NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
JOHNNIE L. BROWN,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
__________________________
2011-3109
__________________________
Petition for review of the Merit Systems Protection
Board in case no. SF0752090881-I-1.
__________________________
Decided: December 13, 2011
__________________________
JOHNNIE L. BROWN, of Oakland, California, pro se.
DAVID S. BROOKS, Attorney, Office of the General
Counsel, Merit Systems Protection Board, of Washington,
DC, for respondent. With him on the brief were JAMES M.
EISENMANN, General Counsel and KEISHA DAWN BELL,
Deputy General Counsel.
__________________________
2 BROWN v. MSPB
Before RADER, Chief Judge, LINN and MOORE, Circuit
Judges.
PER CURIAM.
Johnnie L. Brown (“Brown”) appeals from a final
decision of the Merit Systems Protection Board (“Board”)
dismissing her appeal for lack of jurisdiction. Brown v.
U.S. Postal Serv., 2011 M.S.P.B. 23 (Feb. 11, 2011)
(“Board Decision”). Because the Board correctly deter-
mined that Brown failed to make non-frivolous allegations
which, if proven, could establish involuntary retirement,
this court affirms.
I. BACKGROUND
Brown served as an employee of the Oakland, Califor-
nia processing and distribution facility of the United
States Postal Service (“the Agency”) from August 1965
through August 2000. In 1991, Brown was promoted to
the position of supervisor of distributions, where she
served until 1999. Brown alleges that the Agency sub-
jected her to a hostile and discriminatory work environ-
ment during her tenure in this position. Board Decision
at 1-2. Brown alleges that her work situation was so bad
that on August 18, 1999, she lost consciousness at work
after being called into a meeting with her supervisor. Id.
at 2, 9. After this incident, Brown was hospitalized and
did not report back to work. Id. On May 12, 2000,
Brown’s treating psychologist reported that she was
“totally disabled . . . for the near foreseeable future” and
diagnosed her with “acute, chronic, and pervasive stress”
and “depress[ion] because of the stress, . . . lowered con-
centration, cognitive difficulties as well as physical over-
lays.” App. T, Ex. 84 at 29. Brown pursued a traumatic
injury claim with the Office of Workers’ Compensation
Programs (“OWCP”) based on the August 1999 incident,
which the OWCP denied in June 2000, but the OWCP
BROWN v. MSPB 3
advised her to pursue another occupational disease claim
related to other on the job incidents that she had refer-
enced. Board Decision at 9. Effective August 2, 2000,
Brown retired from the Agency. Id. at 2.
While still employed, from 1994 through 1999, Brown
unsuccessfully pursued various claims of age and sex
discrimination, retaliation, and intentional infliction of
emotional distress before the Equal Employment Oppor-
tunity Commission (“EEOC”) and the U.S. District Court
for the Northern District of California. Id. In 2003,
Brown filed another district court action alleging em-
ployment discrimination and constructive termination,
the latter of which the court dismissed for failure to
exhaust administrative remedies. Brown v. Potter, No.
C03-1248 MJJ, slip. op. 17 (N.D. Cal. Sept. 14, 2004),
aff’d, 285 F. App’x 421 (9th Cir. 2008), cert. denied, 129 S.
Ct. 2426 (2009). More than nine years after her retire-
ment, on August 11, 2009, Brown filed an appeal with the
Board alleging involuntary retirement. The administra-
tive judge (“AJ”) dismissed Brown’s claim as untimely,
finding no good cause or excuse for her nine-year delay in
filing. Brown v. U.S. Postal Serv., No. SF0752090881-I-1,
at 10 (M.S.P.B. Dec. 7, 2009) (“Initial Decision”). On
review, the Board held that “[b]ecause the issues of time-
liness and jurisdiction [we]re inextricably intertwined in
this appeal, the [AJ] should not have dismissed the appeal
on timeliness grounds without first addressing jurisdic-
tion.” Board Decision at 5. The Board then dismissed the
appeal for lack of jurisdiction—without a hearing—based
on its conclusion that Brown failed to make a non-
frivolous allegation that her retirement was an involun-
tary action within the Board’s jurisdiction. Id. at 10, 12.
Brown timely appealed, and this court has jurisdiction
under 28 U.S.C. § 1295(a)(9).
4 BROWN v. MSPB
II. DISCUSSION
A. Standard of Review
The Board’s jurisdiction is a question of law, which
this Court reviews de novo. Garcia v. Dep’t of Homeland
Sec., 437 F.3d 1322, 1344 (Fed. Cir. 2006) (en banc). This
court, however, is bound by the AJ’s factual findings on
which the jurisdictional determination is based unless
unsupported by substantial evidence. Bolton v. Merit Sys.
