Linda Buckanaga v. Merit Systems Protection Board

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
LINDA BUCKANAGA,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2024-1335
______________________
Petition for review of the Merit Systems Protection
Board in No. CH-0752-22-0366-I-1.
______________________
Decided: November 5, 2024
______________________
KEVIN CURTIS CRAYON, II, Crayon Law Firm, LLC,
Kennesaw, GA, for petitioner.
DEANNA SCHABACKER, Office of General Counsel,
United States Merit Systems Protection Board,
Washington, DC, for respondent. Also represented by
ALLISON JANE BOYLE, KATHERINE MICHELLE SMITH.
______________________
Before DYK, CHEN, and STOLL, Circuit Judges.
Case: 24-1335 Document: 39 Page: 1 Filed: 11/05/2024

-- 1 of 13 --

BUCKANAGA v. MSPB 2
PER CURIAM.
Linda Buckanaga seeks review of the Final Order of
the Merit Systems Protection Board sustaining the Initial
Decision of the Administrative Judge dismissing
Ms. Buckanaga’s involuntary disability retirement appeal
for lack of jurisdiction. Ms. Buckanaga claims that
multiple incidents during her employment created a hostile
work environment and led to her involuntary resignation.
Because the Administrative Judge did not consider the
totality of the circumstances and weighed evidence at the
non-frivolous allegations stage of the proceeding, we vacate
the decisions from the Board and the Administrative Judge
and remand for further proceedings consistent with this
opinion.
BACKGROUND
Ms. Buckanaga was a Supervisory Health Systems
Specialist at the Indian Health Services’ (IHS) White Earth
Health Center (WEHC). Ms. Buckanaga, who has bipolar
disorder, applied for disability retirement on November 15,
2019. She alleges that her retirement was involuntary due
to a hostile work environment, which left her
“overwhelmed and stressed from her work conditions, as
well as distraught” over several incidents she had with
management between October 2017 and her retirement.1
J.A. 10.
I
The following facts are taken from Ms. Buckanaga’s
allegations in her response to a show cause order on
jurisdiction issued during the proceedings before the
Board, or from the Administrative Judge’s recitation of the
1 It is unclear from the record the exact date
Ms. Buckanaga officially retired from her position with
IHS.
Case: 24-1335 Document: 39 Page: 2 Filed: 11/05/2024

-- 2 of 13 --

BUCKANAGA v. MSPB 3
facts in the Initial Decision. In October 2017,
Ms. Buckanaga informed Laura DeGroat—the Deputy
Health Systems Administrator with IHS at WEHC and
Ms. Buckanaga’s first-line supervisor—that a member of
her staff had requested medical leave for two weeks and
she had approved it. Ms. DeGroat requested the medical
note supporting the leave request and googled the provider
to confirm the request was legitimate. Ms. Buckanaga felt
“that Ms. DeGroat’s actions demeaned her and
undermined her decision-making authority.” J.A. 459.
In January 2018, Ms. Buckanaga emailed Richard
Gerry, who was the Acting Bemidji Area Director with IHS,
to report that Ms. DeGroat “was behaving inappropriately
and unprofessionally with her and talking down to her.”
J.A. 462. Ms. Buckanaga also complained about
Ms. DeGroat’s behavior to Daniel Frye, who was the Chief
Executive Officer of WEHC and Ms. DeGroat’s supervisor.
No action was taken pertaining to Ms. Buckanaga’s
complaints.
In May 2018, Ms. DeGroat was upset with certain
management decisions Ms. Buckanaga made, and she
went to Ms. Buckanaga’s office to suggest that
Ms. Buckanaga make changes in the Business Office.
When Ms. Buckanaga informed Ms. DeGroat that her
suggested changes would not work, “Ms. DeGroat became
‘agitated and hostile,’ yelling at her and making demands,”
after which Ms. DeGroat left the office, slamming the door
behind her. J.A. 459. During this incident, Ms. Buckanaga
alleged that Ms. DeGroat was “so loud and hostile” that
“one of the members of [Ms. Buckanaga’s] staff, Marissa
Stevens, was afraid and wanted to call security because she
was afraid Ms. DeGroat was going to assault
[Ms. Buckanaga],” that Ms. Buckanaga herself felt
threatened, and that she and her staff were badly shaken
by the incident. J.A. 459; J.A. 463.
Case: 24-1335 Document: 39 Page: 3 Filed: 11/05/2024

