NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-3244
CHRISTI J. KOTSCHWAR,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
Christi J. Kotschwar, of Rapid City, South Dakota, pro se.
Robert C. Bigler, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With him on
the brief were Jeffrey S. Bucholtz, Acting Assistant Attorney General, Jeanne E.
Davidson, Director, and Brian M. Simkin, Assistant Director.
Appealed from: Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-3244
CHRISTI J. KOTSCHWAR,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
Petition for review of the Merit Systems Protection Board in DE844E060261-I-1.
__________________________
DECIDED: July 14, 2008
__________________________
Before MICHEL, Chief Judge, LOURIE and LINN, Circuit Judges.
PER CURIAM.
Christi J. Kotschwar (“Kotschwar”) petitions for review of a final decision of the
Merit Systems Protection Board (“Board”) affirming the denial of her application for
Federal Employees’ Retirement System (“FERS”) disability annuity benefits. Kotschwar
v. Office of Pers. Mgmt., No. DE-844E060261-I-1 (M.S.P.B. Nov. 9, 2006) (“Initial
Decision”), review denied, Kotschwar v. Office of Pers. Mgmt., No. DE-844E060261-I-1
(M.S.P.B. Mar. 21, 2007). Because the Board did not depart from any important
procedural right, misconstrue governing legislation, or commit any similar error requiring
reversal, we affirm.
I. BACKGROUND
Prior to her termination, Kotschwar was an Administrative Office Assistant on the
Volatile Organic Chemicals National Synthesis team of the Department of the Interior’s
U.S. Geological Survey, in Rapid City, South Dakota. Kotschwar worked under the
supervision of John Zogorski, the team’s Supervisory Hydrologist.
Kotschwar claims to have become disabled on October 17, 2003. That day,
Zogorski provided Kotschwar with a written evaluation and met with her to discuss her
performance. During the meeting, Zogorski was critical of aspects of Kotschwar’s job
performance. According to Kotschwar, both during and before this meeting, Zogorski
created a hostile work environment that resulted in Kotschwar developing disabling
stress, adjustment disorder with disturbance of anxiety, and major depression.
Kotschwar was temporarily reassigned to the team’s computer section, away
from Zogorski. She worked there until March 2004, when she was ordered to report
back to her administrative duties under Zogorski. Instead, Kotschwar left the workplace
on approved sick leave. After her sick leave was exhausted, Kotschwar failed to return
to work and did not provide adequate medical documentation to support further leave.
She was terminated for being absent without leave and for failure to submit acceptable
medical documentation. She did not appeal the termination decision.
In February 2005, Kotschwar submitted an application for FERS disability
retirement. The Office of Personnel Management denied her application on the ground
that she had not presented medical information documenting a disabling medical
condition. Kotschwar appealed to the Board. The Board affirmed the denial, reasoning
that: (1) Kotschwar’s anxiety was merely situational and based on her poor relationship
with Zogorski; and (2) she had failed to show whether her condition could be improved
2007-3244 2
or controlled, because she had refused antidepressant medications. Initial Decision at
8-9. Kotschwar appeals. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
II. DISCUSSION
Kotschwar raises several arguments on appeal. However, our authority to review
the Board’s decision is limited. “This court is without authority to review the substantive
merits of disability determinations, or the factual underpinnings of such determinations.”
Brunner v. Office of Pers. Mgmt., 996 F.2d 290, 291 (Fed. Cir. 1993). Specifically, “we
may not review the Board’s factual determination as to whether [Kotschwar] was
disabled within the meaning of the FERS statute.” Trevan v. Office of Pers. Mgmt., 69
F.3d 520, 524 (Fed. Cir. 1995). Instead, our “review of disability-based actions is limited
to determining whether there has been a substantial departure from important
procedural rights, a misconstruction of the governing legislation, or some like error
going to the heart of the administrative determination.” Brunner, 996 F.2d at 292
(internal quotation marks omitted).
We address each of Kotschwar’s arguments in turn, within the limits of our
jurisdiction. First, Kotschwar argues that the Board erred by finding that she refused
medical treatment. We have no authority to review or disturb this finding. See id. But
even if we did, it would not have affected the outcome of Kotschwar’s appeal. The
Board’s conclusion that Kotschwar’s anxiety was not a disabling medical condition was
also independently and adequately supported by its finding that her anxiety was merely
situational and based on her poor relationship with Zogorski. See Initial Decision at 8-9.
Second, Kotschwar argues that the Board failed to account for the seriousness of
her hostile work environment. As the Board correctly recognized, see id. at 8,
Kotschwar’s burden was to prove that she could not “render useful and efficient service
2007-3244 3
in [her] position” in general—not solely in the context of a hostile relationship with a
particular supervisor. 5 U.S.C. § 8451(a)(1)(B); Tan-Gatue v. Office of Pers. Mgmt., 90
M.S.P.R. 116, 123 (2001) (“The Board has held that an appellant must show that she is
unable to perform her job duties in general and not only in the context of what she sees
as a hostile environment.”), aff’d 52 Fed. Appx. 511 (Fed. Cir. 2002). Kotschwar’s
argument is thus misplaced and is not within our authority to review.
Third, Kotschwar claims that the Board incorrectly interpreted the testimony of
one witness, and trivialized the testimony of a second witness. We are without authority
to review the Board’s factual findings. See Brunner, 996 F.2d at 291.
Finally, Kotschwar has submitted records purporting to show the medical
disability of one of her co-workers, which she argues demonstrate a hostile work
environment. These records were not made part of the record before the Board and are
therefore not properly before us. See Mueller v. U.S. Postal Serv., 76 F.3d 1198, 1201-
02 (Fed. Cir. 1996) (“Because we are limited to reviewing decisions of the Board based
on the record before the deciding official, we decline to base our judgment on evidence
that was not part of the record before the administrative judge.” (citation omitted)). In
any event, the disability of a co-worker is not relevant to Kotschwar’s disability claim.
Before the Board, Kotschwar had the burden of proving that she was “unable,
because of disease or injury, to render useful and efficient service in [her] position.” 5
U.S.C. § 8451(a)(1)(B); Trevan, 69 F.3d at 522. As we established in Brunner, when an
agency dismisses an employee because of that employee’s disability, the burden of
production shifts to the government. 996 F.2d at 294. When an employee who seeks
FERS benefits has been terminated by the employing agency, the Board must first
2007-3244 4
determine whether the employee was terminated because of his or her disability (in
which case the burden of production shifts to the government under Brunner), or
whether the employee was terminated for some other reason (in which case the burden
of production remains with the employee). See id. (“[T]he government’s action in
separating an employee for disablement produces a presumption of disability that
serves to shift to the government the burden of production.”). Here, the Board found
that Kotschwar’s removal was the result of her misconduct, not because of any
disability. See Initial Decision at 8. Therefore, the Board correctly assigned the burden
of proof to Kotschwar and found that she had not carried it. See id. We therefore
conclude that the Board did not depart from any important procedural right, misconstrue
governing legislation, or commit any similar error requiring reversal.
III. CONCLUSION
For the foregoing reasons, we affirm the order of the Board.
COSTS
No costs.
2007-3244 5