Cori A. Wilson v. Department of Justice

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

CORI A. WILSON, DOCKET NUMBERS

Appellant, DA-0752-13-0038-B-1

DA-0752-11-0582-I-3

v.

DEPARTMENT OF JUSTICE,

Agency. DATE: February 27, 2015

THIS FINAL ORDER IS NO NPRECEDENTIAL 1

James R. Hefflin, Newport Beach, California, for the appellant.

John T. LeMaster, Esquire, Washington, D.C., for the agency.

Tina Hauck, Esquire, Kansas City, Kansas, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Anne M. Wagner, Vice Chairman

Mark A. Robbins, Member

FINAL ORDER

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

dismissed her involuntary disability retirement and constructive suspension

appeals for lack of jurisdiction. Generally, we grant petitions such as this one

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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 these appeals, 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. Except as expressly modified by this Final Order, we AFFIRM the

initial decision.

BACKGROUND

¶2 The appellant was a Correctional Officer with the Bureau of Prisons at the

Federal Correctional Institution in Bastrop, Texas. Wilson v. Department of

Justice, MSPB Docket No. DA-0752-13-0038-I-1, Initial Appeal File (0038

IAF), Tab 5 at 66. On April 18, 2000, the appellant reported that she had been

sexually assaulted by a coworker the previous day. See id. at 93-94. The agency

placed the alleged perpetrator on home duty pending an investigation of the

incident by the agency’s Office of Internal Affairs (OIA). Id. at 94. As a result

of its investigation, OIA determined that the appellant’s allegations could not be

sustained, and the alleged perpetrator returned to duty in June 2000. Id. at 118.

¶3 The appellant was absent from work following the incident, and she began

seeing a physician in May 2000, who recommended that the appellant not work

through June 4, 2000. Wilson v. Department of Justice, MSPB Docket No.

DA-0752-11-0582-I-3, Initial Appeal File (0582/3 IAF), Tab 31, Exhibit 1. In

3

July 2000, the appellant’s physician diagnosed her with Post Traumatic Stress

Disorder (PTSD) and Major Depressive Disorder and recommended that she and

the alleged perpetrator work different hours “for medical/mental health reasons.”

Id., Exhibits 8, 11. On August 15, 2000, the appellant’s physician recommended

that she not work from August 18, 2000, through September 2, 2000. Id.,

Exhibit 13. On August 29, 2000, the appellant asked to move to the Custody

Department (Custody) “for physical and mental purposes.” Id., Exhibit 15. The

agency granted her request. See id., Exhibit 18. On January 3, 2001, the

appellant’s physician released her from treatment, stating that the appellant had

no symptoms of depression or anxiety and that no psychiatric treatment was

needed at that time. Id., Exhibit 24.

¶4 On March 13, 2001, the appellant suffered numerous injuries in a

motorcycle accident. See 0582/3 IAF, Tab 31, Exhibit 25. The appellant

returned to work with restrictions in June 2001, was absent from work for

surgery in December 2001, returned to work with restrictions in January 2002,

and returned to her position in Custody on February 25, 2002. See id., Exhibits

32, 46, 51, 67. Following an encounter with the alleged perpetrator on February

28, 2002, the appellant requested a reassignment so that she would be away from

him. See 0038 IAF, Tab 4 at 25. On March 5, 2002, the agency granted the

appellant’s request. See id.

¶5 On September 10, 2003, the appellant returned to her physician and

reported having “severe depression and anxiety along with insomnia, low energy,

poor concentration, distractibility, anger, irritability, and poor

decision-making.” See 0582/3 IAF, Tab 31, Exhibit 104. The appellant did not

return to work after October 30, 2003. 2 See 0038 IAF, Tab 4 at 30 of 34. On

2

On October 31, 2003, the appellant’s physician placed her off work from November 1,

2003, through November 15, 2003. 0582/3 IAF, Tab 31, Exhibit 92. On November 14,

2003, he recommended that the appellant not work through February 14, 2004, stating,

“[s]he is not able to work.” I d., Exhibit 93. On February 3, 2004, he recommended that

the appellant not work from February 14, 2004, through March 14, 2004. I d., Exhibit

4

December 10, 2003, she applied for disability retirement, citing, inter alia, PTSD

and recurrence of PTSD as the bases for her request. 3 Wilson v. Department of

Justice, MSPB Docket No. DA-0752-11-0582-1-2, Initial Appeal File (0582/2

IAF), Tab 5, Subtab 4i at 4. In response to a question on her disability

retirement application asking her to describe how her disease or injury restricted

her activities, the appellant stated that she had “self-imposed restrictions” and

attempted to avoid contact with inmates and the alleged perpetrator as much as

possible. Id.

