NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition 

is not citable as precedent. It is a public record. 

United States Court of Appeals for the Federal Circuit 

05-3329 

WILLIAM A. WYCHE, 

 Petitioner, 

v. 

DEPARTMENT OF LABOR, 

 Respondent. 

 _______________________ 

 

 DECIDED: May 5, 2006 

 _______________________ 

Before SCHALL, Circuit Judge, ARCHER, Senior Circuit Judge, and DYK, Circuit 

Judge. 

PER CURIAM. 

DECISION 

 William A. Wyche petitions for review from the final decision of the Merit Systems 

Protection Board (“Board”) dismissing his appeal alleging that his retirement was 

involuntary. Wyche v. Dep’t of Labor, No. SF0752040653-I-1 (M.S.P.B. July 22, 2005) 

(“Final Decision”). We affirm. 
DISCUSSION 

I. 

Mr. Wyche worked as a Wage and Hour Compliance Specialist for the 

Department of Labor (“agency” or “DOL”) from 1988 until 2004. Mr. Wyche alleges that 

his former supervisor, Brian Taverner, mistreated and harassed him in 1999. According

to Mr. Wyche, this mistreatment and harassment consisted of Mr. Taverner calling Mr.

Wyche a “mad dog foaming at the mouth,” referring to Mr. Wyche as a “Gestapo Agent,” 

stating that he could envision Mr. Wyche being beaten, and sabotaging Mr. Wyche’s

work. Wyche v. Dep’t of Labor, No. SF0752040653-I-1, slip op. at 3 (M.S.P.B. Nov. 15, 

2004) (“Initial Decision”). Shortly after these alleged incidents occurred, Mr. Wyche was

reassigned to a different supervisor, resulting in Mr. Wyche having very limited contact 

with Mr. Taverner over the course of the next five years. 

In June of 2003, Mr. Wyche learned that DOL planned to reassign him to Mr. 

Taverner’s supervision. In response to Mr. Wyche’s concerns, District Director Linda 

Burleson authored a letter assuring Mr. Wyche that she had told Mr. Taverner that he 

was required to treat Mr. Wyche in a professional manner. Mr. Wyche then notified the

agency on June 2, 2004, that he would accept an “early out” retirement offer effective 

June 30, 2004. 

On July 19, 2004, Mr. Wyche filed an appeal of his “removal” with the Board, 

claiming that he had been subjected to a hostile work environment at DOL. In an initial 

decision, the administrative judge (“AJ”) assigned to Mr. Wyche’s case found that Mr. 

Wyche had alleged only that he was mistreated by Mr. Taverner in 1999, five years 

before his retirement. Initial Decision, slip op. at 3. Given the complete lack of recent 

05-3329 2
incidents of alleged harassment, the AJ found that Mr. Wyche’s case was entirely based 

on “his subjective fear of a reoccurrence,” which was therefore, “objectively 

unreasonable.” Id., slip op. at 4. The AJ found that this “objectively unreasonable” 

feeling of coerced retirement was insufficient to establish a non-frivolous allegation of 

involuntary retirement, a requirement for Board jurisdiction in a case such as Mr. 

Wyche’s. Id., slip op. at 5. Therefore, the AJ dismissed Mr. Wyche’s appeal for lack of

jurisdiction because Mr. Wyche had not shown that he was involuntarily discharged.

Initial Decision, slip op. at 3. 

Under 5 C.F.R. § 1201.113, the initial decision became the final decision of the 

Board when the full Board denied Mr. Wyche’s petition for review. Final Decision, slip

op. at 1-2. 

II. 

The Board’s jurisdiction is limited to appeals from enumerated adverse actions.

5 U.S.C. §§ 7512, 7513(d). The Board does not have jurisdiction over facially voluntary 

acts, such as a resignation, unless the individual appealing from the act can show that it 

was involuntary. Garcia v. Dep’t of Homeland Sec., 437 F.3d 1322, 1328 (Fed. Cir. 

2006) (en banc). Under Fruhauf Southwest Garment Co. v. United States, 111 F. Supp. 

945 (Ct. Cl. 1953), an individual may establish that separation was involuntary by 

showing three elements: “‘(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.’” Garcia, 437 F.3d at 1329 (quoting Fruhauf, 111 F. Supp. 

at 951). The Fruhauf elements are “evaluated from the perspective of the reasonable 

05-3329 3
employee confronted with similar circumstances.” Id. at 1330 (citing Shoaf v. Dep’t of 

Agric., 260 F.3d 1336, 1340-41 (Fed. Cir. 2001)). In Garcia v. Department of Homeland 

Security, we confirmed that an individual must make a non-frivolous claim of Board 

jurisdiction in order to receive a hearing before the Board. Id. at 1344. Non-frivolous

claims are “claims that, if proven, establish the Board’s jurisdiction.” Id. We review de

novo whether an appellant made non-frivolous allegations of a fact necessary to 

establish jurisdiction. Coradeschi v. Dep't of Homeland Sec., 439 F.3d 1329, 1332

(Fed. Cir. 2006). 

Mr. Wyche argues that the Board erred in dismissing his appeal for lack of 

jurisdiction. He contends that the Board erroneously relied on Terban v. Department of 

Energy, 216 F.3d 1021 (Fed. Cir. 2000), for the proposition that the amount of time 

between the alleged 1999 harassment by Mr. Taverner and Mr. Wyche’s 2004 

retirement, negated his claim that his retirement was involuntary. 

We find no error in the Board’s conclusion that, under the facts alleged by Mr. 

Wyche, no reasonable employee would feel they had no realistic alternative but to 

resign or retire under the Fruhauf test. The Board correctly found that the alleged 

incidents of harassment that occurred long before Mr. Wyche’s retirement would not 

have caused a reasonable employee to decide to retire. See Terban, 216 F.3d at 1024 

(“[T]he most probative evidence of involuntariness will usually be evidence in which 

there is a relatively short period of time between the employer’s alleged coercive act

and the employee’s retirement. In contrast, a long period of time between the alleged 

coercive act and the employee’s retirement diminishes the causal link between these 

two events and, thus, attenuates the employee’s claim of involuntariness.”). In sum, we 

05-3329 4
see no error in the Board’s determination that Mr. Wyche’s subjective fear of future 

harassment is insufficient under Fruhauf to show that a reasonable employee would 

have had no reasonable alternative but to resign. Initial Decision, slip op. at 4.1

For the foregoing reasons, the decision of the Board dismissing Mr. Wyche’s

appeal for lack of jurisdiction is affirmed. 

 No costs. 

 1 We have considered the other contentions raised by Mr. Wyche and have 

found them to be without merit. 

05-3329 5