UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

PAUL MENARD,

Appellant,

v.

DEPARTMENT OF THE INTERIOR,

Agency.

DOCKET NUMBER

SF-0752-13-4803-I-1

DATE: August 27, 2014

THIS FINAL ORDER IS NONPRECEDENTIAL1

Paul Menard, Bellingham, Washington, pro se.

Martha F. Ansty, Esquire, Essex Junction, Vermont, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Anne M. Wagner, Vice Chairman

Mark A. Robbins, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which 

dismissed his involuntary resignation 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 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

interpretation of statute or 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. Except as expressly modified by this Final Order, 

we AFFIRM the initial decision. 

¶2 The appellant’s duty station was Glen Jean, West Virginia. Initial Appeal 

File (IAF), Tab 5, Subtab 4t at 1. In November of 2010, the appellant moved to 

Montana, at his own expense, for personal reasons. IAF, Tab 8 at 2, 5. However, 

the agency executed a telework arrangement, primarily to temporarily 

accommodate his personal needs. Id.; IAF, Tab 5, Subtab 4s. Although he 

continued to work for the West Virginia office, the agency changed the 

appellant’s duty station of record to his new home in Montana. IAF, Tab 5, 

Subtab 4p.

¶3 By at least February of 2012, the agency was no longer satisfied with the

telework arrangement. See IAF, Tab 5, Subtab 4m at 1. Not wanting to return to 

West Virginia, the appellant suggested a variety of options to facilitate his 

separation. Id. at 1-3. Among them, he requested a change in duty station to 

Bellingham, Washington, to accommodate both a job search and his family’s 

wishes. Id. at 2. The agency changed his duty station and telework agreement 

accordingly. IAF, Tab 5, Subtab 4k, Subtab 4l at 3. However, the appellant 

cancelled his plans to move, and the agency cancelled the change in duty station 

for his convenience. IAF, Tab 5, Subtab 4f; see IAF, Tab 8 at 6 (containing an 
3

explanation from the appellant that his move to Washington did not happen 

because of the terms of a lease and a family medical issue).

¶4 In May of 2012, the agency notified the appellant that it would be 

terminating his telework arrangement based on agency needs, effective June of 

2012. IAF, Tab 5, Subtab 4j. The agency provided advance notice to give the 

appellant time to arrange his return to West Virginia. Id. 

¶5 Days before he was scheduled to appear for work in West Virginia, the 

appellant requested a temporary extension of the telework arrangement to 

accommodate his family. IAF, Tab 5, Subtab 4g. The agency denied this request, 

citing an urgent need at the West Virginia office and the exhaustion of tasks that 

could be completed remotely. IAF, Tab 8 at 3. Consequently, the appellant 

submitted a letter of resignation, effective July 2, 2012. IAF, Tab 5, Subtab 4c.

¶6 The appellant filed an appeal with the Board in August of 2013. IAF, Tab 1 

at 5. The administrative judge issued an acknowledgment order, construing the 

appeal as one of involuntary resignation2 and directing the appellant to meet his 

burden of proving that the Board had jurisdiction over his claim. 3

 IAF, Tab 2 

at 2. The appellant responded, arguing that his resignation was the result of 

duress, coercion, and misrepresentation by the agency. IAF, Tab 4 at 4. He 

alleged that the agency misrepresented its actions as the cancelling of the 

 2 The narrative included in the appellant’s initial appeal also alleged that he was forced 

to take leave from June 17, 2012, until July 2, 2012. IAF, Tab 1 at 5. However, the 

allegation was intertwined with the appellant’s argument that his work environment had 

become hostile and forced his resignation. Id. The appellant’s pleadings did not appear 

to assert his leave as a claim separate from his allegation of involuntary resignation. 

Moreover, the record contains no indication that his leave was forced. Instead, the 

evidence of record indicates that the agency allowed the appellant to take leave until 

July 2, 2012, to accommodate his return to West Virginia from Montana. IAF, Tab 8 at 

1; see Yarnell v. Department of Transportation, 109 M.S.P.R. 416, ¶ 10 (2008) (an 

employee’s voluntary placement in a leave status is not appealable).