¶6 The Office of Personnel Management (OPM) approved the appellant’s

application for disability retirement on August 4, 2004, 0582/2 IAF, Tab 5,

Subtab 4e, and her retirement became effective on August 8, 2004. Id., Tab 22,

Subtab 1 at 23.

¶7 On July 26, 2011, the appellant filed an appeal with the Board, alleging that

she was forced to retire due in part to the agency’s failure to accommodate her

disabilities, sexual harassment, and retaliation for her prior equal employment

97. In a document dated February 10, 2004, he stated that the appellant suffered from

PTSD, Generalized Anxiety Disorder, and Pan ic Disorder and that she was not able to

work. I d., Exhibit 98. He also stated that the appellant’s prognosis was poor and that,

if she returned to work, it was likely that she would seriously harm other employees at

her workplace. I d. On March 3, 2004, the appellant’s physician made the same

diagnoses and the same prognosis, stated that the appellant was not able to work, and

recommended that her “medical leave” be extended through May 9, 2004. I d., Exhibit

101. On May 5, 2004, he made the same diagnoses and the same prognosis and again

stated that the appellant was not able to work and would likely seriously harm other

employees at her workplace if she returned to work. In addition, he recommended that

she be off work due to medical reasons through August 8, 2004. I d., Exhibit 102.

3

In response to a question on her disability retirement application asking the appellant

to describe her diseases or injuries, the appellant also listed numerous physical injuries

that she sustained in the motorcycle accident. See 0582/2 IAF, Tab 5, Subtab 4i at 4.

However, in an affidavit that the appellant submitted in conjunction with her

constructive suspension appeal, she stated that she retired because of her mental

condition, not because of any injuries she sustained in the motorcycle accident. See

0038 IAF, Tab 4 at 32-33.

5

opportunity (EEO) activity. 4 See Wilson v. Department of Justice, MSPB Docket

No. DA-0752-11-0582-I-1, Initial Appeal File (0582/1 IAF), Tab 1. The appeal

was dismissed without prejudice and refiled twice, most recently in August 2012.

0582/1 IAF, Tab 29; 0582/2 IAF, Tabs 1, 26; 0582/3 IAF, Tab 4. The appellant

initially requested a hearing but subsequently withdrew her request. See 0582/1

IAF, Tab 14 at 2; 0582/3 IAF, Tab 51.

¶8 On October 23, 2012, while her involuntary disability retirement appeal was

pending before the administrative judge, the appellant filed a Board appeal

alleging that she was constructively suspended 5 effective October 30, 2003, due

to intolerable working conditions. 0038 IAF, Tab 1. The appellant initially

requested a hearing but subsequently withdrew her request. Id., Tab 15.

¶9 On February 20, 2013, the administrative judge issued an initial decision

dismissing the appeal as untimely filed without a showing of good cause to

waive the filing deadline. 0038 IAF, Tab 17 at 1, 7. On review, the Board

issued a nonprecedential order dated October 29, 2013, remanding the appeal for

further adjudication. RAF, Tab 1.

¶10 On remand, the administrative judge joined the appellant’s involuntary

disability retirement appeal and her constructive suspension appeal. RAF, Tab 9.

Based on the parties’ submissions, the administrative judge issued an initial

decision on February 28, 2014, dismissing both appeals for lack of jurisdiction.

RAF, Tab 13, Initial Decision (ID) at 2, 20.

¶11 The appellant has filed a petition for review. Wilson v. Department of

Justice, MSPB Docket No. 0752-13-0038-B-1, Remand Petition for Review

4

The record indicates that the appellant filed EEO complaints on November 30, 2000,

March 7, 2001, and December 27, 2002. 0038 IAF, Tab 5 at 56, 99, 116.

5

Although the appellant stated in her initial submission that she was “constructively

discharged” effective October 30, 2003, see 0038 IAF, Tab 1, on remand the appellant

indicated that she was raising a constructive suspension claim. See Wilson v.

Department of Justice, MSPB Docket No. DA-0752-13-0038-B-1, Remand Appeal File

(RAF), Tab 7.

6

(RPFR) File, Tab 1. The agency has filed a response in opposition to the petition

for review. RPFR File, Tab 3. The appellant has filed a reply to the agency’s

response. 6 RPFR File, Tab 4.

