NOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2008-3273 MARY E. WRIGHT, Petitioner,

v. DEPARTMENT OF VETERANS AFFAIRS, Respondent.

Mary E. Wright , of Los Angeles, California, pro se. Anthony W. Moses , Trial Attorney, Commercial Li tigation Branch, Civil Division, United States Department of Ju stice, of Washington, DC, for respondent. With him on the brief were Jeanne E. Davidson , Director, and Deborah A. Bynum , Assistant Director. Appealed from: Merit S ystems Protection BoardNOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2008-3273 MARY E. WRIGHT, Petitioner,

v. DEPARTMENT OF VETERANS AFFAIRS, Respondent.

Petition for review of the Me rit Systems Protection Board in SF0752080166-I-1.

___________________________ DECIDED: March 5, 2009

___________________________ Before MICHEL, Chief Judge , BRYSON, Circuit Judge , and POSNER, Circuit Judge

. *

PER CURIAM.

DECISION Following the termination of her employm ent with the Department of Veterans Affairs, Mary E. Wright appealed to the Merit Systems Pr otection Board. The Board

* The Honorable Richard A. Posner, Circuit Judge, Un ited States Court of Appeals for the Seventh Circuit, sitting by designation.2008-3273 2 concluded that her resignation was not show n to be involuntary, and it therefore dismissed her appeal for lack of jurisdiction. We affirm

. BACKGROUND Ms. Wright worked for the Department of Veterans Affairs for more than 19 years. On November 12, 2006, she comple ted the training requ ired to work as a Veterans Service Representative (“VSR”). She was subsequently promoted to the GS10 level and assigned to the Pre-Determination Team in Los Angeles, California. Ms. Wright’s duties as a VSR in cluded processing incoming veteran benefits claims, which involved identifying issues and gathering evidenc e relating to submitted claims. At the GS-10 level, Ms. Wright wa s required to process an average of eight claims per day with an accuracy rate of at least 85 percent. On June 26, 2007, Ms. Wright’s supervisor not ified her that the number of claims she had processed in three of the last five months had been below that performance level. The supervisor then placed her on a 90-day performance improvement plan. The supervisor stated that as part of the plan the supervisor or a des ignee would meet with Ms. Wright on a weekly basis to provide feedback and suggestions as to how she could improve her performance. Three months later, the agency proposed to remove Ms. Wright on the ground that she had failed to successfully complete the performance impr ovement plan. The agency informed her that the number of claims she had processed during that period

continued to fall below the r equired average of eight per day. Ms. Wright responded by asserting that her supervisor had failed to meet with her weekly during the performance improvement review period and t hat her supervisors had failed to help her improve. On2008-3273 3 November 6, 2007, the agency advised Ms. Wri ght that she would be removed from her position as of November 20, 2007. On November 19, 2007, Ms. Wright wrote to the director of the Los Angeles Regional Office stating: I am involuntarily resigning in lieu of removal to reserve my career record profile. I’m 47 years old and not eligible for the retirement benefits, therefore I want to preserve my re tirement benefits and due to the adverse action used for this removal I feel this is my best choice to preserve my years of serv[ice] and my possible employment with another federal agency or this agency. Ms. Wright’s resignation became effective i mmediately. On December 12, 2007, Ms. Wright filed an appeal with the Meri t Systems Protection Board. Because resignations are presumed to be voluntary, the Board questioned whether it had jurisdiction over Ms. Wright ’s appeal. In response, Ms. Wright argued that the Board had jurisdicti on because the agency knew that its decision to remove her from employment could not be substantiated. Ms. Wright asserted that her supervisor had failed to meet with her during the perfo rmance improvement pl an and had failed to give her sufficient work to meet her producti on goals. In addition, Ms. Wright claimed that she had been subjected to a hostile wo rk environment because her supervisors

demanded that she leave work on time. A ccordingly, Ms. Wright argued, her resignation was the product of coercion by the agency and was theref ore involuntary.

The Board found that Ms. Wr ight had made a non-frivolous allegation sufficient to warrant holding a hearing, and a Board adm inistrative judge held a hearing on her

