UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LISA J. HESS, DOCKET NUMBER
Appellant, AT-0752-15-0576-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: February 3, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Thomas J. Connick, Esquire, Beachwood, Ohio, for the appellant.
Jason L. Hardy, Esquire, and Margaret L. Baskette, Esquire, Tampa,
Florida, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her involuntary disability retirement appeal for lack of jurisdiction.
Generally, we grant petitions such as this one only when: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
1
A nonprecedential order is one that the Board has determined does not add
significantly 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 Parties may cite nonprecedential orders,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
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. See title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
¶2 The appellant served as a supervisory employee with the agency in Tampa,
Florida. Initial Appeal File (IAF), Tab 7 at 113. Beginning in February 2013, the
appellant was absent from work and placed in an absence without leave (AWOL)
status. Id. The appellant returned to work for 1 day in April 2013, and was again
AWOL thereafter. Id. The appellant submitted an application for disability
retirement on May 10, 2013, citing several emotional and physical disabilities
that prevented her from performing her supervisory responsibilities. See Hess v.
U.S. Postal Service, MSPB Docket No. AT-0752-14-0058-I-1, Initial Appeal File
(0058 IAF), Tab 5 at 97-102.
¶3 While the appellant’s application for disability retirement was pending, the
agency initiated a removal action based upon attendance-related misconduct,
which it subsequently imposed and then rescinded. IAF, Tab 8 at 78. The agency
thereafter issued the appellant a second notice of proposed removal, again citing
her unacceptable attendance. Id. at 125-29. In response, the appellant submitted
a doctor’s note suggesting she could return to work on a part-time trial basis. Id.
at 92. The agency construed the appellant’s doctor’s note as a reasonable
accommodation request, and it referred her to its reasonable accommodation
3
committee. Id. at 137. The agency’s reasonable accommodation committee asked
the appellant to supply supporting documentation for her request, and it scheduled
her for an accommodation meeting. Id. at 90, 93. Prior to the meeting, however,
the Office of Personnel Management (OPM) approved the appellant’s application
for disability retirement, which she accepted. 0058 IAF, Tab 26 at 58; see IAF,
Tab 8 at 140.
¶4 The appellant filed a separate Board appeal of her removal, during which
she alleged that the agency constructively removed her by forcing her to apply for
disability retirement. 0058 IAF, Tab 9. The administrative judge docketed the
appellant’s allegation of an involuntary disability retirement as a separate appeal,
and he apprised her of the burden of establishing the Board’s jurisdiction over her
appeal. IAF, Tabs 1-2. In response, the appellant alleged that she was subjected
to frequent harassment in 2012 and 2013, that she was subjected to discrimination
and retaliation for engaging in prior equal employment opportunity (EEO) and
whistleblowing activity, and that “[a]fter informal mediation of [her] EEO
complaint failed, [she] felt that [her] only choice was to seek disability
retirement.” IAF, Tab 1 at 67-70.
¶5 The administrative judge issued an initial decision dismissing the
appellant’s involuntary disability retirement appeal for lack of jurisdiction
without holding the hearing requested by the appellant. IAF, Tab 10, Initial
Decision (ID). In his initial decision, the administrative judge found that the
appellant failed to nonfrivolously allege either that she was coerced into seeking
disability retirement or that the agency denied her a reasonable accommodation
that would have allowed her to continue working. ID at 5-9. The appellant has
filed a petition for review arguing that the administrative judge erred in
dismissing her appeal because, among other things, he should have joined her
involuntary appeal with her removal appeal, and he employed a heightened
pleading standard in evaluating her allegations of coercion. Petition for Review
4
(PFR) File, Tab 1 at 12-18. The agency has filed a response in opposition to the
petition for review. PFR File, Tab 5.
¶6 Resignations and retirements are presumed to be voluntary and outside of
the Board’s jurisdiction. See Putnam v. Department of Homeland
Security, 121 M.S.P.R. 532, ¶ 21 (2014). An involuntary retirement, however, is
equivalent to a forced removal within the Board’s jurisdiction under chapter 75.
Id. An appellant must make nonfrivolous allegations of jurisdiction to be entitled
to a hearing, at which point she would be required to prove her claim by a
preponderance of the evidence. Id.
¶7 An appellant who claims that a retirement was involuntary may rebut the
presumption of voluntariness in a variety of ways, including by alleging that her
choice to retire was the result of agency misinformation or deception, intolerable
working conditions, or an unjustified threat of an adverse action. See Mims v.
