The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LINDA F. CHILDS, DOCKET NUMBER
Appellant, CH-831E-13-0002-I-2
v.
OFFICE OF PERSONNEL DATE: January 12, 2015
MANAGEMENT,
Agency,
and
U.S. POSTAL SERVICE.
Intervenor.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Mary Anne M. Helveston, Esquire, Detroit, Michigan, for the appellant.
Linnette Scott, Washington, D.C., for the agency.
Deborah L. Lisy, Esquire, Chicago, Illinois, for the intervenor.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed the Office of Personnel Management’s (OPM) reconsideration decision
denying her application for disability retirement as untimely filed. 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 erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the 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, and based on the following
points and authorities, 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 filed an appeal from an OPM reconsideration decision that
denied her application for disability retirement as untimely filed. MSPB Docket
No. CH-831E-13-0002-I-1 (I-1), Initial Appeal File (IAF), Tab 1. The record
reflects that the appellant was employed by the U.S. Postal Service when she was
injured in an auto accident in December 2005, after which she never returned to
work. MSPB Docket No. CH-831E-13-0002-I-2 (I-2), IAF, Tab 6; Hearing
Compact Disc (testimony of Emmanuel Thomas, who was acting Labor Relations
Specialist in Detroit at the time). The appellant went on leave without pay
(LWOP) status on April 13, 2006, and, in May 2006, the U.S. Postal Service sent
her a letter notifying her that she would be removed in June 2006, based on her
absence. I-2, IAF, Tab 6 at 16. Before her removal became effective, the
3
appellant or her union apparently settled a grievance on her behalf and her
employing agency rescinded the removal. I-2, IAF, Tab 28 at 9. The U.S. Postal
Service subsequently separated the appellant for disability in April 2007. I-2,
IAF, Tab 28 at 24-25. The appellant remained on the agency’s rolls until 2008,
when her name was removed. However, the PS-50 form erroneously listed the
June 2006 removal date as the effective date of her separation. I-2, IAF, Tab 28
at 16. OPM denied the appellant’s disability retirement application as untimely
filed, finding that she was separated in June 2006. I-1, IAF, Tab 4 at 7-9.
¶3 On appeal, the appellant argued that her application was timely because she
did not learn of her separation until 2011, after she filed her application for
disability retirement. I-1, IAF, Tab 1. Because there was an issue of the
appellant’s date of separation from service, the administrative judge allowed the
U.S. Postal Service to intervene. I-2, IAF, Tab 21. After holding a hearing, the
administrative judge concluded that the preponderance of the evidence shows that
the U.S. Postal Service separated the appellant from employment for disability
effective April 13, 2007. I-2, IAF, Initial Decision (ID) at 9. The administrative
judge found further that, because OPM received the appellant’s application for
disability retirement on March 12, 2010, the application was approximately 2
years late. ID at 9. In addition, the administrative judge found that, even if the
Board were to conclude that the appellant’s removal was not effected until her
name was deleted from the agency’s rolls in April 2008, her application would
still have been approximately 1 year late. ID at 9.
¶4 The statutory filing deadline with OPM for a claim for disability retirement
is 1 year from the date an employee is separated from service. See 5 U.S.C.
§ 8337(b). The sole exception to this filing deadline is mental incompetence,
which the appellant has not alleged in this case. It is undisputed that OPM
received the appellant’s application on March 12, 2010. In dispute, however, is
the date the appellant was separated from employment with the U.S. Postal
4
Service. OPM’s reconsideration decision found that the appellant was separated
from service on June 23, 2006. I-1, IAF, Tab 4 at 7.
¶5 On review, the appellant reasserts that she did not learn of her separation
until 2011, when she received OPM’s decision denying her application. I-2,
Petition for Review (PFR) File, Tab 1. The appellant asserts that the Postal
Service falsified documents to make it appear that she had been separated in
2007, and that the administrative judge erred by finding that her disability
retirement application was untimely filed with OPM. Id. We have considered the
appellant’s arguments on review concerning the administrative judge’s weighing
of the evidence; however, the applicable law and the record evidence support the
administrative judge’s findings that the appellant failed to prove she filed her
application for disability retirement within one year after she was separated from
employment. Thus, we discern no reason to reweigh the evidence or substitute
our assessment of the record evidence for that of the administrative judge. See
Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 105-06 (1997) (finding no reason
