UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

STEVEN A. MILLER,

Appellant,

v.

UNITED STATES POSTAL SERVICE,

Agency.

DOCKET NUMBER

PH-0752-14-0592-B-1

DATE: June 23, 2016

THIS FINAL ORDER IS NONPRECEDENTIAL1

Steven A. Miller, Export, Pennsylvania, pro se.

Suzanne B. McCabe, Esquire, Philadelphia, Pennsylvania, 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 remand initial decision, 

which dismissed his constructive removal claim for lack of jurisdiction and his 

Veterans Employment Opportunities Act of 1998 (VEOA) claim as untimely 

filed. Generally, we grant petitions such as this one only when: the initial 

decision contains erroneous findings of material fact; the initial decision is based 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

on an erroneous interpretation of statute or regulation or the erroneous 

application of the law to the facts of the case; the administrative 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, 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. Except as expressly MODIFIED by this Final Order to find 

that the agency issued disciplinary actions to the appellant after October 2012, 

we AFFIRM the remand initial decision, which is now the Board’s final decision.

BACKGROUND

¶2 The appellant held a Supervisor, Customer Services position at the agency. 

Initial Appeal File (IAF), Tab 4 at 53. In May 2012, the agency issued him a 

letter of warning in lieu of a 7-day suspension for improper conduct. 

Remand File (RF), Tab 8 at 18-19. It appears that the appellant ceased reporting 

to work in August 2012, allegedly for medical reasons. Id. at 12, 16‐17. His

last day in a pay status was on October 12, 2012. IAF, Tab 4 at 53. 

¶3 On or before October 19, 2012, the appellant wrote a letter to the agency

reporting certain alleged violations of law. RF, Tab 8 at 6-7. He claimed that he 

was forced to carry mail in violation of his medical restrictions and the contract. 2

 

Id. at 6. According to the appellant, he had become indefinitely incapacitated 

due to carrying mail, and he was forced to seek disability retirement. Id. 

 2 The “contract” is the National Agreement between the agency and the National 

Association of Letter Carriers. IAF, Tab 4 at 37, 47.
3

¶4 The appellant applied for immediate disability retirement in November 2012. 

IAF, Tab 4 at 57-60. In February 2013, the agency issued the appellant a letter 

of warning for his continuous absence from August 2012 to January 2013. RF, 

Tab 8 at 16‐17. Later that month, the agency issued him a proposed letter of 

warning in lieu of a 7-day suspension for his absence from January to February 

2013. Id. at 9-10. The appellant’s disability retirement application was granted 

effective March 11, 2013. IAF, Tab 4 at 53. 

¶5 In May 2013, the appellant filed a formal equal employment opportunity 

(EEO) complaint alleging that he was forced to retire because the agency 

retaliated against him for prior EEO activity and discriminated against him based 

on disability. Id. at 16, 54. He specifically alleged that, from September 2010 to 

August 2012, he was forced to carry mail and work overtime until he was 

medically unable to perform his duties. Id. at 25, 41, 44-48. On February 10, 

2014, the agency issued a final agency decision concluding that the evidence did 

not support a finding of discrimination. Id. at 38‐39. The appellant 

subsequently filed a Board appeal and requested a hearing. IAF, Tab 1.

¶6 Without holding the requested hearing, the administrative judge issued an 

initial decision dismissing the appeal, which he interpreted as raising claims of 

involuntary disability retirement and violation of the Uniformed Services 

Employment and Reemployment Rights Act of 1994, for lack of jurisdiction. 

IAF, Tab 9, Initial Decision. The appellant filed a petition for review. Petition 

for Review (PFR) File, Tab 1. In a nonprecedential order, the Board remanded 

the case to the regional office to determine whether the appellant’s allegations of 

whistleblower reprisal supported a finding of coercion and to afford the appellant

jurisdictional notice for his potential whistleblower reprisal and VEOA claims. 

