Before Newman, Bryson, and Gajarsa, Circuit Judges.
The opinion of the court was delivered by: Per Curiam
NOTE: Pursuant to Fed. Cir. R. 47.6, this Disposition is not citable as precedent. It is a public record. The Disposition will appear in tables published periodically.
Madhabendra P. Paul seeks review of the Merit Systems Protection Board's ruling that his retirement was voluntary, and thus that he could not appeal the merits of the various issues that he asserts led to his involuntary or coerced retirement.*fn1 We affirm the Board's decision.
Dr. Paul was employed as a physicist and senior communications engineer with the Department of the Navy, Navigation and Applied Sciences Department, Airspace Systems Division. On retiring as of August 30, 1996 he appealed to the Board, stating that his retirement was involuntary because he was forced to choose between removal or retirement. Dr. Paul states that he accepted retirement in order to protect his pension, in consideration of his dependents and financial obligations.
Dr. Paul received an evidentiary hearing on the issue of the voluntariness of the retirement. See Burgess v. Merit Systems Protection Board, 758 F.2d 641, 643 (Fed. Cir. 1985) (entitling an appellant to a hearing on the issue of whether a resignation/retirement is involuntary if he makes a non-frivolous allegation of fact casting doubt on the presumption of voluntariness). At the hearing, there was evidence as to the quality of Dr. Paul's work, the propriety of the Performance Improvement Plan that he states was improperly imposed and evaluated, and his allegations of discrimination and supervisory hostility and prejudice.*fn2
The evidence was in conflict, and included highly favorable as well as highly critical evaluations of Dr. Paul's work. The administrative Judge concluded that the agency's removal action was supported by the evidence. Reasoning that presenting an employee with the alternative of removal or retirement does not cause a retirement to be involuntary, the Board dismissed the appeal.
The Board's decision must be sustained unless it is (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without adherence to procedures required by law, rule, or regulation; or (3) unsupported by substantial evidence. Rosete v. Office of Personnel Management, 48 F.3d 514, 516 (Fed. Cir. 1995).
Dr. Paul states that the Board failed to consider or gave inadequate weight to certain facts, including the objective outside evaluation of his work as of high quality, the consistent ratings of his work as "excellent" before the designation of Mr. Smith as his supervisor, and the obstacles placed on his performance by his supervisor. The administrative Judge heard testimony adverse to Dr. Paul from the agency's witnesses, and found them to be credible. The Board's credibility determinations are virtually unreviewable on appeal. Griessenauer v. Department of Energy, 754 F.2d 361, 364 (Fed. Cir. 1985). When the agency's evidence is accepted, it provides substantial evidence in support of the agency's decision to remove Dr. Paul on performance grounds.
The administrative Judge observed that the determination of voluntariness must be made on an objective standard, without regard to Dr. Paul's feelings of coercion or duress. An employee's choice of retiring, as an alternative to an impending removal, is not viewed as involuntary unless the agency has misrepresented material facts, see Covington v. DHHS, 750 F.2d 937 (Fed. Cir. 1984), unless the adverse action would have been contrary to law, see Schultz v. United States Navy, 810 F.2d 1133, 1136 (Fed. Cir. 1987), or unless the conditions of the action are such that, objectively viewed, they amount to duress or coercion. See Staats v. United States Postal Service, 99 F.3d 1120, 1123-27 (Fed. Cir. 1996). Although Dr. Paul states that he had only a few days in which to make the decision, he does not argue surprise or that he was not fully aware of his alternatives, or that the longer notice period he requested (and was refused) interfered with his ability to make an informed decision. Precedent does not support Dr. Paul's argument that the short notice in and of itself amounted to coercion. See Perlman v. United States, 490 F.2d 928, 932-33 (Ct. Cl. 1974) (time pressure of itself does not make a decision to retire involuntary, unless the time pressure interferes with the employee's ability to exercise informed choice); Lamb v. United States Postal Service, 46 M.S.P.R. 470, 477 (1990) (a resignation decision made by an employee on the same day as an adverse action was not involuntary when the employee had ample time to make an informed decision).
In the specific circumstances that prevailed, the Board's Conclusion that Dr. Paul's retirement was voluntary must be sustained. The dismissal is affirmed.