3 The order also directed the appellant to prove the timeliness of his appeal, as it had 

been filed more than a year after his resignation. IAF, Tab 2 at 3. However, because 

the judge found that the Board lacked jurisdiction, the judge’s dismissal did not address 

the timeliness of the appeal. IAF, Tab 10, Initial Decision (ID) at 1 n.1.
4

telework arrangement when it should have instead provided him rights associated 

with a directed reassignment or reduction in force (RIF). Id. at 6. According to 

the appellant, this coerced him into resigning. Id. The agency submitted a 

motion to dismiss. IAF, Tab 9 at 4-10.

¶7 Without holding a hearing, the administrative judge dismissed the appeal 

for lack of jurisdiction. ID. He concluded that the appellant failed to present a 

nonfrivolous allegation that his resignation was involuntary. ID at 9. The 

appellant has filed a petition for review. Petition for Review (PFR) File, Tab 1. 

The agency has filed a response. PFR File, Tab 3.

The appellant failed to nonfrivolously allege that his resignation was involuntary 

due to coercion. 4

¶8 The Board’s jurisdiction is not plenary; it 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 appellant has the 

burden of proving, by preponderant evidence, 5 that his appeal is within the 

Board’s jurisdiction. 5 C.F.R. § 1201.56(a)(2)(i). 

¶9 An employee-initiated action, such as a resignation, is presumed to be 

voluntary and thus outside the Board’s jurisdiction. Gibeault v. Department of 

the Treasury, 114 M.S.P.R. 664, ¶ 6 (2010). In order to overcome the 

presumption that a resignation was voluntary, an appellant must show that: (1) the 

resignation was the product of misinformation or deception by the agency; or 

(2) the resignation was the product of coercion by the agency. Vitale v. 

 4 The appellant’s petition for review appears premised on allegations of 

misrepresentation rather than coercion. See PFR File, Tab 1 at 5-6. However, to the 

extent that he intended to intertwine arguments of misrepresentation and coercion, as he 

did below, we will address each. See Hosozawa v. Department of Veterans Affairs, 

113 M.S.P.R. 110, ¶ 7 (2010) (pro se filings are to be construed liberally).

5 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. § 1201.56(c)(2). 
5

Department of Veterans Affairs, 107 M.S.P.R. 501, ¶ 19 (2007). An appellant is 

entitled to a jurisdictional hearing if he makes a nonfrivolous allegation6 that the 

Board has jurisdiction over his appeal. Gibeault, 114 M.S.P.R. 664, ¶ 6.

¶10 In his initial appeal, the appellant asserted that “the agency created a hostile 

work environment through repeated misrepresentation of facts, false accusations, 

hostile posturing, and punitive acts,” coercing him to resign. IAF, Tab 4 at 4, 6. 

According to the appellant, he was “duped into a game of bait-and-switch.” Id. at 

5. However, the administrative judge concluded that the appellant’s resignation 

was not involuntary due to coercion, ID at 8-9, and we agree.

¶11 To establish involuntariness on the basis of coercion, an appellant must 

show that the agency effectively imposed the terms of the resignation, the 

appellant had no realistic alternative but to resign, and his resignation was the 

result of improper acts by the agency. Vitale, 107 M.S.P.R. 501, ¶ 19. 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 him of freedom of choice. Id. 

¶12 One example of an involuntary resignation based on coercion is a 

resignation induced by a threat to take a disciplinary action that the agency knows

cannot be substantiated. Staats v. U.S. Postal Service, 99 F.3d 1120, 1124 (Fed. 

Cir. 1996). A resignation also is coerced where an agency takes steps against an 

employee, “not for any legitimate agency purpose but simply to force the 

employee to quit.” Id. However, “[t]he doctrine of coercive involuntariness is a 

narrow one.” Id. An employee’s decision to resign to avoid a transfer that an 

agency has the authority to direct is not involuntary, even if it makes the job “so 

unpleasant for the employee that he feels that he has no realistic option but to 

 6 Nonfrivolous allegations of Board jurisdiction are allegations of fact which, if proven, 

could establish a prima facie case that the Board has jurisdiction over the matter at 

issue. Gibeault, 114 M.S.P.R. 664, ¶ 6.
6

leave.” Id. The employee’s decision is not made involuntary merely by the 

requirement that he choose between two unattractive alternatives. Id.

¶13 Here, the record is filled with evidence that the appellant’s move to 

Montana was intended as a temporary accommodation to meet his personal needs. 

