UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

GREGORY BROWNFIELD,

Appellant,

v.

DEPARTMENT OF HOMELAND 

SECURITY,

Agency.

DOCKET NUMBER

SF-0752-13-4248-I-1

DATE: August 27, 2014

THIS FINAL ORDER IS NONPRECEDENTIAL*

Gregory Brownfield, Washington, D.C., pro se.

Kimberly A. Jones, Esquire, Laguna Niguel, California, 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 

 * A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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).
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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 and AFFIRM the initial decision, which is now the 

Board’s final decision. 5 C.F.R. § 1201.113(b).

¶2 Effective February 22, 2013, the appellant resigned from his GS-12 

Immigration Services Analyst position with the U.S. Citizenship and Immigration 

Services (USCIS) in Laguna Niguel, California. Initial Appeal File (IAF), Tab 1, 

Attachment 1. On February 8, 2013, following a conversation with his 

supervisor, IAF, Tab 7 at 11-12, the appellant emailed his supervisor a 

resignation letter giving 2-weeks’ notice of his resignation, IAF Tab 1, 

Attachment 2 at 7. The agency selected the appellant for a GS-13 Management 

and Program Analyst position with USCIS in Washington, D.C., on February 12, 

2013. IAF, Tab 7 at 16. The appellant received notice of his selection for the 

new position on February 14, 2013, and he accepted the offer on February 18, 

2013. Id. at 17. After learning that he had a break in service because he had

resigned from his former position, the appellant requested the agency to change 

the break in service to leave without pay (LWOP) with a subsequent transfer to 

the new position. IAF, Tab 1 at 5, Attachment 2 at 1-4. After the agency denied 

his request, id., Attachment 2 at 1, the appellant filed an initial appeal alleging 

that his resignation was involuntary, id. at 1-5.
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¶3 The administrative judge issued an order informing the appellant that a 

resignation is presumed to be voluntary and that he would be granted a hearing 

only if he made a nonfrivolous allegation that his resignation was the result of

agency misrepresentation, coercion, or duress. IAF, Tab 5 at 1-2. Without 

holding the requested hearing, the administrative judge issued an initial decision 

that dismissed the appeal for lack for jurisdiction, finding that the appellant failed 

to make a nonfrivolous allegation of jurisdiction. IAF, Tab 8, Initial Decision 

at 2, 7. 

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

File, Tab 1. The agency has filed a response to the appellant’s petition for 

review. PFR File, Tab 3.

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

voluntary and thus outside the Board’s jurisdiction unless the employee 

establishes by preponderant evidence that the agency obtained the action through 

duress or coercion or that the agency’s actions would have misled a reasonable 

person. Searcy v. Department of Commerce, 114 M.S.P.R. 281, ¶ 12 

(2010); 5 C.F.R. § 1201.56(a)(2)(i). The touchstone of 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. 

Searcy, 114 M.S.P.R. 281, ¶ 12. An appellant is entitled to a hearing on the issue 

of Board jurisdiction over an appeal of an alleged involuntary resignation only if 

he 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). Nonfrivolous allegations of Board jurisdiction are allegations 

of fact that, if proven, could establish a prima facie case that the Board has 

jurisdiction over the matter at issue. Green v. Department of Veterans 

Affairs, 112 M.S.P.R. 59, ¶ 6 (2009).

¶6 In his petition for review, the appellant reasserts his argument from below 

that his resignation was involuntary because it was based on the agency’s 
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misinformation and, therefore, he should not have had a break in service between 

his former and current positions. PFR File, Tab 1 at 4. A decision made “with 

blinders on,” based on misinformation or lack of information, cannot be binding 

as a matter of fundamental fairness and due process. Baldwin v. Department of 

Veterans Affairs, 111 M.S.P.R. 586, ¶ 16 (2009). Where there is a claim that an 

involuntary action resulted from misinformation, an appellant must show that: 

(1) the agency made misleading statements; and (2) the appellant reasonably 

relied on the misinformation to his detriment. Aldridge v. Department of 

Agriculture, 111 M.S.P.R. 670, ¶ 8 (2009). 

¶7 Here, the appellant did not make a nonfrivolous allegation that the agency 

made a misleading statement. He alleged below that his supervisor misinformed 

him by instructing him to submit a resignation letter before he started a new 

position within the agency. IAF, Tab 1 at 5, Tab 6 at 4. However, neither the 

appellant’s supervisor nor the appellant himself knew that the appellant would be 

selected for another agency position at the time the appellant submitted his 

resignation letter. The appellant submitted his resignation letter on February 8, 

2013, IAF, Tab 1, Attachment 2 at 7, or 4 days before the agency selected him for 

the new position on February 12, 2013, IAF, Tab 7 at 16. The appellant did not 

allege that his supervisor knew that the appellant was being considered for the 

new position. See IAF, Tab 1 at 5, Tab 6 at 4. The appellant did not list his 

supervisor’s name or contact information in his application for the new position. 

