Opinion

John Hammond v. Office of Personnel Management

Court: Merit Systems Protection Board
Filed: Jul 26, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.3%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JOHN B. HAMMOND, DOCKET NUMBER

Appellant, PH-844E-19-0393-I-1

OFFICE OF PERSONNEL DATE: July 26, 2024

MANAGEMENT,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Leah Bachmeyer Kille , Esquire, Lexington, Kentucky, for the appellant.

Albert Pete Alston, Jr. and Linnette Scott , Washington, D.C., for the

agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member*

*Member Kerner did not participate in the adjudication of this appeal.

FINAL ORDER

The appellant has filed a petition for review of the initial decision, which

affirmed the final decision of the Office of Personnel Management (OPM)

denying his application for Federal Employees’ Retirement System (FERS)

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

disability retirement. Generally, we grant petitions such as this one only in the

following circumstances: the initial decision contains erroneous findings of

material fact; the initial decision is based on an 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. 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).

BACKGROUND

The appellant is a WG-10 Wood Crafter for the Department of the

Interior’s Harper’s Ferry National Historical Park, Division of Planning and

Facility Management. Initial Appeal File (IAF), Tab 8 at 18. The appellant’s

duties involve carpentry projects related to the repair, improvement, maintenance,

and preservation of facilities and historic structures within the park. Id. at 113.

A Wood Crafter is a physically demanding position, which involves, in relevant

part, work on ladders, scaffolding, and slopes throughout the park’s hilly terrain.

Id. at 113-15.

In November 2015, the appellant sought medical treatment to relieve

longstanding but worsening pain in his left foot, attributable to a congenital bone

deformity. Id. at 137-39. The appellant underwent surgery on March 10, 2016,

and took leave until August 2016, when he returned work with restrictions of no

working on ladders, inclines, or heights, and no lifting more than 40 pounds. Id.

128, 133-36. The agency provided the following accommodations for the

appellant’s condition: A man lift or scissor lift would be available in lieu of

ladders or scaffolding, he would be driven to and from work sites that would

otherwise require walking over more than 20% grade, and leave would be granted

if there was no work available within his restrictions. Id. at 101-02.

On May 16, 2017, the appellant sustained a bone fracture in his left foot

while working on uneven ground, and he again took leave from work until

July 24, 2017, when he returned with the same restrictions as before. 2 Id.

at 116-25.

On or about October 5, 2017, the appellant filed an application for FERS

disability retirement, citing the condition of his left foot (fourth metatarsal

fracture, triple arthrodesis foot fusion, tarsal coalition, arthritis, and narrowing of

tibiotalar joint) and stating that it affected his ability to climb stairs and ladders,

stand for prolonged periods, and work on uneven ground, and that it negatively

affected his mood. Id. at 86-99. OPM denied the application, finding that the

appellant was not disabled from providing useful and efficient service as a Wood

Crafter. Id. at 56-61. The appellant requested reconsideration, and on July 19,

2019, OPM issued a final decision affirming its denial of the appellant’s

application. Id. 22-37.

The appellant filed a Board appeal, and after a hearing, the administrative

judge issued an initial decision affirming OPM’s final decision. IAF, Tab 21,

Initial Decision (ID). He found that the appellant failed to show that his medical

condition caused a deficiency in performance, attendance, or conduct, or that his

condition was incompatible with useful and efficient service or retention in the

Wood Crafter position. ID at 17-22.

The appellant has filed a petition for review, consisting of a letter from the

park Superintendent that recounts some additional facts about the appellant’s

The appellant alleged that his supervisor ordered him to perform this work even

though it was outside his medical restrictions. IAF, Tab 8 at 87. The injury was ruled

compensable. Id. at 76, 93.

work history and disputes the accuracy of some of the witness testimony. Petition

for Review (PFR) File, Tab 1. OPM has filed a substantive response. PFR File,

Tab 3.

