UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

VANETTA SIMMONS,

Appellant,

v.

DEPARTMENT OF 

TRANSPORTATION,

Agency.

DOCKET NUMBER

NY-0752-15-0109-I-1

DATE: September 28, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL1

Vanetta Simmons, South Ozone Park, New York, pro se. 

Jennifer D. Ambrose, Esquire, and Parisa Naraghi-Arani, 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 involuntary retirement appeal for lack of jurisdiction. Generally, 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

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 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, 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). 

¶2 On April 22, 2014, the agency notified the appellant that she would be 

administratively reassigned from her Human Resources Specialist position in 

New York to the same position at its Benefits Operations Center (BOC) in 

Kansas City, Missouri, effective no later than January 11, 2015. Initial Appeal 

File (IAF), Tab 6 at 12-13. The agency explained that it was consolidating the 

benefits function within its Office of Human Resource Management to streamline 

processes, and to improve quality control, management workflow, and the 

agency’s ability to collaborate on cross-cutting organizational issues and meet 

service delivery expectations. Id. at 12. The appellant would retain the same pay 

plan, grade/level and basic rate of pay, 2 and she would be eligible for relocation 

expense reimbursement. Id. The agency further stated that it would propose her 

separation if she declined the reassignment. Id. at 13. On April 28, 2014, the 

 2 The agency informed the appellant that the locality rate of pay would be lower. IAF,

Tab 6 at 12. 
3

agency advised the appellant that she also had the option to request special 

consideration for certain job vacancies at her current duty station. Id. at 15-16. 

¶3 The appellant accepted the reassignment on June 20, 2014, stating that she 

was doing so “under duress because [she] was not given the proper information to 

make a reasonable or rational decision.” Id. at 17. On December 18, 2014, the 

agency reminded her that she would be separated from service if she failed to 

report to her new duty station in Missouri on January 12, 2015. Id. at 21. 

However, on January 8, 2015, the appellant applied for a discontinued service

retirement. Id. at 40-43. Her retirement became effective on January 10, 2015. 

Id. at 11, 40. 

¶4 The appellant timely filed an involuntary retirement appeal with the Board. 

IAF, Tab 1. She asserted that her retirement was involuntary because: (1) it 

would have been a hardship for her to relocate due to her health and the health of 

her elderly mother, and she could not afford to maintain a home in New York and 

live in Missouri; (2) the agency required regional employees to relocate, while 

similar employees in the agency’s Washington, D.C. headquarters were not 

required to relocate; (3) employees in other regions received greater assistance in 

finding positions that would not require them to relocate; (4) when the agency 

first established the BOC in 2010, it maintained for several years that it would not 

require regional employees to relocate; (5) the agency provided piecemeal, 

conflicting information regarding the possibility of pay retention in the event that 

an employee voluntarily accepted a lower paying job and delayed in providing 

complete information regarding the Voluntary Early Retirement/Voluntary 

Incentive Separation Program (VERA/VISP); (6) the agency failed to inform her 

of vacancies that were posted for similar positions in Washington, D.C., did not 

consider allowing her to work virtually, and did not actively pursue her placement 

into a position that would not require her to relocate; (7) she did not receive the 

promised special consideration for any vacancies; (8) the agency’s offer for 

employees to go on a house hunting trip in Missouri was disingenuous because 
4

the trip coincided with training they were required to complete in Missouri and 

the agency provided unclear information as to whether employees would be 

required to pay back funds for the house hunting trip if they ultimately chose not 

to relocate; (9) the agency threatened to place her on sick leave restriction; 

(10) her relocation to the BOC was unnecessary because her work performance 

and quality was already good at her current duty station, whereas the BOC has 

been unsuccessful and ineffective since its establishment; and (11) agency 

management informed employees that they were lucky to have jobs and could be 

separated at any time if they declined reassignment. Id.; IAF, Tab 8 at 4-7,

Tab 13 at 4-43, Tab 16 at 4-7. 

¶5 The administrative judge issued an initial decision based on the written 

record. 3

 IAF, Tab 20, Initial Decision (ID). She dismissed the appellant’s appeal 

for lack of jurisdiction, finding that the appellant failed to establish that she 

retired involuntarily. ID. Specifically, she concluded that: (1) the agency 

sufficiently refuted the appellant’s arguments suggesting that it did not have bona 

fide, legitimate management reasons for the reassignment; (2) the appellant 

did not establish that the agency provided her with insufficient, misleading, or 

inaccurate information that prevented her from making an informed decision

about whether to accept the reassignment; and (3) the appellant’s claims 

concerning the infeasibility of relocation based upon her personal and financial 

circumstances did not establish that her decision to retire was involuntary. ID

at 4-9. 

