explaining that an involuntary action is appealable to the Board in certain circumstances
How later courts described this case
- explaining that an involuntary action is appealable to the Board in certain circumstances
Written by the judges who cited it.
The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
AARON C. HAGAN, DOCKET NUMBER
Appellant, DC-0752-20-0738-I-1
v.
DEPARTMENT OF VETERANS DATE: May 18, 2026
AFFAIRS,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Ernest J. Wright , Esquire, Jacksonville, North Carolina, for the appellant.
Nanita O. Cornish , Esquire, Hampton, Virginia, for the agency.
BEFORE
Henry J. Kerner, Vice Chairman
James J. Woodruff II, Member
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his alleged involuntary transfer appeal for lack of jurisdiction . For the
reasons discussed below, we GRANT the appellant’s petition for review,
VACATE the initial decision, and REMAND the case to the Washington Regional
Office for further adjudication in accordance with this Remand Order.
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
BACKGROUND
The appellant was employed as a GS-6 Police Officer at the agency’s
Medical Center in Hampton, Virginia (VAMC). Initial Appeal File (IAF), Tab 1
at 2, Tab 5 at 57. According to the appellant, prior to July 2016, his second-level
supervisor created a hostile work environment based on race due to his
discriminatory statements and his promotion of white officers over black officers.
IAF, Tab 1 at 6.
In July 2016, the appellant suffered a compensable on-the-job injury. IAF,
Tab 1 at 9, Tab 5 at 36. He was off work, initially on continuation of pay and
subsequently on accrued leave, through September 8, 2016. IAF, Tab 1 at 9,
Tab 5 at 36-50. He worked intermittently on light duty for approximately 10 days
between September 9 and October 16, 2016. IAF, Tab 1 at 6, 9, Tab 5 at 50-52.
During this period, he requested an accommodation, seeking removal from the
Police Service for harassment, violation of light-duty restrictions, depression, and
anxiety. IAF, Tab 5 at 31-35. On October 17, 2016, he began an extended
absence, which the agency designated as an absence without leave (AWOL).
IAF, Tab 1 at 9, Tab 5 at 52-56. In November 2016, the agency denied his
request for an accommodation stating that “[a] claim of hostile work environment
does not fall under the purview of [a reasonable accommodation] request.” IAF,
Tab 5 at 28-30. The following month, the appellant’s second-level supervisor
advised him that he was considered AWOL and this leave status could lead to
disciplinary action, “up to and including removal.” IAF, Tab 6 at 9-11.
In January 2017, the appellant filed a formal equal employment opportunity
(EEO) complaint with the agency, alleging that the agency discriminated against
him on the basis of a disability when it denied him reasonable accommodation
and designated his leave as AWOL. IAF, Tab 1 at 9. Approximately 6 months
after he stopped working in October 2016, the appellant began a temporary
appointment as a GS-3 Store Associate with the Department of Defense (DOD).
IAF, Tab 5 at 24. Upon notification from DOD’s Defense Logistics Agency
3
(DLA) that the appellant had accepted the temporary appointment, the agency
implemented his transfer action, which effectively terminated his employment
with the agency. Id. at 21-24. According to the appellant’s submission, his
temporary DOD appointment ended in August 2017. IAF, Tab 1 at 10. In May
2018, the appellant filed a second formal EEO complaint alleging that the agency
terminated him in retaliation for his prior EEO complaint. Id. at 12, 19. The
agency issued a final agency decision finding that the appellant failed to prove
that his termination was motivated by EEO reprisal. IAF, Tab 1 at 8-18. Less
than 30 days later, the appellant filed the instant appeal. Id. at 1, 3.
In his Board appeal, the appellant asserted that the agency involuntarily
terminated him. Id. at 6-7. The agency moved to dismiss the appeal for lack of
jurisdiction, and the appellant responded to the agency’s motion. IAF, Tab 5
at 5-8, Tab 6. Without holding his requested hearing, the administrative judge
dismissed the appeal for lack of jurisdiction on the grounds that the appellant
failed to nonfrivolously allege that his transfer to DOD was involuntary. IAF,
Tab 1 at 2, Tab 7, Initial Decision (ID) at 13-21. The administrative judge found
that the agency did not coerce the appellant’s transfer to a new Federal agency by
failing to accommodate him or creating unreasonably difficult working
conditions. ID at 15-21.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has filed a response to the appellant’s petition. PFR
File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge properly identified the appellant’s claim as a
constructive adverse action claim.
