The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOY ANN BAUMGARTNER, DOCKET NUMBER
Appellant, NY-0752-20-0071-I-1
v.
DEPARTMENT OF VETERANS DATE: February 5, 2025
AFFAIRS,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Brook L. Beesley , Alameda, California, for the appellant.
Kimberly M. Thrun , Cheektowaga, New York, for the agency.
BEFORE
Cathy A. Harris, Chairman*
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
*The Board members voted on this decision before January 20, 2025.
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her constructive suspension appeal for lack of jurisdiction. For the
reasons discussed below, we GRANT the appellant’s petition for review, VACATE
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A nonprecedential order is one that the Board has determined does not add significantly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 Parties may cite nonprecedential orders, but such orders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
the initial decision, and REMAND the case to the regional office for further
adjudication in accordance with this Remand Order.
Certain employee-initiated leaves of absence that appear to be voluntary but
are not may be appealable under 5 U.S.C. chapter 75 as constructive suspensions.
See Bean v. U.S. Postal Service, 120 M.S.P.R. 397, ¶¶ 7-8 (2013). Assuming that
the jurisdictional requirements of chapter 75 are otherwise met, to establish
jurisdiction under these circumstances, the appellant must prove by preponderant
evidence that (1) she lacked a meaningful choice in the matter, and (2) it was the
agency’s wrongful actions that deprived her of that choice. Id., ¶ 8. When an
appellant requests to return to work within certain medical restrictions after
initiating an absence, the Board considers whether the agency was obligated by an
agency policy, a regulation, a collective bargaining agreement, or the
Rehabilitation Act of 1973 to offer available work in determining whether the
agency’s actions were wrongful. See Crutch v. U.S. Postal Service, 119 M.S.P.R.
460, ¶ 11 (2013), overruled on other grounds by Abbott v. U.S. Postal Service,
121 M.S.P.R. 294, ¶ 10; Baker v. U.S. Postal Service, 71 M.S.P.R. 680, 692 (1996).
If the appellant makes a nonfrivolous allegation of jurisdiction, then she is entitled
to a jurisdictional hearing. Barrand v. Department of Veterans Affairs,
112 M.S.P.R. 210, ¶ 8. A nonfrivolous allegation of Board jurisdiction is an
allegation of fact that, if proven, could establish that the Board has jurisdiction over
the matter at issue. Ferdon v. U.S. Postal Service, 60 M.S.P.R. 325, 329 (1994);
5 C.F.R. § 1201.4(s). An allegation generally will be considered nonfrivolous
when, under oath or penalty of perjury, an individual makes an allegation that (1) is
more than conclusory, (2) is plausible on its face, and (3) is material to the legal
issues in the appeal. 5 C.F.R. § 1201.4(s).
In the initial decision, the administrative judge found that the appellant made
a nonfrivolous allegation that she lacked a meaningful choice regarding her
absences from work, i.e., that she satisfied the first jurisdictional prong. Initial
Appeal File (IAF), Tab 11, Initial Decision (ID) at 4-5. The administrative judge
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concluded, however, that the appellant failed to make a nonfrivolous allegation that
her absences were precipitated by an improper agency action, i.e., that she failed to
satisfy the second jurisdictional prong; accordingly, the administrative judge
dismissed the matter for lack of jurisdiction. ID at 1, 5-6. In reaching this
conclusion, the administrative judge implicitly found that the appellant had failed
to make a nonfrivolous allegation that the agency had violated the Rehabilitation
Act because (1) the appellant’s claims regarding the same were merely pro forma,
and (2) the appellant “voluntarily chose not to comply with [the Federal
Employees’ Compensation Act (FECA)].” ID at 5-6.
For the following reasons, we disagree with this conclusion, we find that the
appellant made allegations sufficient to satisfy the second jurisdictional prong, and
we remand the matter for further development of the record and a jurisdictional
hearing.
Here, the appellant, a Practical Nurse, submitted a declaration made under
penalty of perjury. IAF, Tab 7 at 3-6. In this declaration, the appellant averred
that, on May 15, 2019, she sustained an on-the-job injury, which had periodically
rendered her unable to work. 2 Id. at 4-5. She asserted that, on January 6, 2020, her
doctor cleared her to return to work provided that she did not lift more than
20 pounds. Id. at 5. In her declaration, the appellant alleged that: (1) she provided
agency personnel with a copy of her doctor’s note, and (2) she requested a
reasonable accommodation related thereto; however, the “reasonable
accommodation/HR Official” refused to process her claim, insisting that her lifting
restriction “was a workman’s comp issue,” i.e., that she needed to file a claim under
FECA in lieu of seeking a reasonable accommodation under the Rehabilitation Act.