-- 3 of 13 --

BUCKANAGA v. MSPB 4
In November 2018, the Office of the Inspector General
(OIG) sent a representative to investigate allegations
against Ms. DeGroat that Ms. Buckanaga and other staff
members had made. When the investigator arrived to
interview Ms. Buckanaga, Mr. Frye told him to leave the
premises, after which the investigation was reassigned to
Ms. DeGroat’s friend and former co-worker. The resulting
investigation found no issues with the facility.
Ms. Buckanaga contacted the OIG to challenge these
findings, at which point she learned that the OIG was
unaware that its representative had been turned away.
After this incident, Ms. Buckanaga alleged that “she felt
she had no recourse.” J.A. 466.
In January 2019, Ms. Buckanaga reported to
Ms. DeGroat that she was subjected to hostility by David
French, who was an Information Technology Manager.
Ms. DeGroat took no action in response to this complaint.
In March 2019, Ms. Buckanaga took two-weeks leave
for her mental health. During this time, she alleges that
Ms. DeGroat went into another department and loudly
announced either that “[Ms.] Buckanaga is out on mental
health leave because she can’t handle her staff” or that
“[Ms.] Buckanaga is having a mental breakdown and can’t
handle her staff. She’s going to be out for two weeks.”
J.A. 17; J.A. 475 (emphasis removed). Also, during this
leave period, Ms. DeGroat required Ms. Buckanaga to
return to work to attend a training, and Ms. Buckanaga
was not aware of anyone else being required to return from
leave to do so.
In September and October 2019, Ms. DeGroat denied
Ms. Buckanaga training and meetings with two service
units she reported to as a manager.
In October 2019, Ms. DeGroat yelled at Ms. Buckanaga
during a discussion about an employee’s grade increase.
Case: 24-1335 Document: 39 Page: 4 Filed: 11/05/2024

-- 4 of 13 --

BUCKANAGA v. MSPB 5
And more generally, Ms. Buckanaga alleged that
Ms. DeGroat kept her away from managerial meetings.
Ms. DeGroat also implemented changes in the Business
Office without Ms. Buckanaga’s knowledge or
participation. For example, Ms. Buckanaga stated that her
report for a site visit to plan space for a new employee was
discarded, and Ms. DeGroat and other staff members went
to the site and made decisions without Ms. Buckanaga’s
input. Ms. Buckanaga alleged that Ms. DeGroat did other
things to undermine her authority as well, including
making comments that suggested Ms. Buckanaga did not
know what she was doing during meetings.
Ms. Buckanaga went on leave on October 31, 2019, due
to the exacerbation of her bipolar disorder, allegedly from
“management[’s] fail[ure] to cure the toxic hostile work
environment.” J.A. 457–58; J.A. 478. While on leave, she
applied for disability retirement. On December 10, 2019,
Ms. Buckanaga’s medical provider extended her leave to
January 31, 2020. Ms. Buckanaga made a written request
to be placed on Leave Without Pay, which was denied. On
December 16, 2019, Ms. DeGroat instead advised
Ms. Buckanaga that she would be charged Absent Without
Leave.
II
By January 7, 2020, Ms. Buckanaga had filed an Equal
Employment Opportunity (EEO) complaint that included,
among other claims not relevant to this appeal, her
involuntary retirement claim, which the Equal
Employment Opportunity Commission (EEOC) ultimately
dismissed and returned to the Department of Health and
Human Services (DHHS) for a Final Agency Decision
(FAD) with appeal rights to the MSPB pursuant to EEOC
policy to have the MSPB determine its jurisdiction over
constructive action claims before EEOC adjudication. In a
June 2022 FAD, DHHS found that Ms. Buckanaga had
failed to establish her claim of constructive discharge.
Case: 24-1335 Document: 39 Page: 5 Filed: 11/05/2024