IAF, Tab 7 at 22. Therefore, the agency did not contact his supervisor about the 

new position before the appellant submitted his resignation letter. See id.

at 19-20. Additionally, the appellant did not allege that he told his supervisor 

that he was resigning to take a different position within the agency or the federal 

government. See IAF, Tab 1 at 5, Tab 6 at 4. According to the appellant’s 

supervisor, the appellant denied seeking employment elsewhere within the agency 

and stated his desire to visit Texas with his family and to pursue job opportunities 

outside the agency as reasons for his resignation. IAF, Tab 7 at 11, 19-20. The 
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supervisor responded to the appellant’s stated desire to leave the agency by 

obtaining his resignation letter to start the resignation process. Id. at 11-12. 

Therefore, we agree with the administrative judge that the appellant failed to 

make a nonfrivolous allegation that the agency misinformed the appellant about 

his resignation. 

¶8 Further, the appellant restates his claims of agency discrimination and 

retaliation. PFR File, Tab 1 at 4. Where the appellant raises claims of 

discrimination and retaliation in connection with a determination of 

voluntariness, evidence of discrimination or retaliation may only be addressed 

insofar as it relates to the issue of voluntariness and not to whether the evidence 

would establish discrimination or retaliation as an affirmative defense. Pickens v. 

Social Security Administration, 88 M.S.P.R. 525, ¶ 6 (2001). In cases where 

intolerable working conditions are alleged, the Board will find an action 

involuntary only if the employee demonstrates that the employer or agency 

engaged in an improper course of action that made working conditions so difficult 

or unpleasant that a reasonable person in that employee’s position would have felt 

compelled to resign. Heining v. General Services Administration, 68 M.S.P.R. 

513, 522 (1995); see Bean v. U.S. Postal Service, 120 M.S.P.R. 397, ¶ 11 (2013). 

¶9 The appellant cited below, as examples of the agency’s alleged hostile or 

coercive actions, the denial of his request for a position classification review, his

repeated nonselection for positions and promotional opportunities, an 

investigation into his conduct, and becoming a target of his supervisor. IAF, 

Tab 6 at 4-28. Dissatisfaction with work assignments, a feeling of being unfairly 

criticized, or difficult or unpleasant working conditions are generally not so 

intolerable as to compel a reasonable person to resign. Miller v. Department of 

Defense, 85 M.S.P.R. 310, ¶ 32 (2000). Although the appellant’s work 

environment may have caused him stress, his cited examples do not show that a 

reasonable person would have resigned under the same circumstances. His 

decision to resign appears to have been self-initiated and nothing in the record 
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suggests that the agency was constructively forcing him to resign. Therefore, the

appellant has not made a nonfrivolous allegation that his work environment was 

so intolerable that a reasonable person in his position would have felt compelled 

to resign.

¶10 The appellant, moreover, challenges the agency’s decision to deny his 

request to retroactively withdraw his resignation and change his break in service 

to LWOP with a subsequent transfer. PFR File, Tab 1 at 4. An employee has a 

right to withdraw a resignation at any time before it is effective unless the agency 

has a valid reason for refusing to permit the withdrawal. Levy v. Department of 

Homeland Security, 109 M.S.P.R. 444, ¶ 18 (2008); 5 C.F.R. § 715.202(b). An 

employee’s resignation may be deemed involuntary, and therefore within the 

Board’s jurisdiction, if the agency improperly denied his request to withdraw his 

resignation before its effective date. See Levy, 109 M.S.P.R. 444, ¶ 18. There is 

no provision for waiving the requirement that the request for rescission be made 

prior to the time the resignation becomes effective. Glenn v. U.S. Soldiers’ &

Airmen’s Home, 76 M.S.P.R. 572, 577 (1997). The appellant did not allege that 

he attempted to withdraw his resignation before its effective date of February 22, 

2013. See IAF, Tab 1 at 5, Tab 6 at 4. Thus, to the extent that the appellant 

claims involuntary resignation based upon the agency’s alleged failure to let him 

retroactively withdraw his resignation, his claim fails as a matter of law. See 

Glenn, 76 M.S.P.R. at 577 (an employee does not have a right to withdraw a 

resignation after its effective date).

¶11 Thus, after a thorough review of the record evidence and the arguments 

raised on review, we conclude that the appellant failed to make a nonfrivolous

allegation that his resignation was involuntary and the administrative judge 

properly dismissed the appeal for lack of jurisdiction.
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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 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
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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