Miller v. U.S. Postal Service, MSPB Docket No. PH-0752-14-0592-I-1, Remand 

Order at 2, 6-8 (Feb. 24, 2015) (Remand Order).
4

¶7 On remand, the administrative judge informed the appellant of the elements of 

a prima facie case of retaliation for whistleblowing and ordered him to provide 

information on these elements. RF, Tab 2 at 2. In the same order, he also gave 

the appellant jurisdictional notice of his VEOA claim. Id. at 3-6. He advised the

appellant that his VEOA claim appeared to be untimely filed and ordered the 

appellant to provide information as to jurisdiction and timeliness. Id. at 6‐8. 

The appellant responded to the order. RF, Tabs 8-9.

¶8 Without holding a hearing, the administrative judge issued a remand initial 

decision dismissing the appellant’s constructive removal claim for lack of 

jurisdiction and his VEOA claim as untimely filed. RF, Tab 10, Remand Initial 

Decision (RID) at 2, 9-10. He found that the appellant failed to make a 

nonfrivolous allegation of intolerable working conditions rendering his 

retirement involuntary. RID at 8. He further found that the doctrine of equitable 

tolling was not available in this case because the appellant failed to demonstrate 

his diligence in pursuing his rights under VEOA.

3

 RID at 9; see 5 C.F.R. 

§ 1208.22(c).

¶9 The appellant has filed a petition for review of the remand initital decision. 

Remand Petition for Review (RPFR) File, Tab 1. The agency has responded in 

opposition. RPFR File, Tab 3. The appellant has filed a reply to the agency’s 

response.

4

 RPFR File, Tab 6.

DISCUSSION OF ARGUMENTS ON REVIEW

¶10 The Board’s jurisdiction is limited to those matters over which it has been 

given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems 

Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). An employee‐initiated 

 3 The appellant does not dispute this finding on review, and we decline to disturb it.

4 Pursuant to Board regulations, we interpret the appellant’s February 12, 2016 pleading

as a reply to the agency’s response to the petition for review. 5 C.F.R. 

§ 1201.114(a)(4).
5

action, such as a retirement, is presumed to be voluntary, and therefore outside

the Board’s jurisdiction. Vitale v. Department of Veterans Affairs, 107 M.S.P.R. 

501, ¶ 17 (2007). An involuntary retirement is tantamount to a removal, 

however, and is therefore subject to the Board’s jurisdiction. Id. If an appellant 

makes a nonfrivolous allegation5 of jurisdiction, he is entitled to a hearing at 

which he must prove jurisdiction by a preponderance of the evidence. 6

 Id.,

¶ 18; 5 C.F.R. § 1201.56(b)(2)(i)(A). The administrative judge found that the 

appellant failed to nonfrivolously allege facts that would establish Board 

jurisdiction over his alleged involuntary retirement. RID at 8. We agree.

¶11 To overcome the presumption that his retirement was voluntary, an employee 

must show that it was the product of the agency’s misinformation, deception, or 

coercion. Vitale, 107 M.S.P.R. 501, ¶ 19. To establish involuntariness on the 

basis of coercion, an employee must show that the agency effectively imposed 

the terms of his resignation or retirement, he had no realistic alternative but to 

resign or retire, and his resignation or retirement was the result of improper acts 

by the agency. Id. In cases such as this one, when the employee alleges that the 

agency took actions that made working conditions so intolerable that he was 

driven to an involuntary retirement, the appropriate test for voluntariness is 

whether, under all of the circumstances, the agency made working conditions so 

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

compelled to retire. Id., ¶ 20; Markon v. Department of State, 71 M.S.P.R. 574, 

577‐78 (1996). The Board considers allegations of discrimination and reprisal, 

including reprisal for whistleblowing, only insofar as they relate to the issue of 

voluntariness. Markon, 71 M.S.P.R. at 578-80. Therefore, the Board will only 

 5 A nonfrivolous allegation is an assertion that, if proven, could establish the matter at 

issue. 5 C.F.R. § 1201.4(s).

6 A preponderance of the evidence is the degree of relevant evidence that a reasonable 

person, considering the record as a whole, would accept as sufficient to find that a 

contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).
6

reach the issues of discrimination and reprisal if a constructive removal is 

established based upon consideration of all allegations of incidents of 

harassment, unfavorable treatment, and other coercion. Id. at 580.

