UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

DONATUS U. UNARA,

Appellant,

v.

DEPARTMENT OF VETERANS 

AFFAIRS,

Agency.

DOCKET NUMBER

CH-3443-15-0404-I-1

DATE: November 4, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL1

Donatus U. Unara, Ypsilanti, Michigan, pro se. 

Michael E. Anfang, Esquire, Kansas City, Missouri, 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 his involuntary resignation appeal for lack of jurisdiction. 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 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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. See

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 The appellant, a GS-9 Medical Technologist, resigned from his position 

effective November 17, 2014. Initial Appeal File (IAF), Tab 7 at 30-31. On or 

about January 12, 2015, he contacted the agency’s Office of Resolution 

Management (ORM) to add a claim of forced resignation to his pending equal 

employment opportunity (EEO) complaint. Id. at 34-36. In a March 13, 2015 

notice, ORM advised the appellant that it had determined that the forced 

resignation claim was “like or related to” the existing claims of harassment and 

hostile work environment and that it had accepted the claim for investigation as 

an independently actionable claim. Id. The notice further advised that, as a 

result of the amendment of his complaint to include his forced resignation claim, 

the appellant’s complaint was now a mixed case, which required the agency to 

complete the investigation and issue a final agency decision (FAD) within 

120 calendar days of the amendment. Id. at 37. The notice set forth the 

appellant’s mixed-case appeal rights, explaining that he could file a Board appeal 

within 30 days of receiving the FAD or, if he did not receive a FAD within 
3

120 days of his last amendment, he could file a Board appeal immediately without 

waiting for the FAD. Id. On April 14, 2015, ORM advised the appellant that it 

had completed the investigation and provided him a copy of the investigative file. 

Id. at 40. The notice accompanying the investigative file explained that the 

appellant had 30 days from receipt of the notice to either request a FAD from the 

agency or to file an appeal directly with the Equal Employment Opportunity 

Commission.

2

 Id.

¶3 On April 20, 2015, the appellant filed the instant appeal with the Board and 

requested a hearing. IAF, Tab 1. On the appeal form, he indicated that he was 

appealing a removal, an involuntary resignation, and unlawful discrimination and 

retaliation, and indicated that the effective date of the challenged agency decision 

was April 14, 2015.

3

 Id. at 2. The administrative judge issued an 

acknowledgment order, explaining, in part, that the Board generally lacks 

jurisdiction over voluntary actions, such as resignations, and advised the 

appellant that his appeal would be dismissed unless he amended it to allege that 

his resignation was the result of duress, coercion, or misrepresentation by the 

agency. IAF, Tab 2 at 2. The administrative judge also issued an order on 

timeliness, explaining that, although the appeal appeared to be untimely filed 

more than 30 days after the effective date of the alleged forced resignation, an 

 2 The April 14, 2015 notice set forth the post-investigation procedures applicable to a 

nonmixed-case complaint rather than a mixed-case complaint. IAF, Tab 7 at 40-41; see 

29 C.F.R. §§ 1614.108(f), 1614.302(d)(2). Where, as here, an employee has filed a 

mixed-case complaint, the post-investigation notice should advise that a final decision 

will be issued within 45 days without a hearing. 29 C.F.R. § 1614.302(d)(2). We find, 

however, that this procedural error did not prejudice the appellant because ORM’s 

March 13, 2015 notice correctly set forth the post-investigation procedures and appeal 

rights applicable to a mixed-case appeal, and, in any event, the appellant filed a Board 

appeal several days after receiving the post-investigation notice. IAF, Tab 1, Tab 7 

at 37. 

3 It appears that the appellant construed the April 14, 2015 post-investigation notice as 

a final decision on his EEO complaint. See IAF, Tab 1 at 2; see also IAF, Tab 7 

at 40-41. 
4

exception to the 30-day filing deadline applies where an appellant, who was 

subject to an action that is appealable to the Board, has timely filed a formal 

discrimination complaint with the agency. IAF, Tab 3 at 2. The order explained 

that, in such cases, an appellant may file a Board appeal either: (1) within 

30 days after receipt of the agency resolution or final decision on the complaint; 

or (2) if the agency has not resolved the matter or issued a final decision on the 

formal complaint within 120 days, the appellant may appeal the matter directly to 

the Board at any time after the expiration of 120 calendar days. Id.; see 5 C.F.R. 

§ 1201.154(b). 

