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 appe al 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

.DISCUSSI ON
I. Mr. Wyche worked as a W age and Hour Com p lia nce Specialist for the Department of Labor (“agen cy” or “DOL”) from 1988 until 2004. Mr. Wyche alleges that his former supervisor, Brian Tav e rner, mist reated and harassed him in 1999. According to Mr. Wyche, this mistreatment and harass m ent consisted of Mr. Taverner calling Mr. Wyche a “mad dog foaming at t he mouth,” referring to Mr. W yche as a “Gestapo Agent,” stating that he could envis ion Mr. Wyche being be aten, 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 Dec i sio n ”). Shortly after these alleged incidents occurred, Mr. Wyche was reassigned to a different supervisor, result ing in Mr. Wyche hav ing very limited contact with Mr. Taverner over the cour se of the next five years. In June of 2003, Mr. Wyche learned that DOL planned to reas sign 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. Wych e in a professional manner. Mr. Wyche then notified the agency on June 2, 2004, that he would acc ept an “early out” retirement offer effective June 30, 2004. On July 19, 2004, Mr. Wyche filed an app eal of his “removal” with the Board, claiming that he had been subjected to a hostile work environment at DOL. In an initial decision, the adminis trative judge (“AJ”) assi gned to Mr. Wyche’s ca se found that Mr. Wyche had alleged only that he was mistreated by Mr. Taverner in 1999, five years before his retirement. Initial De cision , slip op. at 3. Given t he complete lack of rece nt

05-3329 2incidents of alleged harassment, the AJ found that Mr. Wyche’ s c a se was entirely based on “his s ubjective fear of a reoccurrenc e,” whic h was therefore, “objectively unreasonable.” Id. , slip op. at 4. The AJ found t hat this “objectively unr easonable” feeling of c oerced retirement was insufficient to establish a non-frivolous allegation of involuntary retirement, a requi rement for Board jurisdicti on in a case such as Mr. Wyche’s. Id. , slip op. at 5. Theref ore, the AJ dismiss ed Mr. Wyche’s appeal for lack o f jurisdiction because Mr. Wyche had not shown that he was inv o luntarily d i scharged. Initial Dec i s i on , slip op. at 3. Under 5 C. F.R. § 1201.113, the initial dec is ion bec ame 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 jurisdicti on over facially voluntary acts, such as a resignation, unless the indiv i dual appealing from the ac t can show that it was inv o lu ntary. Garcia v. Dep’t of Homeland Sec. , 437 F.3d 1322, 1328 (Fed. Cir. 2006) (en banc). Under Fruhauf Southwes t Garment Co. v. United States , 111 F. Supp. 945 (Ct. Cl. 1953), an indiv i dual may establis h that separation wa s involuntary by showing three elem ents: “‘(1) the agency effectively impos ed the terms of the employee’s resignation or reti rement; (2) the employ ee had no realistic alte rnative but to resign or retire; and (3) the employee’s resi gnation 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 t he perspective of the reasonable

05-3329 3employee confronted with si milar circumstances.” Id. at 1330 (citing Shoaf v. Dep’t of Agric. , 260 F.3d 1336, 1340-41 (F ed. Cir. 2001)). In Garcia v. Department of Homeland Security , we confirmed that an individual must make a non-frivolous c l aim of Boar d jurisdiction in order to receiv e a hearing before the Boa r d. Id. at 1344. Non-frivolous claims are “claims that, if proven, es tablish t he Board’s jurisdiction.” Id. W e r e v i e w d e novo whet her an appellant m ade non-frivolous allegations of a fact necessary to establish jurisdiction. Corades chi v. Dep' t of Homeland Sec. , 439 F.3d 1329, 133 2 (Fed. Cir. 2006). Mr. Wyche argues that t he Board erred in dismissing his appeal for lack of jurisdiction. He contends that the Board erroneous ly relied on Terban v. Department of Energy , 216 F.3d 1021 (Fed. Cir. 2000), for the proposition th at the amount of time between t he alleged 1999 har assment by Mr. Taverner and Mr. Wyche’s 2004 retirement, negated his claim that hi s retirement was involuntary. We find no error in the Board’s conclus i on that, under the fa cts alleged by Mr. Wyche, no reasonable employ ee would feel they had no realis ti c alternative but to resign or retire under the Fruhauf test. The Board correct ly found that the alleged incidents of harassment that occurred long before Mr. Wyc he’s retirement would n o t have caus ed a reasonable employee to decide to retire. See Terban , 216 F

. 3d at 1024 (“[T]he most probative evidence of involuntar iness will usually be evidence in whic h there is a relatively s hort period of time between the employer’s alleged c o ercive 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 caus al link bet ween thes e two events and, thus, attenuates the employ ee’s c l aim of invol unt ariness.”). In sum, we

05-3329 4see 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 employ ee would have had no reasonable alter nativ e but to resign. Initial Decis i on , 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 c onsidered the other cont entions r a ised by M r . Wyche and hav e found them to be without merit.

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