Xavier Parker v. Department of Veterans Affairs

UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD

XAVIER A. PARKER, DOCKET NUMBER

Appellant, CH-0752-24-0288-I-1 v.

DEPARTMENT OF VETERANS DATE: September 15, 2026 AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1 Lawrence Mays , Esquire, Pepper Pike, Ohio, for the appellant. Amber Groghan , Esquire, Akron, Ohio, for the agency.

BEFORE James J. Woodruff II, Chairman Henry J. Kerner, Vice Chairman FINAL ORDER

The appellant has filed a petition for review of the initial decision, which dismissed his involuntary resignation claim for lack of jurisdiction. For the reasons discussed below, we DENY the petition for review. Except as expressly MODIFIED to supplement the nonfrivolous allegation analysis and VACATE the administrative judge’s finding that the agency was attempting to correct a pattern of unprofessional behavior by the appellant, we AFFIRM the initial decision.

BACKGROUND

The appellant was employed by the agency as a GS-13 Human Resources Specialist until he resigned on October 21, 2023. Initial Appeal File (IAF), Tab 1 at 40, 46. According to the appellant, his decision to resign was preceded by incidents at work beginning in February 2023. IAF, Tab 1 at 40-41, Tab 6 at 6-10, 21-22. He alleged that, effective February 12, 2023, the agency, without notice, designated his appointment as temporary instead of permanent. IAF, Tab 1 at 40-41, Tab 6 at 6. He also alleged that the agency designated him as absent without leave (AWOL) for April 5, 2023, even though he worked the entire day. IAF, Tab 6 at 6.

On March 8, 2023, the appellant received his performance standards for the performance period from February 12 through September 30, 2023. IAF, Tab 1 at 29. During his mid-year review, the appellant’s supervisor identified a critical element for which the appellant was not meeting performance standards. Id. at 26. On April 27, 2023, the appellant’s supervisor placed him on a 90-day performance improvement plan (PIP), citing the appellant’s failure to complete two training courses on time and three instances in the prior 3 months when he arrived late to formal meetings. Id. at 27-28.

On May 22, 2023, the appellant alleged that his supervisor removed some of his assigned duties, making it more difficult for him to achieve acceptable performance while on the PIP. IAF, Tab 6 at 6, 21, 25. According to the appellant, the following day, he requested a reasonable accommodation in the form of a change in supervisor, and an agency reasonable accommodation coordinator denied his request without engaging in the interactive process. Id. at 8-9, 21. The appellant asserts that on various dates he contacted the agency’s anti-harassment program to report a hostile work environment and request a change in supervisor. Id. at 8-9. The appellant alleges that a specialist told him that the program could not address his claim because the program was limited to sexual and physical harassment matters. Id. at 9.

On June 14, 2023, the appellant’s supervisor admonished him for being 15 minutes late for a meeting. IAF, Tab 1 at 15-16. According to the appellant, he was informed on July 28, 2023, that he had failed to demonstrate acceptable performance during the PIP. IAF, Tab 6 at 7.

By notice dated August 11, 2023, the agency terminated the appellant’s temporary appointment, effective that day, due to unacceptable performance. IAF, Tab 1 at 11-13. In doing so, the agency mistakenly identified the appellant as a temporary employee, when he in fact was a permanent appointee. IAF, Tab 6 at 28. The agency rescinded its action later the same day. Parker v. Department of Veterans Affairs, MSPB Docket No. CH-3443-23-0436-I-1, Initial Appeal File (0436 IAF), Tab 9 at 12. The appellant alleged that the agency returned him to different duties and a different tour after rescinding his termination and refused to notify him of its intentions going forward. IAF, Tab 1 at 2.

The appellant filed a separate Board appeal challenging the agency’s decision to terminate his temporary appointment. 0436 IAF, Tab 1 at 3. On April 18, 2025, the administrative judge in the appellant’s termination appeal issued an initial decision that dismissed that appeal for lack of jurisdiction as moot, in light of the agency’s rescission of its termination decision. 0436 IAF, Tab 27, Initial Decision.