¶12 After we remanded this appeal, the appellant made general allegations that he 

engaged in whistleblowing and that the agency retaliated against him. RF, Tab 8 

at 1. However, he only identified one specific alleged whistleblowing 

disclosure, the letter that he sent to the agency on or before October 19, 2012. 

Id. at 6‐7; see Thompson v. Department of the Air Force, 21 M.S.P.R. 460, 463 

(1984) (finding that an employee must make specific allegations raising 

nonfrivolous issues of fact to overcome the presumption that his retirement is 

voluntary). The appellant signed his disability retirement application a few days 

later. IAF, Tab 4 at 60. Approximately 3 months after these events, the agency 

issued the appellant a letter of warning and a proposed letter of warning in lieu 

of a 7‐day suspension for his continuous absence since August 2012.

7

 RF, Tab 8 

at 9-10, 16-17. 

¶13 Interpreting this pro se appellant’s pleadings liberally, he appears to allege 

that this discipline was an attempt by the agency to effect his removal. Id. at 1; 

see Melnick v. Department of Housing and Urban Development, 42 M.S.P.R. 93, 

97-98 (1989) (observing that parties before the Board, particularly those without 

the benefit of legal counsel, are not required to plead the issues with the 

precision required of an attorney in a judicial proceeding), aff’d, 899 F.2d 1228 

(Fed. Cir. 1990) (Table). However, the fact that an employee is faced with an 

inherently unpleasant situation or that his choices are limited to unpleasant 

alternatives does not make his decision involuntary. Lawson v. U.S. Postal 

 7 To the extent that the administrative judge incorrectly found that the agency did not 

take or contemplate any disciplinary action against the appellant after October 2012, we 

modify the initial decision. RID at 7‐8; see Panter v. Department of the Air Force, 

22 M.S.P.R. 281, 282 (1984) (finding that an adjudicatory error that is not prejudicial to 

a party’s substantive rights provides no basis for reversal of an initial decision).
7

Service, 68 M.S.P.R. 345, 350 (1995). Nor is an employee guaranteed a working 

environment free of stress. See Miller v. Department of Defense, 85 M.S.P.R. 

310, ¶ 32 (2000). Dissatisfaction with work assignments, a feeling of being 

unfairly criticized, or difficult or unpleasant working conditions generally are 

not so intolerable as to compel a reasonable person to resign. See id. 

¶14 We find that the appellant’s allegations of whistleblower reprisal do not 

support a finding of coercion. The letters of warning issued to the appellant after 

his October 2012 disclosure would not have compelled a reasonable person to 

retire. See Axsom v. Department of Veterans Affairs, 110 M.S.P.R. 605, 

¶¶ 13-14, 17 (2009) (finding that an agency’s request for medical documentation 

and the threat of being deemed absent without leave did not coerce an appellant 

into resigning because, in pertinent part, he acted precipitously, tendering his 

resignation before any negative action took place). Further, the appellant’s

conclusory statement that he “had no choice to retire or be fired” does not 

establish the involuntariness of his choice. RPFR File, Tab 1; see Lamb v. U.S. 

Postal Service, 46 M.S.P.R. 470, 474 (1990) (observing that the decision to 

resign, rather than be removed, without more, does not amount to coercion).

Finally, he has not alleged that the agency’s basis for its disciplinary actions, his 

continuous absence, could not be substantiated. See Barthel v. Department of the 

Army, 38 M.S.P.R. 245, 251 (1988) (observing that a finding of involuntariness 

may be based on a showing that the agency knew it could not substantiate the 

basis for a threatened removal). Thus, we find that the appellant has failed to 

make a nonfrivolous allegation that his retirement was coerced, and the 

administrative judge properly dismissed his constructive removal claim for lack 

of jurisdiction.

