UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

HAROLD L. WILBORN,

Appellant,

v.

DEPARTMENT OF HOMELAND 

SECURITY,

Agency.

DOCKET NUMBER

SF-0752-16-0033-I-1

DATE: July 1, 2016

THIS FINAL ORDER IS NONPRECEDENTIAL1

Harold L. Wilborn, El Cajon, California, pro se.

Sofia Flood, Esquire, Chula Vista, California, 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 initial decision, which 

dismissed for lack of jurisdiction his appeal in which he alleged that his 

retirement was involuntary. Generally, we grant petitions such as this one only 

when: the initial decision contains erroneous findings of material fact; the initial 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

decision is based on an erroneous interpretation of 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. See 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 initial decision. 

¶2 The appellant, a GS-7 Supervisory Law Enforcement Communications 

Assistant, filed a Board appeal in which he alleged that his retirement, effective 

January 31, 2015, was involuntary. Initial Appeal File (IAF), Tab 1. 

Specifically, he claimed that coercion by agency officials and intolerable working 

conditions rendered his retirement a constructive discharge. He also claimed 

discrimination based on sex, race, age, denial of reasonable accommodation, 

retaliation for whistleblowing and protected equal employment opportunity (EEO)

activity, a violation of his rights under the Uniformed Services Employment and 

Reemployment Rights Act of 1994 (USERRA), and a denial of due process in 

connection with the agency’s processing of an EEO complaint he filed in 2014. 

He requested a hearing. Id. at 2. 

¶3 In acknowledging the appeal, the administrative judge explained that, 

because retirements are presumed to be voluntary actions over which the Board 

lacks jurisdiction, the appellant’s appeal would be dismissed unless he made 

nonfrivolous allegations that he retired because of duress, coercion, or 

misrepresentation by the agency. IAF, Tab 2. In his response, the appellant

repeated his allegation of denial of due process, claiming that the investigative 
3

file that the agency provided him in July 2015 in his EEO complaint 2was 

inadequate. IAF, Tab 4 at 3-8. He also claimed that the agency had counseled 

him about his performance and issued him two Notices of Unsatisfactory 

Performance/Opportunity to Improve, id., Subtab 5, based on which he had no 

realistic alternative but to retire, IAF, Tab 4 at 13. In further support of his 

claim, the appellant submitted a copy of an October 2, 2014 Notice of Proposed 

10-day Suspension that the agency issued him based on Lack of Candor. Id., 

Subtab 4 at 1-3. The agency moved that the appeal be dismissed for lack of 

jurisdiction, IAF, Tab 5, and the appellant responded to the agency’s motion, 

IAF, Tab 6.

¶4 The administrative judge issued another acknowledgment order specifically 

addressing the appellant’s claim of retaliation for whistleblowing and setting

forth information on USERRA jurisdiction and proof requirements. IAF, Tab 7. 

In his response, the appellant first reiterated that his appeal was from the 

agency’s Final Agency Decision (FAD) on his EEO complaint, issued on August 

31, 2015. IAF, Tab 9 at 1-2. He argued that the agency knew or should have 

known that the charge in support of the suspension action3 was not bona fide, id.

at 4-5, and that the agency’s actions rendered the workplace so intolerable that he 

was compelled to retire, id. at 6. The appellant also stated that he was filing an 

individual right of action (IRA) appeal, id. at 10-12, and he repeated his claims

that the agency retaliated against him for having filed an EEO complaint, id. at 

13-14, and failed to reasonably accommodate his undescribed disabling condition 

by denying him accrued leave to go to the Department of Veterans Affairs (VA)

 2 The appellant filed this EEO complaint on October 9, 2014, but in the Final Agency 

Decision (FAD), the agency also considered his claim of constructive discharge, which 

was presumably added during the complaint process. IAF, Tab 4, Subtab 2 at 1-3; 

Subtab 3 at 25.

