Juana Manley v. General Services Administration

UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD

JUANA MANLEY, DOCKET NUMBER

Appellant, DC-0752-25-2414-I-1 v.

GENERAL SERVICES DATE: September 15, 2026 ADMINISTRATION,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1 Melissa L. Watkins , Esquire, Reston, Virginia, for the appellant. Marcia Smart , Esquire, Washington, D.C., for the agency.

Jordan K. Baker , Esquire, San Francisco, California, 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 her appeal of her alleged involuntary resignation for lack of jurisdiction. Generally, we grant petitions such as this one only in the following circumstances: 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. 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, 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 to consider the totality of the appellant’s allegations regarding her intolerable working conditions, we AFFIRM the initial decision.

BACKGROUND

The appellant was employed as a GS-14 Program Analyst with the agency’s Office of Administrative Services (OAS) from August 29, 2021 to December 2, 2023, when she resigned and laterally transferred to a different agency. Initial Appeal File (IAF), Tab 1 at 1, 20, Tab 5 at 82-83. While employed in OAS, the appellant worked with the Chief of Staff, an agency management official who was not in her chain of command. IAF, Tab 5 at 8.

On January 12, 2024, the appellant filed an equal employment opportunity (EEO) complaint, alleging that she was forced to resign as a result of discrimination based on race (white), national origin (Hispanic), and sex (female), when the Chief of Staff referred to her as her supervisor’s “helper” during a September 28, 2023 meeting and “subsequent developments.” Id. at 44-45, 64. The agency issued a final agency decision, finding that the appellant failed to show that she was subjected to harassment based on race, national origin, and sex resulting in a constructive discharge. IAF, Tab 1 at 7-18.

The appellant then filed this timely Board appeal, alleging that she was forced to resign due to a hostile work environment. IAF, Tab 1 at 2. The administrative judge informed the appellant that the Board may not have jurisdiction over her appeal, apprised her of her jurisdictional burden regarding an involuntary resignation claim, and ordered her to file evidence and argument amounting to a nonfrivolous allegation that her resignation is a matter within the Board’s jurisdiction. IAF, Tab 3. In response, the appellant alleged that the Chief of Staff created a hostile work environment because he constantly questioned her about the reasonableness of proposed human resources actions, spoke to her in a rude and condescending manner in private but attempted to be pleasant in public, and sent questions and action items regarding her work to her supervisor. IAF, Tab 5 at 8-10. She also alleged that the Chief of Staff’s actions were recognized and commented on by other agency employees, including those in her chain of command. Id. at 10-11. She noted that the Chief of Staff referred to her as her supervisor’s “helper” in a meeting on September 28, 2023, and, although he apologized to her afterward, she believed his apology to be insincere. Id. at 11-13. She stressed that the Chief of Staff’s “helper” comment and his treatment of her called her competence as a GS-14 employee into question and perpetrated a harmful cultural stereotype specific to Hispanic/Latina women. Id. at 14.

Without holding the appellant’s requested hearing, the administrative judge issued an initial decision dismissing her appeal for lack of jurisdiction. IAF, Tab 8, Initial Decision (ID) at 1. The administrative judge found that the appellant failed to nonfrivolously allege that a reasonable person in her position would have resigned under the circumstances. ID at 3-4.

The appellant has filed a petition for review. Petition for Review (PFR) File, Tab 1. She alleges that the Chief of Staff engaged in harassing behavior that compelled her to resign and cites her jurisdictional response as providing relevant context. Id. at 5-8. She reiterates that the Chief of Staff constantly questioned her work, improperly exercised his authority, acted in an intimidating manner, and made demeaning and belittling comments to her and that she reported her concerns to her supervisors but her reports did not result in any change to his behavior. Id. at 5, 17. She recounts the September 28, 2023 incident, noting that she told the Chief of Staff during and after the meeting that she was offended by his “helper” comment, prompting him to gloss over the issue and make an insincere apology. Id. at 6-8. She notes that the Chief of Staff’s “helper” comment had a profound and negative impact on her, as documented in the record, and that it was not an isolated incident but rather one example in a pattern of discriminatory conduct. Id. at 12-17. She points out that the Chief of Staff held a position of authority within her office, even if he was not in her chain of command, and that his comment “challenged the legitimacy” of her role in the agency. Id. at 18. The agency has responded to the petition for review. PFR File, Tab 3.