On September 14, 2023, the agency approved the appellant’s request for Family and Medical Leave Act of 1993 (FMLA) protected leave, which, according to the appellant, was due to stress caused by a hostile work environment. IAF, Tab 6 at 8. The appellant took leave under the FMLA until he transferred to a position with a different Federal agency effective October 22, 2023. Id. at 8, 10,

The appellant filed an equal employment opportunity (EEO) complaint alleging discrimination based on disability and reprisal for engaging in prior EEO activity when the agency constructively discharged him on October 21, 2023. IAF, Tab 1 at 45. On March 28, 2024, after receiving the final agency decision, the appellant timely filed the instant Board appeal. Id. at 2, 45-49. The administrative judge informed the appellant that the Board might not have jurisdiction over his appeal, apprised him of his jurisdictional burden regarding an involuntary resignation claim, and ordered him to file evidence and argument amounting to a nonfrivolous allegation that his resignation is a matter within the Board’s jurisdiction. IAF, Tab 3. The appellant responded. IAF, Tab 6 at 4-10. The agency moved to dismiss the appeal, arguing that the Board lacks jurisdiction. IAF, Tab 7.

Without holding the appellant’s requested hearing, the administrative judge issued an initial decision dismissing the appeal for lack of Board jurisdiction. IAF, Tab 1 at 1, Tab 16, Initial Decision (ID) at 2, 9. The administrative judge found that the appellant’s allegations that the agency changed his work schedule, reassigned him to a different appointment classification, charged him with AWOL, reduced his workload, placed him on a PIP, concluded that he did not successfully complete the PIP, and terminated his temporary appointment but later rescinded that action were too vague and conclusory to constitute a nonfrivolous allegation that the agency effectively imposed the terms of his resignation through coercive acts leaving him no alternative but to resign. ID at 6-9. The administrative judge also concluded that the record reflected that the agency’s efforts at correcting the appellant’s performance and conduct were justified. ID at 7.

The appellant has filed a petition for review asserting that he made a nonfrivolous allegation that his resignation was involuntary because the agency denied his request for reasonable accommodation and subjected him to intolerable working conditions. Petition for Review (PFR) File, Tab 1 at 5-24. He disputes the merits of the rescinded termination of his temporary appointment and argues that the agency assigned him “remedial work” following his reinstatement. Id. at 16-19. The agency has responded in opposition to the petition for review, and the appellant has replied to the agency’s response. PFR File, Tabs 3-4.

DISCUSSION OF ARGUMENTS ON REVIEW The appellant has not made a nonfrivolous allegation of jurisdiction.

An employee-initiated action, such as a resignation or lateral transfer to another agency, is presumed to be voluntary and thus outside the Board’s jurisdiction, unless the employee presents sufficient evidence to establish that the action was obtained through duress or coercion or shows that a reasonable person would have been misled by the agency. Gibeault v. Department of the Treasury, 114 M.S.P.R. 664, ¶ 6 (2010); Roach v. Department of the Army, 86 M.S.P.R. 4, ¶ 17 (2000). An appellant is entitled to a hearing on the issue of Board jurisdiction over an appeal of an alleged involuntary separation only if he makes a nonfrivolous allegation casting doubt on the presumption of voluntariness. Gibeault, 114 M.S.P.R. 664, ¶ 6. A nonfrivolous allegation is an allegation of fact that, if proven, could establish a prima facie case that the Board has jurisdiction over the appeal. Id.

The administrative judge concluded that the appellant’s allegations were not nonfrivolous. ID at 6-9. In reaching this conclusion, he found the appellant’s allegations to be vague and conclusory, and thereby insufficient to support a finding that the appellant nonfrivolously alleged that he was forced to resign. ID at 6. The appellant challenges this conclusion. PFR File, Tab 1 at 5. We need not directly address this challenge because, for the reasons explained below, we find that the appellant has not raised a nonfrivolous allegation of involuntary resignation regardless of whether his allegations were vague or conclusory.

The appellant alleged that the agency created a hostile work environment for him, thereby causing him to resign involuntarily, by changing his work schedule and appointment classification, charging him with AWOL, reducing his workload, placing him on a PIP, and terminating him before cancelling the action. IAF, Tab 6 at 6-8. The Board has found that in a Title VII context, a hostile work environment involves a workplace that is permeated with unwelcome discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment. Viens v. Department of the Interior, 92 M.S.P.R. 256, ¶ 9 (2002).