3 According to the appellant, the agency ultimately decided to suspend him for only 

1 day, IAF, Tab 9 at 4, but he acknowledged that he did not serve the suspension 

because of his retirement. IAF, Tab 12 at 4.
4

hospital, id. at 15-16. He also described his past military service. Id. at 17. 

Again, the appellant argued that the agency’s issuance of the FAD without 

completing the “investigative process” constituted not only a violation of due 

process, but also an appealable action under USERRA and the Whistleblower 

Protection Act. Id. at 22; see IAF, Tab 10.

¶5 In an initial decision based on the written record, the administrative judge

dismissed the appeal for lack of jurisdiction. IAF, Tab 15, Initial Decision (ID) 

at 1, 7. He found that the agency’s notifications to the appellant regarding his 

performance were insufficient to render his subsequent retirement involuntary. 

ID at 5. As to the claim of whistleblower retaliation, the administrative judge

found that, even if the appellant made a protected disclosure in a 2011 

memorandum, he failed to nonfrivolously allege that any agency official involved 

with his retirement knew of it. Similarly, as to the USERRA claim, the 

administrative judge found that the appellant failed to nonfrivolously allege that 

his status as a veteran was known to anyone or that it had a motivating effect on 

any agency employee to take any action that could be considered coercive. ID 

at 6. Finally, regarding the appellant’s claim that he suffered a hostile working 

environment, the administrative judge found that he failed to nonfrivolously 

allege that he was subjected to a pattern of harassment based on his military 

service, or any other basis, that was sufficiently severe or pervasive to alter the 

terms and conditions of his employment. ID at 7.

¶6 The appellant has filed a petition for review, Petition for Review (PFR) 

File, Tab 1, to which the agency has responded, PFR File, Tab 4, and the 

appellant has replied thereto, PFR File, Tab 3.

¶7 On review, the appellant argues that the administrative judge erred in not 

considering all 14 claims he raised in his EEO complaint. PFR, Tab 1 at 3-4. 

Although the record below contains only a portion of the appellant’s unsigned and 
5

undated complaint, 4 IAF, Tab 12 at 22-23, the agency’s FAD clearly includes its 

treatment of his claim of involuntary retirement (“Claim 14: Forced to resign 

[sic] from the Agency (constructive discharge).” IAF, Tab 4, Subtab 2 at 11. The 

agency found that the appellant failed to establish this claim and it advised him of 

his right to appeal to the Board. Id. at 15. While the issuance of a FAD on a 

discrimination complaint is not itself a matter for Board review, an employee may 

timely file an appeal of a matter within the Board’s jurisdiction that was the 

subject of a FAD on a formal EEO complaint. See Lockridge v. U.S. Postal 

Service, 72 M.S.P.R. 613, 617 n.2 (1996), aff’d, 121 F.3d 727 (Fed. Cir. 1997) 

(Table). The administrative judge correctly found that whether the appellant’s 

retirement was involuntary or not was the only issue addressed in the FAD that 

could fall within the Board’s jurisdiction,

5 ID at 4 n.1; IAF, Tab 4, Subtab 2 at 

2-3, and that therefore the Board lacks jurisdiction over the other matters raised 

in the appellant’s EEO complaint.

¶8 The appellant also argues on review that the administrative judge erred by 

failing to consider three of his pleadings. PFR File, Tab 1 at 6; ID at 5 n.2. In 

his second and final order issued on November 19, 2015, the administrative judge

advised the parties that the record on jurisdiction would close on the date the 

agency’s response was due, or on December 9, 2015, and that he would not accept 

any more evidence or argument on the jurisdictional issues unless the party 

submitting it showed that it was not readily available prior to the close of the 

record. Notwithstanding, the administrative judge acknowledged that, under the 

Board’s regulations, a party may respond to new evidence or argument submitted 

 4 We address later in this Order the administrative judge’s decision to not consider this 

and other pleadings submitted by the appellant.