DISCUSSION OF ARGUMENTS ON REVIEW An employee-initiated action, such as a retirement or resignation, or a lateral transfer between agencies, 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); see Colburn v. Department of Justice, 80 M.S.P.R. 257, ¶¶ 5-6 (1998) (explaining that a coerced inter-agency transfer is within the Board’s jurisdiction, even if the transfer is not to a lower-graded position). An appellant is entitled to a hearing on the issue of Board jurisdiction over an appeal of an alleged involuntary separation only if she makes a nonfrivolous allegation casting doubt on the presumption of voluntariness. Gibeault, 114 M.S.P.R. 664, ¶ 6 (citation omitted). 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.

In cases such as this one, in which an employee alleges that the agency took actions that made working conditions so intolerable that she was driven to resign, she must demonstrate that the employer engaged in a course of action that made her working conditions so difficult or unpleasant that a reasonable person in her position would have felt compelled to resign. Vitale v. Department of Veterans Affairs, 107 M.S.P.R. 501, ¶ 20 (2007). The Board addresses allegations of discrimination and reprisal only insofar as those allegations relate to the issue of voluntariness. Id.

The administrative judge found that the appellant did not make a nonfrivolous allegation that the agency created intolerable working conditions that would compel a reasonable person to resign. ID at 3-4. In so finding, the administrative judge reasoned that the Chief of Staff’s “helper” comment was a minor and isolated incident for which he promptly apologized; the Chief of Staff was not in the appellant’s supervisory chain; and there is no indication that the appellant faced any sort urgent workplace crisis such as a poor performance rating, escalating discipline, or any other sort of mounting agency pressure which might reasonably force her to decide she had no effective choice but to immediately resign. ID at 4.

The appellant challenges the administrative judge’s conclusion and reiterates her allegations that the Chief of Staff engaged in harassing and discriminatory behavior. PFR File, Tab 1 at 16-17. We agree with the administrative judge’s conclusion but modify his reasoning to consider the total scope of the alleged actions by the Chief of Staff and the agency.

An employee is not guaranteed a stress-free working environment, and enduring unfair criticism and unpleasant working conditions generally is not so intolerable as to compel a reasonable person to resign. Miller v. Department of Defense, 85 M.S.P.R. 310, ¶ 32 (2000). The mere utterance of an epithet which engenders offensive feelings in an employee does not sufficiently alter the employee’s working conditions so as to implicate Title VII. Salazar v. Department of Energy, 88 M.S.P.R. 161, ¶¶ 2, 13, 15 (2001). As an example, “two menial work assignments and a verbal confrontation” between an employee and a supervisor did not “rise[] to the level of coercion necessary to overcome the presumption of voluntariness, even when viewed in the context of a continuing pattern of harassment.” See Terban v. Department of Energy, 216 F.3d 1021, 1025 (Fed. Cir. 2000).

In her EEO investigative affidavit, the appellant provided a timeline of the Chief of Staff’s alleged harassment. IAF, Tab 5 at 88-94. According to the appellant, almost immediately after starting in OAS in August 2021, she took on the role of liaison between the leadership team and the Chief of Staff on all human resources personnel actions. Id. at 88. She asserted that the Chief of Staff was belittling and patronizing in all of their interactions, including their weekly one-on-one meetings from October 2021 to September 2022. Id. at 88, 106. She noted that the Chief of Staff used the meetings to exert his authority over her and question the reasonableness of personnel actions instead of using them to work collaboratively. Id. at 89.

In May 2022, the Chief of Staff sent the appellant what she describes as a “short and scornful” email because he believed that she had intentionally not notified him of a personnel action. Id. at 90-91. In September 2022, the Chief of Staff failed to notify her of the processing of certain special act awards even though that was part of her duties. Id. at 91. The appellant explained that she stopped meeting with the Chief of Staff in October 2022 and that he continued to exclude her from personnel action emails until June 2023, even though he had been directed to include her on such emails. Id. at 92. She noted that, during the September 2023 meeting, which a number of individuals attended, the Chief of Staff referred to her as her supervisor’s “helper” and that she felt offended and degraded by his comment. Id. at 92-93.