The administrative judge adjudicated the appellant’s claim as a
constructive adverse action. ID at 11. The parties do not question this
identification of the claim on review, and we agree that the action here is
4
appropriately treated as a constructive adverse action. However, because the
administrative judge did not explain her reasoning, we do so here.
Under chapter 75 of Title 5, the Board has jurisdiction to review an
agency’s action removing, demoting, suspending for more than 14 days, or
furloughing for 30 days or less, a Federal employee. 5 U.S.C. §§ 7511(a)(1),
7512(1)-(5), 7513(d); Perez v. Merit Systems Protection Board, 931 F.2d 853,
855 (Fed. Cir. 1991). In Abbott v. U.S. Postal Service, 121 M.S.P.R. 294, ¶¶ 9-10
(2014), the Board clarified that when the agency initiates such an action, it is
appealable to the Board as an actual, rather than a constructive, action. It
contrasted an agency-initiated action with a constructive adverse action, which is
one that appears to be voluntarily initiated by the employee but actually is not.
Id., ¶¶ 7, 9. The Board has recognized that employee-initiated actions that appear
voluntary on their face are not always so and that the Board may have jurisdiction
over such actions as constructive adverse actions under chapter 75. Bean v. U.S.
Postal Service, 120 M.S.P.R. 397, ¶ 7 (2013).
Although the agency completed a Standard Form 50 (SF-50) that
implemented the appellant’s transfer, it did not initiate his separation. IAF, Tab 5
at 21. Rather, the appellant initiated the action when he began a term
appointment from DOD, in April 2017. IAF, Tab 1 at 7, Tab 5 at 24. In
July 2017, DLA contacted the agency and advised it of his appointment with
DOD. IAF, Tab 5 at 22-23. As the administrative judge observed, the agency
then processed what it coded on the appellant’s SF-50 as a “Termination -Appt
In,” consistent with the Guide to Processing Personnel Actions (Guide) issued by
the Office of Personnel Management (OPM). Id. at 21; ID at 14; OPM, Guide,
ch. 31 at 4, 6, 18, https://www.opm.gov/policy-data-oversight/data-analysis-
documentation/personnel-documentation/processing-personnel-actions/
gppa31.pdf . The Guide provides that when an employee has accepted a position
with another Federal agency without a break in service, the first agency processes
a separation using this designation. OPM, Guide, ch. 31 at 18. The “Remarks”
5
section of the SF-50 completed by the agency clarified that the appellant
“transferred” to DOD. IAF, Tab 5 at 21. The Guide further specifies that
“resignation is not required. Do not document the action as a resignation.” OPM,
Guide, ch. 31 at 26; see 5 C.F.R. § 210.102(b)(18) (defining a transfer as an
employee’s change in positions from one agency to another “without a break in
service of 1 full workday”). Thus, the agency’s processing of the appellant’s
separation was an administrative action resulting from his new appointment,
which he has indicated he sought out and accepted. IAF, Tab 1 at 7.
Accordingly, even assuming that, as alleged, the appellant was unaware that his
new appointment would result in the termination of his prior appointment, we
find that this does not convert his separation into an agency-initiated action. Id.
However, the fact that the appellant did not suffer an agency-initiated
separation or transfer to DOD does not end our inquiry. The appellant may seek
to establish Board jurisdiction by arguing that he accepted a position at another
agency as a result of coercion or deception. See Williams v. Merit Systems
Protection Board, 892 F.3d 1156, 1163 (Fed. Cir. 2018) (explaining that an
involuntary action is appealable to the Board in certain circumstances) . In such
situations, the Board adjudicates the transfer as an alleged constructive removal. 2
Roach v. Department of the Army, 86 M.S.P.R. 4, ¶¶ 16-17 (2000); Colburn v.
