UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

LOUIS PEASLEY,

Appellant,

v.

SMALL BUSINESS 

ADMINISTRATION,

Agency.

DOCKET NUMBER

DC-0752-15-0305-I-1

DATE: October 23, 2015

THIS ORDER IS NONPRECEDENTIAL1

Louis Peasley, Springfield, Virginia, pro se. 

Claudine Landry, Esquire, Washington, D.C., for the agency. 

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

REMAND ORDER

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

dismissed his appeal for lack of jurisdiction. For the reasons discussed below, we 

GRANT the appellant’s petition for review, VACATE the initial decision, and 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

REMAND the case to the regional office for further adjudication in accordance 

with this Order. 

DISCUSSION OF ARGUMENTS ON REVIEW

¶2 In February 2014, the appellant transferred to the agency to accept a 

Supervisory Financial Program Analyst position. Initial Appeal File (IAF), Tab 7 

at 216. Beginning in October 2014, the appellant submitted three written 

resignations. Id. at 65, 106, 118, 125. He withdrew the first two requests. Id.

at 106, 118, 120-21. His third and final resignation letter was effective 

December 8, 2014. Id. at 65. The agency processed the appellant’s separation 

accordingly. Id. at 57, 59, 62. 

¶3 The appellant filed a Board appeal in January 2015, checking the boxes to 

indicate that he was challenging a negative suitability determination and 

constructive discharge. IAF, Tab 1 at 3. He also indicated that he had filed a 

whistleblower complaint with the Office of Special Counsel (OSC) in 

October 2014, but that he had not received notification that it had made a decision 

or terminated its investigation. Id. at 4. The appellant provided a narrative 

explanation of his allegations, including claims of disability discrimination and 

whistleblower reprisal, along with corresponding evidence. Id. at 5, 7-24. 

¶4 The administrative judge issued a show cause order, directing the appellant 

to meet his jurisdictional burden. IAF, Tab 3. She provided information about 

his burden with respect to suitability and involuntary resignation appeals. Id. 

at 1-5. The administrative judge also noted that it was unclear if the appellant 

was attempting to file an individual right of action (IRA) appeal pursuant 

to 5 U.S.C. § 1221, and informed him that, if that was his intent, he could file a 

separate appeal after exhausting his administrative remedy with OSC. Id. 

at 1 n.1. 

¶5 After permitting the appellant to submit further argument and evidence, the 

administrative judge denied his request for a hearing and dismissed his appeal, 
3

finding that he failed to present nonfrivolous allegations of Board jurisdiction. 

IAF, Tab 8, Initial Decision (ID) at 1. The appellant has filed a petition for 

review. Petition for Review (PFR) File, Tab 1. 2

 The agency filed a response, and 

the appellant filed an untimely reply. 3

 PFR File, Tabs 3, 6. 

The administrative judge failed to address the appellant’s filing of an equal 

employment opportunity (EEO) complaint. 

¶6 Below, the agency asserted that the appellant filed a formal EEO complaint 

alleging hostile treatment and constructive discharge on December 4, 2014, prior 

to filing this appeal. IAF, Tab 7 at 28. The appellant did not dispute this 

assertion. However, the administrative judge failed to further develop or address 

the issue. 

¶7 When an employee who has been affected by an action that is appealable to 

the Board believes that the action was the result of prohibited discrimination, he 

must elect between filing a mixed-case complaint with the agency or filing a 

mixed-case appeal directly with the Board, and whichever is filed first is 

considered an election to proceed in that forum. Shapiro v. Department of 

Veterans Affairs, 114 M.S.P.R. 585, ¶ 7 (2010); 5 C.F.R. § 1201.154; 

see 29 C.F.R. § 1614.302(b). The same applies to claims of prohibited 

discrimination in the context of an alleged constructive action. 

Shapiro, 114 M.S.P.R. 585, ¶ 7; see Ball v. Department of Veterans 

 2 The appellant titled his filing as “reopening an appeal dismissed without prejudice.” 

PFR File, Tab 1 at 1. The Clerk of the Board notified the appellant that the initial 

decision did not dismiss his appeal without prejudice, so his filing would be construed 

as a petition for review. PFR File, Tab 2 at 1. 

3 The Clerk of the Board informed the appellant that he could submit a reply within 

10 days after the date of service of an agency response. PFR File, Tab 2 at 1. The 

agency served the appellant with its response on June 5, 2015. PFR File, Tab 3 at 13. 

On June 16, 2015, the appellant requested an extension of time to reply, but because the 

appellant was already untimely, the Clerk of the Board denied that request. PFR File,

Tab 4 at 3, Tab 5 at 1. Despite that denial, the appellant submitted a reply on June 24, 

2015, more than 1 week after the deadline for doing so. PFR File, Tab 6. We have not 

considered this untimely reply. 
4

Affairs, 68 M.S.P.R. 482, 484 (1995) (observing that an appellant’s election in a 

construction resignation appeal was not binding if it was made without knowledge 

of her options). If an employee elects to file his complaint with the agency, the 

right to subsequently pursue the matter before the Board vests when the agency 

issues a final decision on the discrimination complaint or 120 days have passed 

since the filing of the complaint. Miranne v. Department of the 

Navy, 121 M.S.P.R. 235, ¶¶ 12-13 (2014). 