-- 5 of 13 --

BUCKANAGA v. MSPB 6
Ms. Buckanaga timely appealed to the MSPB. The
Administrative Judge issued an acknowledgement order
informing Ms. Buckanaga that the Board may not have
jurisdiction over her appeal and directed her to show cause
on the issue.
Following the completion of this jurisdictional briefing,
the Administrative Judge issued an Initial Decision
dismissing Ms. Buckanaga’s MSPB appeal without a
hearing, as the Administrative Judge found
Ms. Buckanaga had failed to raise a non-frivolous claim of
Board jurisdiction. After first determining that
Ms. Buckanaga failed to raise a non-frivolous claim that
her retirement was involuntary based upon agency failure
to accommodate a disability, the Administrative Judge
considered whether she had failed to raise a nonfrivolous
claim that her resignation was involuntary based on a
hostile work environment. Addressing this issue, the
Administrative Judge determined that Ms. Buckanaga’s
“claims do not amount to nonfrivolous allegations that she
was coerced into retirement due to intolerable work
conditions.” J.A. 19. Instead, the Administrative Judge
considered most of Ms. Buckanaga’s “complaints [to] relate
primarily to Ms. DeGroat’s management style and
personality conflicts [Ms. Buckanaga] had with her,” which
“d[o] not rise to the level of an intolerable working
condition.” J.A. 20.
The Administrative Judge also determined that any
alleged events that took place prior to November 2018 were
“too remote in time to consider in support of
[Ms. Buckanaga]’s constructive removal claim.” J.A. 21;
see also J.A. 21–22. As to the incident with the OIG
inspector that took place in November 2018, the
Administrative Judge determined both that “this would not
have led a reasonable person to feel that there was no other
alternative but to resign[, as Ms. Buckanaga] could have
challenged that decision up the chain of command,” and
that “this incident is also too remote to give it the
Case: 24-1335 Document: 39 Page: 6 Filed: 11/05/2024

-- 6 of 13 --

BUCKANAGA v. MSPB 7
consideration that [Ms. Buckanaga] believes it deserves.”
J.A. 22.
Additionally, the Administrative Judge (1) discredited
Ms. Buckanaga’s exhibits in support of her jurisdictional
response, as “they shed no additional light on her alleged
constructive removal claim,” and (2) “did not give [] much
weight” to her submission of supplemental statements.2
J.A. 22–23.
Ultimately, the Administrative Judge determined that
Ms. Buckanaga “had the option to continue at the agency
and, to exercise her appeal rights in the proper forum. She
had already filed an EEO complaint and could have
awaited the outcome of that complaint and exercised any
other available appeal rights prior to retiring.” J.A. 23.
Following the initial dismissal of her claim,
Ms. Buckanaga filed a petition for review with the Board.
The Board issued a Final Order denying Ms. Buckanaga’s
petition and affirming the Administrative Judge’s Initial
Decision, which became the Board’s final decision.
Ms. Buckanaga timely appeals. We have jurisdiction
under 5 U.S.C. § 7703(b)(1)(A) and 28 U.S.C. § 1295(a)(9).
2 The exhibits and supplemental statements
attached to Ms. Buckanaga’s jurisdictional response
include a statement from her medical provider regarding
her retirement, see J.A. 482; several statements from
coworkers corroborating Ms. Buckanaga’s allegations
about the treatment she was subjected to at WEHC, see
J.A. 483–88; a form for one of her leave requests, see J.A.
489–92; and several documents related to potential
complaints and investigations into the supervisors and
practices at WEHC, see J.A. 493–505.
Case: 24-1335 Document: 39 Page: 7 Filed: 11/05/2024

-- 7 of 13 --

BUCKANAGA v. MSPB 8
DISCUSSION
We review determinations of the Board concerning its
jurisdiction de novo. Parrot v. Merit Sys. Prot. Bd.,
519 F.3d 1328, 1334 (Fed. Cir. 2008). We review the
Board’s underlying factual findings for substantial
evidence. Id.
Although an “employee who voluntarily resigns or
retires has no right to appeal to the MSPB[,] . . . [t]he
MSPB possesses jurisdiction over an appeal filed by an
employee who has resigned or retired if . . . his or her
resignation or retirement was involuntary and thus
tantamount to forced removal.” Shoaf v. Dep’t of Agric.,
260 F.3d 1336, 1340–41 (Fed. Cir. 2001) (citation omitted).
“Resignations 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). An employee asserting claims of
involuntary retirement on the basis that the agency
coerced the employee to retire must show that “(1) the
agency effectively imposed the terms of the employee’s
resignation or retirement; (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.” Shoaf, 260 F.3d at 1341. To objectively
determine whether a reasonable person in the employee’s
position would have felt compelled to resign, the tribunal
must consider the totality of the circumstances. Id. at
1342. A retirement will not be deemed involuntary where
the employee retires simply because she “does not want to
accept [actions] that the agency is authorized to adopt.”
Terban, 216 F.3d at 1025 (alteration in original) (quoting
Staats v. U.S. Postal Serv., 99 F.3d 1120, 1124 (Fed. Cir.
1996)).
When a claimant makes a non-frivolous allegation of
MSPB jurisdiction, she is entitled to a jurisdictional
hearing. Garcia v. Dep’t of Homeland Sec., 437 F.3d 1322,
Case: 24-1335 Document: 39 Page: 8 Filed: 11/05/2024

