NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

ROSETTA R. BROWNE,

Petitioner

v.

MERIT SYSTEMS PROTECTION 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

______________________ 

 ROSETTA R. BROWNE, Buford, GA, pro se.

 STEPHEN FUNG, Office of the General Counsel, Merit 

Systems Protection Board, Washington, DC, for respondent. Also represented by BRYAN G. POLISUK. 

______________________ 

Before NEWMAN, PLAGER, and REYNA, Circuit Judges.
2 BROWNE v. MSPB

NEWMAN, 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 credibility raised by Ms. Browne, we affirm the 

Board’s decision. 

BACKGROUND

Ms. Browne was employed as a Supervisory Associate 

Advocate in Taxpayer Advocate Services within 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 supervisors, and states that she continued to experience a hostile work environment, causing her 

to retire, 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 substance; that she overheard her supervisor laughing in a 

derisive fashion when speaking about her behind closed 

doors; that she was not given any “collegiality or courtesy” 

1 Browne 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.

The AJ conducted a hearing, at which Ms. Browne 

testified and the Agency presented witnesses. The AJ 

found that, even if Ms. Browne’s allegations were all true, 

they did not establish by a preponderance of the evidence 

that the Agency’s actions made working conditions so 

unpleasant that a reasonable person in her position would 

have felt compelled to retire or resign. Applying the 

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 whistleblower reprisal.

The full Board affirmed the AJ’s findings, and adopted the AJ’s decision. The Board found no error in the AJ’s 

exclusion of certain witnesses. This appeal followed.

DISCUSSION

Although Ms. Browne had made allegations of discrimination, 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. Garcia v. Dep’t of Homeland Sec., 437 F.3d 1322, 1328–29

(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. 
4 BROWNE v. MSPB

Dep’t of Agric., 260 F.3d 1336, 1340–41 (Fed. Cir. 2001). 

If the employee makes a nonfrivolous allegation of involuntary 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 thus 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 employee 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. Cl. 1975). This 

court has adopted the so-called “Fruhauf test” for establishing coercion by an agency:

To establish involuntariness on the basis of coercion this court requires an employee to 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.

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 proper test is “an objective one,” Christie, 518 F.2d at 587, that “consider[s] the 

totality of the circumstances,” Shoaf, 260 F.3d at 1342. 

The employee must “establish that a reasonable employee 

confronted with the same circumstances would feel coerced into resigning.” Middleton v. Dep’t of Defense, 185 

F.3d 1374, 1379 (Fed. Cir. 1999); see also Shoaf, 260 F.3d 

at 1342. Precedent 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 assignment, a transfer, or other measures that the agency 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 option but to leave. As this court has explained, the 

fact that an employee is faced with an unpleasant 

situation or that his choice is limited to two unattractive options does not make the employee's decision any less voluntary.

99 F.3d at 1124.

Precedent establishes that “the doctrine of coercive 

involuntariness is a narrow one” requiring that the employee “satisfy 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 

resignation was involuntarily extracted.” Christie, 518 

F.2d at 587. Ms. Browne urges that the MSPB incorrectly 

decided or failed to take into account various facts, applied the wrong law, and failed to consider important 

grounds for relief.

The 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 

make factual determinations by reweighing the evidence 

or reevaluating witness testimony, but only to review the 

record and determine whether, in the absence of legal 

error, the Board’s decision is supported by substantial 

evidence.” Olson v. Dep’t of Labor, 60 F. App’x 818, 821 

(Fed. Cir. 2003). It is “necessary for the court to ‘canvas’ 

the entire record, because ‘[t]he substantiality of evidence 

must take into account whatever in the record fairly 

detracts from its weight.’” Spurlock v. Dep’t of Justice, 
6 BROWNE v. MSPB

894 F.2d 1328, 1330 (Fed. Cir 1990) (quoting Universal 

Camera Corp. v. Nat’l Labor Relations Bd., 340 U.S. 474,

488 (1951)). 

We 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 bias and inappropriate comments and actions. Our review of the 

recorded proceedings did not uncover bias or inappropriate comments by the AJ, and Ms. Browne has not identified any specific objectionable act or comment. It appears 

that the Agency’s attorney made inappropriate off-therecord 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 criticizes her own attorney. For example, 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 included in the initial statement to the MSPB. However, 

“[i]t is well settled that a person is bound by the consequences of his representative’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.”). 

Attorney malfeasance is not apparent on the record, and 

Ms. Browne has not shown that the outcome was prejudiced. It also appears that the now alleged deficiencies

were not raised at the MSPB. 
BROWNE v. MSPB 7

The Board’s factual findings are supported by substantial 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