Under certain circumstances, the Board has found an appellant’s allegation of a hostile work environment to be sufficient to allege a nonfrivolous allegation of a constructive adverse action. E.g., Coufal v. Department of Justice, 98 M.S.P.R. 31, ¶¶ 21-29 (2004) (concluding that an appellant raised a nonfrivolous allegation of involuntary retirement when she alleged, among other things, that her supervisor solicited negative letters about her from other department heads and told appellant’s colleagues that she wanted the appellant to retire); O’Brien v. Department of Agriculture, 91 M.S.P.R. 139, ¶¶ 7-9 (2002) (finding a nonfrivolous allegation of involuntary retirement based on an allegation that the agency created a hostile work environment by, among other things, threatening to fire the appellant, yelling at him, and publicly criticizing him on several occasions before subordinates). However, unlike these cases, the actions alleged by the appellant cannot reasonably be viewed as describing a workplace riddled with intimidation, ridicule, or insult, let alone one that was sufficiently severe to alter the conditions of the appellant’s employment. Indeed, the appellant did not allege below that he was subjected to intimidation, ridicule, or insult.

Even if we look beyond the appellant’s hostile work environment label, the actions complained of by the appellant still do not allege a nonfrivolous allegation of involuntary resignation. Changes in work duties and schedules and claims of administrative errors are part and parcel of professional work environments. We do not view them as allegations of working conditions that were so difficult or unpleasant that a reasonable person in the appellant’s position would have felt compelled to resign. See Baldwin v. Department of Veterans Affairs, 109 M.S.P.R. 392, ¶ 18 (2008); but see Morman v. Department of Defense, 90 M.S.P.R. 197, ¶¶ 3, 9 (2001) (finding that an appellant who submitted medical documentation showing that she needed a change in work schedule made a nonfrivolous allegation of constructive removal).

The appellant also alleged two incidents that were not allegations of administrative errors or changes in schedule or work duties. First, the appellant alleged that the agency charged him with AWOL on April 5, 2025, even though worked “his entire shift” that day. IAF, Tab 6 at 6. Assuming his claim is true, we do not believe that a reasonable person in the appellant’s position facing an AWOL charge under these circumstances would have felt compelled to resign because the charge could have been easily disproven by his attendance at work. Furthermore, this incident occurred more than 6 months before his resignation.

Second, as to the agency’s placement of the appellant on a PIP, the appellant did not allege below that the agency knew or should have known that it would not prevail on its action; rather, he alleged that the PIP itself was “illegal.” IAF, Tab 6 at 6-7. Specifically, he referenced Part I, Section 5h of VA Handbook 5013 (Handbook) 2 to assert that agency policy required it to wait 90 days after he was placed on performance standards to implement the PIP, but the agency did so after only 43 days. 3 Id. This assertion is incorrect. Part I, Section 5h of the Handbook related to the minimum length of time an employee must have served under performance standards before the agency could issue the employee a performance rating. The agency did not give the appellant a performance rating before it implemented the PIP; it gave him a progress review. IAF, Tab 1 at 35. Progress reviews were covered by Part I, Section 5k of the Handbook and did not require a minimum length of time on performance standards before issuance. The agency’s placement of the appellant on a PIP under these circumstances would not be expected to make a reasonable person in the appellant’s position feel compelled to resign. See Baldwin, 109 M.S.P.R. 392, ¶ 18. Therefore, we conclude that the appellant has not raised a nonfrivolous allegation of involuntary resignation.

Furthermore, the appellant filed both mixed-case and non-mixed-case complaints with his agency’s EEO office. IAF, Tab 1 at 45, Tab 6 at 8. The mixed-case complaint concerned the involuntary resignation claim, and the non-mixed-case complaint appears to have concerned the hostile work environment allegations mentioned above. IAF, Tab 1 at 45, Tab 6 at 21-22. The appellant filed the non-mixed-case complaint in May 2023. IAF, Tab 6 at 8. The non-mixed-case complaint was still pending when the appellant resigned from his position. 4 The U.S. Court of Appeals for the Federal Circuit has held that “choosing between standing and fighting—i.e., challenging the agency conduct while still employed— or resigning demonstrates a freedom of choice between alternatives rather than an involuntary resignation.” Tavakkol v. Merit Systems Protection Board, 175 F.4th 1360, 1368 (Fed. Cir. 2026). The court acknowledged that both options could be unattractive or undesirable but stated that those limitations “do[] not make the employee’s decision any less voluntary.” Id. (quoting Staats v. U.S. Postal Service, 99 F.3d 1120, 1124 (Fed. Cir. 1996)). Under similar circumstances in that case, the court held that there was no nonfrivolous allegation of an involuntary resignation that would warrant a jurisdictional hearing before the Board. Id. We conclude that the appellant’s decision to resign rather than see his non-mixed-case through to completion further supports our finding that he did not make a nonfrivolous allegation of an involuntary resignation claim.

