NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

DONNA J. DEEM,

Petitioner,

v.

MERIT SYSTEMS PROTECTION BOARD,

Respondent.

______________________ 

2014-3037

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. SF0752120777-I-1.

______________________ 

Decided: July 17, 2014

______________________ 

DONNA J. DEEM, of San Francisco, California, pro se. 

LINDSEY SCHRECKENGOST, Attorney, Office of the 

General Counsel, Merit Systems Protection Board, of 

Washington, DC, for respondent. With her on the brief 

was BRYAN G. POLISUK, General Counsel. 

______________________ 

Before PROST, Chief Judge, SCHALL and HUGHES, Circuit 

Judges.
2 DEEM v. MSPB

PER CURIAM. 

Donna J. Deem appeals from a final order of the Merit 

Systems Protection Board (“Board”) denying her petition 

for review of the Board’s January 7, 2013 initial decision 

dismissing her involuntary resignation claim for lack of 

jurisdiction. Deem v. Dep’t of Homeland Sec., No. 

SF0752120777-I-1 (M.S.P.B. Sept. 26, 2013) (“Final 

Order”). For the reasons that follow, we affirm.

BACKGROUND

Ms. Deem was previously employed as a Program 

Services Assistant in the Mission Support Division in the 

Federal Emergency Management Agency’s (“FEMA”) 

Region IX office. While employed in the Mission Support 

Division, Ms. Deem’s supervisor was Debbie Lewis. 

Resp’t App. 10. Ms. Deem claims that she was harassed, 

humiliated, and demeaned for over twelve years by Ms. 

Lewis. Resp’t App. 54.

From January 11 to 15, 2010, Ms. Deem was placed in 

absence without leave status (“AWOL”) for failure to 

submit medical documents to support her absence. Ms. 

Deem had called Ms. Lewis on the first day of her absence 

and submitted a doctor’s note on the second day. Eventually, the status was converted to paid leave after a discussion with Ms. Deem’s doctor. On February 10, 2010, Ms. 

Deem filed a formal complaint with the agency’s Equal 

Employment Opportunity (“EEO”) Counselor, alleging a 

hostile work environment and discrimination based on 

age, mental disability, and prior EEO activity based on 

having been placed on AWOL status. In her complaint 

she stated that “because of my illnesses and the way 

others react around me, I feel that it is almost impossible 

for me to continue working in the Region. I feel I’m being 

forced into retirement.” Resp’t App. 55.

That same month, after filing her EEO complaint, Ms. 

Deem agreed to transfer to a different division, the 
DEEM v. MSPB 3

Grants Division of Region IX, where Ms. Lewis would no 

longer be her supervisor. Resp’t App. 11. Ten months 

later, on December 31, 2010, Ms. Deem retired. On 

August 16, 2012, the agency issued a final decision on her 

EEO complaint, concluding that she had not established 

the claimed discrimination.

On September 10, 2012, Ms. Deem filed an appeal 

with the Board alleging that her retirement was involuntary. The administrative judge issued an order informing 

Ms. Deem that the Board might not have jurisdiction over 

her appeal because her retirement was presumed voluntary and that she bore the burden of proof to show otherwise. In response to this order, Ms. Deem submitted a 

statement from a former coworker that included allegations and examples of Ms. Lewis’s disparate treatment of 

Ms. Deem. 

On January 7, 2013, the administrative judge concluded that Ms. Deem had failed to make a nonfrivolous 

allegation in support of the Board’s jurisdiction. Deem v. 

Dep’t of Homeland Sec., No. SF0752120777-I-1 (M.S.P.B. 

Jan. 7, 2013) (“Initial Decision”). The administrative 

judge found that a reasonable person in her position 

would not have felt compelled to resign based on her work 

conditions. Id. at 5-6. She also found that Ms. Deem 

initiated her retirement ten months after she transferred 

to a different division and was no longer supervised by 

Ms. Lewis, which indicated the retirement was not due to 

Ms. Lewis’s behavior during the time she was Ms. Deem’s 

supervisor. Id. at 6. Ultimately, the administrative judge 

concluded that the Board lacked jurisdiction over Ms. 

Deem’s appeal. Id.

Ms. Deem filed a petition for review of that decision 

with the Board and claimed that she had to retire because 

Ms. Lewis was determined to either make her “so sick 

[she] would die or force [her] into retirement.” Resp’t 

App. 31. On September 26, 2013, the Board affirmed the 
4 DEEM v. MSPB

administrative judge’s decision and denied the petition for 

review. Final Order at 2. The Board also concluded that 

Ms. Deem did not prove that her working conditions 

during the ten months were so intolerable that a reasonable person in her position would have felt compelled to 

retire. Id. at 5.

Ms. Deem timely appealed the Board’s final order. 

We have jurisdiction under 28 U.S.C. § 1295(a)(9).

DISCUSSION

Our review of Board decisions is limited by statute. 

Under 5 U.S.C. § 7703(c), we may only reverse a Board 

decision if we find the decision to be: (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required 

by law; or (3) unsupported by substantial evidence. Ward 

v. U.S. Postal Serv., 634 F.3d 1274, 1278 (Fed. Cir. 2011). 

“The [Board’s] determination that it lacked jurisdiction is 

a question of law that the court reviews de novo.” Bennett 

v. Merit Sys. Prot. Bd., 635 F.3d 1215, 1218 (Fed. Cir. 

