivolous ” allegations that (1) he or she engaged in whistleblowing activ i ty by making a prot ected disclos ure under 5 U.S.C. § 2302(b)(8), and (2) the disclosure was a cont ributing factor in the agency’s decision to take or fail to

04-3114 6take a pers onnel action as def ined by 5 U.S.C. § 2302( a). Yunus v. Dep’t of Veterans Affairs , 242 F.3d 1367, 1371 (Fed. Cir. 2001). Whet her allegations are no n-frivolous is determined on the basis of the written record. Spencer v. Dep’t of the Navy , 327 F.3d 1354, 1356 (Fed. Cir. 2003).
We see no error in the Board’s dismissa l o f Ms. Willia ms’ whistle b lowing cla i m, on the ground that Ms. Willia ms failed to ma ke protected dis c losures revealing “a violation of [] law, rule, or regulation, or gross mismanagement, a gross waste of funds,
an abus e of authority, or a substa ntial and s pecific danger to public health or safety,” 5 U.S.C. § 2302(b)(8). With respe c t to Ms. Williams’ first a lleged protected disclosure , Ms. Williams claimed that “Sandralyne W. Esc o had me inve stigated for falsifying tax doc uments.” In her supporting affidavit to the B oard, Ms. Williams exp l ained: Affiant states that on September 28, 2001, the inspector [McFarland] informed a ppellant th at Ms. Esco reported app ellan t for filing a fals e income tax return stating that appellant lied about appel lant’s marital status. Thus, Ms. Williams’ first alleged “disclosure” was that an investigator told her that an investigation had begun, and th at this inv e stigation was at the behest of Ms. Esco. Even if true, we do not see how the fact that Ms. Williams was in formed of unfavorable information amounted to a protected disclos ure by Ms. Williams under the WP A. 1

1 Ms. Willia ms’ IRA form might be read as stating that Ms. William’s disclos ed information to Mr. McFarland, rather than vice versa. Howev e r, the affidavit makes clear that Ms. Williams’ WPA claim is based on what she claims Mr. McFarland told her. It wou l d n o t make sens e for Ms. Willi ams to “disclose” to the tax investigator that she was being inv e stigated for falsifying tax returns.

04-3114 7Ms. Willia ms’ second “protected disc losure ” appears t o be that Ms. Willia ms told Ms. Esco she was unhappy about Ms. Esco’s dec is ion regarding her medical leav e. As noted abov e, the alleged disc losure was that a meeting took place among managers regarding Ms. Willia ms’ emplo y m ent status. None of this indicates that Ms. Willia ms made a protected discl osure under the WPA. For the foregoing reasons, the fi nal decis ion of the Board is affirmed. Each party shall bear its own costs.

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