N OTE : This disposition is nonprecedential. 

# United States Court of Appeals **for the Federal Circuit**

______________________ ROSETTA R. BROWNE, Petitioner

v.

MERIT SYSTEMS PROTEC TION BOARD, Respondent

______________________

2015

- 3136

______________________ Petition for review of the Merit Systems Protection Board in No. AT

- 0752

- 13

- 7373 -I- 1.

______________________

Decided: December 21, 2015

______________________

R OSETTA R. B ROWNE , Buford, GA, pro se.

S TEPHEN F UNG , Office of the General Counsel, Merit Systems Protection Board, Washington, DC, for respon dent. Also represented by B RYAN G. P OLISUK

.

______________________

Before N EWMAN , P LAGER , and R EYNA , Circuit Judges.BROWNE v. MSPB 2

N EWMAN , Circuit Judge.

Rosetta Browne asks this court to reverse the Merit Systems Protection Board’s dismissal of the appeal of her alleged involuntary retirement. 1 Having considered the arguments and the trial proceedings, and particularly the issues of credibi lity raised by Ms. Browne, we affirm the Board’s decision

. B ACKGROUND Ms. Browne was employed as a Supervisory Associate Advocate in Taxpayer Advocate Services with in the Internal Revenue Service

. In January 2011 workplace issues arose between Ms. Browne and her secretary Denise McGrain, and each made multiple complaints to management. These issues escalated, culminating in an altercation wherein Ms. McGrain allegedly threw a 3

- ring binder at Ms. Browne

. Ms. Browne reported the incident to the Treasury Inspector General for Tax Administration. Ms. Browne describes various actions by her first -level and second- level supervisor s , and states that she conti nued to experience a hostile work environment, causing her
to r etire , effective January 3, 2013

. Ms. Browne filed an appeal with the MSPB, stating that her retirement was involuntary and therefore a constructive removal . Her allegations included that her supervisors and an EEO director suggested that she resign ; that her telework was forced ; that her alternative detail was comprised of light clerical work lacking su bstance ; that she overheard her supervisor laugh ing in a derisive fashion when speaking about her behind closed doors ; that she was not given any “col legiality or courtesy”

1 Br owne v. Dep’t of the Treasury, MSPB Docket No. AT

- 0752

- 13

- 7373 -I- 1 (Initial Decision, August 10, 2014; Final Order, March 4, 2015).BROWNE v. MSPB 3

during her detail ; and that she was informed she was to be permanently reassigned to an analyst position.

T he AJ conducted a hearing , at which Ms. Browne testified and the Agency presented witnesses. The AJ found that, even if Ms. B rowne’s allegations were all true, they did not establish by a preponderance of the evidence that the A gency’s action s made working conditions so unpleasant that a reasonable person in her position would have felt compelled to retire or resign. Applying t he standards established by precedent, the AJ found that Ms. Browne’s retirement was voluntary

. Ms

. Browne filed a petition for review with the Board, stating that the AJ made incorrect findings of fact and drew incorrect conclusions of law based on those findings. Ms. Browne stated that the AJ improperly rejected some of Browne’s requested witnesses

, and that the AJ had failed to consider her mental condition, allegations of discrimination, and allegations of whis tleblower reprisal.

The full Board affirmed the AJ ’ s finding s, and adop ted the AJ’s decision

. The Board found no error in the AJ’s exclusion of certain witnesses. This appeal followed.

D ISCUSSION Although Ms. Browne had made allegations of di scrimination, the MSPB’s decision was on the ground that her retirement was voluntary , so we have jurisdiction

. See Conforto v. Merit Sys. Prot. Bd. , 713 F.3d 1111, 1120

– 21 (Fed. Cir. 2013) (“[T]he plain language of section 7702(a)(1) dictates that when the Board dismisses a purported mixed case appeal for lack of jurisdiction, any appeal from that decision is to this court.”)

. A voluntary action is not an appealable action

. Ga rcia v. Dep ’t of Homeland Sec. , 437 F.3d 1322, 132 8– 29 (Fed. Cir. 2006) (en banc). Thus the threshold question is whether Ms. Browne’s retirement was taken under such extreme conditions as to be deemed involuntary

. Shoaf v.BROWNE v. MSPB 4

Dep’ t of Agric. , 260 F.3d 1336, 134 0–4 1 (Fe d. Cir. 2001). If the employee makes a nonfrivolous allegation of invo luntary retirement or resignation, she is entitled to a hearing at which she must prove

, by a preponderance of the evidence , that the retirement or resignation was not voluntary, and th us is tantamount to an adverse action. Shoaf , 260 F.3d at 1341.
Involuntary action may be manifested in a variety of

ways. Applied to Ms. Browne , a retirement or resignation may be shown to be involuntary when the agency “creat[ed] working conditions so intolerable for the e mployee that he or she is driven to involuntarily resign or retire.” Shoaf , 260 F.3d at 1341; Staats v. U.S. Postal Serv. , 99 F.3d 1120, 1123 (Fed. Cir. 1996); Christie v. United States , 518 F.2d 584, 587 (Ct. C l. 1975). This
court has adopted the so