ANALYSIS

Involuntary Disability Retirement: Jurisdictional Standards

¶12 A retirement is presumed to be voluntary and therefore outside the Board’s

jurisdiction. See Vitale v. Department of Veterans Affairs, 107 M.S.P.R. 501,

¶ 17 (2007). An involuntary retirement, however, is equivalent to a forced

removal within the Board’s jurisdiction under 5 U.S.C. chapter 75. Garcia v.

Department of Homeland Security, 437 F.3d 1322, 1328 (Fed. Cir. 2006) (en

banc). Generally, an appellant who claims that a retirement was involuntary may

rebut the presumption of voluntariness in a variety of ways, for example, by

showing that the retirement was the result of misinformation or deception by the

agency, intolerable working conditions, or the unjustified threat of an adverse

action. SanSoucie v. Department of Agriculture, 116 M.S.P.R. 149, ¶ 14 (2011).

The touchstone of the “voluntariness” analysis is whether, considering the

totality of the circumstances, factors operated on the employee’s

decision-making process that deprived him of freedom of choice. Coufal v.

6

The appellant submits two documents with her reply: (1) a Health Care Provider

Certification Form signed by a psychotherapist on January 21, 2004; and (2) the

appellant’s written declaration in support of the joined appeals, dated May 9, 2014.

RPFR File, Tab 4 at 5-12. The form is already part of the record. See 0582/3 IAF, Tab

31, Exhibit 96. Accordingly, it is not new and we have not considered it. See Meier v.

Department of the Interior, 3 M.S.P.R. 247, 256 (1980) (evidence that is already part of

the record is not new). Although the appellant’s signed declaration postdates the close

of the record below, it is not new and material evidence because the information in the

declaration was available when the record closed. See Grassell v. Department of

Transportation, 40 M.S.P.R. 554, 564 (1989) (to constitute new and material evidence,

the information contained in the documents, not just the documents themselves, must

have been unavailable despite due diligence when the record closed). In fact, the

contents of the declaration are identical to the appellant’s declaration dated January 31,

2014, which she submitted during the proceedings below. See RAF, Tab 10, Exhibit 1.

Accordingly, we have not considered this document either.

7

Department of Justice, 98 M.S.P.R. 31, ¶ 22 (2004); Heining v. General Services

Administration, 68 M.S.P.R. 513, 519-20 (1995). Thus, in order to establish

involuntariness on the basis of coercion, an appellant must show that the agency

effectively imposed the terms of the resignation or retirement, that the appellant

had no realistic alternative but to resign or retire, and that the appellant’s

resignation or retirement was the result of improper acts by the agency. Id.

Consistent with this approach, the Board will find a retirement to be involuntary

where the employee demonstrates that the employer engaged in a course of

action that made working conditions so difficult or unpleasant that a reasonable

person in that employee’s position would have felt compelled to resign or retire.

Markon v. Department of State, 71 M.S.P.R. 574, 577-78 (1996).

¶13 The Board usually takes a different approach when addressing the question

of voluntariness in the context of a disability retirement. In most cases, an

appellant who alleges that her disability retirement was involuntary must

establish the following: (1) she indicated to the agency that she wished to

continue working, but her medical limitations required a modification of her

work conditions or duties, i.e., accommodation; (2) there was a reasonable

accommodation available during the period between the date on which she

indicated to the agency that she had medical limitations but desired to continue

working and the date that she was separated, that would have allowed the

appellant to continue working; and (3) the agency unjustifiably failed to offer

that accommodation. SansSoucie, 116 M.S.P.R. 149, ¶ 15. The agency’s failure

to accommodate the appellant, standing alone, however, would not make the

decision to retire involuntary. Id. If accommodation was impossible, the

appellant’s disability retirement would not have been a constructive removal, and

other theories of involuntariness cannot lead to a different conclusion. Id. The

essence of other claims of involuntariness, including coercion, duress, and

intolerable working conditions, is that the appellant had a choice between

retiring and continuing to work but was forced to choose retirement by improper

8

acts of the agency. Id. If the appellant was unable to work because of a medical

condition that cannot be accommodated, she had no choice as to whether to

continue working. Id.

¶14 This standard is correct to determine the Board’s jurisdiction in most

involuntary disability retirement appeals. However, the Board has applied the

general principles for determining jurisdiction over alleged involuntary

retirements to assess the voluntariness of a disability retirement when, as here,

an appellant has alleged that the agency created a discriminatory, hostile work

environment, which not only led to intolerable working conditions, but which

also caused or exacerbated the medical conditions underlying the appellant’s

disability retirement. See Vaughan v. Department of Agriculture, 116 M.S.P.R.

