UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

LINDA ELAINE LATEEF,

Appellant,

v.

DEPARTMENT OF THE TREASURY,

Agency.

DOCKET NUMBER

DC-0752-15-0402-I-1

DATE: July 14, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL1

Rosemary Dettling, Esquire, Washington, D.C., for the appellant.

Byron D. Smalley, Esquire, and Robert M. Mirkov, Esquire, Washington, 

D.C., 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 her appeal for lack of jurisdiction. Generally, we grant petitions such 

as this one only when: the initial decision contains erroneous findings of material 

fact; the initial decision is based on an erroneous interpretation of statute or 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

regulation or the erroneous application of the law to the facts of the case; the 

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, and based on the following points and authorities, 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, which is now the Board’s final decision. 5 C.F.R. 

§ 1201.113(b). 

DISCUSSION OF ARGUMENTS ON REVIEW

¶2 The appellant, a former supervisory program manager, retired from federal 

service after the agency proposed her removal. Initial Appeal File (IAF), Tab 1

at 8. She subsequently filed this timely appeal in which she alleged that her 

retirement was involuntary and requested a hearing. Id. at 1-6. She asserted that 

she was forced to retire because the agency retaliated against her for filing an 

equal employment opportunity (EEO) claim, altered several of her working 

conditions while it did not alter the working conditions of other employees, and 

improperly disciplined her. Id. at 6. Additionally, the appellant contended that 

the agency made her work extremely stressful. Id. She asserted that she 

therefore filed a reasonable accommodation request and sought reassignment, but

that the agency denied the short-term reassignment that she sought. Id.

¶3 The administrative judge issued an acknowledgment order providing the 

appellant with her burden of proof on jurisdiction. IAF, Tab 2. The agency 

responded, asserting that the appellant: (1) requested retirement documents prior 

to the proposed removal; (2) elected to retire rather than oppose her removal; and 
3

(3) made no showing that her election to retire was involuntary. IAF, Tab 7

at 4-5. The appellant responded and submitted an affidavit in which she alleged 

that she retired because she was subjected to duress and coercion. IAF, Tab 8

at 6-7.

¶4 The administrative judge dismissed the appeal for lack of jurisdiction

without holding a hearing, finding that the appellant had failed to raise 

nonfrivolous allegations of Board jurisdiction over her appeal. IAF, Tab 9, Initial 

Decision (ID) at 1. Specifically, she found that: (1) the appellant was planning 

to retire prior to receiving the agency’s removal; (2) the appellant failed to

nonfrivolously allege that the agency could not support its removal; and (3) there 

was no evidence of agency coercion or improper actions. ID at 4-6.

¶5 The appellant filed a timely petition for review in which she challenges the 

dismissal for lack of jurisdiction. Petition for Review (PFR) File, Tab 1. 

Specifically, she asserts, inter alia, that the administrative judge did not consider 

her affidavit in its entirety.

2

 Id. at 8. The appellant also asserts that the 

administrative judge, in finding no evidence of agency coercion or improper

action and that the appellant was not deprived of alternatives to retirement, failed

to consider the agency’s numerous specific acts of harassment and retaliation. Id. 

at 9-10. The appellant further contends that she was entitled to a jurisdictional 

hearing. Id. at 10. The agency has responded in opposition to the petition for 

review. PFR File, Tab 3.

¶6 We agree with the administrative judge that the appellant failed to raise 

nonfrivolous allegations of Board jurisdiction over her appeal. An 

 2 To the extent that the appellant argues that the administrative judge did not fully 

consider her affidavit, we note that the administrative judge cited the affidavit in setting 

forth the factual background of the case and in her analysis. ID at 4-5. Regardless, the 

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

that she did not consider it in reaching her decision. See Marques v. Department of 

Health & Human Services, 22 M.S.P.R. 129, 132 (1984), aff’d, 776 F.2d 1062 (Fed. Cir.