¶4 The appellant responded, in relevant part, that his appeal was timely filed 

because more than 120 days had elapsed since he filed his EEO complaint and the 

agency had not issued a FAD or otherwise resolved the matter. IAF, Tab 4 at 3. 

He further argued that the agency forced him to resign by harassing him and 

subjecting him to a hostile work environment between July 2013, and 

September 2014, as set forth in his discrimination complaint. Id. at 3-4, 26-27. 

In particular, he alleged that the agency did not select him for a GS-10 Medical 

Technologist position, issued him a letter of counseling, scrutinized his request 

for compensation, assigned him to do the duties of two positions over the course 

of 3 days, failed to take action when the employee assigned to assist him failed to 

help with assigned duties, and denied him training on several occasions. Id.

at 26-27. He further alleged that his supervisor falsely accused him of not 

responding to her on two occasions, falsely stated that she had received 

complaints about him from other staff members, scheduled two mandatory 

meetings while he was scheduled to be off work, made several rude or hostile 

comments, and, while he was in the hospital recovering from a stroke, repeatedly 

called him to tell him to return to work and threatened him with absence without 

leave (AWOL). See id. at 4, 26-27. 

¶5 The agency countered that the appeal was prematurely filed because the 

appellant had not yet requested a FAD and because 120 days had not elapsed 
5

since his last amendment. IAF, Tab 7 at 7-8. The agency further argued that, 

even if the appeal was ripe, the Board still would lack jurisdiction over it because 

the appellant had failed to show that his resignation was involuntary. Id. at 8-10. 

¶6 Without holding the requested hearing, the administrative judge dismissed 

the appeal for lack of jurisdiction, finding that the appeal was timely filed but that 

the appellant failed to nonfrivolously allege that the agency’s action rendered his 

resignation involuntary. IAF, Tab 13, Initial Decision (ID).

4

 The administrative 

judge also found that, absent an otherwise appealable action, the Board lacked 

jurisdiction to address the appellant’s discrimination claims. ID at 9. 

DISCUSSION OF ARGUMENTS ON REVIEW

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

agency has responded in opposition to the petition for review, and the appellant 

has replied to the agency’s opposition. Petition for Review (PFR) File, Tabs 1, 4, 

8. 5

 In the petition for review, the appellant argues only that “the Board was not 

 4 In finding that the appeal was timely filed, the administrative judge explained that, at 

the time of the June 30, 2015 initial decision, more than 120 days had elapsed since the 

agency accepted the appellant’s mixed-case amendment on March 13, 2015, and that the 

agency had not issued a FAD or resolved the discrimination complaint in the interim. 

ID at 2 n.1. The relevant date for calculating the 120-day period, however, is the date 

the appellant filed the mixed-case complaint, not the date the agency accepted the 

complaint for investigation. See 5 C.F.R. § 1201.154(b); see also 29 C.F.R. 

§ 1614.302(d)(1)(i). Here, the 120-day period began to run on or about January 12, 

2015, the date the appellant amended his pending EEO complaint to include the alleged 

forced resignation. See IAF, Tab 7 at 34. As such, the 120-day period ended on 

approximately May 13, 2015, several weeks after the appellant initiated this appeal on 

April 22, 2015. Although the appeal was premature when the appellant filed it, it had 

ripened by the time both parties had responded to the order on timeliness. As such, any 

error by the administrative judge in calculating the 120-day period did not prejudice the 

appellant’s rights. 

5 The agency mailed the appellant, who is not an e-filer, a copy of its response to his 

petition for review to his address of record on August 25, 2015. PFR File, Tab 4 at 7-8. 

On September 14, 2015, the appellant filed a change of address notice with service to 

the agency by fax. PFR File, Tab 5. That same day, the agency’s response was 

returned to the agency as undeliverable. PFR File, Tab 6 at 4. On September 15, 2015, 

the agency mailed a copy of its response to the appellant’s new address, id. at 5, and, on 
6

exhaustive as to the underlying[] controlling issues in the original complaint” and 

requests that the Board “exercise fairness and justice in responding to this request 

for review.” PFR File, Tab 1 at 1. The agency responds that the administrative 

judge correctly dismissed the appeal for lack of jurisdiction because the appellant 

failed to show that his resignation was involuntary. PFR File, Tab 4. In his 

reply, the appellant again challenges the selection process for the GS-10 Medical 

Technologist position and argues that the agency forced him to cover two 

positions on four dates in August and September 2014, which made his working 

conditions intolerable.

