UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
STEVEN A. MILLER, DOCKET NUMBER
Appellant, PH-0752-14-0592-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: February 24, 2015
Agency.
THIS ORDER IS NO NPRECEDENTIAL 1
Dan Klein, Clinton, Mississippi, for the appellant.
Suzanne B. McCabe, Esquire, Philadelphia, Pennsylvania, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his involuntary disability retirement appeal for lack of jurisdiction.
For the reasons discussed below, we GRANT the appellant’s petition for review
1
A nonprecedential order is one that the Board has determined does not add
sign ificantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
and REMAND the case to the regional office for further adjudication in
accordance with this Order.
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 The appellant worked as a Supervisor, Customer Services at the agency’s
Jeannette Post Office in Jeannette, Pennsylvania. Initial Appeal File (IAF), Tab 4
at 53. On October 26, 2012, the appellant applied for disability retirement. Id. at
59-60. Around the same time period, he applied for Social Security disability
benefits. Id. at 61-62. He retired from the agency with a disability retirement on
March 11, 2013. Id. at 53. On May 27, 2013, the appellant filed a discrimination
complaint with the agency alleging discrimination based on disability and
retaliation for engaging in protected activity. Id. at 54. The agency issued a final
agency decision (FAD) that found no evidence of discrimination or that the
agency forced him to retire. Id. at 34, 38.
¶3 The appellant initiated a Board appeal alleging that his disability retirement
was involuntary and that the agency discriminated against him by refusing to
grant him a reasonable accommodation. IAF, Tab 1 at 2-3. The appellant also
marked on the appeal form that he had filed a whistleblowing complaint with the
Office of Special Counsel and a complaint with the Department of Labor (DOL)
regarding either the Uniformed Services Employment and Reemployment Rights
Act of 1994 (USERRA) or the Veterans Employment Opportunities Act of 1998
(VEOA). Id. at 4. The agency filed a motion to dismiss the appeal for lack of
jurisdiction. IAF, Tab 4 at 12. The administrative judge issued a jurisdictional
order directing the appellant to file evidence and/or argument that the Board has
jurisdiction over his involuntary retirement. IAF, Tab 6 at 3. The appellant
requested additional time to respond, but never filed any additional response to
the jurisdictional order. IAF, Tab 7.
¶4 The administrative judge issued an initial decision that dismissed the appeal
for lack of jurisdiction. IAF, Tab 9, Initial Decision (ID) at 1. He found that the
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appellant failed to make a nonfrivolous allegation that (1) he informed the agency
that he wished to continue working but required a reasonable accommodation, or
(2) he was able to work with such an accommodation. ID at 5-6. He also found
that the appellant failed to make a nonfrivolous allegation that the agency forced
him to retire. ID at 6-7. The administrative judge also construed the appellant’s
appeal form to allege that he was raising a USERRA discrimination claim. ID at
7-8. He found that the appellant did not allege that his involuntary disability
retirement was due to his prior military service, and that USERRA does not
provide for a claim of discrimination based on a disability arising from his
military service. ID at 8. The administrative judge granted the agency’s motion
to dismiss because the appellant did not establish Board jurisdiction over his
appeal. ID at 8.
¶5 The appellant has filed a timely petition for review. Petition for Review
(PFR) File, Tab 1. The agency has responded to the petition for review. PFR
File, Tab 3.
This appeal must be remanded for further adjudication of the appellant’s
involuntary disability retirement claim.
¶6 The administrative judge found that the appellant failed to make a
nonfrivolous allegation that his disability retirement was involuntary. ID at 4-6.