2
As a result of this injury, the appellant was absent from work May 15-27, 2019. IAF,
Tab 10 at 133. On May 28, 2019, the appellant returned to work; she continued to work
until September 2019, at which point she notified the agency that she was again medically
unable to work due to her prior on-the-job injury, and she began to use her accrued sick
and annual leave. IAF, Tab 7 at 4-5, Tab 10 at 133. The appellant contended that her
constructive suspension began on January 6, 2020, when she again sought to return to
work, but the agency precluded her from doing so. IAF, Tab 1 at 3, Tab 7 at 5.
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Id. The appellant averred in a separate, unsworn statement that “[she] had a right to
[the] reasonable accommodation process and consideration under [F]ederal law”
regardless of the “work-related injury circumstances.” IAF, Tab 8 at 5. She also
implicitly alleged that she was a qualified individual with a disability. Id.; see
Clemens v. Department of the Army, 120 M.S.P.R. 616, ¶ 10 (2014) (setting forth
the circumstances under which the Rehabilitation Act requires an agency to provide
an individual with a reasonable accommodation). On review, the appellant
reiterates that the agency wrongfully refused to provide her with a reasonable
accommodation, and she ostensibly alleges that, had the agency properly processed
her request, it had at its disposal a “lifting assistive” device that would have
enabled her to perform the essential functions of her position. PFR File, Tab 1
at 7-8.
We find that the appellant’s assertions are sufficient to warrant a
jurisdictional hearing. To this end, we find that the appellant has presented
plausible, nonconclusory allegations that her post-January 6, 2020 absences were
precipitated by the agency’s failure to comport with the Rehabilitation Act. See
5 C.F.R. § 1201.4(s). It is unclear from the record whether the appellant was, in
fact, entitled to the reasonable accommodation process. Although “lifting” is
considered a major life activity, 29 C.F.R. § 1630.2(i)(1)(i), factual issues remain,
such as whether her lifting restriction was a short -term or episodic limitation, see
29 C.F.R. § 1630.2(j)(1)(vii), or whether she could perform the essential duties of
her position with or without reasonable accommodation. However, the appellant’s
plausible, nonconclusory allegations are sufficient to proceed to a hearing. To the
extent the administrative judge relied on the agency’s characterization of its
documentary evidence to find that agency personnel “appropriately referred the
appellant to [the Office of Workers’ Compensation Programs],” i.e., that the
appellant’s only avenue of redress was under FECA, her finding was erroneous
given the posture of the appeal and the appellant’s assertions to the contrary. ID
at 5; see Ferdon, 60 M.S.P.R. at 329 (stating that, in determining whether the
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appellant has made a nonfrivolous allegation of jurisdiction, an administrative
judge may not weigh evidence or resolve conflicting assertions).
Thus, we find that the appellant has made a nonfrivolous allegation sufficient
to entitle her to a Board hearing on jurisdiction. See Carey v. Department of Health
and Human Services, 112 M.S.P.R. 106, ¶ 7 (2009) (concluding that the appellant
made a nonfrivolous allegation of Board jurisdiction when she alleged via affidavit
that the agency’s refusal to accommodate her disability by allowing her to
telecommute forced her to retire). Because the jurisdictional prerequisites of
chapter 75 otherwise appear to be satisfied, we remand this appeal for further
development of the record and a jurisdictional hearing. 3
Accordingly, we remand this appeal for a jurisdictional hearing to afford the
appellant an opportunity to prove jurisdiction over her involuntary suspension
claim. 4
3
Subchapter II of chapter 75, which applies to suspensions of more than 14 days, does not
apply to an employee “who holds a position within the Veterans Health Administration
which has been excluded from the competitive service by or under a provision of title 38,
unless such employee was appointed to such position under section 7401(3) of such title.”
5 U.S.C. § 7511(b)(10); Mfotchou v. Department of Veterans Affairs, 113 M.S.P.R. 317,
¶ 8 (2010). Here, the appellant’s position of “Practical Nurse,” IAF, Tab 10 at 138, is
seemingly enumerated under 38 U.S.C. § 7401(3).
4
Because we find that the appellant made a nonfrivolous allegation sufficient to entitle
her to a hearing on jurisdiction and remand the matter for further development of the
record, we need not address either the appellant’s assertions that the administrative judge
improperly weighed other evidence and precluded her from conducting discovery, PFR
File, Tab 1 at 2-6, or the agency’s motion for leave to file an additional pleading, PFR
File, Tab 7 at 4-5. To the extent that further development of the record shows that the
appellant’s January 2020 medical restrictions stemmed from an injury ruled compensable,
this matter shall be analyzed as a restoration appeal. See Bean, 120 M.S.P.R. 397, ¶ 13
n.7.
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ORDER
For the reasons discussed above, we remand this case to the Northeastern
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.