Steven A. Miller v. United States Postal Service

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

STEVEN A. MILLER, DOCKET NUMBER

Appellant, PH-0752-14-0592-I-1

v.

UNITED STATES POSTAL SERVICE, DATE: February 24, 2015

Agency.

THIS ORDER IS NO NPRECEDENTIAL 1

Dan Klein, Clinton, Mississippi, for the appellant.

Suzanne B. McCabe, Esquire, Philadelphia, Pennsylvania, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Anne M. Wagner, Vice Chairman

Mark A. Robbins, Member

REMAND ORDER

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

dismissed his involuntary disability retirement appeal for lack of jurisdiction.

For the reasons discussed below, we GRANT the appellant’s petition for review

1

A nonprecedential order is one that the Board has determined does not add

sign ificantly 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 Parties may cite nonprecedential orders,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

and REMAND the case to the regional office for further adjudication in

accordance with this Order.

DISCUSSION OF ARGUMENTS ON REVIEW

¶2 The appellant worked as a Supervisor, Customer Services at the agency’s

Jeannette Post Office in Jeannette, Pennsylvania. Initial Appeal File (IAF), Tab 4

at 53. On October 26, 2012, the appellant applied for disability retirement. Id. at

59-60. Around the same time period, he applied for Social Security disability

benefits. Id. at 61-62. He retired from the agency with a disability retirement on

March 11, 2013. Id. at 53. On May 27, 2013, the appellant filed a discrimination

complaint with the agency alleging discrimination based on disability and

retaliation for engaging in protected activity. Id. at 54. The agency issued a final

agency decision (FAD) that found no evidence of discrimination or that the

agency forced him to retire. Id. at 34, 38.

¶3 The appellant initiated a Board appeal alleging that his disability retirement

was involuntary and that the agency discriminated against him by refusing to

grant him a reasonable accommodation. IAF, Tab 1 at 2-3. The appellant also

marked on the appeal form that he had filed a whistleblowing complaint with the

Office of Special Counsel and a complaint with the Department of Labor (DOL)

regarding either the Uniformed Services Employment and Reemployment Rights

Act of 1994 (USERRA) or the Veterans Employment Opportunities Act of 1998

(VEOA). Id. at 4. The agency filed a motion to dismiss the appeal for lack of

jurisdiction. IAF, Tab 4 at 12. The administrative judge issued a jurisdictional

order directing the appellant to file evidence and/or argument that the Board has

jurisdiction over his involuntary retirement. IAF, Tab 6 at 3. The appellant

requested additional time to respond, but never filed any additional response to

the jurisdictional order. IAF, Tab 7.

¶4 The administrative judge issued an initial decision that dismissed the appeal

for lack of jurisdiction. IAF, Tab 9, Initial Decision (ID) at 1. He found that the

3

appellant failed to make a nonfrivolous allegation that (1) he informed the agency

that he wished to continue working but required a reasonable accommodation, or

(2) he was able to work with such an accommodation. ID at 5-6. He also found

that the appellant failed to make a nonfrivolous allegation that the agency forced

him to retire. ID at 6-7. The administrative judge also construed the appellant’s

appeal form to allege that he was raising a USERRA discrimination claim. ID at

7-8. He found that the appellant did not allege that his involuntary disability

retirement was due to his prior military service, and that USERRA does not

provide for a claim of discrimination based on a disability arising from his

military service. ID at 8. The administrative judge granted the agency’s motion

to dismiss because the appellant did not establish Board jurisdiction over his

appeal. ID at 8.

¶5 The appellant has filed a timely petition for review. Petition for Review

(PFR) File, Tab 1. The agency has responded to the petition for review. PFR

File, Tab 3.

This appeal must be remanded for further adjudication of the appellant’s

involuntary disability retirement claim.

¶6 The administrative judge found that the appellant failed to make a

nonfrivolous allegation that his disability retirement was involuntary. ID at 4-6.