ANALYSIS

An employee bears the burden of proving by preponderant evidence his

entitlement to disability retirement. Snow v. Office of Personnel Management,

74 M.S.P.R. 269, 273 (1997); 5 C.F.R. § 1201.56(b)(2)(ii). To qualify for

disability retirement benefits under FERS, an individual must meet the following

requirements: (1) he must have completed 18 months of creditable civilian

service; (2) he must, while employed in a position subject to FERS, have become

disabled because of a medical condition resulting in a deficiency in performance,

conduct, or attendance, or if there is no such deficiency, the disabling medical

condition must be incompatible with either useful and efficient service or

retention in the position; (3) the disabling medical condition must be expected to

continue for at least 1 year from the date the application for disability retirement

is filed; (4) accommodation of the disabling medical condition in the position

held must be unreasonable; and (5) he must not have declined a reasonable offer

of reassignment to a vacant position. 5 U.S.C. § 8451; Lydon v. Office of

Personnel Management, 105 M.S.P.R. 152, ¶ 5 (2007), overruled on other

grounds by Henderson v. Office of Personnel Management , 117 M.S.P.R. 313

(2012); 5 C.F.R. § 844.103(a). In this case, the chief point of contention is

whether the appellant satisfied the second requirement, i.e., whether his foot

condition disabled him from rendering useful and efficient service in his position

as set forth in 5 U.S.C. § 8451(a)(1)(B) and 5 C.F.R. § 844.103(a)(2).

The administrative judge found that the appellant exhibited no performance

deficiencies related to his foot condition. ID at 17-18. The most recent

performance evaluation in the file reflects a summary rating of “fully successful”

with ratings of either “fully successful” or “superior” for each critical element,

and there was otherwise no evidence of any performance deficiencies. IAF, Tab 8

at 98, 103-11. Nor did the administrative judge find a deficiency in attendance.

He acknowledged that the appellant took significant amounts of leave in 2016 and

2017 related to his surgery and compensable injury, respectively, but he found

that the appellant returned to work thereafter, and these discreet periods of

absence did not equate to a deficiency in attendance. ID at 18-19. The

administrative judge further acknowledged the appellant’s statement that the pain

in his foot affects his mood and his fear that he might “snap and say the wrong

thing and get written up,” but he found that the appellant cannot have

demonstrated a conduct deficiency based on something that has not happened. ID

at 19.

In the absence of a service deficiency, an employee can establish

entitlement to disability retirement benefits by proving that his condition is

incompatible with either useful and efficient service or retention in his position.

See Thieman v. Office of Personnel Management, 78 M.S.P.R. 113, 116 (1998).

The key question is whether the employee’s condition restricts him from

performing critical or essential job tasks. See id.; CSRS and FERS Handbook,

ch. 60, § 60A2.1–2(B) (Apr. 1998),

https://www.opm.gov/retirement-services/publications-forms/csrsfers-handbook/

c060.pdf (last visited July 25, 2024). In this regard, the administrative judge

recognized that the appellant was restricted from working on ladders, scaffolding,

and uneven ground, and thus there were certain tasks that he was unable to

perform. ID at 20-21. Nevertheless, he found that the appellant remained able to

perform most of the duties of his position of record, and that, despite the agency’s

accommodation of withholding certain tasks outside the appellant’s medical

restrictions, he continued to perform the duties of a Wood Crafter on a full-time

basis. ID at 21-22; see Benjamin v. Office of Personnel Management,

45 M.S.P.R. 187, 190 (1990) (finding that accommodation by way of permanent

light duty precludes an award of disability retirement). The administrative judge

distinguished the instant appeal from other cases in which light duty assignments

did not preclude disability retirement because they consisted of ad hoc tasks or

work that was not proper to the position of record. ID at 20-21; see, e.g., Marino

v. Office of Personnel Management, 243 F.3d 1375, 1377-78 (Fed. Cir. 2001);

Bracey v. Office of Personnel Management, 236 F.3d 1356, 1359-61 (Fed. Cir.

2001); Brickers v. Office of Personnel Management, 88 M.S.P.R. 669, ¶¶ 9-12

(2001).

On petition for review, the appellant does not directly contest any of the

administrative judge’s findings. Rather, the petition consists of a letter from the

park Superintendent. PFR File, Tab 1. As OPM correctly argues, the Board

generally will not consider evidence submitted for the first time on petition for

review absent a showing that it was previously unavailable despite the party’s due

diligence. PFR File, Tab 3 at 11; Sachs v. Office of Personnel Management,

99 M.S.P.R. 521, ¶ 7 (2005); see 5 C.F.R. § 1201.115(d). We agree with OPM

that the appellant has not shown that the information in the Superintendent’s

letter satisfies this requirement. Although the letter itself postdates the initial

decision, the substance of the letter pertains entirely to matters predating the

close of the record below. PFR File, Tab 3 at 11; see Grassell v. Department of

Transportation, 40 M.S.P.R. 554, 564 (1989) (finding that, to constitute new and

material evidence, the information contained in the documents, not just the

documents themselves, must have been unavailable despite due diligence when

the record closed).