5 The administrative judge incorrectly stated that neither party submitted the FAD into 

the record until after the record on jurisdiction closed. ID at 4 n.1. In fact, the 

appellant submitted a copy of the FAD in response to the administrative judge’s first 

acknowledgment order. IAF, Tab 4, Subtab 2. The appellant has not, however, shown 

that the administrative judge’s misstatement caused any prejudice to his substantive 

rights. Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984).
6

by the other party just before the close of the record. IAF, Tab 7 at 10. The 

agency submitted its final response on December 9, 2015, and, in that response, 

addressed for the first time the appellant’s claims of USERRA discrimination and 

whistleblower retaliation. IAF, Tabs 5, 11. Because the response included new 

argument, the appellant was entitled under 5 C.F.R. § 1201.59(b)(2) to submit 

additional evidence or argument in rebuttal. However, because the appellant has 

not explained, nor is it otherwise apparent, why he was compelled to make three 

supplemental submissions, we find only that the administrative judge erred in 

failing to consider the supplemental response of December 14, 2015, IAF, Tab 12, 

but not the additional responses of December 18 and December 21, 2015, IAF, 

Tabs 13-14. 

¶9 In reviewing the appellant’s supplemental response of December 14, 2015, 

IAF, Tab 12, we first address his claim of retaliation for whistleblowing. He

alleged that, after he filed his 2014 EEO complaint, the agency retaliated against 

him for participating in the EEO process by proposing to suspend him. Id. at 2-3. 

Because the appellant does not allege that his EEO complaint was “with regard to 

remedying a violation of paragraph (8),” retaliation for whistleblowing, 5 U.S.C. 

§ 2302(b)(9)(A)(i); id. at 22-23, he has failed to nonfrivolously allege that he 

made a protected disclosure such as is required to establish Board jurisdiction 

over an IRA appeal. 5 U.S.C. § 1221(e)(1). Regarding the appellant’s claim that 

the agency denied him a benefit of employment based on his military service in 

violation of USERRA, he alleged that the agency denied him accrued sick leave 

to attend a VA hospital and that the denial was due to his service-connected 

disability. IAF, Tab 12 at 6-7. The appellant’s leave request does not include the 

basis for the request or otherwise support his claim in any way. Id. at 49. As 

such, he has failed to nonfrivolously allege that the agency denied him an 

employment benefit based on his military service. Yates v. Merit Systems 

Protection Board, 145 F.3d 1480, 1495 (Fed. Cir. 1998). We conclude, therefore, 
7

that the administrative judge’s error in not considering this pleading did not 

prejudice the appellant’s substantive rights. Panter, 22 M.S.P.R. at 282.

¶10 The appellant repeats on review his claim that the agency subjected him to a 

hostile working environment because of his military service in violation of 

USERRA. PFR File, Tab 1 at 7. He has not, however, explained how the 

agency’s treatment of him was based on his military service. Thus, even broadly 

construing the appellant’s allegations, he failed to nonfrivolously allege that he 

was subjected to a pattern of ongoing and persistent harassing behavior based on 

his military service. Therefore, he has not shown that the administrative judge

erred in finding that he failed to establish Board jurisdiction under USERRA. ID 

at 7; see Kitlinski v. Department of Justice, 123 M.S.P.R. 41, ¶¶ 19-21 (2015).

¶11 On review, the appellant alleges that the administrative judge did not 

convene the hearing he requested. PFR File, Tab 1 at 5. In acknowledging the 

appeal, the administrative judge explained that a hearing would be convened only 

if the appellant supported his claim of involuntariness with affidavits or other 

evidence of facts which, if proven, could show that his retirement was 

involuntary. IAF, Tab 2. The appellant’s conclusory statements and numerous 

references and citations to Board decisions do not constitute support of his 

claimed involuntary retirement, and, therefore, he has failed to show that the 

administrative judge abused his discretion in not convening the requested hearing. 

See Mims v. Social Security Administration, 120 M.S.P.R. 213, ¶ 16 (2013). 