¶6 The appellant has filed a petition for review. Petition for Review (PFR) 

File, Tab 1. She argues that the administrative judge failed to consider affidavits 

she submitted as evidence and instead relied upon the agency’s evidence, which 

contained numerous inaccuracies, in reaching her decision. Id. at 4. She states 

that the agency coerced her to retire because it forced her to choose between 

 3 The administrative judge found that the appellant was entitled to a jurisdictional 

hearing, but the appellant withdrew her hearing request. IAF, Tab 1 at 2, Tab 9 at 3. 
5

relocating, resigning, or retiring; and she could not resign because she needed 

income due to her medical problems. Id. at 4, 9. She also renews her arguments

that: (1) regional employees were required to relocate, but headquarters 

employees were not; (2) the agency delayed in providing information regarding 

the VERA/VSIP; (3) the agency failed to assist affected employees to find new 

positions, including not providing special consideration for job vacancies as 

promised; and (4) she was under duress when threatened with leave restriction. 

Id. at 4, 6-9. The agency filed a response, to which the appellant did not reply. 

PFR File, Tab 3. 

¶7 As an initial matter, we find the appellant’s claim that the administrative 

judge failed to consider affidavits she submitted as evidence to be without merit. 

The administrative judge explicitly noted in the initial decision that “[t]he 

appellant submitted an affidavit and filed affidavits from other co-workers 

supporting her allegations of duress, coercion and misrepresentation.” ID at 4. 

She addressed the statements contained therein in detail in the initial decision. 

ID at 5-9. The appellant’s mere disagreement with the administrative judge’s 

assessment of the evidence does not establish a basis for review. See Broughton 

v. Department of Health & Human Services, 33 M.S.P.R. 357, 359 (1987). 

¶8 A decision to retire is presumed to be voluntary and an employee who 

voluntarily retires has no right to appeal to the Board. Jones v. Department of the 

Treasury, 107 M.S.P.R. 466, ¶ 10 (2007). An involuntary retirement, however, is 

tantamount to a removal and, accordingly, is an appealable action. Salazar v. 

Department of the Army, 115 M.S.P.R. 296, ¶ 9 (2010). An appellant can rebut 

the presumption that her retirement was voluntary with evidence showing that her

retirement was the result of agency misrepresentation, coercion, or duress. Id. 

For the reasons set forth below, we agree with the administrative judge that the 

appellant has not established that she retired involuntarily based on any of 

these criteria. 
6

¶9 A decision to retire made with blinders on based on misinformation or lack 

of information cannot be binding as a matter of fundamental fairness and due 

process. Freeborn v. Department of Justice, 119 M.S.P.R. 290, ¶ 10 (2013). An 

agency must provide information that is not only correct in nature but adequate in 

scope to allow an employee to make an informed decision. Id. The appellant 

claims that the agency delayed in providing full and accurate information 

regarding the VERA/VSIP, thus impeding her ability to make an informed 

decision as to whether to accept the reassignment. PFR File, Tab 1 at 7. The 

VERA/VSIP was not approved until June 2014 and, as such, it appears that 

eligible employees did not receive letters regarding this option until mid-June 

2014. IAF, Tab 8 at 21. However, the appellant did not apply for retirement until 

January 2015, so we discern no basis to conclude that this brief delay in her 

receipt of information regarding the VERA/VSIP affected her decision to retire. 

Indeed, she does not contend that she would have accepted the VERA/VSIP had

she received the information sooner. To the contrary, she states that she 

ultimately chose not to accept it because it would have required her to repay the 

incentive payment received if she began working for the government within

5 years, a term to which she did not want to agree. PFR File, Tab 1 at 7. 

¶10 Where an agency threatens a removal action knowing that it cannot be 

substantiated, an employee’s retirement in the face of such a removal is the 

product of coercion and is deemed involuntary. Schultz v. United States 

Navy, 810 F.2d 1133, 1136-37 (Fed. Cir. 1987). A directed reassignment must be 

bona fide and based upon legitimate management considerations in the interest of 

the service. Ketterer v. Department of Agriculture, 2 M.S.P.R. 294, 299 (1980). 

