The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
STANLEY JOHNSON, DOCKET NUMBER
Appellant, AT-0752-14-0405-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: April 10, 2015
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL 1
Janice P. Gregerson, Esquire, Washington, D.C., for the appellant.
Daniel E. Ellenbogen, Esquire, Arlington, Virginia, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed for lack of jurisdiction his alleged constructive suspension and alleged
involuntary disability retirement appeal. 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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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 In connection with his duties as a GS-13 Criminal Investigator with the
agency’s Office of Inspector General (OIG), the appellant, in 2010, initiated an
investigation into allegations that a female U.S. Postal Service employee
exaggerated her symptoms so as to qualify for continued Office of Workers’
Compensation Programs (OWCP) benefits. Based on the report the appellant
prepared, the female employee was notified that OWCP intended to terminate her
benefits. At a hearing which followed, she testified that she had dated the
appellant and that she believed the investigation he headed regarding her
activities was retaliatory. Initial Appeal File (IAF), Tab 23 at 48-49. In response
to the allegations, and despite the fact that the appellant had been in a prior
relationship with the female employee, he signed and submitted to OWCP a
statement denying ever having maintained a personal relationship with her. Id. at
69.
¶3 Based on the female employee’s allegations, the OIG’s Special Inquiries
Division initiated an investigation into allegations that the appellant had
improperly failed to disclose his personal involvement with her. As a result, an
Assistant U.S. Attorney notified the appellant by letter dated January 8, 2013,
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that he was the subject of an investigation conducted by the Department of Justice
(DOJ) regarding possible violations of federal criminal laws and related offenses
pertaining to conduct and statements he made in connection with the female
employee and that an indictment was anticipated in the coming months. Id., Tab
7 at 11-12. Based on that letter, on January 9, 2013, the agency issued the
appellant a notice of proposed indefinite suspension and placed him on
administrative leave. Id. at 13-14. On February 22, 2013, the appellant requested
12 weeks of sick leave to start on February 25, 2013, indicating that the agency
was completing its portion of his disability retirement application. Id., Tab 14 at
22. On February 26, 2013, the appellant submitted to the Office of Personnel
Management (OPM) his disability retirement application based on post-traumatic
stress disorder (PTSD) and alcohol abuse. Id., Tab 7 at 28-31. The following
day, the agency amended the appellant’s proposed indefinite suspension notice to
explain that the action was based on DOJ’s pending investigation of his criminal
conduct which, as to his misstatement of a material fact concerning his
relationship with the female employee, was in violation of 18 U.S.C. § 1001.
IAF, Tab 7 at 15-18.
¶4 On April 22, 2013, the agency notified the appellant that it was rescinding
the notice of proposed indefinite suspension based on the decision of the U.S.
Attorney’s Office not to charge the appellant with a crime. Id. at 18-19. The
agency advised the appellant, however, that, based on the information contained
in his disability retirement application, he would remain on Family Medical
Leave Act leave until his physician cleared him for duty. Id.
¶5 On June 27, 2013, the appellant filed a formal complaint of discrimination
in which he alleged that the agency’s ongoing pattern and practice of
discrimination and hostile work environment harassment on the basis of his race
(African American) forced him to take leave and compelled him to apply for
disability retirement. Id., Tab 25 at 34-37.
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¶6 On August 30, 2013, OPM approved the appellant’s application for
disability retirement based on PTSD. Id., Tab 7 at 24-28. Notwithstanding, on
September 10, 2013, the agency proposed the appellant’s removal citing negligent
performance of duties and unprofessional conduct; that is, conduct unbecoming a
law enforcement officer, id., Tab 13, but no decision was issued as his retirement
on disability was effective on September 25, 2013, id., Tab 1 at 8.
¶7 On December 23, 2013, the agency issued a final agency decision on the
appellant’s formal discrimination complaint rejecting his claim. Id. at 10-40. On
appeal to the Board, he argued that the agency had constructively suspended him
for more than 14 days and that intolerable working conditions rendered his
disability retirement involuntary. Id. at 1-6. He requested a hearing. Id. at 2.
¶8 Thereafter the administrative judge issued an initial decision dismissing the
appellant’s appeal for lack of jurisdiction. Id., Tab 33, Initial Decision (ID) at 1,
19. The administrative judge found that the appellant failed to establish that his
disability retirement was involuntary or otherwise constituted a constructive
removal within the Board’s jurisdiction. ID at 9-13. The administrative judge
then addressed the appellant’s constructive suspension claim, notwithstanding
that he was in a paid leave status at all times during the events at issue until the
effective date of his disability retirement, and concluded that the appellant failed
to establish that he was constructively suspended. ID at 13-19.
¶9 The appellant has filed a petition for review, Petition for Review (PFR)
File, Tab 1, to which the agency has responded in opposition, id., Tabs 5-6.
