UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

RICHARD C. BARTEL,

Appellant,

v.

DEPARTMENT OF THE AIR FORCE,

Agency.

DOCKET NUMBER

DC-1221-14-0748-B-1

DATE: December 12, 2016

THIS FINAL ORDER IS NONPRECEDENTIAL1

Richard C. Bartel, Arlington, Virginia, pro se.

Erin Lai, Joint Base Andrews, Maryland, 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 remand initial decision, 

which denied his request for corrective action in connection with his individual 

right of action (IRA) appeal. Generally, we grant petitions such as this one only 

in the following circumstances: the initial decision contains erroneous findings 

of material fact; the initial decision is based on an erroneous interpretation of 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

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. 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 remand initial 

decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). 

¶2 At all times relevant to this appeal, the appellant held the permanent 

position of Air Safety Investigator for the Department of the Air Force (the 

agency), at Kirtland Air Force Base in New Mexico. Bartel v. Department of the 

Air Force, MSPB Docket No. DC-1221-14-0748-W-1, Initial Appeal File (IAF), 

Tab 11 at 12, 21-22. In January 2012, the Department of Defense’s (DOD’s) 

Civilian Expeditionary Workforce selected him for a 12-month assignment to the 

position of Aviation Safety Manager in Afghanistan. Id. at 35. 

¶3 The appellant deployed to the Afghanistan assignment in February 2012. 

Id. at 97. Just 3 months into his 12-month assignment, the agency returned the 

appellant to his permanent position at Kirtland. Id. at 21, 97. The appellant then 

retired from his position with the agency, effective July 2012. Id. at 12.

¶4 In the instant IRA appeal, the appellant alleged that he was subjected to 

whistleblower retaliation. IAF, Tab 1. His alleged disclosures included one 

pertaining to maintenance problems with Osprey military aircraft and another 

pertaining to fraudulent overtime reporting of certain employees in Afghanistan. 

IAF, Tab 1 at 5, Tab 24 at 8, 25. According to the appellant, these disclosures led 

to the premature termination of his deployment to Afghanistan and his 

involuntary retirement. IAF, Tab 1 at 5.
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¶5 After holding the requested hearing, the administrative denied the 

appellant’s request for corrective action. IAF, Tab 50, Initial Decision (ID). In 

doing so, he addressed only the cancellation of the temporary assignment in 

Afghanistan, without addressing the alleged involuntary retirement. ID at 7-10. 

¶6 On review, we affirmed the administrative judge’s findings concerning the 

cancellation of the temporary assignment. Bartel v. Department of the Air Force, 

MSPB Docket No. DC-1221-14-0748-W-1, Remand Order (Remand Order), 

¶¶ 10-16 (Nov. 12, 2015). However, because the administrative judge failed to 

address the alleged involuntary retirement, we remanded that matter for further 

adjudication. Remand Order, ¶¶ 17-19. We instructed the administrative judge to 

provide the parties with an opportunity to submit evidence and argument 

regarding the alleged constructive discharge and hold a supplemental hearing on 

that issue, if necessary. Remand Order, ¶ 18. 

¶7 Pursuant to our remand order, the administrative judge ordered the appellant 

to present argument and evidence that his retirement was involuntary. Bartel v. 

Department of the Air Force, MSPB Docket No. DC‐1221‐14‐0748‐B‐1,

Remand File (RF), Tab 2. The appellant responded, alleging that he was coerced. 

RF, Tabs 3-4. Without holding a hearing, the administrative judge issued a 

decision finding that the appellant failed to prove, or even nonfrivolously allege, 

that the agency created working conditions so intolerable that a reasonable person 

in his position would have felt compelled to retire. RF, Tab 5, Remand Initial 

Decision (RID) at 3-6. The appellant has filed a petition for review. Remand 

Petition for Review (RPFR) File, Tab 1. The agency has not filed a response.