to disturb the administrative judge’s findings when the administrative judge
considered the evidence as a whole, drew appropriate inferences, and made
reasoned conclusions); Broughton v. Department of Health & Human Services,
33 M.S.P.R. 357, 359 (1987) (same).
¶6 Here, the administrative judge thoroughly addressed the record evidence,
including the errors and inconsistencies in the appellant’s Postal Service records,
and correctly found that the U.S. Postal Service made many errors regarding the
documentation of the appellant’s termination. ID at 6-7. The administrative
judge found that most of the errors occurred after the U.S. Postal Service
followed its practice of waiting until an employee has exhausted all avenues of
appeal before deleting the employee’s name from its rolls. ID at 6-7. However,
notwithstanding the errors and inconsistencies in the appellant’s U.S. Postal
Service records, the administrative judge found that the weight of the evidence
shows that the U.S. Postal Service’s decisive act of separating the appellant for
5
disability occurred on April 13, 2007. ID at 9-10. Although the Postal Service
did not delete the appellant’s name from its employment rolls until April 2008,
the Board considers a removal to have become conclusive, final, and effective as
of the date set forth in the decision letter—April 13, 2007. See, e.g., Hopkins v.
U.S. Postal Service, 108 M.S.P.R. 25, ¶ 9 (2008) (the U.S. Postal Service retains
employees on the rolls in nonpay status until the final disposition of grievances or
appeals from removal actions).
¶7 In this instance, the U.S. Postal Service asserted below that, in early 2007,
it initiated a separation action based on the appellant’s continued absence from
work, including sending the appellant a letter dated February 1, 2007, to her
long-time address of record, warning her that she would be separated from
employment if she did not elect one of the options listed in the letter. See IAF,
Tab 28 at 11-12. The appellant did not respond and the agency issued a decision
letter dated March 9, 2007, separating her from employment for disability
effective April 13, 2007, and on March 19, 2008, the Manager of Distribution
Operations sent a routing slip to the Detroit labor relations office directing them
to delete the appellant’s name from the rolls. Id. at 13-15.
¶8 The administrative judge also considered the appellant’s own actions in
January 2008, when she stopped submitting medical notes to the U.S. Postal
Service on a regular basis—typically every 2 months—which would state that she
was unable to return to work. ID at 9. The administrative judge concluded that,
in light of the agency’s evidence and the appellant’s own discontinuation of
submitting her medical notes, a preponderance of the evidence shows that the
appellant received notice of her separation from employment by April 2008 at the
latest. ID at 9. Moreover, the administrative judge found the appellant’s
testimony, that she first applied for disability retirement by mailing an application
to the U.S. Postal Service in March 2007, and again in October or November
2007, to be not credible. ID at 9-10. The Board must give deference to an
administrative judge’s credibility determinations when they are based, explicitly
6
or implicitly, on the observation of the demeanor of witnesses testifying at a
hearing; the Board may overturn such determinations only when it has
“sufficiently sound” reasons for doing so. Haebe v. Department of Justice,
288 F.3d 1288, 1301 (Fed. Cir. 2002).
¶9 Here, the administrative judge thoroughly reviewed the evidence and the
hearing testimony and specifically cited to Hillen v. Department of the Army,
35 M.S.P.R. 453, 458 (1987), 2 in setting forth his credibility determinations. See
ID at 10. Specifically, the administrative judge addressed the errors and
inconsistencies in the agency’s records but found the agency’s version more
credible because there is no corroborating documentary evidence supporting the
appellant’s assertions, and because the appellant made prior inconsistent
statements in two hand-written letters to OPM in which she stated that she first
submitted her claim for disability retirement in August 2009. ID at 9-10. Thus,
the administrative judge found the agency’s evidence more credible than the
appellant’s assertions. Furthermore, while the appellant argues on review that the
agency submitted false documents below to support its claims, the administrative
judge considered all of the documentary evidence and testimony below in finding
the U.S. Postal Service more credible. Hence, we find that the administrative
judge thoroughly addressed his credibility determinations in the initial decision
and we discern no reason to disturb those well-reasoned findings. See Crosby,
74 M.S.P.R. at 105-06. Accordingly, we conclude that the appellant has shown
no basis upon which to disturb the initial decision.
2
In Hillen, the Board found that, to resolve credibility issues, an administrative judge
must identify the factual questions in dispute, summarize the evidence on each disputed
question, state which version he believes, and explain in detail why he found the chosen
version more credible, considering such factors as: (1) the witness’s opportunity and
capacity to observe the event or act in question; (2) the witness’s character; (3) any
prior inconsistent statement by the witness; (4) a witness’s bias, or lack of bias; (5) the
contradiction of the witness’s version of events by other evidence or its consistency
with other evidence; (6) the inherent improbability of the witness’s version of events;
and (7) the witness’s demeanor.
7
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
United States 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 United States 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 United
States 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 your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
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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.