1985) (Table).
4

employee-initiated action, such as a retirement, is presumed to be voluntary, and 

thus outside the Board’s jurisdiction. Vitale v. Department of Veterans 

Affairs, 107 M.S.P.R. 501, ¶ 17 (2007). To overcome the presumption that a 

retirement is voluntary, an employee must show that the retirement was the 

product of agency misinformation, deception, or coercion. Id., ¶ 19. In this 

regard, intolerable working conditions may render an action involuntary when, 

under all the circumstances, the working conditions were made so difficult by the 

agency that a reasonable person in the employee’s position would have felt 

compelled to absent herself from the workplace. Wright v. Department of 

Veterans Affairs, 85 M.S.P.R. 358, ¶ 25 (2000). The touchstone of the 

“voluntariness” analysis is whether, considering the totality of the circumstances, 

factors operated on the employee’s decision-making process that deprived her of 

freedom of choice. Coufal v. Department of Justice, 98 M.S.P.R. 31, ¶ 22 (2004). 

¶7 An appellant is entitled to a hearing on the issue of Board jurisdiction over 

an appeal of an alleged involuntary separation if she makes a nonfrivolous 

allegation casting doubt on the presumption of voluntariness. Burgess v. Merit 

Systems Protection Board, 758 F.2d 641, 643 (Fed. Cir. 1985). A nonfrivolous 

allegation is an allegation of fact that, if proven, could establish a prima facie 

case that the Board has jurisdiction over the appeal. Locke v. U.S. Postal 

Service, 61 M.S.P.R. 283, 288 (1994).

¶8 Here, the appellant alleges that, regardless of the timing of the proposed 

removal, she had already planned to retire due to harassment and retaliation. PFR 

File, Tab 1 at 10. We agree with the administrative judge’s finding that the 

appellant did not nonfrivolously allege that she was effectively deprived of any 

alternative but to retire. ID at 5. In particular, we find that the appellant’s 

assertions, including, inter alia, that the agency altered her working conditions, 

improperly disciplined her, caused her working environment to become stressful, 

and denied her short-term reassignment request, do not constitute nonfrivolous 

allegations that her retirement was involuntary. See Miller v. Department of 
5

Defense, 85 M.S.P.R. 310, ¶ 32 (2000) (an employee is not guaranteed a working 

environment free of stress, unfair criticism, or unpleasant working conditions).

To the extent that the appellant asserts that she was discriminated and retaliated 

against for prior EEO activity, IAF, Tab 1; PFR File, Tab 1 at 9, we have 

considered such claims insofar as they relate to the issue of voluntariness, see

Wright, 85 M.S.P.R. 358, ¶ 25. In an involuntary retirement appeal, as opposed 

to considering these claims separately, the Board considers evidence of 

discrimination and retaliation as it relates to the ultimate question of coercion, 

namely, whether, under all of the circumstances, working conditions were made 

so difficult by the agency that a reasonable person in the employee’s position 

would have felt compelled to retire. Id. As discussed, we find that the appellant 

has failed to nonfrivolously allege that she had no alternative but to retire.

¶9 Even if the appellant were alleging that she retired in order to avoid having 

to oppose a potential removal action, the mere fact that she was faced with the 

unpleasant choice of either retiring or opposing a potential removal for cause 

does not rebut the presumed voluntariness of her ultimate choice to retire. Lloyd 

v. Small Business Administration, 96 M.S.P.R. 518, ¶ 3 (2004). Rather, for an 

appellant’s retirement in such circumstances to be considered involuntary and 

therefore appealable as a constructive removal, she must establish that the agency 

did not have reasonable grounds for proposing removal. Id. In this case, the 

appellant has failed to nonfrivolously allege that that the agency lacked 

reasonable grounds for proposing her removal. 3

 3 There is no dispute that the agency proposed the appellant’s removal based upon 

charges of insubordination, failure to follow a supervisor’s directive, unprofessional 

conduct, and making false or misleading statements in a matter of official interest. IAF, 

Tab 1. The proposal contained detailed specifications in support of the charges. Id. 

The appellant does not dispute many of the instances of misconduct that serve as the 

basis for these charges. Id.; PFR File, Tab 1. She also does not dispute the 

administrative judge’s finding that the agency had reasonable grounds for proposing her 

removal. PFR File, Tab 1; see ID at 4-5. 
6

¶10 Accordingly, because the appellant failed to raise nonfrivolous allegations 

casting doubt on the presumption of voluntariness, we find that the administrative 

judge properly dismissed the appeal for lack of jurisdiction without holding a 

hearing.

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision by the United 

States Court of Appeals for the Federal Circuit. You must submit your request to 

the court at the following address:

United States Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, DC 20439

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).

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 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.
7

If you are interested in securing pro bono representation for an appeal to the 

United States 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 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.

______________________________

William D. Spencer

Clerk of the Board