Social Security Administration, 120 M.S.P.R. 213, ¶ 17 (2013). The Board
however, has recognized that involuntary disability retirement cases are
somewhat different from ordinary involuntary retirement appeals. Id. To
establish the Board’s jurisdiction over an involuntary disability retirement appeal,
the appellant must show that: (1) she indicated to the agency that she wished to
continue working, but that her medical limitations required a modification of her
work conditions or duties; (2) there was a reasonable accommodation available
during the period between the date on which she indicated to the agency that she
had medical limitations but desired to continue working and the date that she was
separated that would have allowed her to continue working; and (3) the agency
unjustifiably failed to offer that accommodation. Id.
¶8 In certain cases, moreover, the Board has applied the general jurisdiction
test for an involuntary retirement in an involuntary disability retirement appeal.
Id., ¶ 17 n.3; Vaughan v. Department of Agriculture, 116 M.S.P.R. 493, ¶¶ 13-14
(2011). In Vaughan, the Board explained that, under certain circumstances, it
would consider an appellant’s allegations of agency coercion or hostility that
5
caused or exacerbated the medical conditions underlying the appellant’s disability
retirement application in determining whether she nonfrivolously alleged facts
establishing jurisdiction over her involuntary disability retirement appeal.
See 116 M.S.P.R. 493, ¶ 14.
¶9 Here, the administrative judge analyzed the appellant’s allegations of
coercion and involuntariness under both standards, and he found that she failed to
make a nonfrivolous allegation of jurisdiction under either framework. For the
reasons that follow, we agree with the administrative judge’s jurisdictional
analysis, which we affirm.
¶10 The appellant alleges that she was absent from duty in February and early
March 2013 to care for her mother and that she was absent from duty for the rest
of March and part of April 2013 “for [her] own illness.” 2 IAF, Tab 1 at 66. The
appellant, however, has not alleged that she informed the agency of her medical
limitations or requested a reasonable accommodation during this time, and we
have found no indicia of such a request in the record. See id. Additionally, the
appellant alleges that she was absent from employment beginning in late April
2013 and did not return to work thereafter due to “health reasons.” Id. at 67. The
appellant, however, has not alleged that she sought a reasonable accommodation
from the agency during this time. See Lorenz v. U.S. Postal Service, 84 M.S.P.R.
670, ¶ 9 (2000) (finding that an appellant generally must inform her employer of
her need for an accommodation to prevail on a claim of involuntary disability
retirement).
¶11 The only evidence suggesting that the appellant requested a reasonable
accommodation is the letter from one of her physicians submitted in response to
the agency’s second notice of proposed removal. IAF, Tab 8 at 92. The record
demonstrates, however, that the agency initiated the reasonable accommodation
2
These assertions are contained in the appellant’s declaration and are assumed to be
true for purposes of the Board’s jurisdictional analysis. See Carey v. Department of
Health & Human Services, 112 M.S.P.R. 106, ¶¶ 6-7 (2009).
6
process with the appellant upon receipt of this letter and that she accepted
disability retirement before presenting medical documentation to, or meeting
with, the agency’s reasonable accommodation committee. Id. at 90, 93, 137.
Based on this undisputed chronology, we concur with the administrative judge
that the appellant failed to nonfrivolously allege that the agency unjustifiably
failed to offer her an accommodation that would allow her to remain at work.
See, e.g., Collins v. U.S. Postal Service, 100 M.S.P.R. 332, ¶¶ 11-14 (2005)
(discussing that an appellant’s failure to engage in the interactive process is fatal
to a claim of involuntary disability retirement).
¶12 Alternatively, in applying the general involuntary resignation or retirement
analysis, the Board will look to the totality of the circumstances to ascertain
whether the appellant has nonfrivolously alleged that a reasonable person in her
position would have felt compelled to retire. See Conforto v. Merit Systems
Protection Board, 713 F.3d 1111, 1121 (Fed. Cir. 2013); Shoaf v. Department of
Agriculture, 260 F.3d 1336, 1342 (Fed. Cir. 2001). In assessing the substance of
an appellant’s allegations of coercion, the U.S. Court of Appeals for the Federal
Circuit has emphasized that an appellant must “satisfy a demanding legal
standard,” which requires more than an allegation of dissatisfaction with the
options that the agency has made available to her. Conforto, 713 F.3d at 1121
(quoting Staats v. U.S. Postal Service, 99 F.3d 1120, 1124 (Fed. Cir. 1996)).
Although an appellant need only nonfrivolously allege that she was subjected to
acts of coercion that deprived her of her freedom of choice to obtain a
jurisdictional hearing in her appeal, an appellant still must allege that the agency
effectively imposed her removal by taking improper acts that were so intolerable
that she had no other choice but to retire. Id. at 1121-22.