Moreover, because the appellant did not establish the Board’s jurisdiction over 

this matter under USERRA or as an IRA appeal, he also was not entitled to a 

hearing on those grounds. Kitlinski, 123 M.S.P.R. 41, ¶ 6; Salerno v. Department 

of the Interior, 123 M.S.P.R. 230, ¶ 5 (2016).

¶12 The appellant also argues on review that the administrative judge erred by 

failing to consider his claim of disability discrimination based on a denial of 

reasonable accommodation. PFR File, Tab 1 at 9. However, the administrative 

judge correctly stated that an appellant’s allegations of discrimination and 
8

retaliation are relevant, and evidence thereof may be considered, only to the 

extent that they relate to the issue of voluntariness, and not whether such 

evidence meets the test for proof of discrimination under title VII of the U.S. 

Code, and that only if Board jurisdiction is established in a constructive discharge 

appeal may the issues be adjudicated under the standards applicable for proof 

under Title VII, as the case is then a “mixed case.” ID at 3; Markon v. 

Department of State, 71 M.S.P.R. 574, 578 (1996). As noted, the administrative 

judge concluded, after review of the appellant’s submissions, that he failed to 

make nonfrivolous allegations of fact which, if proven, would establish that he 

lacked a meaningful choice in his decision to retire and that it was the agency’s 

wrongful actions that deprived him of that choice. ID at 7; see Bean v. U.S. 

Postal Service, 120 M.S.P.R. 397, ¶ 8 (2013). Even if the administrative judge

did not specifically so state, his finding is presumed to include consideration of 

the appellant’s allegation of disability discrimination. Marques v. Department of 

Health & Human Services, 22 M.S.P.R. 129, 132 (1984) (finding that the 

administrative judge’s failure to mention all of the evidence of record does not 

mean that he did not consider it in reaching his decision), aff’d, 776 F.2d 1062 

(Fed. Cir. 1985) (Table). In any event, the appellant failed to nonfrivolously 

allege that the agency’s purported denial of his request for 3 days of leave in 

January 2015 compelled him to retire a year later. See Gregory v. Federal 

Communications Commission, 79 M.S.P.R. 563, 569-70 (1998) (explaining that, 

under certain circumstances, events may be too remote in time to have motivated 

a reasonable person to resign/retire).

¶13 The appellant argues on review that, in some manner, the Equal 

Employment Opportunity Commission denied him due process after the agency’s 

issuance of the FAD. PFR File, Tab 1 at 14. Although the basis of this claim is 

unclear, the FAD was issued 7 months after the appellant’s retirement and so it 

could not have influenced or had any effect on that action.
9

¶14 Finally, the appellant alleges that the administrative judge berated him by 

describing his responses as “discursive.” PFR File, Tab 1 at 15, ID at 4-5. To the 

extent the appellant is suggesting that the administrative judge was biased against 

him, it is well established that, in making a claim of bias or prejudice against an 

administrative judge, a party must overcome the presumption of honesty and 

integrity that accompanies administrative adjudicators. Oliver v. Department of 

Transportation, 1 M.S.P.R. 382, 386 (1980). The appellant’s conclusory claim, 

which does not involve extrajudicial conduct, is insufficient to overcome that 

presumption of honesty and integrity. Simpkins v. Office of Personnel 

Management, 113 M.S.P.R. 411, ¶ 5 (2010).

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS6

The initial decision, as supplemented by this Final Order, constitutes the 

Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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).

 6 In the initial decision, the administrative judge provided the appellant with mixed-case 

review rights to the Equal Employment Opportunity Commission regarding his claims 

of discrimination. ID at 10-11. Because we agree with the administrative judge that 

dismissal on jurisdictional grounds is the appropriate disposition in this case, 

nonmixed-case review rights are appropriate, even though the appellant raised claims of 

discrimination. Caros v. Department of Homeland Security, 122 M.S.P.R. 231, ¶ 22 

(2015). We have provided the appellant with the proper review rights in this Final 

Order.
10

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 

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 as well as 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 
11

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