Contrary to the administrative judge’s finding, the Chief of Staff’s “helper” comment does not appear to be an isolated incident. As noted above, the appellant alleged other events over the course of approximately 2 1/2 years in which the Chief of Staff treated her in a hostile and demeaning manner. However, even viewed in light of her claims of a continuing pattern of harassment, the events that the appellant describes could not, if proven, rise to the level of coercion necessary to overcome the presumption that her resignation was voluntary. See Terban, 216 F.3d at 1025.

Nothing in the record suggests that the agency was forcing the appellant to make any type of decision in December 2023, and her decision to resign at that time appears to have been entirely self-initiated. Agency pressure for an employee to make a decision within a short period of time is coercive “only when the agency has demanded that the employee make an immediate decision.” Staats v. U.S. Postal Service, 99 F.3d 1120, 1126 (Fed. Cir. 1996). As the administrative judge noted, there is no indication that the appellant faced any sort of urgent workplace crisis or proposed adverse action. ID at 4. The appellant points to the September 28, 2023 meeting as the precipitating event that compelled her to resign. However, she did not submit her resignation until over a month later, on November 8, 2023, and her resignation was not effective until December 2, 2023. IAF, Tab 5 at 95. Further undermining the appellant’s claim that the agency’s actions caused her to feel that she had no choice is that she accepted a position at another agency on or before November 1, 2023. Id. at 122. As the administrative judge noted, the Standard Form 50 documenting the appellant’s appointment to her new position shows that she was selected from a certificate dated September 7, 2023. ID at 3; IAF, Tab 1 at 20.

The appellant believed that the agency should have taken her concerns regarding the Chief of Staff’s behavior more seriously, noting that the agency was complicit in condoning and perpetrating his behavior. IAF, Tab 5 at 94. However, according to the appellant, her supervisors agreed that the Chief of Staff’s behavior was adversarial and unprofessional, and they made efforts to address her concerns, including instructing the Chief of Staff to copy her on emails regarding personnel actions and allowing her to minimize her meetings and interactions with the Chief of Staff after October 2022. Id. at 9-11, 92; PFR File, Tab 1 at 5-6.

One supervisor provided a declaration under penalty of perjury stating that the Chief of Staff’s behavior was “something our entire OAS organization  Directors and our staff  have had to endure” and that she spoke with the Chief of Staff regarding his treatment of the appellant and reported it to agency management. IAF, Tab 5 at 35. The appellant has not disputed her supervisor’s statements in that regard. Therefore, the appellant has not alleged facts that, if true, would support her argument that the agency was unresponsive to her concerns.

The appellant reiterates that the Chief of Staff gave her an insincere apology after the September 28, 2023 meeting. PFR File, Tab 1 at 8. In his EEO investigative affidavit, the Chief of Staff noted that he told the appellant that he was “just describing the role” and he “did not [refer to her as her supervisor’s helper] to be demeaning or in any way to diminish [her].” IAF, Tab 6 at 23. His email apologizing for his “helper” comment the next day does not appear to be insincere. Id. at 36. Even assuming that his apologies were insincere, as the appellant alleges, we find that a comment made by an individual outside the appellant’s supervisory chain and with whom she had limited contact between October 2022 and the September 28, 2023 meeting does not rise to the level of coercion necessary to overcome the presumption that her resignation was voluntary.

A resignation is not involuntary when an appellant has the option to stand and fight the alleged discrimination and harassment through an EEO complaint rather than resign. See Axsom v. Department of Veterans Affairs, 110 M.S.P.R. 605, ¶ 17 (2009). The appellant initiated the EEO process before she resigned and continued that process after she resigned when she filed a formal complaint in which she alleged that she was forced to resign. IAF, Tab 5 at 36. Thus, the appellant was able to pursue her claims, and she does not assert that her claims were inadequately addressed in that forum.

“[T]he doctrine of coercive involuntariness is a narrow one.” Staats, 99 F.3d at 1124. Considering the totality of the circumstances, we find that the appellant’s allegations are insufficient to rise to the level of a nonfrivolous allegation of intolerable working conditions. Thus, we affirm the initial decision as modified.

NOTICE OF APPEAL RIGHTS 2

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. 3 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.