¶13 We agree with the administrative judge that the appellant failed to
nonfrivolously allege that the agency coerced her into seeking disability
retirement under this standard. ID at 4-7. The record reflects that the appellant
was absent from work beginning in February 2013, and that she applied for
7
disability retirement a few months later. IAF, Tab 1 at 66-67; 0058 IAF, Tab 5
at 97. The only specific allegation of alleged harassment proffered by the
appellant concerns her interaction with a coworker in November 2012. 3 IAF, Tab
1 at 43-46. The administrative judge properly considered this allegation as part
of the totality of the circumstances surrounding the appellant’s decision to seek
disability retirement, and he found that a reasonable person in the appellant’s
position would not have felt compelled to resign based on this interaction with a
colleague. See Shoaf, 260 F.3d at 1342 (“[I]n 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.”); ID at 7. Based on the lapse in time between this
event and the appellant’s application for disability retirement, we agree that this
incident does not reveal working conditions so intolerable that a reasonable
person would have felt compelled to leave employment. See Shoaf, 260 F.3d at
1342 (explaining that “the most probative evidence of involuntariness” is that
which occurs in “a relatively short period of time between the employer’s alleged
coercive acts and the employee’s retirement”).
¶14 We note, moreover, that the appellant has failed to allege how this one
incident caused or exacerbated the medical conditions underlying her disability
retirement. To establish the Board’s jurisdiction over her involuntary disability
retirement under Vaughan, the appellant must show that the agency’s improper
acts caused or exacerbated her underlying medical conditions. See 116 M.S.P.R.
493, ¶ 14. We find that the appellant has failed to allege any such linkage
between her November 2012 interaction with a coworker and her May 2013
3
The appellant also has asserted generally that she was harassed by her supervisor prior
to applying for disability retirement. IAF, Tab 1 at 67. In Conforto, the Federal Circuit
found the employee’s generic allegation of discrimination insufficient to establish the
Board’s jurisdiction over her involuntary retirement appeal. See 713 F.3d at 1123.
Here, we find the appellant’s general allegation of harassment insufficient to constitute
a nonfrivolous allegation of jurisdiction.
8
disability retirement application for purposes of establishing the Board’s
jurisdiction over her involuntary disability retirement appeal.
¶15 Finally, we find no merit to the appellant’s argument that the administrative
judge erred in failing to join the instant appeal with her removal appeal. PFR
File, Tab 1 at 12-14. Importantly, the appellant applied for disability retirement 1
month before the agency initiated its removal proceedings; any evidence
concerning the agency’s charge of misconduct, or her affirmative defenses, would
have no connection to her earlier decision to seek disability retirement. 4 See
Bean v. U.S. Postal Service, 120 M.S.P.R. 397, ¶ 10 (2013) (explaining that a
removal or resignation may be involuntary when an employee elects to resign or
retire to avoid a threatened action that the agency knows it cannot substantiate).
Additionally, because the jurisdictional analysis in this appeal differs from the
issues presented in the appellant’s removal appeal, we find that the administrative
judge did not abuse his discretion in adjudicating the appeals separately.
See 5 U.S.C. § 7701(f)(2); 5 C.F.R. § 1201.36(b).
¶16 The administrative judge’s jurisdictional dismissal of the appellant’s
involuntary disability retirement appeal is affirmed, and the appellant’s petition
for review is denied.
4
We acknowledge that a second removal proposal was pending when the appellant
accepted OPM’s approval of her disability retirement application. IAF, Tab 8 at 125-29
(second notice of proposed removal); 0058 IAF, Tab 26 at 58 (approval of disability
retirement). Because the agency was engaged in the reasonable accommodation
interactive process with the appellant during this time, IAF, Tab 8 at 137, and because
the agency had not yet issued a final decision on the proposed action, we cannot
conclude that the pendency of the second proposed removal left the appellant with no
alternative but to retire. See Garland v. Department of the Air Force, 44 M.S.P.R. 537,
541 (1990). The appellant, moreover, has failed to nonfrivolously allege that there was
no arguable basis for the agency’s attendance-related charge, and it is undisputed that
she was absent from employment for the period of time specified in the agency’s second
notice of proposed removal. IAF, Tab 8 at 35-37, 125-29.
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NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the U.S.
Court of Appeals for the Federal Circuit. You must submit your request to the
court at the following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar days
after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27,
2012). If you choose to file, be very careful to file on time. The court has held
that normally it does not have the authority to waive this statutory deadline and
that filings that do not comply with the deadline must be dismissed. See Pinat v.
Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
title 5 of the U.S. Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. Dec. 27,
2012). You may read this law as well as other sections of the U.S. Code, at our
website, http://www.mspb.gov/appeals/uscode.htm. Additional information is
available at the court’s website, www.cafc.uscourts.gov. Of particular relevance
is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained
within the court’s Rules of Practice, and Forms 5, 6, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website
at http://www.mspb.gov/probono for information regarding pro bono
representation for Merit Systems Protection Board appellants before the Federal
Circuit. The
10
Merit Systems Protection Board neither endorses the services provided by any
attorney nor warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.