The appellant has not shown that his new evidence and argument warrant a different result in this case.

On review, the appellant submits new documentary evidence. PFR File, Tab 1 at 26-432. Under 5 C.F.R. § 1201.115, the Board generally will not consider evidence submitted for the first time with the petition for review absent a showing that it was unavailable before the record closed despite the party’s due diligence. Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 213-14 (1980). The appellant has not made this required showing. 5 Accordingly, except as described in footnote 4, we have not considered these documents.

In addition, the appellant makes several arguments on review that he did not raise below. They include claims that he successfully completed the PIP, that the agency violated his due process rights in altering his type of appointment, and that the agency did not give him appropriate access to the Talent Management System. PFR File, Tab 1 at 6-21. The Board may grant a petition for review when there is a showing that new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed below. 5 C.F.R. § 1201.115(d). Our reviewing court, the Federal Circuit, has consistently upheld the Board’s requirement that parties must raise arguments before the assigned administrative judge or the full Board may properly decline to review those arguments. E.g., Carson v. Department of Energy, 398 F.3d 1369, 1376 (Fed. Cir. 2005) (finding that the Board properly declined to review a claim that was not adjudicated by the administrative judge). Because the appellant has not shown that these new arguments could not have been made below despite his due diligence, we decline to review them now.

As set forth above and herein, we supplement and modify the initial decision.

The appellant argues that the administrative judge erred in weighing evidence at the nonfrivolous allegation stage when he determined that much of the evidence in the record refutes the appellant’s suggestion that the agency’s attempts at disciplining him were unwarranted and concluded that the appellant’s submitted evidence shows that the agency was attempting to correct a pattern of unprofessional behavior by the appellant. ID at 7; PFR File, Tab 1 at 9. We agree with the appellant and find that the administrative judge improperly weighed evidence. See Ferdon v. U.S. Postal Service, 60 M.S.P.R. 325, 329 (1994) (finding that in determining whether an appellant has made a nonfrivolous allegation of jurisdiction, an administrative judge may not weigh evidence and resolve conflicting assertions of the parties, and the agency’s evidence may not be dispositive). Therefore, we vacate this portion of the initial decision. 6

Finally, the appellant raises on review claims that he raised below but that were not addressed in the initial decision, including that the agency had a duty to engage in the interactive process regarding his reasonable accommodation request and that the agency provided an incomplete investigation file of his mixed-case complaint. IAF, Tab 6 at 8-10; PFR File, Tab 1 at 6-20. The appellant requested a change in supervisor as a reasonable accommodation. IAF, Tab 6 at 8. However, a request for a new supervisor is per se unreasonable under Equal Employment Opportunity Commission guidelines. See, e.g., Roberts v. Permanente Medical Group, Inc., 690 F. App’x 535, 536 (9th Cir. 2017). As to the appellant’s claim that the agency provided an incomplete investigation file, the agency’s actions in this regard would have necessarily occurred after his resignation and could not have affected his decision to resign because the mixed-case complaint involved his involuntary resignation claim.

In sum, none of the appellant’s claims supports a finding that he made a nonfrivolous allegation of involuntary resignation, and we conclude that he has not provided a basis on which to grant the petition for review. 5 C.F.R. § 1201.115.

NOTICE OF APPEAL RIGHTS 7

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 may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum.

Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information.

(1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address:

U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439

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, 10, and 11.

If you are interested in securing pro bono representation for an 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 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of discrimination. This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision—including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court (not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board, 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is:

Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to:

Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction. 8 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address:

U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439

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, 10, and 11.

If you are interested in securing pro bono representation for an 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 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case.

Contact information for the 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 .

FOR THE BOARD: ______________________________

Gina K. Grippando Clerk of the Board

Washington, D.C.