Prot. Bd., 154 F.3d 1313, 1316 (Fed. Cir. 1998).
B. The Board’s Jurisdiction
The Board’s jurisdiction “is not plenary, but is limited
to those areas specifically granted by statute or regula-
tion.” Garcia, 437 F.3d at 1327 (internal citations omit-
ted). The Board generally lacks jurisdiction over an
employee’s voluntary actions, see 5 U.S.C. § 7512, and an
“employee who voluntarily resigns or retires has no right
to appeal to the [Board].” Garcia, 437 F.3d at 1228.
However, the Board does possess jurisdiction over an
employee’s retirement if it “was involuntary and thus
tantamount to forced removal.” Id. (citing Shoaf v. Dep’t
of Agric., 260 F.3d 1336, 1340-41 (Fed. Cir. 2001)). “Res-
ignations are presumed voluntary, and the burden of
showing that the resignation was involuntary is on the
petitioner.” Terban v. Dep’t of Energy, 216 F.3d 1021,
1024 (Fed. Cir. 2000). To establish a right to a hearing on
the issue of involuntary retirement, the petitioner must
make a non-frivolous allegation of fact, i.e., an allegation
that, if proven, could establish the Board’s jurisdiction.
Garcia, 437 F.3d at 1344.
C. Involuntary Retirement
“An employee may demonstrate that his or her resig-
nation was involuntary by demonstrating that the resig-
nation was the product of coercion.” Parrot v. Merit Sys.
Prot. Bd., 519 F.3d 1328, 1332 (Fed. Cir. 2008) (citing
BROWN v. MSPB 5
Garcia, 437 F.3d at 1329). To satisfy the “narrow doc-
trine” of involuntary retirement based on coercion, an
employee must show that “(1) the agency effectively
imposed the terms of the employee’s resignation or re-
tirement; (2) the employee had no realistic alternative but
to resign or retire; and (3) the employee’s resignation or
retirement was the result of improper acts by the agency.”
Garcia, 437 F.3d at 1329 (citing Shoaf, 260 F.3d at 1341).
The reviewing tribunal must consider the totality of the
circumstances “[t]o objectively determine whether a
reasonable person in the employee’s position would have
felt compelled to resign.” Shoaf, 260 F.3d at 1342. The
test is thus one of “external coercion and duress, and [is]
not [based on] internal misconceptions or unsubstantiated
threats.” McGucken v. United States, 407 F.2d 1349, 1351
(Ct. Cl. 1969). Although discrimination claims are gener-
ally made to the EEOC, the Board must consider an
appellant’s allegations of discrimination when those
allegations form the basis of an adverse action claim, such
as a claim for involuntary retirement. 5 U.S.C.
§ 7702(a)(1); Garcia, 437 F.3d at 1328.
Brown argues that the Agency coerced her retirement
because, inter alia, “she was subjected to continuing
harassment, disparate treatment and a hostile work
environment.” Appellant Br. ¶ 12. According to Brown,
the discriminatory work conditions, along with her medi-
cal condition, “had a tremendous impact on her ability to
fulfill her work functions.” Id. Brown contends that the
Agency discriminated against her by (1) denying her light
duty request in March 1997—while granting other em-
ployee’s light duty requests—and, instead, assigning her
to work on large volumes of sack mail with fewer employ-
ees than other supervisors; (2) setting impossible produc-
tivity goals for her unit; and (3) groundlessly criticizing
her. Id. ¶¶ 19-20, 55-56. Further, Brown alleges a pat-
tern of poor treatment, including an incident in Septem-
6 BROWN v. MSPB
ber 1996 where one of her supervisors, in an effort to
prevent her from sitting down during her assignment,
allegedly “thr[ew her desk] out on the platform and de-
stroyed [it] including [Brown’s] personal items and official
records.” Id. ¶ 51. Thus, Brown argues that she “had no
realistic alternative but to retire.” Id. ¶ 15; See Shoaf,
260 F.3d at 1342.
The government argues that none of Brown’s allega-
tions were sufficient to establish that her retirement was
compelled. Because Brown continued to work from 1991
through 1999, and for two and a half years after the
denial of her light duty request, the government argues
that she was not forced to retire based on the Agency’s
actions. See Terban, 216 F.3d at 1024-25. The govern-
ment asserts that the Board properly “weighed Brown’s
allegations against the principle that an employee is not
guaranteed a stress-free working environment.” Appellee
Br. 10; Miller v. Dep’t of Defense, 85 M.S.P.R. 310, ¶ 32
(2000) (“An employee is not guaranteed a working envi-
ronment free of stress. Dissatisfaction with work assign-
ments, a feeling of being unfairly criticized, or difficult or
unpleasant working conditions are generally not so intol-
erable as to compel a reasonable person to resign.”)
