NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
is not citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
05-3190
L.C. WADE,
Petitioner,
v.
UNITED STATES POSTAL SERVICE,
Respondent.
__________________________
DECIDED: November 21, 2005
__________________________
Before NEWMAN, RADER, and BRYSON, Circuit Judges.
PER CURIAM.
Mr. L.C. Wade petitions for review of the decision of the Merit Systems Protection
Board, Docket No. DA0752040019-I-1, dismissing his appeal of his allegedly involuntary
disability retirement and denying corrective action under the Uniformed Services
Employment and Reemployment Rights Act. We affirm the decision of the Board.
Background
Mr. Wade, a Vietnam veteran, was employed as a mail carrier by the U.S. Postal
Service at the Homer, Louisiana Post Office, starting in 1981. In September 1995 he
sustained a back injury while on the job. He remained out of work for fourteen months and
was then sent for a fitness for duty examination. Following the evaluation, Mr. Wade asked
to be placed in a light duty position at the Homer Post Office. No such position was
available at that time, and Mr. Wade declined the Postal Service's offer to find him a light
duty position in Shreveport because of the difficulty of driving with his back injury. In 1997
he applied for, and was granted, disability retirement.
Five months before his retirement Mr. Wade filed an EEO complaint, alleging that
the agency failed to accommodate his back injury and his post traumatic stress disorder.
He later withdrew that complaint and filed an action in the United States District Court for
the Western District of Louisiana, alleging discrimination based on his race and disabilities.
The district court action was decided against him on summary judgment, and he did not
appeal that decision.
In October 2003 Mr. Wade filed a complaint with the Merit Systems Protection
Board, alleging that his retirement was involuntary. He charged that the Postal Service had
discriminated against him because of his race and disabilities and because he was a
disabled Vietnam veteran, in violation of the Uniformed Services Employment and
Reemployment Rights Act (USERRA). The administrative judge dismissed the involuntary
retirement claim based on Mr. Wade's failure to make a non-frivolous allegation that his
retirement was coerced. The administrative judge also dismissed the discrimination
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complaint and denied relief under USERRA. The full Board declined review, and this
appeal followed.
Discussion
Resignations and retirements from federal employment are presumed to be
voluntary, and voluntary actions are not appealable to the Board. See, e.g., Braun v.
Department of Veterans Affairs, 50 F.3d 1005 (Fed. Cir. 1995). However, a resignation or
retirement is not voluntary if it was "coerced" by the agency. In order to show coercion, the
employee must establish that "the agency effectively imposed the terms of the employee's
resignation or retirement, that the employee had no realistic alternative but to resign or
retire, and that the employee's resignation or retirement was the result of improper acts by
the agency." Staats v. United States Postal Service, 99 F.3d 1120 (Fed. Cir. 1996) (citing
Schultz v. United States Navy, 810 F.2d 1133, 1136 (Fed. Cir. 1987)).
The administrative judge ruled that in order to show an involuntary disability
retirement, Mr. Wade was required to demonstrate, inter alia, that there was a position
available within the agency whose duties Mr. Wade could perform, and that he was not
offered that position. See Nordhoff v. Department of the Navy, 78 M.S.P.R. 88 (1998),
aff'd, 185 F.3d 886 (Fed. Cir. 1999) (Table)("To establish Board jurisdiction, an appellant
who claims to have been constructively removed through an involuntary disability
retirement must show that there was an accommodation available on the date of his
separation that would have allowed him to continue his employment, and that the agency
did not provide him that accommodation."); see also Rule v. Department of Veterans
Affairs, 85 M.S.P.R. 388, 394 (2000) ("Thus, an appellant can establish that the agency
05-3190 3
deprived him of free choice with respect to disability retirement if he can prove that there
was an accommodation available on the date of his separation, either at or below his grade
or level, that would have allowed him to continue his employment.")
The Postal Service certified that there was no available light duty position within Mr.
Wade's commuting area, and Mr. Wade stated that he was unable to travel to Shreveport.
Mr. Wade argued that the agency could have accommodated his disability by giving him
light duty tasks at a local Post Office such as casing and sorting mail, answering the
telephone, or becoming a supervisor. The Board concluded, based on the submissions of
Postal Service personnel, that such activity did not constitute a complete employment
position. While the agency is required to assign a disabled employee to a position he can
perform, if one exists, it is not required to generate such a position when it does not
reasonably exist. See McFadden v. Department of Defense, 85 M.S.P.R. 18, 25
(1999)("An agency is not obligated to accommodate a disabled employee by permanently
assigning her to light-duty tasks when those tasks do not comprise a complete and
separate position."); Mengine v. U.S. Postal Service, 82 M.S.P.R. 123, 127 (1999) (same);
Robinson v. Department of the Air Force, 77 M.S.P.R. 486, 492 (1998) (same)).
Mr. Wade also argued that he was discriminated against based upon his race. To
establish Board jurisdiction of his discrimination claim, Mr. Wade must allege some action
taken against him that was based on discrimination. Mr. Wade has pointed to no adverse
action that can serve as the basis for his racial discrimination claim.
Mr. Wade also alleged that the Agency had discriminated against him because he
was a disabled Vietnam veteran, in violation of the Uniformed Services Employment and
05-3190 4
Reemployment Rights Act. The Board found that there was no evidence to justify such a
conclusion, and Mr. Wade has not pointed to any such evidence.
The Board correctly held that Mr. Wade failed to allege specific actions by the Postal
Service which, if proved, would establish that his disability retirement was involuntary. The
decision of the Board is affirmed.
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