The Board has recognized that involuntary disability retirement appeals are
somewhat different from ordinary involuntary retirement appeals. Mims v. Social
Security Administration, 120 M.S.P.R. 213, ¶ 17 (2013). In most cases, an
appellant who alleges that his disability retirement was involuntary must show
that: (1) he indicated to the agency that he wished to continue working, but that
his medical limitations required a modification of his work conditions or duties,
i.e., accommodation; (2) a reasonable accommodation was available during the
period between the date on which he indicated to the agency that he had medical
limitations but desired to continue working and the date that he was separated
that would have allowed him to continue working; and (3) the agency
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unjustifiably failed to offer that accommodation. Id. To invoke Board
jurisdiction, the appellant must raise nonfrivolous allegations that, if true, would
meet the elements of this test. 2 See Brown v. Department of
Defense, 109 M.S.P.R. 493, ¶ 15 (2008).
¶7 The administrative judge found no evidence that the appellant notified the
agency that he wished to continue working. ID at 5. The appellant provided no
such evidence below and the agency provided the appellant’s sworn affidavit
from his equal employment opportunity (EEO) complaint in which he admitted
that he retired due to his inability to perform the duties of his job. IAF, Tab 4 at
46. The affidavit also contained statements that the appellant requested
reasonable accommodation to the district manager and the human resources
manager, but the request was not acted upon. Id. at 42, 46. Affidavits that are
not rebutted constitute evidence of matters asserted therein. Schaefer v. U.S.
Postal Service, 42 M.S.P.R. 592, 595 (1989). At the jurisdiction stage, the
administrative judge may not weigh evidence and resolve conflicting assertions of
the parties. Ferdon v. U.S. Postal Service, 60 M.S.P.R. 325, 329 (1994). We find
that the appellant’s sworn statement that he requested accommodation from the
agency is evidence that he made a nonfrivolous allegation that he wished to
continue working.
¶8 The administrative judge also found that the appellant failed to
nonfrivolously allege that there was a reasonable accommodation available that
would have allowed him to continue working. ID at 5-6. The appellant provided
no evidence of his medical restrictions. The appellant admitted in his EEO
2
The documentation submitted by the appellant with his petition for review includes a
request to continue working with potential work restrictions, his application for
workers’ compensation benefits and initial denial of his claim, information regarding
settlement of an equal employment opportunity (EEO) complaint in 2001 and a 2010
Family and Medical Leave Act absence, and the first page of his 2013 EEO complaint.
PFR File, Tab 1 at 2-12. The evidence submitted goes only to the first jurisdictional
element that he wished to continue working. It does not show that a reasonable
accommodation was available or that the agency failed to offer such an accommodation.
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affidavit that he never provided any medical documentation to the agency
regarding any work restrictions. IAF, Tab 4 at 42. He also never identified any
position that was available that could function as a reasonable accommodation.
IAF, Tab 1, Tab 4 at 41-48; see SanSoucie v. Department of
Agriculture, 116 M.S.P.R. 149, ¶ 21 (2011) (second jurisdictional element met
when the appellant alleged that an open position was available between the date
on which he indicated he had medical limitations and the date he was separated).
Because the record contains no evidence of the appellant’s need for
accommodation or any identification of a position that could accommodate him,
we agree with the administrative judge that the appellant has not made a
nonfrivolous allegation that a reasonable accommodation was available that
would have allowed him to continue working. Because we find that the appellant
did not make a nonfrivolous allegation that a reasonable accommodation was
available, he also has not made a nonfrivolous allegation that the agency
unjustifiably failed to offer the accommodation.
¶9 In his petition for review, however, the appellant appears to be claiming,
inter alia, that his involuntary disability retirement was actually a constructive
removal that was a result of whistleblower retaliation. In Vaughan v. Department
of Agriculture, 116 M.S.P.R. 493, ¶ 13 (2011), we held that in some involuntary
disability retirement appeals, it is appropriate to apply the elements generally
applicable to involuntary adverse actions. Further, in Burke v. Department of the
Treasury, 53 M.S.P.R. 434, 439 (1992), the Board ruled that allegations that an
appellant’s retirement resulted from retaliation for his whistleblowing should be
considered in the same manner as allegations that the coercion was based on
discrimination, i.e., such allegations should be considered in the first instance for
the purpose of determining whether they support a finding of coercion. See Shoaf
v. Department of Agriculture, 260 F.3d 1336, 1340, 1342-43 (Fed. Cir. 2001)
(remanding for further adjudication of an allegation that a retirement was
compelled by reprisal for whistleblowing). Moreover, in Shelly v. Department of
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the Treasury, 75 M.S.P.R. 411, 414-15 (1994), the Board stated that, because
jurisdiction in constructive adverse action appeals is tied to proof that the action
is truly adverse, it has jurisdiction over appeals under the Whistleblower
Protection Act upon proof that the constructive action was caused by
whistleblower reprisal.