2011) (citing Forest v. Merit Sys. Prot. Bd., 47 F.3d 409, 

410 (Fed. Cir. 1995)). “Before the Board, an appellant 

bears the burden of establishing board jurisdiction.” 

Fields v. Dep’t of Justice, 452 F.3d 1297, 1302 (Fed. Cir. 

2006).

An employee-initiated resignation or retirement is 

presumed to be voluntary and therefore outside of the 

Board’s jurisdiction. Garcia v. Dep’t of Homeland Sec., 

437 F.3d 1322, 1329 (Fed. Cir. 2006) (en banc); 5 C.F.R. 

§ 752.401(b)(9). The burden is on the appellant to present 

sufficient evidence to overcome this presumption. Garcia,

437 F.3d at 1329. To establish involuntariness by coercion an employee must show: “(1) the agency effectively 

imposed the terms of the employee’s resignation or retirement; (2) the employee had no realistic alternative but 

to resign or retire; and (3) the employee’s resignation or 

retirement was the result of improper acts by the agency.” 
DEEM v. MSPB 5

Shoaf v. Dep’t of Agric., 260 F.3d 1336, 1341 (Fed. Cir. 

2001). The test is objective rather than subjective. Id. at 

1342. The employee must establish that a reasonable 

person confronted with the same circumstances would 

have felt forced to retire. Id.

Ms. Deem first argues that the Board erred by failing 

to take into account that she suffers from severe depression and post-traumatic stress disorder and the impact of 

the alleged hostile workplace on these already present 

medical conditions. We disagree. The Board first noted 

that the agency transferred Ms. Deem out of Ms. Lewis’s 

supervision in February 2010 to address precisely those 

complaints. Final Order at 4. Moreover, the Board then 

considered Ms. Deem’s working conditions after the 

transfer and—based on the record as a whole—concluded 

that she simply had not alleged “any facts to show that 

her working conditions between February and December 

2010 were so intolerable such that a reasonable person in 

her position would have felt compelled to retire.” Final 

Order at 5. For example, before the Board, Ms. Deem 

argued that she had difficulty learning the duties of her 

new position because of her stress. Resp’t App. 30. 

However, as the Board noted, dissatisfaction with work 

assignments and difficult working conditions do not 

generally give rise to a claim of involuntary resignation. 

See Final Order at 5 (citing Miller v. Dep’t of Defense, 85 

M.S.P.R. 310 ¶ 32 (2000)). 

Moreover, in reaching its determination, the Board 

gave particular weight to the fact that Ms. Deem had 

stayed in the new position for a full ten months after her 

transfer. Id. Indeed, we have previously noted that the 

amount of time between the employer’s alleged behavior 

and the employee’s retirement is highly probative as to 

whether an employee’s retirement is involuntary. Terban

v. Dep’t of Energy, 216 F.3d 1021, 1024 (Fed. Cir. 2000). 

In one case, the time period between the final incident 

and the appellant’s retirement was three weeks and the 
6 DEEM v. MSPB

court found this time period short enough to indicate 

involuntariness. Bates v. Dep’t of Justice, 70 M.S.P.R. 

659, 668 (1996). In contrast, a long period of time between the actions and the employee’s retirement diminishes the causal link between the two events. Terban, 216 

F.3d at 1024. The Board was therefore correct to note 

that the ten month time period in Ms. Deem’s case diminishes the idea that her retirement was due to Ms. Lewis’s 

behavior prior to the February 2010 transfer. 

Ms. Deem’s second argument is that the Board did not 

consider the indirect contact she had with Ms. Lewis in 

her new position during the ten months and therefore 

that the transfer did not improve her work conditions. 

Specifically, Ms. Deem states that after her transfer she 

was: (1) frequently called by Ms. Lewis’s subordinates, (2) 

subjected to Ms. Lewis trying to create problems with her

new supervisor, and (3) constantly sent to HR, where Ms. 

Lewis worked. See Pet’r Informal Br., question 4. Ms. 

Deem also submitted a letter from her doctor, Dr. Hasser, 

stating that Ms. Deem continued to have significant 

impairment in mental health symptoms after her transfer. See id., attachments. 

As an initial matter, Ms. Deem did not raise this argument before the Board and so it is waived. Henry v. 

Dep’t of the Navy, 902 F.2d 949, 953 (Fed. Cir. 1990). But 

regardless, these allegations are insufficient to establish 

the Board’s jurisdiction. The Board found that the agency 

initiated and Ms. Deem accepted a transfer to a position 

that no longer required her to work under Ms. Lewis’s 

supervision a full ten months prior to her retirement. 

Final Order at 5. We conclude that in light of the fact 

that the agency successfully transferred Ms. Deem to a 

new situation where she had little, if any, contact with 

Ms. Lewis, the Board did not err in finding that the 

Government had provided an adequate solution to Ms. 

Lewis’s disparate treatment of Ms. Deem.
DEEM v. MSPB 7

We find no reason to conclude that the Board’s findings were unsupported by substantial evidence or were 

not in accordance with law.

CONCLUSION

For the foregoing reasons, we conclude that the Board 

correctly denied Ms. Deem’s petition for review and 

affirmed the dismissal of her appeal for lack of jurisdiction. Accordingly, we affirm.

AFFIRMED

COSTS

Each party shall bear its own costs.