Further, the government argues that the fact that Ms.
Brown did not retire shortly after the August 1999 inci-
dent, but first filed for OWCP benefits, indicates that she
did not feel compelled to retire after that incident. [Gov’t
Br. 12-13]
This court agrees with the Board that Brown has
failed to allege any facts which, if proven, could establish
the Board’s jurisdiction, i.e., that her retirement was
involuntary. As to the first two elements of the involun-
tary retirement test, Brown fails to allege that the Agency
“effectively imposed the terms of [her] . . . retirement” or
that she “had no realistic alternative but to . . . retire.”
See Garcia 437 F.3d at 1329. The alleged impossible
BROWN v. MSPB 7
productivity goals, groundless criticism, and desk throw-
ing incident, however unpleasant or hostile they may
have been, did not compel Brown’s retirement on this
record. Indeed, Brown did not retire, but rather contin-
ued to work during the nine-year span of alleged hostility
and discrimination, and the two and a half year period
after the Agency denied her light duty request. See
Terban, 216 F.3d at 1024-25. In her brief to this court,
Brown stated that she “loved her job and she had planned
to work five (5) years longer” but “[she] did not enjoy the
fact that she was forced to help her employees work and
also, perform her supervisory duties.” Appellant Br. ¶ 79.
Although the circumstances of her position may not have
been as enjoyable as she had wished, “it is well-
established that the mere 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.” Terban, 216 F.3d at
1023.
As to the third prong of the involuntary retirement
test, Brown fails to allege that her retirement was the
“result of improper acts by the [A]gency” with respect to
the Agency’s denial of her light duty request. See Garcia,
437 F.3d at 1329. Brown fails to allege that she was
actually entitled to a light duty assignment. Brown cites
to a letter from her psychiatrist, addressed to “Whom it
May Concern” dated January 27, 1997, which states that
Brown was being treated “for her emotional problems of
anxiety and stress . . . which were caused by her treat-
ment while working at her job at the [Agency],” App. T,
Ex. 79, but there is no evidence that Brown’s supervisors
saw this letter or, assuming they had, would have been
required to assign Brown to light duty. Brown’s actual
diagnosis of chronic stress causing her to be unable to
perform the functions of her job was not until May 2000,
after she left work, and thus does not support her allega-
8 BROWN v. MSPB
tion that the agency forced her to resign by denying her
light duty. See Hernandez v. U.S. Postal Serv., 74
M.S.P.R. (1997) (“Evidence of the appellant’s medical
conditions after his resignation is irrelevant to the volun-
tariness of his resignation.”)
Similarly, Brown’s May 2000 psychiatric report indi-
cates that her chronic stress condition caused her to lose
consciousness at work, App. T, Ex. 84 at 16-17, but noth-
ing in the record indicates that the agency knew of the
seriousness of her chronic stress disorder until after the
August 1999 incident, or did anything wrongful to make
her working environment intolerable given her condition.
Brown’s subjective feeling that she was being treated
unfairly, and the resulting stress from those feelings,
without more, is not enough to establish involuntary
retirement. Moreover, as the Board noted in its decision,
“[t]here is no indication in the record that [Brown] had
made a new request for accommodation or indicated that
she wished to return to work before she decided to retire
in August 2000.” Board Decision at 12. “In sum, it is not
reasonably possible to characterize [Brown’s] resignation
as the embodiment of h[er] involuntary acceptance of
terms dictated by h[er] employer.” Pitt v. United Staes,
420 F.2d 1028, 1033 (Ct. Cl. 1970).
For the foregoing reasons, this court finds no basis to
overturn the Board’s determination that Brown failed to
make a non-frivolous allegation establishing a claim of
involuntary retirement.
Absent any basis for a claim of involuntary retire-
ment, Brown’s discrimination allegations are not properly
before this court. Garcia, 437 F.3d at 1328 (“Congress has
. . . allowed certain discrimination claims that are not
otherwise within the Board’s jurisdiction to be decided as
part of the appeal” only when those discrimination claims
are “‘a basis for the action [which the employee may
BROWN v. MSPB 9
appeal to the Board].’” (citing 5 U.S.C. § 7702(a)(1) (em-
phasis added)).
III. CONCLUSION
For the foregoing reasons, this court affirms.
AFFIRMED
COSTS
Each party shall bear its own costs.