Thus, if an appellant can show that the agency knew or should have known that 

its reasons for reassigning her were not bona fide and based upon legitimate 

management considerations in the interest of the service, then she can show that 

the agency knew or should have known that it could not substantiate its threat of 

removal for declining the reassignment and that the threatened removal was 
7

coercive. Jones, 107 M.S.P.R. 466, ¶ 12. On review, the appellant appears to 

assert that the directed reassignment was not bona fide and based upon legitimate 

management considerations because only regional employees were required to 

relocate, whereas headquarters employees performing the same work were not. 

However, we agree with the administrative judge that the agency presented 

sufficient evidence to rebut this argument. ID at 5-6. The agency’s Director of 

Compensation Benefits and Policy, who ordered the reassignment, explained that 

there were two benefits specialists in Washington, D.C., who were not reassigned. 

IAF, Tab 19 at 20. One employee’s position was policy focused and the agency 

determined that it was more appropriate for the position to remain at headquarters 

where policy is made. Id. The other employee primarily serviced executives, 

most of whom worked at the headquarters location. Id. The agency decided that, 

before extending the consolidated benefits function to executives, it first would 

implement it for “rank and file employees” to determine whether it was working. 

Id. We find the appellant’s bare assertion that regional and headquarters 

employees “all did the same job,” PFR File, Tab 1 at 6, insufficient to rebut the 

agency’s stated reasons for reassigning her and numerous other employees. 

¶11 We discern no basis to conclude that the appellant was otherwise coerced. 

She claims that the agency improperly accused her of abusing sick leave and told 

her that she would be placed on leave restriction.

4

 PFR File, Tab 1 at 8-9. 

Although she never received a leave restriction letter, she nonetheless “felt 

threaten[ed].” Id. at 9. We cannot conclude that the threat of leave restriction 

rendered the appellant’s working conditions so intolerable that a reasonable 

person in her position would have felt compelled to retire. See Vitale v. 

Department of Veterans Affairs, 107 M.S.P.R. 501, ¶ 20 (2007). To the extent 

 4 The administrative judge did not address this argument in the initial decision. We 

discern no harm because, for the reasons stated herein, we find that it does not warrant 

a different outcome in this matter. 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). 
8

that the appellant is arguing that the agency threatened to take an action that it 

knew it could not sustain, she has not provided sufficient evidence. Below, she 

stated that she only used 22 hours of leave between September 2014 and 

November 2014, when the threat occurred. IAF, Tab 13 at 7. Even if true, this 

fact does not, on its own, establish that the agency did not have a legitimate basis 

to place her on leave restriction. Cf. Schultz, 810 F.2d at 1136. The appellant’s 

contention that the agency should have done more to avoid reassigning her is 

equally unavailing. Given the absence of evidence that the agency invoked 

reassignment as a veil to effect the appellant’s separation, we cannot interfere 

with the agency’s legitimate authority to exercise its discretion to reassign 

employees. See Ketterer, 2 M.S.P.R. at 462 n.8; see also 5 C.F.R. § 335.102. 

¶12 We are sympathetic to the fact that the appellant may not have been in a 

position to relocate based on her family situation, her health, or her finances. 

However, these difficulties do not render her retirement involuntary. The 

doctrine of coercive involuntariness is a narrow one and does not apply to a case 

in which an employee decides to retire because she does not want to accept a 

geographical transfer, or other measures the agency is authorized to adopt, even if 

those measures make continuation in the job so unpleasant for her that she feels 

that she has no realistic option but to leave. Staats v. U.S. Postal Service, 99 F.3d 

1120, 1124 (Fed. Cir. 1996). The fact that an employee is faced with an 

unpleasant situation or that her choice is limited to two unattractive options 

does not make her decision any less voluntary. Id.; see Sainz v. Department of 

Justice, 32 M.S.P.R. 678, 682 n.3 (finding that the fact that an employee is faced 

with two unpleasant alternatives does not constitute duress or coercion sufficient 

to render an action involuntary), aff’d, 835 F.2d 870 (Fed. Cir. 1987) (Table). 

Accordingly, we must affirm the dismissal for lack of jurisdiction. 
9

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. 

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 
10

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