Department of Justice, 80 M.S.P.R. 257, ¶¶ 6-7 (1998).
Because the appellant nonfrivolously alleged that he took a second job with DOD
due to his second-level supervisor’s refusal to observe his light-duty restrictions,
we remand the appeal for a jurisdictional hearing.
On review, the appellant reasserts that his second-level supervisor’s
coercive actions left him with no choice but to take a second job. PFR File,
Tab 1 at 5; IAF, Tab 1 at 6-7, Tab 6 at 5-6. The administrative judge found that
the appellant failed to make a nonfrivolous allegation that he had no choice but to
2
Because it does not affect our analysis, we have referred to the alleged agency action
as both an alleged involuntary transfer and constructive removal.
6
transfer due to the denial of reasonable accommodation and EEO retaliation. ID
at 15-17. We disagree with the administrative judge and remand this appeal for a
jurisdictional hearing.
An employee-initiated action, such as a transfer between agencies or
resignation, is presumed to be voluntary, and thus outside the Board’s
jurisdiction. Randall v. Department of Justice, 105 M.S.P.R. 524, ¶ 11 (2007).
In analyzing voluntariness, the touchstone is whether, considering the totality of
the circumstances, factors operated on the employee’s decision-making process
that deprived him of freedom of choice in the matter. Vitale v. Department of
Veterans Affairs, 107 M.S.P.R. 501, ¶ 19 (2007). Once the appellant presents
nonfrivolous allegations of Board jurisdiction—allegations of fact which, if
proven, would establish the Board’s jurisdiction—he is entitled to a hearing at
which he must prove jurisdiction by a preponderance of the evidence. Hosozawa
v. Department of Veterans Affairs, 113 M.S.P.R. 110, ¶ 5 (2010). When an
appellant raises an allegation of discrimination in connection with a claim of
involuntariness, the allegation may be addressed only insofar as it relates to the
issue of jurisdiction and not whether it would establish discrimination as an
affirmative defense. Id.
The Board has held that an appellant may show that his resignation was
involuntary by demonstrating that the agency denied a request for reasonable
accommodation. Williams v. Department of Agriculture, 106 M.S.P.R. 677, ¶ 13
(2007); Hosozawa, 113 M.S.P.R. 110, ¶¶ 6-7 (remanding an appeal for a
jurisdictional hearing when the appellant alleged that her resignation was
involuntary as a result of the agency’s denial of her request for a reasonable
accommodation that, according to her doctor, would have permitted her to
continue to work full-time despite her medical condition). In his appeal, the
appellant contended, in part, that his transfer was involuntary because the agency
denied his request for a reasonable accommodation of his physical and mental
health conditions. IAF, Tab 1 at 6-7, 9, Tab 5 at 28, 31, Tab 6 at 5.
7
An agency is required to provide reasonable accommodation to the known
physical or mental limitations of an otherwise qualified individual with a
disability unless the agency can show that accommodation would cause an undue
hardship on its business operations. 42 U.S.C. § 12112(b)(5)(A); Haas v.
Department of Homeland Security, 2022 MSPB 36, ¶¶ 28-29; Clemens v.
Department of the Army, 120 M.S.P.R. 616, ¶ 10 (2014); 29 C.F.R.
§§ 1630.2(o)(4), 1630.9(a). Once an employee informs his employer that he
needs a reasonable accommodation, the employer has a duty to engage in the
interactive process to determine an appropriate accommodation. Clemens,
120 M.S.P.R. 616, ¶ 12.
The record before us contains a reasonable accommodation request from
the appellant, asking that he be removed from the Police Service “due to
continued threats, harassment, purposeful violation of light-duty restrictions [by
his second-level supervisor] causing depression and anxiety.” IAF, Tab 5 at 31.