¶10 On review, the appellant argues that the administrative judge failed to
consider that his indefinite suspension was improper because the agency lacked
reasonable cause to believe that he committed a crime for which a sentence of
imprisonment may be imposed, id., Tab 1, at 12-15, and that, because the agency
knew or should have known that it could not succeed in the indefinite suspension
action, the appellant’s disability retirement was coerced, id. at 14-15, 18.
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¶11 As the administrative judge properly found, in order to establish that a
disability retirement was involuntary, an appellant must establish that an
accommodation was available between the time his medical condition arose and
the date of his separation that would have allowed him to continue his
employment; he communicated to the agency his desire to continue working but
that his medical limitations required a modification of his working conditions or
duties; and the agency unjustifiably failed to provide him that accommodation.
ID at 2; see Okleson v. U.S. Postal Service, 90 M.S.P.R. 415, ¶¶ 7-8 (2001).
Thus, the Board generally limits its jurisdiction over alleged involuntary
disability retirement claims to cases where the agency improperly denied an
appellant’s request for accommodation. Vaughan v. Department of Agriculture,
116 M.S.P.R. 493, ¶ 12 (2011). The administrative judge properly did not
consider whether the appellant established that his disability retirement was
involuntary under this test because he did not allege that he ever requested an
accommodation that would have enabled him to continue to perform the essential
duties of his position or another vacant position to which he could have been
reassigned.
¶12 While this standard is correct to determine the Board’s jurisdiction in most
involuntary disability retirement appeals, as the administrative judge
acknowledged, the Board, in unusual circumstances, has applied its regular
principles for determining jurisdiction over alleged involuntary retirements to
assess the voluntariness of a disability retirement. ID at 2-3; see, e.g., Vaughan,
116 M.S.P.R. 493, ¶¶ 13-14 (the appellant alleged that the agency created a
hostile work environment which led to intolerable working conditions and
ultimately his disability retirement); Hosford v. Office of Personnel Management,
107 M.S.P.R. 418, ¶ 9 (2007) (finding the appellant’s disability retirement to be
involuntary on the basis of misinformation). Another of these general principles
of involuntariness is where an appellant shows that the agency knew that it would
not prevail on a proposed adverse action. In such a case, the proposed action is
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coercive and the resulting employee action is involuntary. Baldwin v.
Department of Veterans Affairs, 109 M.S.P.R. 392, ¶ 12 (2008). The appellant
here contends that the agency knew or should have known that it could not prevail
on its proposed indefinite suspension action. 2 The appellant argues that the mere
existence of an agency’s investigation or inquiry into allegations of misconduct
does not constitute a circumstance justifying, or cause for imposing, an indefinite
suspension. 3 Gonzalez v. Department of Homeland Security, 114 M.S.P.R. 318,
¶ 28 (2010). In fact, however, the investigation in this case was not conducted by
the agency but rather by DOJ. IAF, Tab 7 at 11-12. In any event, we need not
determine whether the agency’s proposed indefinite suspension was proper or
whether such an action, which is short of a proposed removal, can trigger the
knew or should have known principle of involuntariness upon which the appellant
relies. That is so because, while the appellant’s application for disability
retirement was pending, the agency rescinded the notice of proposed indefinite
suspension. Id. at 18-19. Although that action removed the threat of indefinite
suspension, the appellant did not seek to withdraw his application at that time or
at any time during the following 4 months while OPM was considering his
application. Id. at 24-28. These circumstances preclude a finding that the
appellant was coerced to retire because of the agency’s proposed indefinite
suspension. 4
2
As noted, the administrative judge found that the appellant did not establish that the
agency knew or should have known that it could not have sustained a decision to
remove him based on the charges set forth in the proposal notice. ID at 13.
3
The appellant also argues that the proposed indefinite suspension was improper
because the agency failed to show that it had reasonable cause to believe that he had
committed a crime for which a sentence of imprisonment could be imposed. PFR File,
Tab 1 at 12-13. Our reviewing court has found, however, that the “reasonable cause to
believe” clause in 5 U.S.C. § 7513(b)(1) is not a substantive requirement for imposing
an indefin ite suspension after at least 30 days’ notice. Perez v. Department of Justice,
480 F.3d 1309, 1313-14 (Fed. Cir. 2007).
4
Because this case was decided after a hearing, the issue is not whether the appellant
raised a nonfrivolous allegation of jurisdiction but whether he established jurisdiction
7
¶13 The administrative judge found that the appellant presented very little
evidence in support of his claim that the agency treated African-American
employees more harshly than white employees, ID at 11-12, and that he therefore
failed to establish that the agency engaged in racially discriminatory conduct that
caused him to become disabled and rendered his disability retirement involuntary.
ID at 9-13. The administrative judge also considered the appellant’s claim that
the agency’s actions in investigating his potentially criminal conduct regarding
the investigation of the female employee exacerbated his PTSD to the point where
he was no longer medically able to fulfill his duties, concluding that, while the
appellant may have reasonably believed that the exacerbation of his PTSD as a
result of the agency’s investigation left him with no meaningful choice other than
to apply for disability retirement, he failed to show that the agency engaged in
wrongful actions that deprived him of such a meaningful choice. ID at 12.