¶15 On review, the appellant reiterates his claim that the agency violated the 

contract and Federal rules by forcing him to carry mail until he could no longer 

physically perform his duties and had to retire. RPFR File, Tabs 1, 6. However, 

we found in our previous remand order that these claims were insufficient to 
8

establish that the appellant’s disability retirement was involuntary. Remand 

Order, ¶¶ 6‐8. We decline to revisit that finding here.

¶16 The appellant’s additional claims do not state a basis for granting the petition 

for review. He first argues that the agency prevented him from entering agency 

property to obtain statements from former employees. RPFR File, Tab 1. The 

appellant does not support his assertion that the agency has an obligation to 

provide him with access to former employees. He also claims that the agency 

failed to provide requested information. RPFR File, Tab 6. However, because 

he did not file a motion to compel below, he is precluded from raising this 

discovery issue for the first time on review. See Szejner v. Office of Personnel 

Management, 99 M.S.P.R. 275, ¶ 5 (2005), aff’d, 167 F. App’x 217 (Fed. Cir. 

2006). 

¶17 The appellant next argues that the agency deleted his emails, but he does not 

specify the relevant content of the emails or explain why he did not raise this

issue below. RPFR File, Tab 1. His vague allegation does not support an 

inference that the agency deliberately destroyed emails to impede his appeal. 

Cf. Hidalgo v. Department of Justice, 93 M.S.P.R. 645, ¶ 23 (2003) (finding the 

appellant was not entitled to a negative inference against the agency for

destroying interview notes because the note-taker destroyed the notes after 

completing his report pursuant to his routine practice, the agency made the report 

available, and the note-taker testified at the hearing). 

¶18 Further, the appellant’s conclusory statement that the administrative judge

ignored the evidence does not provide a reason for review. RPFR File, Tabs 1, 

6; Marques v. Department of Health & Human Services, 22 M.S.P.R. 129, 132 

(1984) (finding that 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), aff’d, 776 F.2d 1062 (Fed. Cir. 1985) (Table). 

¶19 Finally, the appellant states generally on review that the agency failed to 

provide him with due process in connection with its alleged attempts to remove 
9

him. RPFR File, Tabs 1, 6. Because we have found already that the Board lacks 

jurisdiction over the appellant’s retirement, we decline to discuss this argument

further. See Morrison v. Department of the Navy, 122 M.S.P.R. 205, ¶ 11 (2015) 

(observing that defenses to an alleged involuntary retirement, such as an alleged 

due process violation, are not relevant to the threshold issue of jurisdiction). 

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS8

The initial decision, as supplemented by this Final Order, constitutes the 

Board’s final decision in this matter. 5 C.F.R. § 1201.113. You have the right to 

request review of this final decision by the U.S. Court of Appeals for the Federal 

Circuit. 

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 want to request review of the Board’s decision concerning your 

claims of prohibited personnel practices under 5 U.S.C. § 2302(b)(8), 

(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge 

the Board’s disposition of any other claims of prohibited personnel practices, 

you may request review of this final decision by the U.S. Court of Appeals for 

the Federal Circuit or any court of appeals of competent jurisdiction. The court 

of appeals must receive your petition for review within 60 days after the date of 

this order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If you 

 8 The administrative judge afforded the appellant mixed-case review rights. RID 

at 13-15. However, when, as here, the Board lacks jurisdiction over an appeal, we 

provide notice of nonmixed-case review rights. Conforto v. Merit Systems Protection 

Board, 713 F.3d 1111, 1117-19 (2013). We have provided the appellant the proper 

review rights here. 
10

choose to file, be very careful to file on time. You may choose to request review 

of the Board’s decision in the U.S. Court of Appeals for the Federal Circuit or 

any other court of appeals of competent jurisdiction, but not both. Once you 

choose to seek review in one court of appeals, you may be precluded from 

seeking review in any other court.

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 U.S. 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 U.S. Code, at our 

website, http://www.mspb.gov/appeals/uscode/htm. Additional information 

about the U.S. Court of Appeals for the Federal Circuit 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. Additional information about 

other courts of appeals can be found at their respective websites, which can be 

accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

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

the U.S. 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
11

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