¶8 In his petition for review of the remand initial decision, the appellant first 

argues that the administrative judge should have referred his involuntary 

retirement claim to the Office of Special Counsel (OSC). Id. at 3. He also asserts 

that the administrative judge should have held an evidentiary hearing after doing 

so. Id. We find no merit to these arguments. 
4

¶9 We first note that the appellant did not request that the Board refer his 

involuntary retirement claim back to OSC, nor did he identify any basis or 

requirement for the Board to do so. RF, Tabs 3-4. Moreover, the record 

demonstrates that OSC already has addressed the matter. IAF, Tab 9 at 7-8. 

Therefore, we disagree with his assertion that the administrative judge should 

have referred his claim back to OSC. We next note that our instructions to the 

administrative judge provided that he should hold a supplemental hearing, only if 

necessary. Remand Order, ¶ 18. After reviewing the record, we agree with the 

administrative judge’s determination that it was not necessary. RID at 3 -5. 

¶10 In an IRA appeal such as this, an appellant bears the burden of establishing 

a prima facie case of whistleblower retaliation. Lu v. Department of Homeland 

Security, 122 M.S.P.R. 335, ¶ 7 (2015). To meet that burden, an appellant must 

prove, by preponderant evidence, that he made a protected disclosure and that the 

disclosure was a contributing factor in a personnel action taken against him. 

5 U.S.C. § 1221(e)(1); Lu, 122 M.S.P.R. 335, ¶ 7. If an appellant does so, the 

agency is then given an opportunity to prove, by clear and convincing evidence, 

that it would have taken the same personnel action in the absence of the protected 

disclosure. 5 U.S.C. § 1221(e)(1)-(2); Lu, 122 M.S.P.R. 335, ¶ 7.

¶11 Although a decision to resign or retire is presumed to be voluntary and 

outside the Board’s jurisdiction, Putnam v. Department of Homeland Security, 

121 M.S.P.R. 532, ¶ 21 (2014), an involuntary resignation or retirement may 

constitute an appealable personnel action in an IRA appeal, Colbert v. 

Department of Veterans Affairs, 121 M.S.P.R. 677, ¶ 12 (2014). An appellant 

who claims that his retirement was involuntary may rebut the presumption of 

voluntariness in a variety of ways, including by showing that the retirement was 

the result of objectively intolerable working conditions resulting from improper 

acts of the agency. Conforto v. Merit Systems Protection Board, 

713 F.3d 1111, 1121 (Fed. Cir. 2013). 
5

¶12 As our reviewing court has observed, “[t]he doctrine of coercive 

involuntariness is a narrow one, requiring that the employee satisfy a demanding 

legal standard.” Id. “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.” Id. Accordingly, “coerced involuntariness does not apply 

if the employee resigns or retires because he does not like agency decisions such 

as a new assignment, a transfer, or other measures that the agency is authorized to 

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

he feels he has no realistic option but to leave.” Id. at 1121-22. 

¶13 The administrative judge instructed the appellant that he would be entitled 

to a hearing if he presented nonfrivolous allegations that his retirement was 

involuntary. RF, Tab 2 at 2; see generally SanSoucie v. Department of 

Agriculture, 116 M.S.P.R. 149, ¶ 16 (2011) (recognizing that, in the context of an 

adverse action appeal, an appellant is only entitled to a jurisdictional hearing over 

an alleged involuntary retirement if she makes a nonfrivolous allegation casting 

doubt on the presumption of voluntariness); 5 C.F.R. § 1201.4(s) (defining a 

nonfrivolous allegation as “an assertion that, if proven, could establish the matter 

at issue”). The appellant responded by alleging that he was forced to retire after 

returning from Afghanistan because his working conditions were oppressive. RF, 

Tab 3 at 3. He asserted that he was assigned only one class to teach, with no 

other prospects, and he “was essentially seated at [his] desk reading books and 

reports.”2 Id. 