See, e.g., IAF, Tab 8 at 5-6, 9 (acknowledging that the move to Montana was to 

accommodate the appellant’s personal needs, was not intended to be permanent, 

and was to be reevaluated a year after its inception). The record also establishes 

that the appellant’s return to West Virginia was necessary to meet organizational 

needs. See, e.g., id. at 3-4 (detailing organizational changes, including the 

passing of another agency employee, that made the physical presence of the 

appellant’s position in West Virginia critical, and indicating that the agency had 

no more tasks that could be performed remotely). Finally, the record establishes 

that the agency provided the appellant with almost 1-month’s advance notice to 

return to West Virginia, after previously advising him that the telework 

arrangement was nearing its close. IAF, Tab 5, Subtab 4m at 1-3 (February 23, 

2012 email from the appellant preparing for an end to the telework arrangement),

Subtab 4j (May 9, 2012 notice directing the appellant to return to West Virginia 

by June 4, 2012), Tab 8 at 1, 3 (June 8, 2012 letter reflecting discussions dating 

from February 2012 of the planned termination of the telework arrangement and 

permitting the appellant to take leave as needed before reporting to West Virginia 

by July 2, 2012). 

¶14 None of the evidence in the record suggests that the agency took steps to 

force the appellant to quit. While the appellant may have preferred to stay in 

Montana, he failed to nonfrivolously allege that his decision to resign rather than 

return to West Virginia was coerced. 

The appellant failed to nonfrivolously allege that his resignation was involuntary 

due to misinformation.

¶15 The appellant alleged, both below and on petition for review, that his 

resignation was involuntary due to misinformation. IAF, Tab 4 at 4, 6; PFR File, 
7

Tab 1 at 6. According to the appellant, he was “deprived of critical information” 

regarding the directive to return to West Virginia, which prevented him from 

making an informed decision. PFR File, Tab 1 at 6. We disagree. 7

¶16 To establish involuntariness on the basis of misinformation, an appellant 

must show that the agency provided misinformation, he materially relied on that 

misinformation, and his reliance was to his detriment. Paige v. U.S. Postal 

Service, 106 M.S.P.R. 299, ¶ 9 (2007). Here, the appellant’s argument is 

premised on the assertion that the agency was not only cancelling a telework 

arrangement, it was also subjecting him to a directed reassignment or a RIF. IAF, 

Tab 4 at 6; PFR File, Tab 1 at 6. He suggests that the agency never informed him 

that it could require his return to West Virginia by simply cancelling the telework 

agreement. PFR File, Tab 1 at 6. 

¶17 Although the appellant alleges that he was misinformed about the agency’s 

ability to require his return to West Virginia and that this resulted in his 

resignation, the record reflects otherwise. As detailed above, the record 

establishes that the telework arrangement was intended to be temporary. Two 

weeks after receiving official notice that his telework arrangement would not be 

continued, the appellant responded to the agency by letter stating, in pertinent 

part, that his move to Montana was intended to be a temporary solution to his 

personal needs, and that he would have to return to West Virginia or be “off the 

roles” at some point. IAF, Tab 8 at 5-6, 9. The letter also includes the remark, “I 

do not dispute the agency’s authority to terminate our telework agreement or 

reassign me.” Id. at 5. 

¶18 While the appellant puts great emphasis on the fact that the duty station on 

his Standard Form 50 listed his home in Montana, the location of the position 

continued to be listed as Glen Jean, West Virginia. IAF, Tab 5, Subtab 4k. 

Further, the telework agreement provided that the agency could suspend it and 

 7 We modify the initial decision, which did not specifically address this argument, to 

include our finding that the appellant’s resignation was not the result of misinformation.
8

“require the employee to resume working at the official duty station.” IAF, Tab 

5, Subtab 4l at 6. The appellant was well-informed that the arrangement was 

temporary. See, e.g., IAF, Tab 5, Subtab 4m at 2 (stating, “[i]f I were single and 

unencumbered I would move back tomorrow,” while indicating that personal 

circumstances made the move difficult), Subtab 4r (email chain in which the 

agency expressed its reluctance to change the appellant’s duty station and the 

appellant advised that it was necessary for him for residency and tax reasons),

Tab 8 at 9 (acknowledging that a claim of relocation expenses to return to West 

Virginia would “violate the spirit and intent of our agreement” (emphasis in 

original)). Therefore, the appellant failed to meet his burden of nonfrivolously 

alleging that his resignation was involuntary due to misinformation.