493, ¶¶ 13-14 (2011). The Board has held that the general test for involuntary

retirement is applicable in such circumstances because, in effect, the appellant

has alleged that he was coerced into retirement because the agency’s

discriminatory conduct caused him to become disabled. Id., ¶ 14.

The appellant failed to establish Board jurisdiction over her involuntary disability

retirement appeal.

¶15 In the initial decision, the administrative judge considered the appellant’s

involuntary disability retirement claim under both of the standards set forth

above. ID at 10-15. Applying the jurisdictional standard that the Board

typically applies in involuntary disability retirement appeals, the administrative

judge noted the following: the record does not contain any documentation

regarding the appellant’s mental disorders that was drafted between January

2001, when her physician found that her symptoms had resolved and released the

appellant from treatment, and September 2003, when the appellant began seeing

her physician again; there is no evidence that the appellant sought treatment from

any healthcare professional for those disorders during that time; on her disability

retirement application, the appellant stated that the restriction that she avoid

contact with the alleged perpetrator and inmates was “self-imposed”; and, after

9

the appellant began seeing her physician again in September 2003, the only

restriction he imposed upon her was that she not work at all. ID at 12-13.

¶16 Based on this evidence, the administrative judge found that the appellant

failed to establish that her disability retirement was in voluntary. Specifically,

the administrative judge found that, because the appellant’s restrictions were

self-imposed, she failed to establish that the agency improperly denied her

requests for accommodation. ID at 15. The administrative judge further found

that, in light of the appellant’s physician’s assessment in 2003 that the appellant

was unable to work, accommodation was impossible. ID at 13 (citing 0582/3

IAF, Tab 31, Exhibit 104). Therefore, the administrative judge found that the

appellant’s disability retirement was not a constructive removal because the

theory of involuntariness requires that the person had a choice between retiring

or continuing to work, and the appellant had no choice. ID at 13.

¶17 We discern no reason to disturb this finding. As previously noted, the

documentation from the appellant’s physician established that the appellant was

unable to work from November 2003 until her disability retirement in August of

2004. See 0582/3 IAF, Tab 31, Exhibits 92, 93, 97, 98, 101, 102. Therefore, the

appellant failed to demonstrate that there was a reasonable accommodation

available that would have allowed her to continue working. Accordingly, the

administrative judge correctly found that the appellant failed to meet her burden

of showing that her disability retirement was a constructive removal under the

standard that the Board generally applies in involuntary disability retirement

cases. See ID at 12-13, 15.

¶18 Applying the jurisdictional standard that the Board generally applies in

involuntary retirement appeals, the administrative judge next considered the

appellant’s claim that her disability retirement was involuntary because the

agency created a discriminatory and hostile work environment that exacerbated

her medical condition. See ID at 13-15. The administrative judge found that the

preponderance of the evidence in the record did not support this allegation. ID at

10

14. In support of this finding, the administrative judge noted that, after declaring

that the appellant had no need for treatment in January 2001, her physician

specifically refused to blame agency officials for her condition in November

2003. ID at 14 (citing 582/2 IAF, Tab 22, Exhibit 5). The administrative judge

found that the agency did not coerce the appellant to retire and that her

retirement was not the result of improper acts by the agency. ID at 14.

¶19 The appellant appears to challenge this finding on review, asserting that the

administrative judge improperly failed to cite a January 21, 2004 letter from a

psychotherapist stating that “the appellant was forced out of her job due to a

hostile work environment.” PFR File, Tab 4 at 3, 5-7. This argument is

unavailing. The administrative judge’s failure to mention all of the evidence of

record does not mean that he did not consider it in reaching his decision.

Marques v. Department of Health & Human Services, 22 M.S.P.R. 129, 132

(1984), aff’d, 776 F.2d 1062 (Fed. Cir. 1985) (Table). Moreover, the fact that

another health care provider had a different opinion from the appellant’s

physician provides no basis to disturb the administrative judge’s finding that the

appellant failed to prove by preponderant evidence her allegation that

management created an environment that exacerbated the appellant’s condition.