Finally, the administrative judge considered the appellant’s assertion that the
agency coerced his retirement by proposing his removal and/or by reissuing the
Standard Form (SF) 50 documenting his retirement to reflect that his application
was approved during the pendency of a removal action for cause. As noted, the
administrative judge found that the appellant did not establish that the agency
knew or should have known that it could not have sustained a decision to remove
him based on the charges set forth in the proposal notice, that the reissued SF-50
was processed after the appellant learned that OPM had approved his disability
retirement application, and that he did not show that the change affected his
decision to retire. ID at 13. The appellant does not otherwise challenge the
administrative judge’s findings that he failed to establish that his disability
retirement was involuntary and we discern no basis upon which to disturb those
findings. 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 where he considered the
by a preponderance of the evidence. See, e.g., Salazar v. Department of the Army,
115 M.S.P.R. 296, ¶¶ 3, 12 (2010).
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evidence as a whole, drew appropriate inferences, and made reasoned
conclusions).
¶14 On review, the appellant also challenges the administrative judge’s findings
with regard to the periods of alleged constructive suspension. PFR File, Tab 1 at
18-20. As the administrative judge correctly found, to establish Board
jurisdiction over a constructive suspension claim, an appellant must show that he
lacked a meaningful choice in the matter and that it was the agency’s wrongful
actions that deprived him of that choice. ID at 4; see Bean v. U.S. Postal Service,
120 M.S.P.R. 397, ¶ 8 (2013). The appellant first addresses the period from
January 9, 2013, when he was first placed on paid administrative leave, through
April 21, 2013, the day before the amended notice of proposed indefinite
suspension was rescinded. He asserts that, because he reasonably believed that
his administrative leave would end on February 22, 2013, he was left with no
choice but to make his request that day for 12 weeks of sick leave. PFR File,
Tab 1 at 19. We note that, in a prehearing order, the administrative judge found
that, because the appellant was on administrative leave from January 9, 2013,
through February 22, 2013, he failed to nonfrivolously allege that he was
subjected to an appealable suspension during that period of time. IAF, Tab 11 at
1-2. The appellant did not challenge that finding, id., Tab 12, and we find no
basis to disturb it, see LaMell v. Armed Forces Retirement Home, 104 M.S.P.R.
413, ¶ 9 (2007).
¶15 As to the period from February 25, 2013, the first day of the appellant’s
sick leave, through April 21, 2013, the day before the agency rescinded the
amended notice of proposed indefinite suspension, the appellant alleges that,
because he believed his administrative leave was ending, he had no choice but to
use sick leave. PFR File, Tab 1 at 18-19. The administrative judge found, based
on a series of emails between management officials, that the appellant believed,
at least initially, that the agency would place him in an unpaid status at the
expiration of the 30-day notice period that followed his receipt of the first notice
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of proposed indefinite suspension and that this was so despite the fact that the
agency could not have properly placed him in an unpaid status, even if the 30-day
advanced notice period expired prior to the issuance of a decision letter. ID at
14-17. The administrative judge found, however, that, when the appellant
requested sick leave, he knew he was still on administrative leave and receiving
pay even though the 30-day notice period had passed and that he therefore should
have known that any perception he may have had that the agency would place him
in unpaid status at the end of that notice period was incorrect. The administrative
judge concluded, therefore, that the appellant failed to establish that his absence
during this period was a constructive suspension within the Board’s jurisdiction.
ID at 17. Despite his disagreement, the appellant has not shown error in the
administrative judge’s findings. The appellant has not shown that, when he
requested sick leave, he lacked any meaningful choice but to do so because of a
wrongful act by the agency. See Bean, 120 M.S.P.R. 397, ¶ 8.
¶16 As to the period between April 22, 2013, when the agency rescinded the
amended notice of proposed indefinite suspension, and September 25, 2013, the
effective date of his disability retirement, the appellant argues that he was
constructively suspended because he had no choice but to remain on sick leave
and the agency had improperly proposed his indefinite suspension. PFR File, Tab
1 at 19-20. The administrative judge found that, although the appellant’s choice
to remain on sick leave until OPM approved his disability retirement application
or to return to duty was not a meaningful one because OPM ultimately determined
that he was medically unable to perform his duties, ID at 17-18, it was not the
agency’s wrongful actions that deprived the appellant of that choice. As the
administrative judge found, even if the agency’s undertaking of the investigation
into the appellant’s misconduct may have exacerbated his PTSD, the agency acted
within its authority in conducting that investigation, and it also acted properly in
not allowing him to return to duty until he had been medically cleared. ID at 18;
IAF, Tab 30 at 152. Although the appellant argues that the notices of proposed
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indefinite suspension “changed the tide” for him, PFR File, Tab 1 at 20, he has
not shown how those proposals, which, at the time in question, had been
rescinded, constituted wrongful action by the agency that deprived him of a
meaningful choice to return to work. See Bean, 120 M.S.P.R. 397, ¶ 8.
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.
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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.