The appellant’s allegation that he was subject to a directed reassignment does not

bring his appeal within the Board’s jurisdiction.

¶19 The appellant argues that the agency subjected him to a directed 

reassignment, for which he should have been provided “regulations and 

entitlements.” IAF, Tab 4 at 6; see PFR File, Tab 1 at 6. He questioned the 

agency’s authority to force his return to West Virginia. PFR File, Tab 1 at 6. 

¶20 Although the appellant alleged that he was due reassignment rights, the 

Board lacks jurisdiction over reassignments absent a reduction in grade or pay, or 

unless the reassignment resulted in a coerced resignation or a removal. See

Miller v. Department of Interior, 120 M.S.P.R. 426, ¶¶ 9-24 (2013) (an agency 

must have a bona fide reason for a directed geographic reassignment and may not 

reassign an employee as a veil to effect separation); Bishop v. Department of 

Commerce, 62 M.S.P.R. 138, 141-42 (1994). Here, the appellant’s grade and pay 

remained the same despite the directive to return to West Virginia from Montana. 

IAF, Tab 5, Subtabs 4e, 4p. Further, as discussed above, we find that the 

appellant’s resignation was not coerced. While the appellant alleges that his 

resignation was an involuntary result of the agency’s directive to return to West 

Virginia, he has not alleged that the agency had an improper motive for directing 
9

this return. Instead, the record establishes that the agency had a bona fide reason 

for requiring that he return to West Virginia. IAF, Tab 8 at 3; see IAF, Tab 5, 

Subtab 4m at 1 (email from the appellant acknowledging that the telework 

arrangement was negatively impacting the agency’s operations). Therefore, even 

if the cancellation of his telework arrangement amounted to a directed 

reassignment, as the appellant alleges, this does not bring his appeal within the 

Board’s jurisdiction. 

The appellant was not subjected to a RIF.

¶21 The appellant argues that he was subjected to a RIF, for which he should 

have been provided rights. IAF, Tab 4 at 6; PFR File, Tab 1 at 6. We disagree.

¶22 A RIF is an administrative procedure by which an agency eliminates jobs 

for certain listed reasons, including lack of work or reorganization, and releases 

employees from their competitive levels by furlough of more than 30 days, 

separation, demotion, or reassignment requiring displacement. Burger v. U.S. 

Postal Service, 93 M.S.P.R. 582, ¶ 9 (2003), aff’d sub nom. Hayes v. U.S. Postal 

Service, 390 F.3d 1373 (Fed. Cir. 2004); 5 C.F.R. § 351.201(a)(2). An employee 

who has been furloughed for more than 30 days, separated, or demoted by a RIF 

may appeal to the Board. Bodus v. Department of the Air Force, 82 M.S.P.R. 

508, ¶ 7 (1999); 5 C.F.R. § 351.901. 

¶23 As previously explained, the agency directed the appellant to return to West 

Virginia, but he was not furloughed for more than 30 days, separated, or demoted 

by a RIF. Further, where, as here, an agency action is directed at an individual, 

rather than a position, it is not a RIF. E.g., LaMell v. Armed Forces Retirement 

Home, 104 M.S.P.R. 413, ¶ 11 (2007); Baker v. Department of Homeland 

Security, 99 M.S.P.R. 92, ¶ 6 (2005). The agency merely ended the telework 

arrangement, as it was entitled to do, directing the appellant to return to West 

Virginia to continue performing the same position, at the same grade and pay. 
10

See IAF, Tab 5, Subtabs 4e, 4j. Therefore, the appellant was not subject to a RIF 

within the Board’s jurisdiction.

¶24 In conclusion, the appellant failed to meet his burden of proving that his 

resignation was involuntary, or that the agency subjected him to any other action 

within the Board’s jurisdiction. Therefore, we deny the petition for review and 

affirm the initial decision to dismiss the appeal for lack of Board jurisdiction. 

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

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 the United States Court of Appeals for the Federal Circuit to review this 

final decision. 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. 
11

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.

If you are interested in securing pro bono representation for your court 

appeal, you may visit our website at http://www.mspb.gov/probono for a list of 

attorneys who have expressed interest in providing pro bono representation for 

Merit Systems Protection Board appellants before the court. 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