The Board has recognized that involuntary disability retirement appeals are

somewhat different from ordinary involuntary retirement appeals. Mims v. Social

Security Administration, 120 M.S.P.R. 213, ¶ 17 (2013). In most cases, an

appellant who alleges that his disability retirement was involuntary must show

that: (1) he indicated to the agency that he wished to continue working, but that

his medical limitations required a modification of his work conditions or duties,

i.e., accommodation; (2) a reasonable accommodation was available during the

period between the date on which he indicated to the agency that he had medical

limitations but desired to continue working and the date that he was separated

that would have allowed him to continue working; and (3) the agency

4

unjustifiably failed to offer that accommodation. Id. To invoke Board

jurisdiction, the appellant must raise nonfrivolous allegations that, if true, would

meet the elements of this test. 2 See Brown v. Department of

Defense, 109 M.S.P.R. 493, ¶ 15 (2008).

¶7 The administrative judge found no evidence that the appellant notified the

agency that he wished to continue working. ID at 5. The appellant provided no

such evidence below and the agency provided the appellant’s sworn affidavit

from his equal employment opportunity (EEO) complaint in which he admitted

that he retired due to his inability to perform the duties of his job. IAF, Tab 4 at

46. The affidavit also contained statements that the appellant requested

reasonable accommodation to the district manager and the human resources

manager, but the request was not acted upon. Id. at 42, 46. Affidavits that are

not rebutted constitute evidence of matters asserted therein. Schaefer v. U.S.

Postal Service, 42 M.S.P.R. 592, 595 (1989). At the jurisdiction stage, the

administrative judge may not weigh evidence and resolve conflicting assertions of

the parties. Ferdon v. U.S. Postal Service, 60 M.S.P.R. 325, 329 (1994). We find

that the appellant’s sworn statement that he requested accommodation from the

agency is evidence that he made a nonfrivolous allegation that he wished to

continue working.

¶8 The administrative judge also found that the appellant failed to

nonfrivolously allege that there was a reasonable accommodation available that

would have allowed him to continue working. ID at 5-6. The appellant provided

no evidence of his medical restrictions. The appellant admitted in his EEO

2

The documentation submitted by the appellant with his petition for review includes a

request to continue working with potential work restrictions, his application for

workers’ compensation benefits and initial denial of his claim, information regarding

settlement of an equal employment opportunity (EEO) complaint in 2001 and a 2010

Family and Medical Leave Act absence, and the first page of his 2013 EEO complaint.

PFR File, Tab 1 at 2-12. The evidence submitted goes only to the first jurisdictional

element that he wished to continue working. It does not show that a reasonable

accommodation was available or that the agency failed to offer such an accommodation.

5

affidavit that he never provided any medical documentation to the agency

regarding any work restrictions. IAF, Tab 4 at 42. He also never identified any

position that was available that could function as a reasonable accommodation.

IAF, Tab 1, Tab 4 at 41-48; see SanSoucie v. Department of

Agriculture, 116 M.S.P.R. 149, ¶ 21 (2011) (second jurisdictional element met

when the appellant alleged that an open position was available between the date

on which he indicated he had medical limitations and the date he was separated).

Because the record contains no evidence of the appellant’s need for

accommodation or any identification of a position that could accommodate him,

we agree with the administrative judge that the appellant has not made a

nonfrivolous allegation that a reasonable accommodation was available that

would have allowed him to continue working. Because we find that the appellant

did not make a nonfrivolous allegation that a reasonable accommodation was

available, he also has not made a nonfrivolous allegation that the agency

unjustifiably failed to offer the accommodation.

¶9 In his petition for review, however, the appellant appears to be claiming,

inter alia, that his involuntary disability retirement was actually a constructive

removal that was a result of whistleblower retaliation. In Vaughan v. Department

of Agriculture, 116 M.S.P.R. 493, ¶ 13 (2011), we held that in some involuntary

disability retirement appeals, it is appropriate to apply the elements generally

applicable to involuntary adverse actions. Further, in Burke v. Department of the

Treasury, 53 M.S.P.R. 434, 439 (1992), the Board ruled that allegations that an

appellant’s retirement resulted from retaliation for his whistleblowing should be

considered in the same manner as allegations that the coercion was based on

discrimination, i.e., such allegations should be considered in the first instance for

the purpose of determining whether they support a finding of coercion. See Shoaf

v. Department of Agriculture, 260 F.3d 1336, 1340, 1342-43 (Fed. Cir. 2001)