Furthermore, even if we were to consider the information in the

Superintendent’s letter, it would not provide a basis to disturb the initial decision.

The letter describes dysfunction and poor leadership within the Division of

Planning and Facility Management, including problems with the Maintenance

Supervisor (a witness at the hearing), against whom the appellant had filed a

claim of workplace harassment related to the duties he was being assigned. PFR

File, Tab 1 at 4-5. However, we find that these matters are immaterial to whether

the appellant meets the legal standard for disability retirement. To the extent that

they are directed towards the Maintenance Supervisor’s credibility, it is well

settled that evidence offered merely to impeach a witness’s credibility is not

generally considered new and material. Bucci v. Department of Education,

42 M.S.P.R. 47, 55 (1989).

The Superintendent also discusses the availability of the park’s man lift and

scissor lift for the appellant to use in lieu of ladders and scaffolding. PFR File,

Tab 1 at 5. There was some inconsistent testimony on this matter below, with the

appellant and another recently retired Wood Crafter testifying that the lifts are

often in disrepair and are unsuitable for use in many areas, and the Maintenance

Supervisor giving a more optimistic account of the availability and efficacy of

these machines. ID at 7-11, 13-14. The Superintendent disputes the Maintenance

Supervisor’s account. PFR File, Tab 1 at 5. However, the administrative judge

found it unnecessary to resolve this dispute of fact; even assuming that there are

many elevated projects that the appellant cannot work on because the lifts cannot

be used, he is still able to accomplish other Wood Crafter duties within his

medical limitations on a full-time basis. ID at 20-21. Likewise, the

Superintendent disputes the Maintenance Supervisor’s account of the percentage

of Wood Crafter duties that the appellant is able to perform. PFR File, Tab 1 at

5. However, regardless of what percentage of the full range of Wood Crafter

duties the appellant is able to perform, the record shows that they are sufficient to

support his continued full-time employment in that position.

In this regard, the Superintendent disagrees with the Maintenance

Supervisor that the Department of the Interior can have contractors or other

employees perform the Wood Crafter duties that are outside the appellant’s

medical restrictions; he opines that this is not a long-term solution and is not a

form of reasonable accommodation. PFR File, Tab 1 at 5. The Board has held

that using other workers to perform the essential functions of a disabled

employee’s position is not a form of reasonable accommodation under the

Rehabilitation Act. Henry v. Department of Veterans Affairs, 100 M.S.P.R. 124,

¶ 13 (2005). But see 5 C.F.R. § 844.102 (stating that accommodation for

purposes of FERS disability retirement may include providing personal assistants

for the employee in question). However, the fact remains that the agency has

chosen to provide such accommodations to the appellant. In the absence of any

indication that the agency intends to revoke these accommodations or that the

appellant nonetheless cannot perform the duties of a Wood Crafter or another

established position of at least the same grade and pay, we discern no basis to

disturb the initial decision.

NOTICE OF APPEAL RIGHTS 3

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By

statute, the nature of your claims determines the time limit for seeking such

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).

Although we offer the following summary of available appeal rights, the Merit

Systems Protection Board does not provide legal advice on which option is most

appropriate for your situation and the rights described below do not represent a

statement of how courts will rule regarding which cases fall within their

jurisdiction. If you wish to seek review of this final decision, you should

immediately review the law applicable to your claims and carefully follow all

filing time limits and requirements. Failure to file within the applicable time

limit may result in the dismissal of your case by your chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

(1) Judicial review in general . As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit 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, 10, 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

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination . This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims —by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on

race, color, religion, sex, national origin, or a disabling condition, you may be

entitled to representation by a court-appointed lawyer and to waiver of any

requirement of prepayment of fees, costs, or other security. See 42 U.S.C.

§ 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012 . This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in section

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),

(B), (C), or (D),” then you may file a petition for judicial review either with the

U.S. Court of Appeals for the Federal Circuit or any court of appeals of

competent jurisdiction. 4 The court of appeals must receive your petition for

review within 60 days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the

following address:

The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expired on

December 27, 2017. The All Circuit Review Act, signed into law by the President on

July 7, 2018, permanently allows appellants to file petitions for judicial review of

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,

132 Stat. 1510.