It also contains documentation dated October 27, 2016, from the appellant’s
licensed clinical psychologist in support of his request for an accommodation of
removing him from his duties as a Police Officer temporarily. IAF, Tab 5
at 32-34, Tab 6 at 13-15. The psychologist diagnosed the appellant with “major
depression,” and stated “[he] is experiencing difficulty functioning secondary to
his depression . . . [and] his condition renders him totally impaired with respect to
all duties as an officer at this time.” IAF, Tab 6 at 14. The agency denied the
appellant’s accommodation request as ineffective because hostile work
environment claims were not part of its reasonable accommodation process. IAF,
Tab 5 at 28-29.
To the extent the appellant was requesting a change in his supervisor as an
accommodation, the agency’s denial of that request does not support his claim
that his transfer to DOD was involuntary. In most circumstances, an employer
does not need to change a person’s supervisor as a form of reasonable
accommodation. See Weiler v. Household Finance Corp., 101 F.3d 519, 526
8
(7th Cir. 1996); Alden v. Department of Veterans Affairs, EEOC Appeal
No. 0120080620, 2011 WL 2515256, *5 (June 16, 2011); see also Equal
Employment Opportunity Commission (EEOC), Enforcement Guidance:
Reasonable Accommodation and Undue Hardship Under the Americans with
Disabilities Act (EEOC Guidance), Question 33, Notice 915.002 (Oct. 17, 2002),
https://www.eeoc.gov/laws/guidance/enforcement-guidance-reasonable-
accommodation-and-undue-hardship-under-ada . However, to the extent that the
appellant advised the agency that his supervisor was violating the restrictions
associated with his physical medical condition, i.e., his light-duty restrictions,
this information should have caused the agency to engage in an interactive
process to find an appropriate accommodation. Clemens, 120 M.S.P.R. 616,
¶¶ 10, 12; see EEOC Guidance, Question 33 (observing that an agency may need
to change “supervisory methods” as a reasonable accommodation, and that an
employee is protected from harassment based on his disability). Moreover, we
interpret the appellant’s request for removal from Police Officer duties at the
Hampton VAMC as a request for a temporary reassignment to another service
while he was being treated for depression. IAF, Tab 5 at 31-34. A reassignment
to a vacant position may be a reasonable accommodation. 29 C.F.R.
§ 1630.2(o)(2)(ii).
The agency’s failure to engage in the interactive process alone does not
violate the Rehabilitation Act; rather, the appellant must show that this omission
resulted in failure to provide reasonable accommodation. Clemens, 120 M.S.P.R.
616, ¶ 17. The record here is unclear as to whether the agency ever engaged in an
interactive process with the appellant to determine other appropriate
accommodations for his physical condition, or whether, had it done so, such a
process would have proven fruitful. Further, it does not appear that the agency
addressed the appellant’s request for a reassignment to another service as an
accommodation for his psychological condition.
9
The appellant has provided evidence that he informed the agency that his
supervisor was not observing his medical restrictions and that the agency
responded by denying his request without addressing his concerns. It further
appears that his request for a reassignment to accommodate his psychological
condition was ignored. Accordingly, we find that the appellant has made a
nonfrivolous allegation that he had no choice but to accept a position with DOD
for financial reasons because he was in an unpaid leave status and the agency was
not complying with its reasonable accommodation obligations. IAF, Tab 1 at 7,
Tab 5 at 28-31.
On remand, the administrative judge should allow the appellant to present
evidence regarding his hostile work environment claim.
The appellant also reasserts on review that his decision to accept a position
at DOD resulted from a hostile work environment. PFR File, Tab 1 at 5. The
administrative judge found that his allegations, even if proven, were insufficient
to establish that he was compelled to transfer to another agency. ID at 17-19. In
light of our remand of this appeal, the administrative judge should afford the
appellant an opportunity to develop the record regarding his allegedly hostile
work environment.
As discussed above, the issue here is whether, considering the totality of
the circumstances, the appellant has nonfrivolously alleged that his working
conditions were made so difficult that a reasonable person in his position would
have felt compelled to accept a second job. See Vitale, 107 M.S.P.R. 501, ¶ 20.