¶8 Under the circumstances presented here, it appears that the appellant may 

now choose to proceed before the Board regardless of the status of his EEO 

complaint. See Stribling v. Department of Education, 107 M.S.P.R. 166, 

¶¶ 15-16 (2007) (forwarding a petition for review for docketing as a refiled 

removal appeal where 120 days had passed since the appellant filed an EEO 

complaint regarding her removal); 5 C.F.R. § 1201.154(c) (providing that an 

administrative judge will dismiss a premature mixed-case appeal without 

prejudice to its later refiling, or alternatively, may hold an appeal for a short time 

to allow it to become timely). On remand, the administrative judge should verify 

that the appellant filed a formal EEO complaint concerning his constructive 

removal claim. If so, the administrative judge should confirm that the appellant 

is now electing to proceed before the Board. 

The administrative judge must reconsider the appellant’s potential whistleblower 

retaliation claim. 

¶9 As previously discussed, the appellant’s initial appeal indicated that he filed 

a whistleblower complaint with OSC. IAF, Tab 1 at 4. The administrative judge 

informed the appellant that he could file a separate IRA appeal without notifying 

him of the corresponding jurisdictional burden or considering if the appellant was 

attempting to raise an affirmative defense to his alleged involuntary resignation 

claim. Id. 

¶10 Under 5 U.S.C. § 7121(g), an employee who claims to have suffered 

whistleblowing reprisal regarding an adverse action may elect no more than one 
5

of the following remedies: a direct appeal to the Board; a negotiated grievance 

procedure pursuant to 5 U.S.C. § 7121; or a request for corrective action under 

5 U.S.C. chapter 12, subchapters II and III, i.e., an OSC complaint, potentially to 

be followed by an IRA appeal. Savage v. Department of the Army, 122 M.S.P.R. 

612, ¶ 17 (2015). Ordinarily, an individual who first requests corrective action 

from OSC will be deemed to have made a binding election to proceed in that 

forum. 5 U.S.C. § 7121(g)(4)(C). In such a case, the jurisdictional requirements 

for an IRA appeal apply, even if the contested personnel action would have been 

directly appealable to the Board. Savage, 122 M.S.P.R. 612, ¶ 17. This principle 

applies equally to alleged constructive actions. Id. However, an election 

under 5 U.S.C. § 7121(g) is binding only if made knowingly and voluntarily. Id., 

¶ 18. Therefore, the administrative judge erred in failing to obtain information 

regarding the nature of the appellant’s OSC complaint and to clarify if the 

appellant was raising whistleblower reprisal as an affirmative defense in this 

constructive adverse action appeal or attempting to bring a separate IRA appeal 

regarding a distinct personnel action. 

¶11 On remand, the administrative judge must develop the record concerning 

the appellant’s whistleblower complaint to OSC. If his OSC complaint 

challenged a distinct personnel action, the regional office should docket a

separate, now-ripe IRA appeal and provide the appellant with the appropriate 

burden for establishing jurisdiction.

4 See Jundt v. Department of Veterans 

Affairs, 113 M.S.P.R. 688, ¶¶ 6-7 (2010) (discussing the OSC exhaustion 

requirement for IRA appeals and the Board’s practice of adjudicating an appeal 

that becomes ripe while pending with the Board). However, if the OSC complaint 

pertains to the constructive removal claim currently before us, the administrative 

 4 The appellant indicated that he filed his OSC complaint in “10/2014.” IAF, Tab 1 

at 4. His first two letters of resignation, though later withdrawn, were dated October 6 

and 22, 2014. IAF, Tab 7 at 118, 125. The appellant’s final letter of resignation was 

dated December 8, 2014, and effectuated the same day. Id. at 57, 65. 
6

judge must determine whether that complaint constitutes a binding election 

under 5 U.S.C. § 7121(g). Savage, 122 M.S.P.R. 612, ¶ 18. If the appellant made 

a binding election to first seek corrective action from OSC, the jurisdictional 

requirements for an IRA appeal apply. Id., ¶ 17. If the appellant did not make a 

binding election by first seeking corrective action from OSC, his claim may 

proceed as a direct appeal to the Board. See id., ¶ 18. 

The appellant presented nonfrivolous allegations of involuntariness. 

¶12 The administrative judge found that the appellant failed to present 

nonfrivolous allegations of Board jurisdiction and, therefore, dismissed his appeal 

without a hearing. ID at 3-5. We find that, if the claim is properly before the 

Board as a chapter 75 appeal, see supra ¶¶ 8, 11, the appellant’s involuntary 

resignation allegations warrant a jurisdictional hearing. 5

 

¶13 The appellant has the burden of proving the Board’s jurisdiction by 

a preponderance of the evidence. Hosozawa v. Department of Veterans 

Affairs, 113 M.S.P.R. 110, ¶ 5 (2010); 5 C.F.R. § 1201.56(b)(2)(i)(A). An 

employee-initiated action, such as a retirement or resignation, is presumed to be 

voluntary, and thus outside the Board’s jurisdiction. Hosozawa, 113 M.S.P.R. 