-- 8 of 13 --

BUCKANAGA v. MSPB 9
1344 (Fed. Cir. 2006) (en banc). Non-frivolous allegations
of jurisdiction are those that, if proven, can establish
jurisdiction. Id. Only once a claimant is at the hearing
must she prove jurisdiction by a preponderance of the
evidence. Id.; see also Braun v. Dep’t of Veterans Affs.,
50 F.3d 1005, 1008 (Fed. Cir. 1995) (“It would be illogical to
require a petitioner to prove in advance by preponderant
evidence that a resignation or retirement was involuntary
to secure a hearing on that very issue.”).
We hold that the Board erred in its pre-hearing
jurisdictional analysis. The question at this stage is
whether Ms. Buckanaga has non-frivolously alleged
circumstances that, if true, would cause a reasonable
person in her position to feel compelled to retire. See
Braun, 50 F.3d at 1008. In answering this question, the
Administrative Judge erroneously discounted a third of
Ms. Buckanaga’s allegations as too remote in time, thus
failing to consider the totality of the circumstances. See
J.A. 21 (“[M]any of [Ms. Buckanaga]’s claims relate to
incidents that took place too remote in time to consider in
support of [her] constructive removal claim.”); J.A. 22
(“Given the remoteness of these 3 incidents, I find that they
do not support an inference of intolerable working
conditions such that a reasonable person would have felt
compelled to resign from her position.”). As we have
previously explained, “in measuring the voluntariness of
an employee’s resignation or retirement, all of the
activities surrounding his or her resignation or retirement,
even events not immediately preceding the leave of employ,
must be considered.” Shoaf, 260 F.3d at 1342 (emphases
added) (holding that the MSPB abused its discretion in
disregarding allegations made between 1990 and 1993
when appellant retired in 1995). In failing to consider
Ms. Buckanaga’s allegations from more than a year prior
to her application for retirement, the Administrative Judge
here failed to consider the totality of the circumstances.
Nor is this a situation where Ms. Buckanaga’s only
Case: 24-1335 Document: 39 Page: 9 Filed: 11/05/2024

-- 9 of 13 --

BUCKANAGA v. MSPB 10
allegations occurred multiple years prior with no
continuing allegations leading up to her application for
retirement at the end of 2019. It is a failure to consider the
totality of the circumstances when the Administrative
Judge dismisses these earlier occurring incidents out of
hand, instead of “viewing [an appellant]’s claims
collectively as a series of escalating incidents culminating
in [] retirement.” Trinkl v. Merit Sys. Prot. Bd., 727 F.
App’x 1007, 1010 (Fed. Cir. 2018).
Additionally, the Administrative Judge determined
that Ms. Buckanaga’s allegations “largely addressed the
agency’s management decisions.” J.A. 21 (emphasis
added). We agree that allegations of management
decisions such as excluding Ms. Buckanaga from
managerial meetings and implementing changes without
her knowledge or participation cannot give rise to coercive
involuntariness. See Staats, 99 F.3d at 1124 (explaining
that the doctrine of coercive involuntariness does not apply
to cases where an employee’s hardship is the result of
“measures that the agency is authorized to adopt”). That
said, the Administrative Judge failed to account for other
allegations that cannot reasonably fall into this category.
For example, Ms. Buckanaga alleged that Ms. DeGroat
had become hostile enough in one incident that another
employee considered calling security. In another example,
while Ms. Buckanaga was out on leave for mental health
reasons, she alleged that Ms. DeGroat publicly disclosed to
other employees that “[Ms.] Buckanaga is out on mental
health leave because she can’t handle her staff” or that
“[Ms.] Buckanaga is having a mental breakdown and can’t
handle her staff. She’s going to be out for two weeks.”
J.A. 17; J.A. 475. Additionally, while she was out on this
leave, Ms. Buckanaga alleged that Ms. DeGroat required
her to come into work for a training, and she was the only
person in her circumstance to have to do so. If true,
hostility to the point that observers thought security may
need to intervene, disparagingly disclosing health records
Case: 24-1335 Document: 39 Page: 10 Filed: 11/05/2024