The appellant alleged that, among other things, his second-level supervisor
promoted white officers while black officers were turned down, and made
discriminatory comments to him and other officers such as, “I’m allowed to be
racist, just not allowed to show it!” and “Your job is to enforce the ideals and
laws our White four [sic] fathers established!” 3 IAF, Tab 1 at 6. In addition, an
3
The administrative judge correctly found that the appellant’s vague and generalized
allegations below that he was “subjected to constant harassment, threats and reprisal at
10
EEOC administrative judge found in connection with the appellant’s first EEO
complaint that the appellant’s second-level supervisor “interfered with the
exercise of [the appellant’s] rights under the Rehabilitation Act when he denied
[the appellant] access to his doctor’s appointment to complete his request for
reasonable accommodation.” 4 IAF, Tab 1 at 11, Tab 6 at 17-21.
While some detail is lacking, particularly as to when these incidents
occurred, we need not determine whether these allegations alone are sufficient to
meet the appellant’s jurisdictional burden. As discussed above, the appellant has
nonfrivolously alleged jurisdiction based on the agency’s alleged failure to
accommodate his physical restrictions. The appellant’s second-level supervisor’s
alleged comments and actions may constitute part of the totality of the
circumstances related to his involuntary transfer claim. Therefore, the
administrative judge should permit the appellant to present evidence and
argument as to these events on remand. See Mastrullo v. Department of Labor,
123 M.S.P.R. 110, ¶¶ 8, 10, 23 & n.7 (2015) (observing in an individual right of
action appeal that an appellant’s allegation that an agency official made
unfavorable comments during his midterm progress review meeting could
the hands of [his second-level supervisor]” failed to raise a nonfrivolous allegation of
jurisdiction over his appeal. ID at 17-18; IAF, Tab 1 at 6; see Green v. Department of
Veterans Affairs, 112 M.S.P.R. 59, ¶ 11 (2009) (finding the appellant’s vague and
general claims that a coworker was spreading rumors about him and “trying to get back
at [him] for some reason” were not nonfrivolous allegations that he was forced to resign
as a result of intolerable working conditions); 5 C.F.R. § 1201.4(s)(1) (defining a
nonfrivolous allegation, in pertinent part, as one that is more than conclusory).
4
The EEOC decision is not in the record but is acknowledged by the agency in a final
agency decision that the appellant submitted below. IAF, Tab 1 at 11. The appellant
alleged below that the action underlying this EEOC decision is that “at a private
medical appointment [his second-level supervisor] aggressively demanded that [he]
leave [his] appointment and loudly stated ‘You work for me! Remember that now
leave!’” IAF, Tab 1 at 6. The administrative judge should consider this finding of
discrimination, as well as other evidence presented by the parties regarding the
underlying incident on remand, in determining whether the appellant proved jurisdiction
by preponderant evidence. See Coufal v. Department of Justice, 98 M.S.P.R. 31,
¶¶ 26-29 (2004) (determining an appellant had made nonfrivolous allegations that her
retirement was the result of a hostile work environment).
11
constitute part of the totality of the circumstances related to the appellant’s
involuntary resignation/retirement claim).
The appellant’s nonfrivolous allegation of involuntary transfer is not defeated by
the availability of other avenues of redress.
The administrative judge concluded that the appellant could have
performed only the duties that were within his medical restrictions and continued
to pursue his first EEO complaint or pursued a reasonable accommodation rather
than absenting himself from work or transferring to another agency. ID at 16-17.
The Board has held that an employee has an obligation to act reasonably, not
assume the worst, and not jump to conclusions. See Axsom v. Department of
Veterans Affairs, 110 M.S.P.R. 605, ¶ 17 (2009). In addition, whether an
employee had the option to stand and “fight” is also relevant to a determination of
the voluntariness of a resignation. See, e.g., Garcia v. Department of Homeland
Security, 437 F.3d 1322, 1329 (Fed. Cir. 2006) (en banc), superseded by
regulation on other grounds as stated in Kingsley v. U.S. Postal Service,
123 M.S.P.R. 365, ¶ 10 (2016). Here, however, contrary to the administrative
judge’s finding, the appellant could not have continued to perform the duties as a
Police Officer within the medical restrictions for his physical condition without
violating the recommendation of his psychologist that he be reassigned away
from the Police Service as an accommodation for his psychological condition.