¶14 We agree with the administrative judge’s conclusion that these allegations, 

even if true, do not meet the requisite standard. RID at 3-5. The appellant’s 

allegations reflect his own dissatisfaction with his assignment, but they are not 

nonfrivolous allegations of improper acts that would result in a reasonable person 

 

2 With his limited argument, the appellant presented a number of documents. RF, Tab 3 

at 5-78. However, it is not apparent how any relate to the pertinent issue—whether his 

retirement was involuntary. 
6

feeling compelled to retire. Compare Lawson v. U.S. Postal Service, 

68 M.S.P.R. 345, 350 (1995) (finding that an appellant failed to present 

nonfrivolous allegations of involuntariness on the basis of coercion when he 

retired rather than accept a new assignment with which he was dissatisfied), with 

Swinford v. Department of Transportation, 107 M.S.P.R. 433, ¶ 15 (2007) 

(finding that an appellant was entitled to a jurisdictional hearing based upon an 

allegation that he retired only after his supervisor threatened to abolish his job, 

threatened to make things difficult if he did not retire, placed him on a 

performance improvement plan 2 weeks after becoming eligible for retirement, 

and denied his requested sick leave); Bates v. Department of Justice, 

70 M.S.P.R. 659, 670-72 (1996) (finding that an employee was effectively 

coerced into resigning by years of continuous and unredressed harassment which 

escalated to a level of endangering her safety). Because the appellant failed to 

present nonfrivolous allegations, we find no merit to his assertion that the 

administrative judge should have held a hearing to further address his alleged 

involuntary retirement.

¶15 The appellant’s remaining arguments are similarly unavailing. To the 

extent that he suggests that the administrative judge should have coordinated 

discovery during the remand proceedings, RPFR File, Tab 1 at 5, we disagree. 

The administrative judge provided the appellant an opportunity to engage in 

discovery during the prior proceedings, without any limitations that would have 

prevented him from discovering materials related to his alleged involuntary 

retirement. IAF, Tab 2 at 3-4. In addition, the appellant submitted his remand 

arguments and evidence without any indication that additional discovery, beyond 

that which had previously occurred, was necessary. RF, Tabs 3-4. Moreover, in 

his petition for review, the appellant has failed to identify any information he 

would have sought if discovery had occurred during the remand proceedings. 

RPFR File, Tab 1 at 5. 
7

¶16 The appellant notes that the agency did not file any argument or evidence 

during the remand proceedings. Id. at 3. He also summarily asserts that 

testimony provided during the original proceedings supports his claim that the 

agency would not have taken any action absent his whistleblowing. Id. at 4. 

However, as detailed above, it was the appellant’s burden to present a prima facie 

case of whistleblower reprisal, including proof that his retirement was involuntary 

and constituted a personnel action. Lu, 122 M.S.P.R. 335, ¶ 7; Colbert, 

121 M.S.P.R. 677, ¶ 12. Because he failed to do so, the burden did not shift to 

the agency and the agency was not required to present any argument or evidence. 

Accordingly, we affirm the administrative judge’s remand initial decision, 

denying the appellant’s request for corrective action. 

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

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

Court of Appeals for the Federal Circuit.

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 want to request review of the Board’s decision concerning your 

claims of prohibited personnel practices under 5 U.S.C. § 2302(b)(8), 

(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge 

the Board’s disposition of any other claims of prohibited personnel practices, you 

may request review of this final decision by the U.S. Court of Appeals for the 

Federal Circuit or any court of appeals of competent jurisdiction. The court of 

appeals must receive your petition for review within 60 days after the date of this 

order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If you choose 
8

to file, be very careful to file on time. You may choose to request review of the 

Board’s decision in the U.S. Court of Appeals for the Federal Circuit or any other 

court of appeals of competent jurisdiction, but not both. Once you choose to seek 

review in one court of appeals, you may be precluded from seeking review in any 

other court.

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 and other sections of the United States 

Code, at our website, http://www.mspb.gov/appeals/uscode.htm. Additional 

information about the U.S. Court of Appeals for the Federal Circuit 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. Additional information 

about other courts of appeals can be found at their respective websites, which can 

be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

If you are interested in securing pro bono representation for an appeal to 

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at 

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

for Merit Systems Protection Board appellants before the Federal Circuit. The
9

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.

______________________________

Jennifer Everling

Acting Clerk of the Board