¶20 We also find unpersuasive the appellant’s argu ment on review that, because

OPM approved her disability retirement application, and she stated in her

application that her disabling condition started on the date of the alleged assault

by her coworker, she “has in fact been found to have a compensable disability

due in part to the agencies [sic] horrific conduct.” PFR File, Tab 4 at 3. While

OPM approved her disability retirement application, it did not find that any of

the injuries she listed in support of her request for disability retirement,

including PTSD, were caused or exacerbated by the agency. See 0582/2 IAF,

Tab 5, Subtab 4e.

¶21 In determining whether the appellant established that her disability

retirement was involuntary, the administrative judge also considered the

11

appellant’s allegation that she was subjected to harassment in 2003 because of

the following: her receipt of good, but not “outstanding” evaluations; the keying

of her car, 7 and coworkers sneaking up on her or refusing to talk to her. ID at

14. The administrative judge correctly found that the situation and incidents the

appellant identified would not have created such intolerable working conditions

that a reasonable person in her position would have felt compelled to retire. ID

at 14.

¶22 The administrative judge also correctly found that nothing in the record

suggests that the agency was forcing the appellant to make any type of decision

in December 2003, as there was no pending proposal to remove her from her

position. ID at 15. Rather, the administrative judge found that the appellant’s

decision to apply for disability retirement appears to have been entirely

self-initiated. ID at 15. Last, the administrative judge noted that, at the time she

filed her application for disability retirement, the appellant was pursuing her

discrimination and sexual harassment complaint, in which she eventually

prevailed. ID at 15 (citing Axsom v. Department of Veterans Affairs,

110 M.S.P.R. 605 (2009) (a pre-existing discrimination affords the appellant the

option of contesting alleged discrimination, harassment, and retaliation, rather

than resigning/retiring)).

¶23 Based on her consideration of the record in its entirety, the administrative

judge found that the appellant failed to establish that the agency created a hostile

work environment, which not only led to intolerable working conditions but

which caused or exacerbated the medical conditions underlying her disability

retirement. ID at 15. Accordingly, the administrative found that the appellant

failed to establish that the Board has jurisdiction over her involuntary retirement

appeal. ID at 15.

7

The record indicates that the car keying incident occurred on June 2, 2002. See

0582/3 IAF, Tab 31, Exhib it 81.

12

¶24 We discern no reason to disturb the administrative judge’s explained

findings. Even if the appellant genuinely felt that she had no alternative but to

retire due to her medical conditions, she has failed to make a sufficient allegation

of a coercive or improper act on the part of the agency that could have left a

reasonable person in her position with no other choice but to retire in August

2004. See Brown v. U.S. Postal Service, 115 M.S.P.R. 609, ¶ 17, aff'd sub nom.

Brown v. Merit Systems Protection Board, 469 F. App’x 852 (Fed. Cir. 2011)

(even if the appellant’s medical condition left her no alternative but to retire, she

failed to tie her circumstances to an improper agency act). Therefore, we agree

with the administrative judge that the appellant failed to establish that the Board

has jurisdiction over her involuntary retirement appeal. ID at 15.

The appellant has failed to prove that the Board has jurisdiction over her

constructive suspension appeal.

¶25 In the initial decision, the administrative judge found that “no hearing was

necessary” in the appellant’s constructive suspension appeal because she failed

to raise a nonfrivolous allegation that the Board has jurisdiction over her appeal.

See ID at 2 n.3. As noted above, however, the appellant withdrew her initial

request for a hearing. See IAF-0582/3, Tab 51. Consequently, the threshold

question in her appeal is not whether the appellant raised a nonfrivolous

allegation of jurisdiction but whether she established jurisdiction by a

preponderance of the evidence. See Vitale, 107 M.S.P.R. 501, ¶ 18 (citing

Garcia, 437 F.3d at 1344).

¶26 In analyzing the appellant’s constructive suspension appeal, the

administrative judge stated that there are two distinct situations which can give

rise to constructive suspension claims: (1) when an agency places an employee

on enforced leave pending an inquiry into her ability to perform; and (2) when an

employee, absent due to medical restrictions, requests to return to work within

these medical restrictions and the agency is bound by policy, regulation, or

contractual provision to offer available work to the employee, but fails to do so.

13

ID at 18. The administrative judge also stated that, for purposes of jurisdiction

in a case involving enforced leave, the key question is whether the agency or the

employee initiated the leave. ID at 18. The administrative judge found that the

appellant did not show that the agency constructively suspended her from

October 30, 2003, through August 7, 2004, or that the Board has jurisdiction

over her constructive suspension appeal, for two reasons: (1) the appellant did

not allege that either of the two situations described above exists here; and (2)

the record indicates that the appellant initiated her absence during the relevant

time period by requesting leave pursuant to her doctor’s recommendations. ID at

19.

