The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LOLA MAE SMITH, DOCKET NUMBER
Appellant, AT-0752-14-0772-I-1
v.
DEPARTMENT OF THE ARMY, DATE: May 7, 2015
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL 1
Everett M. Urech, Esquire, Daleville, Alabama, for the appellant.
Jack McKimm, Fort Rucker, Alabama, 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 the appeal for lack of jurisdiction. 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 alleging that her retirement was involuntary.
Initial Appeal File (IAF), Tab 1. The record reflects that on May 9, 2012, the
appellant, who was employed as a Personnel Operations Specialist, GS-0301-09,
applied for a “MEDCOM Voluntary Separation Incentive Payment for Reshaping
or Downsizing” to separate from service with an early retirement (VERA) and a
separation incentive payment (VSIP). IAF, Tab 14 at 9. The appellant indicated
that her retirement was voluntary with an effective date of June 30, 2012. Id.
Because the appellant’s VERA application was approved but the VSIP was not,
her supervisor continued to pursue approval of the appellant’s VSIP application.
The appellant was notified on August 1, 2012, that her VSIP application had been
approved. However, the appellant decided to rescind her VSIP application on
August 10, 2012, resulting in the withdrawal of her retirement application. Id. at
26. After several conflicts at work between the appellant and her supervisor, id.
at 13-23, the appellant contacted the agency’s Human Resources Specialist on
September 19, 2012, to inquire whether her approval for a VERA/VSIP retirement
was still valid, IAF, Tab 27 at 11. The appellant was advised that, if she could
retire by September 30, 2012, her retirement application was valid, but if she
could not retire by that date, then she would have to wait until the next allocation
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cycle in fiscal year 2013. Id. The appellant signed the VSIP agreement on
September 19, 2012, in which she certified that her “application for the buyout is
voluntary and the effective date of [her] separation” was September 30, 2012, and
that she understood that her “request for the personnel action and the payment
terms [were] irrevocable.” IAF, Tab 8 at 8. On September 26, 2012, the
appellant again tried to withdraw her request to retire, but the agency denied the
request and advised her that, because she had signed the VERA/VSIP paperwork,
her retirement would be effective on September 30, 2012. IAF, Tab 27 at 13.
¶3 On appeal, the administrative judge determined that the appellant was
alleging that the agency forced her to retire by denying her request to withdraw
her retirement application, misinforming her of the new GS-11 position that was
to be created in her office, and creating intolerable work conditions. IAF, Tabs
33, 17. Because the administrative judge found that the appellant raised
nonfrivolous allegations that her retirement was involuntary, the administrative
judge held the requested hearing. IAF, Tab 33. The administrative judge found
that the agency did not abuse its discretion when it denied the appellant’s request
to withdraw her retirement application and that she failed to show that her
retirement was based on misinformation from the agency. IAF, Tab 35, Initial
Decision (ID) at 5-9. The administrative judge also found that the appellant
failed to show that a reasonable person under the same circumstances would have
felt compelled to retire. ID at 9-11. Accordingly, the administrative judge
dismissed the appeal for lack of jurisdiction.
¶4 On review, the appellant appears to argue that her appeal is not based on the
agency’s denial of her request to withdraw her retirement application, but rather it
is based on the allegations she raised in her equal employment opportunity (EEO)
complaint. 2 Specifically, the appellant alleges that she was denied a reasonable
2
The record reflects that the appellant learned on February 25, 2011, that a GS-11
position had been created as part of the restructuring of her position, and that she
contacted an EEO counselor 2 days later. IAF, Tab 1 at 2. On April 8, 2013, the
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accommodation due to a work-related eye injury and that the agency
discriminated against her based on her medical disabilities. Petition for Review
(PFR), Tab 1. The appellant also asserts that she has new evidence. 3 PFR File,
Tabs 1, 4.
¶5 However, in a September 4, 2014 Order and Summary of Status Conference,
the administrative judge advised the parties of the issues she would consider at
the hearing and those issues were limited to whether the agency abused its
discretion when it denied the appellant’s request to withdraw her retirement
application, and whether there were intolerable working conditions that forced
her to retire. IAF, Tab 17. The parties were informed that they must submit
written exceptions to the summary within 5 days of the notice. Id. The appellant
did file any objection to the summary.
¶6 Similarly, in a subsequent summary of an October 27, 2014 prehearing
conference, the administrative judge limited the issues in the appeal to:
“(1) [w]hether the appellant can prove that the agency abused its discretion when
it denied her request to withdraw her retirement application; (2) whether the
appellant can prove that her retirement was involuntary because of
misinformation; and (3) whether the appellant can show that her retirement was
involuntary because of intolerable working conditions.” IAF, Tab 33. The
administrative judge informed the parties that they must state any objection to the
summary on the record at the commencement of the hearing. Id. Again, the
appellant filed an EEO complaint. Th is complaint was dismissed in its entirety on
June 6, 2014, as untimely filed. IAF, Tab 1 at 1.
3
The appellant has submitted medical documentation dated January 29 and
February 11, 2015, which indicate that she does not have any significant psychological
disorders, and that she has been diagnosed with irritable bowel syndrome. While th is
documentation is new, it is not material as it does not show that the appellant’s
retirement was involuntary. The Board will not grant a petition for review based on
new evidence absent a showing that it is of sufficient weight to warrant an outcome
different from that of the initial decision. Russo v. Veterans Administration, 3 M.S.P.R.
345, 349 (1980).
5
appellant did not object to the issues identified in the summary. IAF, Tab 34,
Hearing Compact Disc (CD).
¶7 The appellant now claims for a first time on review that her appeal is based
on the allegations she raised in her EEO complaint. However, the appellant failed
to preserve these allegations by objecting to either of the administrative judge’s
summaries of the issues when given an opportunity to do so. See Harper v. Office
of Personnel Management, 116 M.S.P.R. 309, ¶ 6 (2011); Crowe v. Small
Business Administration, 53 M.S.P.R. 631, 634-35 (1992) (an issue is not
properly before the Board where it is not included in the administrative judge’s
memorandum summarizing the prehearing conference, which states that no other
issues will be considered, unless either party objects to the exclusion of that issue
in the summary).
¶8 Furthermore, even if the appellant did preserve her objection that she retired
under the VERA and VSIP because the agency failed to accommodate her, we
would find that her argument is without merit. As the administrative judge
correctly found, there is no evidence that the appellant had previously requested
an accommodation and that the parties engaged in the interactive process. ID at
11. Nor is there any evidence that there was an accommodation available to her,
even if she had requested one. To the extent the appellant may be asserting that
she requested accommodation for her eye condition from the commanding officer
when she met with him, the record shows that when the appellant met with the
commanding officer, she had already completed and submitted her retirement
paperwork in which she certified that her decision was final and that she
understood that she would not be given another opportunity to withdraw her
retirement application. IAF, Tab 23 at 63-78, 82-83; Hearing CD.
¶9 Moreover, the applicable law and the record evidence support the
administrative judge’s findings that the appellant failed to show that her
retirement was involuntary due to coercion created by intolerable working
conditions, misinformation, refusal without good cause to allow her to withdraw
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her retirement before its effective date, or that she was mentally incompetent. ID
at 5-11. Therefore, we discern no reason to disturb these explained findings. See
Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 106 (1997) (finding no reason to
disturb the administrative judge’s findings where she 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).
Accordingly, we conclude that the appellant has provided no basis upon which to
disturb the initial decision.
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.
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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
information regarding pro bono representation for Merit Systems Protection
Board appellants before the Federal Circuit. 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.