-- 10 of 13 --

BUCKANAGA v. MSPB 11
to other employees, and selectively requiring someone to
work while they are on leave for mental health reasons
cannot reasonably be discounted as mere “management
decisions.”
Likewise, Ms. Buckanaga’s allegation about an OIG
investigator who was looking into claims on Ms. DeGroat’s
harassment of employees being turned away and OIG not
being informed of this, if true, could not be considered a
mere managerial decision. And although the
Administrative Judge did acknowledge this report, the
Administrative Judge discounted this allegation because
(1) “this would not have led a reasonable person to feel that
there was no other alternative but to resign,” as she “could
have challenged that decision up the chain of command,”
J.A. 22; and (2) “this incident [was] also too remote to give
it the consideration that [Ms. Buckanaga] believes it
deserves,” id. We have already noted the Administrative
Judge’s error in discounting events she found to be too
remote in time. In addition, the Administrative Judge’s
decision also ignores that Ms. Buckanaga allegedly did try
to challenge the report, which is how she claims to know
that OIG was unaware that its chosen investigator was not
used.
While the Government is correct that the
Administrative Judge’s failure to explicitly address certain
allegations does not necessarily mean that they were not
considered, when the Administrative Judge rests part of
her determination on the conclusion that a reasonable
person could have challenged the behavior she was
experiencing instead of retiring, the Administrate Judge
should have considered the totality of the circumstances of
the claim, including Ms. Buckanaga’s allegations that her
complaints concerning verbal abuse and interference with
investigations were consistently ignored. Furthermore,
the Government’s argument that there was no pressure for
Ms. Buckanaga to retire when she did, “especially
considering that . . . she was already on leave at the time
Case: 24-1335 Document: 39 Page: 11 Filed: 11/05/2024

-- 11 of 13 --

BUCKANAGA v. MSPB 12
she applied for disability retirement,” Resp. Br. 23, ignores
Ms. Buckanaga allegations that (1) Ms. DeGroat had
previously ignored Ms. Buckanaga’s paid leave by
requiring her to work through it, and (2) Ms. Buckanaga
did not have unlimited leave, paid or otherwise, and was in
fact denied unpaid leave by Ms. DeGroat.
Finally, as even the Government concedes, the
Administrative Judge’s weighing of Ms. Buckanaga’s
corroborating evidence “was improper at the nonfrivolous
stage.” Resp. Br. 25 (citing Dumas v. Merit Sys. Prot. Bd.,
789 F.2d 892, 893–94 (Fed. Cir. 1986)). While this error
standing alone may not have been reversible, in
conjunction with the errors identified above, it adds to the
implication that, although the Administrative Judge
acknowledged the proper legal standard at the non-
frivolous stage of the proceedings, that standard was not
actually applied. Instead, the Administrative Judge
considered the evidence in a piece meal fashion and held
Ms. Buckanaga to an improperly high burden.
As we have determined that the Administrative Judge
erred by not considering the totality of the circumstances
and weighing the evidence at the non-frivolous stage, we
do not reach Ms. Buckanaga’s other arguments on appeal.3
CONCLUSION
We have considered the Government’s remaining
arguments and find them unpersuasive. For the foregoing
reasons, we vacate the MSPB’s pre-hearing dismissal of
3 To the extent the Administrative Judge considered
a claim for involuntary retirement based on lack of
accommodation that Ms. Buckanaga contends she never
alleged, this is at most harmless error, as the
Administrative Judge went on to consider anew her claim
of involuntary retirement based on an intolerable or hostile
work environment.
Case: 24-1335 Document: 39 Page: 12 Filed: 11/05/2024

-- 12 of 13 --

BUCKANAGA v. MSPB 13
Ms. Buckanaga’s claim of involuntary retirement and
remand for further proceedings consistent with this
opinion.
VACATED AND REMANDED
COSTS
Costs to Petitioner.
Case: 24-1335 Document: 39 Page: 13 Filed: 11/05/2024

-- 13 of 13 --