(remanding for further adjudication of an allegation that a retirement was

compelled by reprisal for whistleblowing). Moreover, in Shelly v. Department of

6

the Treasury, 75 M.S.P.R. 411, 414-15 (1994), the Board stated that, because

jurisdiction in constructive adverse action appeals is tied to proof that the action

is truly adverse, it has jurisdiction over appeals under the Whistleblower

Protection Act upon proof that the constructive action was caused by

whistleblower reprisal.

¶10 Thus, this appeal must be remanded for consideration of the appellant’s

allegations of whistleblower reprisal for the purpose of determining whether they

support a finding of coercion. The administrative judge did not address the

appellant’s whistleblowing allegations or provide the appellant with any

jurisdictional notice regarding how he could meet his jurisdictional burden for

this claim. Because the Board would have jurisdiction to consider the appellant’s

whistleblower claims as an affirmative defense upon proof of jurisdiction over

the constructive action, the appellant also must receive jurisdictional notice on

these claims. 5 U.S.C. § 2302(a)(2)(C); Burgess v. Merit Systems Protection

Board, 758 F.2d 641, 643-44 (Fed. Cir. 1985); Mack v. U.S. Postal

Service, 48 M.S.P.R. 617, 620-21 (1991).

The appeal also must be remanded for the appellant to receive jurisdictional

notice for his VEOA claim.

¶11 The appellant indicated on his initial appeal that he filed a complaint with

DOL and received a response on October 18, 2011. IAF, Tab 1 at 4. The

appellant did not specify whether he was alleging a violation of USERRA or

VEOA. The administrative judge did not provide any notice to the appellant

regarding how he could establish jurisdiction over a VEOA claim; however, he

did provide notice of how to establish jurisdiction over a USERRA discrimination

appeal in the initial decision. ID at 7.

¶12 An appellant must receive explicit information on what is required to

establish an appealable jurisdictional issue. Burgess, 758 F.2d at 643-44.

However, the failure to provide an appellant with proper Burgess notice in an

acknowledgment order or show cause order can be cured if the initial decision

7

itself puts the appellant on notice of what he must do to establish jurisdiction so

as to afford him the opportunity to meet his jurisdictional burden for the first time

on review. Caracciolo v. Department of the Treasury, 105 M.S.P.R. 663, ¶ 11

(2007). Because the administrative judge addressed the jurisdictional

requirements for a USERRA discrimination appeal in the initial decision, the

appellant was on notice that he must make a nonfrivolous allegation that he was

discriminated against based on his prior military service. Therefore, the

appellant’s substantive rights were not prejudiced as they relate to any USERRA

claim. See Caracciolo, 105 M.S.P.R. 663, ¶ 12. However, the administrative

judge’s failure to provide Burgess notice regarding the potential VEOA claim did

prejudice the appellant’s substantive rights. Therefore, we also must remand the

appeal for the appellant to receive proper notice of how to establish Board

jurisdiction over a VEOA claim. 3

3

The appellant indicated in his appeal that DOL issued a decision regarding h is

complaint on October 18, 2011. IAF, Tab 1 at 4. Normally, an appellant must file a

VEOA appeal with the Board with in 15 days of receiving DOL’s notice closing the

complaint. 5 C.F.R. § 1208.22(b). Equitable tolling may be available where the

appellant, despite having diligently pursued his rights, was unable to make a timely

filing. 5 C.F.R. § 1208.22(c). Here, the appellant filed his appeal on March 10, 2014,

over 16 months after DOL issued its decision. IAF, Tab 1 at 4, envelope. Therefore,

the appellant will need to demonstrate his diligence in pursuing his rights or have his

claim d ismissed for failure to timely file a VEOA appeal. See Kirkendall v. Department

of the Army, 479 F.3d 830, 837-44 (Fed. Cir. 2007).

8

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: ______________________________

William D. Spencer

Clerk of the Board

Washington, D.C.