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 

 

05-3270 

GERTRUDE STEPHENS, 

 Petitioner, 

v. 

DEPARTMENT OF AGRICULTURE, 

 Respondent. 

 __________________________ 

DECIDED: December 8, 2005 

 __________________________ 

Before LOURIE, RADER, and LINN, Circuit Judges. 

PER CURIAM. 

Gertrude Stephens (“Stephens”) seeks review of the final decision of the Merit 

Systems Protection Board (“Board”) that dismisssed her appeal for lack of jurisdiction. 

See Gertrude Stephens v. Dep’t of Agric., No. SF-0752-04-0386-I-1 (M.S.P.B. May 26, 

2005) (“Final Decision”). The Board dismissed Stephens’ appeal after it determined that 

she failed to make a non-frivolous allegation that her retirement from the United States 

Forest Service (“agency”) was involuntary. We affirm. 
BACKGROUND 

Stephens was employed as a Manpower Development Specialist by the agency. 

Effective November 1, 1996, Stephens retired from her position with the agency. In 

connection with her retirement, Stephens received a $25,000 separation incentive. 

On April 19, 2004, Stephens filed an appeal with the Board, challenging the 

agency’s denial of relief for her claims of discrimination based upon disability and 

previous Equal Employment Opportunity (“EEO”) activity. In the appeal, she alleged 

that her resignation was coerced due to a hostile work environment, harassment, and 

denial of reasonable accommodation for her allergies. 

Noting that employee-initiated actions such as Stephen’s retirement are 

presumed to be voluntary, the Administrative Judge (“AJ”) issued an Order to Show 

Cause requiring Stephens to submit evidence and argument sufficient to rebut the 

presumption of voluntariness, and thereby to establish that her appeal was within the 

Board’s jurisdiction. In response, Stephens alleged that she was forced to retire as a 

result of duress and coercion by her supervisor, Carlos Ricoy. Specifically, she alleged 

incidents of harassment, including delay in processing her worker’s compensation claim, 

being transferred to a different room, being ignored at staff meetings, denial of use of 

voice-mail, failure to support her work efforts, and being side-tracked with meaningless 

job assignments. 

After considering the allegations submitted by Stephens, the AJ issued the 

Board’s Initial Decision, which dismissed her appeal for lack of jurisdiction, without a 

hearing. Stephens v. Dep’t of Agric., No. SF-0752-04-0386-I-1 (M.S.P.B. Aug. 20, 

2004) (“Initial Decision”). The Initial Decision became the Final Decision of the Board 

05-3270 2
on May 25, 2005, after the Board denied Stephens’ petition for review for failure to meet 

the criteria for review set forth at 5 C.F.R. § 1201.115. 

Stephens timely appealed to this court. We have jurisdiction pursuant to 28 

U.S.C. § 1295(a)(9). 

DISCUSSION 

A. Standard of Review 

Pursuant to 5 U.S.C. § 7703(c), this court must affirm the Board’s decision unless 

it is: (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance 

with law; (2) obtained without procedures required by law, rule or regulation having 

been followed; or (3) unsupported by substantial evidence. Chase-Baker v. Dep’t of 

Justice, 198 F.3d 843, 845 (Fed. Cir. 1999). Whether the Board has jurisdiction over an 

appeal is a question of law, which we review de novo. Hayes v. United States Postal 

Serv., 390 F.3d 1373, 1376 (Fed. Cir. 2004). The petitioner bears the burden of 

establishing reversible error in reviewing a decision of an administrative agency such as 

the Board. Harris v. Dep’t of Veterans Affairs, 142 F.3d 1463, 1467 (Fed. Cir. 1998). 

B. Analysis 

Absent evidence to the contrary, a retirement is presumed to be voluntary and is 

beyond the Board’s jurisdiction. See Covington v. Dep’t of Health & Human Servs., 750 

F.2d 937, 941 (Fed. Cir. 1984). To establish Board jurisdiction, an appellant must 

overcome the presumption of voluntariness by making a non-frivolous allegation that the 

resignation was the result of misinformation, deception, or coercion by the agency. Dick 

v. Dep’t of Veterans Affairs, 290 F.3d 1356, 1362 (Fed. Cir. 2002). The test for 

involuntariness is an objective one; it is not measured by the appellant’s subjective 

05-3270 3
evaluation of his or her situation. Middleton v. Dep’t of Def., 185 F.3d 1374, 1379 (Fed. 

Cir. 1999). Involuntariness may be established by a showing that an appellant’s 

working conditions were made so intolerable that a reasonable person in the appellant’s 

position would have felt compelled to resign. Id. 

On appeal, Stephens alleges that she was harassed by her supervisor and that 

the agency took no action in response. Among other contentions, Stephens alleges that 

she was ignored at staff meetings, denied use of voice-mail, denied reasonable 

accommodation for her allergies, and was not supported in her work efforts. 

The AJ appropriately considered all of Stephens’ arguments regarding coercion 

and harassment in the workplace, ultimately concluding that she failed to show that “a 

reasonable person in her position would have believed that she had no other option but 

to retire.” Initial Decision at 7. Moreover, the AJ stated that the evidence of the record 

indicated that “[she] had contemplated retirement over a period in excess of five months 

and that [she] had accepted $25,000 incentive payment regarding her decision to 

retire.” Id. at 6. 

We discern no error in the Board’s decision. We agree that, even if Stephens’ 

allegations are taken as true, she has failed to show that the working conditions of her 

employment were made so intolerable that a reasonable person in her position would 

have felt compelled to retire. See Staats v. United States Postal Serv., 99 F.3d 1120, 

1124 (Fed. Cir. 1996) (explaining that “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”). Moreover, as the AJ found, 

Stephens made a reasoned decision to accept a $25,000 incentive to retire. Under 

05-3270 4
these circumstances, the AJ properly concluded that “[a]lthough appellant may regret 

that decision now, appellant’s choice does not equate to coercion.” Thus, as the Board 

found, none of Stephens’ allegations can sustain her claim that her retirement from the 

agency was involuntary. Initial Decision at 6. 

For the foregoing reasons, the decision of the Board dismissing Stephens’ 

appeal for lack of jursidiction is affirmed. 

05-3270 5