claim. In a thorough opinion, the administrat ive judge considered eac h of Ms. Wright’s allegations. First, the adminis trative judge noted that Ms. Wr ight could demonstrate that2008-3273 4 her resignation had been coerced either by showing that the agency knew that the reasons for removing her coul d not be substantiated, see Staats v. U.S. Postal Serv. , 99 F.3d 1120, 1124 (Fed. Cir. 1996), or by showing that the agency deliberately made working conditions so intolerable that “a reasonable person in [her] position would have felt compelled to resign,” Shoaf v. Dep’t of Agric. , 260 F.3d 1336, 1341 (Fed. Cir. 2001). With respect to Ms. Wright’s assertion that she could demonstrate coercion, the administrative judge considered Ms. Wright’s argument that the agency knew it could not remove her both because her supervisor allegedly failed to meet with her weekly during the plan period and because she was given inadequate work to complete her performance improvement plan. After evaluating Ms. Wright’s claim that weekly meetings had not taken place, the administrative judge concluded that the evidence did not support that claim. The administrative judge noted that t he record contained evidence of weekly meetings in the form of multiple “Reports of Contact.” The administrative judge considered Ms. Wright’s assertion that those reports were fabricated at a later dat e along with the evidence that Ms. Wright had only signed the reports under pr otest and only as of November 1, 2007, long after the meetings had purportedly tak en place. The administrative judge also considered the testimony of Ms . Wright’s supervisor, who cl aimed that the meetings had taken place. The supervisor stated that the reports were generated at a later date

because she was not aware that she was required to document the meetings, and that the reports were based on notes taken at the times of the meetings. The administrative judge also weighed the testimony of the assist ant supervisor and the director of the Los Angeles Regional Office, who asserted that after each meeting they had discussed the2008-3273 5 meetings with Ms. Wright’s supervisor. T he administrative judge cr edited Ms. Wright’s supervisor’s version of events because it was corroborated by additional testimony. The administrative judge also rejected Ms . Wright’s claim that she was given inadequate work to succeed in her performance im provement plan. In considering that claim, the administrative judge addressed Ms. Wright’s assertion that she was given too few cases generally as well as her complaint that she was given too few “initial cases,” which are assigned a greater va lue than supplemental cases. The administrative judge noted that Ms. Wright had testified that there was a backlog of cases and that her supervisor had advised her to work on cases of vacationing or retiring employees. In addition, the administrative j udge described the testimony of Ms. Wright’s supervisor, who claimed to have given her “easier cases so that [Ms. Wright] could develop more of them.” The administrative judge credited that testimony because it was supported by references in the Reports of Contact to her supervisor having urged Ms. Wright to develop more initial cases. With respect to Ms. Wri ght’s claim that the agency de liberately made her working conditions intolerable, the adm inistrative judge considered Ms. Wright’s complaint that her supervisor had told her to leave work when her shift ended as well as her assertion that she was being harassed for speaking wit h a co-worker. The administrative judge found that it was within the super visor’s authority to tell Ms. Wri ght to leave at the end of her shift as well as to question her about wo rk time spent speaking with co-workers rather than completing her job duties. The administr ative judge found that the supervisor’s actions were “not so intole rable that a reasonabl e person would feel compelled to resign.” In addition, the admin istrative judge noted that as of the date of2008-3273 6 Ms. Wright’s resignation, the supervisor w hose actions Ms. Wright complained of was no longer her supervisor. Finally, the adminis trative judge noted that in her resignation letter Ms. Wright explained t hat she was resigning “to pres erve her retirement benefits and to not prevent her from wo rking with the federal governm ent in the future.” The administrative judge found thos e to be credible reasons fo r her resignation. The administrative judge therefore determined that Ms. Wright had failed to demonstrate that the agency coerced her resignation and thus that Ms. Wright had failed to overcome the presumption that her re signation was voluntary.

DISCUSSION On appeal, Ms. Wright challenges the Board’s determination that weekly meetings took place between Ms. Wright and her supervisor and that sufficient work was assigned to Ms. Wright to allow her to m eet her performance review goals. As to those factual questions, the administrativ e judge weighed Ms. Wright’s testimony against the testimony of her supervisor and two other members of the management team. The administrative judge ultimately deci ded to “credit [Ms. Wright’s supervisor’s] version of events, because it was corroborated . . . .” The administrative judge is in a far better position than this court to asse ss the credibility of witnesses, and for that reason, such credibility determinations are virtually unreviewable. See Gibson v. Dep’t

of Veterans Affairs , 160 F.3d 722, 725 (Fed. Cir. 1998). Ms. Wright argues that her supervisor’s testimony is improbabl e, as evidenced in part by the failure of any other witnesses to testify that they saw the purported meetings take place. Ms. Wright also points out that her supervisor’s testimony—that she was not aware of the requirement that she maintain records of meetings with Ms. Wright—is2008-3273 7 belied by the fact that she had previously maintained records of every other meeting

between them. The evidence of the supervisor’s documentati on of other meetings in the past does not make it inherently improbabl e that the superviso r was unaware of the need to similarly document every weekly meeting during Ms. Wright’s performance improvement plan. In short, Ms. Wright’s evidence is not sufficiently compelling to overturn the administrative j udge’s credibility determination. Accordingly, Ms. Wright has not shown that the agency knew it could not substantiate its removal action or that the agency deliberately made working conditions into lerable so as to force her to resign. We therefore uphold the Boar d’s dismissal of her appeal.