6 See PFR File, Tab 8 at 2-4. The appellant further argues 

that the administrative judge failed to rule on his motion to compel discovery. 7

 

Id. at 2-3. 

 

September 18, 2015, the appellant mailed his reply to the agency’s response, PFR File, 

Tab 8. Under the unique circumstances present here, we have considered the 

appellant’s reply to the agency’s response to his petition for review. 

6 The appellant also has submitted evidence with his reply concerning the selection 

process for the GS-10 Medical Technologist position and work schedules for August 

and September 2014, some of which appears to have been submitted for the first time 

on review. PFR File, Tab 8 at 4, 6-18. Under 5 C.F.R. § 1201.115, however, the Board 

generally will not consider evidence submitted for the first time with the petition for 

review absent a showing that it was unavailable before the record was closed despite the 

party’s due diligence. Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980). 

Although the appellant has not done so here, we have considered his submissions and 

find that they do not change the outcome of this appeal. 

7 The administrative judge did not rule on the appellant’s June 22, 2015 motion to

compel. IAF, Tab 10. However, because the appellant’s motion to compel did not 

comply with the requirements of our regulations, the administrative judge’s failure to 

rule on the motion was not prejudicial to the appellant’s rights. See Johnson v. 

Department of Justice, 104 M.S.P.R. 624, ¶ 30 (2007). Specifically, the appellant 

did not file the motion to compel within 10 days after the agency’s time to respond to 

discovery expired, he failed to provide either an affidavit or sworn statement in support 

of his claim that he did not receive any discovery responses from the agency or a 

statement indicating that he attempted in good faith to resolve this discovery dispute 

with the agency, and he did not state how the information contained in the discovery 

sought was relevant and material. See IAF, Tab 10; 5 C.F.R. § 1201.73(c)(1)(ii)-(iii), 

(c)(2), (d)(3). Thus, the administrative judge’s failure to rule on the motion to compel 

provides no basis to reverse the initial decision. See Panter v. Department of the 

Air Force, 22 M.S.P.R. 281, 282 (1984). 
7

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

to resign or retire, which is presumed to be a voluntary act. Brown v. U.S. Postal 

Service, 115 M.S.P.R. 609, ¶ 9, aff’d, 469 F. App’x 852 (Fed Cir. 2011), cert. 

denied, 133 S. Ct. 414 (2012). However, if an agency essentially coerced the 

employee’s decision in a manner that deprived him freedom of choice, the Board 

will take jurisdiction over the matter as a constructive removal. Id. “The 

doctrine of coercive involuntariness ‘is a narrow one’ requiring that the employee 

‘satisfy a demanding legal standard.’ An employee’s dissatisfaction with the 

options that an agency has made available to him is not sufficient to render his

decision to resign or retire involuntary.” Conforto v. Merit Systems Protection 

Board, 713 F.3d 1111, 1121 (Fed. Cir. 2013) (quoting Staats v. U.S. Postal 

Service, 99 F.3d 1120, 1124 (Fed. Cir. 1996)). Where, as here, the appellant 

claims that the agency coerced his resignation by creating intolerable working 

conditions, the issue is whether, considering the totality of the circumstances, his 

working conditions were made so difficult that a reasonable person in his position 

would have felt compelled to resign or retire. Vitale v. Department of Veterans 

Affairs, 107 M.S.P.R. 501, ¶¶ 19-20 (2007). In making this determination, the 

Board will consider allegations of discrimination and reprisal only insofar as they 

relate to the issue of voluntariness and not whether they would establish 

discrimination or reprisal as an affirmative defense. Id., ¶ 20. 

¶9 The appellant bears the burden of proving by preponderant evidence that the 

matter he is appealing is within the Board’s authority to review. Brown, 

115 M.S.P.R. 609, ¶ 11; 5 C.F.R. § 1201.56(b)(2)(i)(A). If the appellant makes a 

nonfrivolous allegation that the matter is within the Board’s jurisdiction, he is 

entitled to a hearing at which he must prove jurisdiction. Brown, 115 M.S.P.R. 

609, ¶ 11. A nonfrivolous allegation in this context is an allegation of fact that, if 

proven, could establish that the agency coerced the appellant’s resignation. Id. 