¶10 Thus, this appeal must be remanded for consideration of the appellant’s
allegations of whistleblower reprisal for the purpose of determining whether they
support a finding of coercion. The administrative judge did not address the
appellant’s whistleblowing allegations or provide the appellant with any
jurisdictional notice regarding how he could meet his jurisdictional burden for
this claim. Because the Board would have jurisdiction to consider the appellant’s
whistleblower claims as an affirmative defense upon proof of jurisdiction over
the constructive action, the appellant also must receive jurisdictional notice on
these claims. 5 U.S.C. § 2302(a)(2)(C); Burgess v. Merit Systems Protection
Board, 758 F.2d 641, 643-44 (Fed. Cir. 1985); Mack v. U.S. Postal
Service, 48 M.S.P.R. 617, 620-21 (1991).
The appeal also must be remanded for the appellant to receive jurisdictional
notice for his VEOA claim.
¶11 The appellant indicated on his initial appeal that he filed a complaint with
DOL and received a response on October 18, 2011. IAF, Tab 1 at 4. The
appellant did not specify whether he was alleging a violation of USERRA or
VEOA. The administrative judge did not provide any notice to the appellant
regarding how he could establish jurisdiction over a VEOA claim; however, he
did provide notice of how to establish jurisdiction over a USERRA discrimination
appeal in the initial decision. ID at 7.
¶12 An appellant must receive explicit information on what is required to
establish an appealable jurisdictional issue. Burgess, 758 F.2d at 643-44.
However, the failure to provide an appellant with proper Burgess notice in an
acknowledgment order or show cause order can be cured if the initial decision
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itself puts the appellant on notice of what he must do to establish jurisdiction so
as to afford him the opportunity to meet his jurisdictional burden for the first time
on review. Caracciolo v. Department of the Treasury, 105 M.S.P.R. 663, ¶ 11
(2007). Because the administrative judge addressed the jurisdictional
requirements for a USERRA discrimination appeal in the initial decision, the
appellant was on notice that he must make a nonfrivolous allegation that he was
discriminated against based on his prior military service. Therefore, the
appellant’s substantive rights were not prejudiced as they relate to any USERRA
claim. See Caracciolo, 105 M.S.P.R. 663, ¶ 12. However, the administrative
judge’s failure to provide Burgess notice regarding the potential VEOA claim did
prejudice the appellant’s substantive rights. Therefore, we also must remand the
appeal for the appellant to receive proper notice of how to establish Board
jurisdiction over a VEOA claim. 3
3
The appellant indicated in his appeal that DOL issued a decision regarding h is
complaint on October 18, 2011. IAF, Tab 1 at 4. Normally, an appellant must file a
VEOA appeal with the Board with in 15 days of receiving DOL’s notice closing the
complaint. 5 C.F.R. § 1208.22(b). Equitable tolling may be available where the
appellant, despite having diligently pursued his rights, was unable to make a timely
filing. 5 C.F.R. § 1208.22(c). Here, the appellant filed his appeal on March 10, 2014,
over 16 months after DOL issued its decision. IAF, Tab 1 at 4, envelope. Therefore,
the appellant will need to demonstrate his diligence in pursuing his rights or have his
claim d ismissed for failure to timely file a VEOA appeal. See Kirkendall v. Department
of the Army, 479 F.3d 830, 837-44 (Fed. Cir. 2007).
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ORDER
For the reasons discussed above, we REMAND this case to the regional
office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.