- called “ Fruhauf test ” for esta blishing coercion by an agency:

To establish involuntariness on the basis of coe rcion this court requires an employee to show: (1) the agency effectively imposed the terms of the employee’ s resignation or retirement; (2) the e mployee had no realistic alternative but to resign or retire; and (3) the employee ’ s resignation or r etirement was the result of improper acts by the

agency. Shoaf , 260 F.3d at 1341; see Fruhauf Sw. Garment Co. v. United States , 111 F. Supp. 945, 951 (Ct. Cl. 1953). In evaluating involuntariness, the pr oper test is “an obje ctive one,” Christie , 518 F.2d at 587, that “ consider[s] the totality of the cir cumstances,” Shoaf , 260 F.3d at 1342. The e m ployee must “ establish that a reasonable employee confronted with the same circumstances wou ld feel c oerced into resigning.” Middleton v. Dep’t of Defense , 185 F.3d 1374, 1379 (Fed. Cir. 1999); see also Shoaf , 260 F.3d at 1342. P recedent emphasizes that freedom of choice is a central issue. As explained in Staats

,BROWNE v. MSPB 5

[coercive involuntariness] does not apply to a case in which an employee decides to resign or retire because he does not want to accept a new assig nment, a transfer, or other measures tha t the age ncy is authorized to adopt, even if those measures make continuation in the job so unpleasant for the employee that he feels that he has no realistic o ption but to leave. As this court has explained, the fact that an employee is faced with an unp leasant situation or that his choice is limited to two una ttractive options does not make the employee's d ecision any less voluntary.

99 F.3d at 1124.

Precedent es tablishes that “ the doctrine of coercive involuntariness is a narrow one” requiring that the e mployee “ sati sfy a demanding legal standard.” Id . Thus,

“ employee resignations are presumed to be voluntary [and] this presumption will prevail unless plaintiff comes forward with sufficient evidence to establish that the resignati on was involuntarily e xtracted.” Christie , 518 F.2d at 587. Ms. Browne urges that the MSPB incorrectly decided or failed to take into account various facts, a pplied the wrong law, and failed to consider important grounds for relief.

T he Board’s factual determinations are sustained if they are supported by substantial evidence. 5 U.S.C. § 7703(c)(3). “As a reviewing court, it is not our duty to

ma ke factual determinations by reweighing the evidence or reevaluating witness testimony, but only to review the record a n d d etermine whether

, in the absence of legal error, the Board’s decision is supported by substantial evidence.” Olson v. Dep’t of Labor

, 6 0 F. App ’ x 818, 821 (Fed. Cir. 2003 ). I t is “necessary for the court to ‘canvas’ the entire record, because ‘ [t]h e subs tantiality of evidence must take into account whatever in the record fairly detracts from its weight.’” Spurlock v. Dep’t of Justice

,BROWNE v. MSPB 6

894 F.2d 1328 , 13 30 (Fed. Cir 1990) ( quoting Universal Camera Corp. v. Nat’l Labor Relations Bd. , 340 U.S. 474, 488 (1951 )).

W e have considered the arguments and reviewed the record , including the recorded proceedings conducted by the AJ. Although Ms. Browne states that almost all of the Agency’s witnesses “lied about everything” to protect their

careers or reputations

, the AJ found the witnesses to be credible.

Ms. Browne attributes to the AJ both b ias and ina ppropriate comments and actions . Our review of the recorded proceedings did not uncover bias or inappropr iate comment s by the AJ, and Ms. Browne has not ident ified any specific objectionable act or comment. It appears that the Agency ’s attor ney made inappropriate off

- the

record comments that were inadvertently captured on the recording ; however, these comments do not overcome the substantial evidence in support of the AJ’s decision

. Ms. Browne also criticize s her own attorney. For e xample, she alleges that the exclusion of certain Appellant witnesses was not objected to at the appropriate time, nor were claims of constructive demotion or suspension i ncluded in the initial statement to the MSPB. However,

“ [i] t is well settled that a person is bound by the cons equences of his representa tive’ s conduct, which includes both his acts and omissions.” Rowe v. Merit Sys. Prot. Bd. , 802 F.2d 434, 437 (Fed. Cir . 1986); see Link v. Wabash R.R. Co. , 370 U.S. 626, 633

– 34 (1962) (“ Petitioner voluntarily chose this attorney as his representative in the action, and he cannot now avoid the consequences of the acts or omissions of this freely selected agent. ”)

. Attorne y malfeasance is not apparent on the record, and Ms. Browne has not shown that the outcome was prej udiced . It also appears that the now alleged deficiencies were not raised at the MSPB

.BROWNE v. MSPB 7

T he Board’s factual findings are supported by su bstantial evidence on the record, and the conclusion that Ms. Browne’s retirement was voluntary is in accordance with law and the criteria required by precedent. The MSPB’s action is affirmed.

No costs.

AFFIRMED