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

judge that the appellant failed to nonfrivolously allege that his resignation was 
8

involuntary because of intolerable working conditions. The appellant argued 

below that the alleged incidents of harassment and discrimination between 

July 2013, and September 2014, rendered his working conditions so intolerable 

that he was forced to resign. See IAF, Tab 4. As discussed above, the specific 

incidents the appellant raised include several purportedly rude and/or false 

remarks by his supervisor, denials of training opportunities, mandatory meetings 

scheduled when the appellant was off duty, unfair scrutiny of his request for 

compensation, an assistant’s failure to help with assigned duties for several 

months, and 3 or 4 days where the appellant was responsible for the duties of two 

positions. See IAF, Tab 4 at 4, 26-27; see also PFR File, Tab 8 at 2-4, 8-9. It is 

well settled, however, that an employee is not guaranteed a stress-free working 

environment and dissatisfaction with work assignments, a feeling of being 

unfairly criticized, or difficult or unpleasant working conditions generally are not 

so intolerable as to compel a reasonable person to resign. Miller v. Department of 

Defense, 85 M.S.P.R. 310, ¶ 32 (2000). None of the alleged agency actions, even 

if true, would compel a reasonable person to resign. Rather, the appellant has 

merely described an unpleasant and inconvenient working environment. 

¶11 The appellant also asserted that his supervisor threatened him with AWOL 

if he did not return to work several days after suffering from a stroke. IAF, Tab 4

at 4, 27. There is no evidence that the appellant was ever charged with AWOL 

and, even if he was, he clearly had the choice of contesting the AWOL charge

rather than resigning. As such, even if unwarranted, the supervisor’s threat of 

charging the appellant with being AWOL did not render the appellant’s 

resignation involuntary. See Garcia v. Department of Homeland Security, 

437 F.3d 1322, 1329 (Fed. Cir. 2006) (en banc) (explaining that a resignation 

is not involuntary if the employee had a choice of whether to resign or contest the 

validity of the agency action) (quoting Christie v. United States, 518 F.2d 584, 

587 (Cl. Ct. 1975)). Similarly, the appellant challenged below the agency’s 

decision to issue him a letter of counseling. IAF, Tab 4 at 27. Even if 
9

unjustified, however, the letter of counseling was not coercive and did not render 

his resignation involuntary because the appellant could have chosen to contest it 

through the proper channels rather than resigning. See Garcia, 437 F.3d at 1329. 

¶12 Lastly, the appellant alleged that the agency’s decision not to select him for 

the GS-10 Medical Technologist position contributed to the hostile work 

environment. IAF, Tab 4 at 27; see PFR File, Tab 8 at 2-3. However, the

doctrine of coerced involuntariness does not apply where the employee resigns 

because he does not like agency decisions “that the agency is authorized to adopt, 

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

feels that he has no realistic option but to leave.” Conforto, 713 F.3d at 1121-22 

(quoting Staats, 99 F.3d at 1124). Rather, the appellant must demonstrate that the 

coercion is “the result of improper acts by the agency.” Id. Here, the agency’s 

decision not to select the appellant for the GS-10 Medical Technologist position 

was well within its authority, and the appellant has not nonfrivolously alleged

that his nonselection resulted from improper acts by the agency. See Staats,

99 F.3d at 1124. Further, he has not shown how a nonselection for a promotion

rendered his working conditions so intolerable that a reasonable person in his

position would be compelled to resign. 

¶13 Considering the totality of the circumstances, we agree with the 

administrative judge that the appellant has failed to nonfrivolously allege that the 

agency created working conditions so intolerable that a reasonable person in his

position would have felt compelled to resign. Even assuming some or all of the 

agency’s actions were wrong, unfair, or unlawful, as the appellant claims, he 

has not alleged circumstances that could have effectively denied him a 

meaningful choice to resign, which is a requisite element of a forced resignation 

within the Board’s adverse action jurisdiction under 5 U.S.C. chapter 75. See 

Bean v. U.S. Postal Service, 120 M.S.P.R. 397, ¶ 8 (2013). Accordingly, we find 

that the appellant has failed to nonfrivolously allege that his resignation was 
10

involuntary, and the administrative judge properly dismissed the appeal for lack 

of jurisdiction without holding a hearing. 

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision by the

United States 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

United States Court of Appeals for the Federal Circuit, you may visit our website 

at http://www.mspb.gov/probono for information regarding pro bono 
11

representation 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.

______________________________

William D. Spencer

Clerk of the Board