110, ¶ 5. An involuntary resignation, however, is equivalent to a forced removal 

and therefore is within the Board’s jurisdiction. Id. A constructive adverse 

action claim generally has two things in common: (1) the employee lacked a 

meaningful choice in the matter; and (2) it was the agency’s wrongful actions that 

deprived him of that choice. Bean v. U.S. Postal Service, 120 M.S.P.R. 397, ¶ 8 

(2013). The employee may overcome the presumption that a resignation is 

voluntary by showing that it was the result of the agency’s misinformation, 

deception, or coercion. Hosozawa, 113 M.S.P.R. 110, ¶ 5. 

 5 Although the appellant indicated that he also was disputing a negative suitability 

determination in his initial appeal, IAF, Tab 1 at 3, the administrative judge found that 

the agency did not make any suitability determination, ID at 4-5. Therefore, the 

administrative judge concluded that the appellant presented no basis for considering his 

case as an appeal of a negative suitability determination, id., and we agree. 
7

¶14 To establish involuntariness on the basis of coercion, the appellant must 

establish that the agency imposed the terms of the resignation, he had no realistic 

alternative but to resign, and the resignation was the result of improper actions by 

the agency. Id. If the employee claims that his resignation was coerced by the 

agency’s creating intolerable working conditions, he must show that a reasonable 

employee in his position would have found the working conditions so oppressive 

that he would have felt compelled to resign. Id. Once the appellant presents 

nonfrivolous allegations of Board jurisdiction—allegations of fact which, if 

proven, would establish the Board’s jurisdiction—he is entitled to a hearing at 

which he must prove jurisdiction by a preponderance of the evidence. Id. 

¶15 The administrative judge concluded that, while the appellant was unhappy 

with his supervisor and performance appraisal, his allegations did not reflect 

conditions so pervasively unpleasant and difficult that he had no choice but to 

resign. ID at 4. However, in doing so, the administrative judge failed to address 

many of the appellant’s specific arguments, including claims of discrimination 

and reprisal. See Neice v. Department of Homeland Security, 105 M.S.P.R. 211, 

¶ 8 (2007) (observing that, in determining whether an appellant was 

constructively discharged, the Board will consider any evidence of discrimination 

or retaliation together with all the other evidence bearing on the voluntariness of 

a resignation). 

¶16 Pro se filings are to be construed liberally. Hosozawa, 113 M.S.P.R. 110, 

¶ 7. Here, the appellant alleged that the agency singled him out to change his 

tour of duty, despite requests for accommodation, exacerbating a preexisting 

medical condition. IAF, Tab 1 at 5, 21, 24. He also submitted a letter from his 

treating physician, which describes a deteriorating medical condition and suggests 

that it may be due to his work situation. Id. at 13. The appellant further alleged 

that his supervisor, C.L., retaliated against him due to his reportedly uncovering 

and disclosing that C.L. had been violating agency regulations and authorizing 
8

unlawful payments to recipients of Federal funding for years. Id. at 5, 8-12, 

15-20, 22-24. 

¶17 Under these specific circumstances, we find that the appellant has 

nonfrivolously alleged that his resignation was involuntary. See 

Hosozawa, 113 M.S.P.R. 110, ¶ 7 (remanding for a jurisdictional hearing where 

the appellant alleged, inter alia, that her resignation was involuntary because the 

agency denied her request for a reasonable accommodation); Coufal v. 

Department of Justice, 98 M.S.P.R. 31, ¶¶ 26-29 (2004) (finding that the 

appellant’s allegations that she was forced to retire because of harassment, 

whistleblower reprisal, and failure to grant her request to reassign her for medical 

reasons warranted a jurisdictional hearing); Hernandez v. U.S. Postal 

Service, 74 M.S.P.R. 412, 417-19 (1997) (remanding for a jurisdictional hearing 

as to the voluntariness of an employee’s resignation where he alleged coercion 

based upon the agency’s failure to grant a request for reasonable 

accommodation). Therefore, if the administrative judge determines that the claim 

is properly before the Board as a chapter 75 appeal, see supra ¶¶ 8, 11, the 

appellant is entitled to a jurisdictional hearing and the administrative judge must 

specifically consider the appellant’s claims of discrimination and retaliation as 

they pertain to the issue of involuntariness. The administrative judge may 

consider the additional evidence the appellant submitted with his petition for 

review if she finds it relevant and material to the involuntariness issue. PFR File,

Tab 1 at 5-103. 

ORDER

¶18 For the reasons discussed above, we remand this appeal to the regional 

office for further adjudication. In her remand initial decision, the administrative
9

judge may adopt her prior findings regarding the appellant’s claim that he was 

subjected to a negative suitability determination. 

FOR THE BOARD:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board