¶27 Prior to the issuance of the initial decision, however, the Board revamped

its jurisprudence regarding constructive suspension claims in Bean v. U.S. Postal

Service, 120 M.S.P.R. 397 (2013), and Abbott v. U.S. Postal Service,

121 M.S.P.R. 294 (2014). In particular, the Board noted that it has recognized

several fact patterns that may give rise to an involuntary constructive suspension

and, therefore, rejected as misleading the statement in a line of Board cases that

constructive suspensions arise in two situations. Bean, 120 M.S.P.R. 397, ¶ 8

n.4. The Board further found that the issue of whether the agency or employee

initiated the absence is dispositive only in enforced leave suspension appeals, not

in involuntary leave-type constructive suspension appeals. Id., ¶ 8 n.5; see

Abbott, 121 M.S.P.R. 294, ¶ 10 (clarifying that enforced leave suspensions are

not “constructive” and that the case law concerning constructive suspensions

does not apply). The Board explained that the application of the “initiation”

standard does not further the analysis in involuntary leave-type constructive

suspension appeals because the very essence of an involuntary leave-type

constructive suspension is that the absence was employee-initiated. Bean,

120 M.S.P.R. 397, ¶ 8 n.5. Instead, the Board held that, assuming that the

jurisdictional requirements of 5 U.S.C. chapter 75 are otherwise met, proof of the

following is sufficient to establish Board jurisdiction over such an appeal:

14

(1) the employee lacked a meaningful choice in the matter; and (2) it was the

agency’s wrongful actions that deprived the employee of that choice. Bean,

120 M.S.P.R. 397, ¶ 8.

¶28 Like Bean, the instant case involves an involuntary leave-type constructive

suspension appeal because it concerns a claim that leave that appeared to be

voluntary actually was not. Consequently, the administrative judge should have

analyzed the appellant’s constructive suspension appeal under the framework set

forth in Bean. Thus, to establish jurisdiction in her constructive suspension

appeal, the appellant must show that: (1) she lacked a meaningful choice

regarding her absence beginning on October 30, 2003; and (2) this was because

of the agency’s improper actions. See Bean, 120 M.S.P.R. 397, ¶ 11.

¶29 Although Bean was issued before the administrative judge issued the

jurisdictional notice on remand, the administrative judge did not, consistent with

Burgess v. Merit Systems Protection Board, 758 F.2d 641, 643-44 (Fed. Cir.

1985), correctly inform the appellant of the requirements for establishing Board

jurisdiction over her constructive suspension appeal. See RAF, Tab 8.

Nonetheless, we find that it is unnecessary to remand the appeal for proper

jurisdictional notice. The Board has found that an administrative judge’s

defective notice can be cured if the agency’s pleadings contain the notice that

was lacking in the acknowledgement order. Scott v. Department of Justice,

105 M.S.P.R. 482, ¶ 6 (2007). In its response to the jurisdictional order, the

agency cured the defective Burgess notice by apprising the appellant of what she

must do to establish the Board’s jurisdiction over her constructive suspension

appeal under Bean. See RAF, Tab 11 at 34.

¶30 Applying the framework set forth in Bean, we note that the appellant was

absent from work from October 30, 2003, through August 7, 2004, the effective

date of her disability retirement, based on her physician’s assessment that she

was “unable to work.” See 0582/3 IAF, Tab 31, Exhibits 92, 93, 97, 98, 101,

102. Thus, although the appellant requested leave, we find that she lacked a

15

meaningful choice in the matter because her physician stated that she was unable

to work due to her medical condition. See Bean, 120 M.S.P.R. 397, ¶¶ 13-14.

¶31 We next turn to the issue of whether the appellant proved by preponderant

evidence that the agency’s improper actions deprived her of a meaningful choice

regarding her absence from work. As previously discussed, the appellant was

absent from work beginning October 30, 2003, based on her physician’s

assessment that she was unable to work due to her medical condition; however,

the appellant failed to prove that her condition was caused or exacerbated by the

improper acts of the agency. In other words, although the appellant had no

choice but to absent herself from work beginning October 30, 2003, she has not

shown that her lack of choice in the matter is attributable to any improper acts by

the agency. Thus, the second prong of the jurisdictional test set forth in Bean

has not been satisfied, and the Board lacks jurisdiction over the appellant’s

constructive suspension appeal.

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).

16

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

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.