Furthermore, while the appellant began the temporary appointment as a GS-3
Store Associate with DOD only several months after he filed his first EEO
complaint, the record indicates that the complaint had not even been heard more
than 1 year later—as of April 2018. IAF, Tab 5 at 16. Under the circumstances
as they existed here, with the appellant unable to perform his duties and in unpaid
status for an extended period, we find that his decision not to wait indefinitely for
his EEO complaint to be adjudicated before seeking other work does not
significantly undercut his contention that his decision was involuntary.
12
In sum, considering the totality of the circumstances, we find that the
appellant’s allegations, if proven, could establish that he lacked a meaningful
choice in the matter and that it was the agency’s improper actions that deprived
him of that choice. As such, the appellant is entitled to his requested hearing.
IAF, Tab 1 at 2; see Hosozawa, 113 M.S.P.R. 110, ¶ 5.
On remand, the administrative judge should clarify and provide jurisdictional
notice to the appellant regarding what appears to be an alleged denial of
restoration.
When the appellant returned to duty following his compensable injury, he
was given what he identified below as a light-duty assignment accommodating
the medical restrictions related to his compensable injury. IAF, Tab 1 at 6, Tab 5
at 13, 31. He also alleged, as discussed above, that after he returned to work
following his on-the-job injury, his second-level supervisor ordered him to
perform duties that the supervisor was aware were beyond the appellant’s medical
restrictions and outside the scope of his light-duty assignment. IAF, Tab 1 at 6.
If true, the appellant’s claim could be an alleged denial of restoration,
which could provide an additional basis for a jurisdictional finding and a
determination of agency liability on the merits. See Jenkins v. U.S. Postal
Service, 2025 MSPB 6, ¶ 14 & n.2, ¶¶ 19-21, ¶ 26 n.4 (remanding a constructive
suspension claim on the basis that it was not subsumed within the appellant’s
restoration appeal regarding the same absence and advising that on remand the
case could be joined with the appellant’s pending restoration appeal). Under
certain circumstances, a restoration may be deemed so unreasonable as to amount
to a denial of restoration within the Board’s jurisdiction. Kingsley, 123 M.S.P.R.
365, ¶ 13. For example, a claim that restoration was effectively denied may
involve allegations that a partially recovered appellant is incapable of performing
the job duties of the position to which he was restored. Id. Generally, the
acceptability of an offer of modified duty related to a compensable injury is
13
determined by the Office of Workers’ Compensation Programs. Paszko v. U.S.
Postal Service, 119 M.S.P.R. 207, ¶ 9 (2013).
An appellant must receive explicit information on what is required to
establish an appealable jurisdiction issue. Burgess v. Merit Systems Protection
Board, 758 F.2d 641, 643-44 (Fed. Cir. 1985); see Kingsley, 123 M.S.P.R. 365,
¶ 11 (explaining the jurisdictional burden when an appellant alleges a denial of
restoration as a partially recovered employee). An administrative judge’s failure
to adequately set forth the jurisdictional elements for a restoration appeal, as
here, necessitates remand. Hogarty v. U.S. Postal Service, 101 M.S.P.R. 376,
¶ 13 (2006). The administrative judge did not address the appellant’s potential
denial of restoration claim or provide notice to the appellant regarding how to
establish jurisdiction over such a claim.
On remand, the administrative judge should clarify the nature of this claim
and advise the appellant of how to establish jurisdiction over an alleged denial of
restoration. If she determines that the appellant established jurisdiction over his
appeal as an alleged denial of restoration, she may adjudicate that claim as
appropriate. Regardless of whether the appellant’s allegations regarding his
second-level supervisor’s actions arise out of his compensable injury, or if he
otherwise fails to establish jurisdiction over them as a denial of restoration, the
administrative judge should address the Board’s jurisdiction over the appellant’s
alleged involuntary transfer.
14
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: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.