Opinion

Felicia Cunningham v. Office of Personnel Management

Court: Merit Systems Protection Board
Filed: Aug 6, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.4%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

FELICIA CUNNINGHAM, DOCKET NUMBER

Appellant, AT-844E-20-0572-I-1

OFFICE OF PERSONNEL DATE: August 6, 2024

MANAGEMENT,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Felicia Cunningham , Oxford, Alabama, pro se.

Linnette Scott , Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member

FINAL ORDER

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

affirmed the reconsideration decision of the Office of Personnel Management

(OPM) that denied her application for disability retirement benefits under the

Federal Employees’ Retirement System. Generally, we grant petitions such as

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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).

The appellant asserted that she was unable to perform the duties of her

position because of various “mental disabilities” including depression and anxiety

caused by migraine headaches. Initial Appeal File (IAF), Tab 1 at 3-4. Below,

the appellant concentrated her arguments on her migraine headaches, and the

medical evidence in the record is focused on that condition. The administrative

judge thus rightly focused his analysis on that claim. IAF, Tab 17, Initial

Decision. We have considered whether the record evidence would support a

finding that the appellant was disabled based on her other stated conditions, but

the record evidence does not support such a finding. Specifically, the mere

diagnosis of depression or an anxiety disorder is not informative enough to allow

either OPM or the Board to conclude, based on the diagnosis alone, that an

employee is disabled from useful and efficient service. See Wilkey–Marzin v.

Office of Personnel Management, 82 M.S.P.R. 200, ¶ 10 (1999) (finding that the

mere existence of diagnosed major depressive disorder and post-traumatic stress

disorder is not, by itself, dispositive evidence of the appellant’s inability to

perform the duties of her position).

The appellant claims in her petition for review that the administrative judge

improperly allowed the OPM file, which was untimely filed by 2 days, to remain

in the record. 2 Petition for Review (PFR) File, Tab 1 at 4. In the August 21,

2020 Summary of the Prehearing Conference, the administrative judge

specifically noted that OPM’s file was in evidence and provided the appellant an

opportunity to make corrections to the summary. IAF, Tab 15 at 3. The appellant

did not make corrections to the summary or object to the inclusion of OPM’s file

in evidence, and it is too late for her to do so on review. See Gallegos v.

Department of the Air Force, 121 M.S.P.R. 349, ¶ 16 (2014) (stating that the

appellant’s failure to object to an administrative judge’s ruling precludes him

from doing so on review); Miller v. U.S. Postal Service, 117 M.S.P.R. 557, ¶ 7

(2012) (stating that the appellant’s failure to object and make corrections to the

administrative judge’s order precludes her from doing so on review). Moreover,

OPM’s file contains much of the medical evidence which we carefully reviewed

to determine whether the appellant met her burden of proving her entitlement to

disability retirement benefits. 3 Thus, the appellant has not shown how the actions

taken by the administrative judge adversely affected her substantive rights. See

Karapinka v. Department of Energy, 6 M.S.P.R. 124, 127 (1981) (finding that an

administrative judge’s procedural error is of no legal consequence unless it is

shown to have adversely affected a party’s substantive rights).

The appellant also argues on review that the administrative judge did not

consider her use of sick leave in assessing her entitlement to disability retirement

benefits. PFR File, Tab 1 at 4. The record shows that between December 2017

In her petition for review, the appellant describes her argument as a due process claim,

but we do not discern how her due process rights were violated by the administrative

judge accepting OPM’s file into the record. Petition for Review File, Tab 1 at 3.

If OPM’s file was not accepted into the record, the record would contain almost no

medical evidence regarding the appellant’s conditions. Because it is her burden to

prove her entitlement to disability retirement benefits, the lack of such evidence could

have harmed the appellant. We do not, however, condone OPM’s failure to timely

submit its file.

and August 2019, just prior to her resignation, the appellant used 153 hours of

sick leave, an average of slightly less than 9 hours a month. IAF, Tab 9 at 90-93.

We do not find that the appellant’s sick leave use supports a finding of

entitlement to disability retirement benefits.

NOTICE OF APPEAL RIGHTS 4

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.

(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).

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.

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. 5 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