The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TONYA L. JEFFERSON, DOCKET NUMBER
Appellant, AT-0752-14-0788-I-1
v.
DEPARTMENT OF VETERANS DATE: September 25, 2015
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Daphne D. Ivery, Atlanta, Georgia, for the appellant.
Neil S. Deol, Esquire, Decatur, Georgia, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The agency has filed a petition for review of the initial decision, which
found that the agency constructively removed the appellant from her position.
For the reasons discussed below, we GRANT the agency’s petition for review,
REVERSE the initial decision, and DISMISS the appeal for lack of jurisdiction.
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
¶2 Effective March 25, 2014, the appellant resigned from her GS-9 Legal
Administrative Specialist position. Initial Appeal File (IAF), Tab 4 at 6. She
subsequently filed a constructive removal appeal with the Board, asserting that
she was forced to resign because the agency failed to reasonably accommodate
her disability, which caused her health to decline severely. 2 IAF, Tab 1 at 4, 6.
She requested a hearing. Id. at 2.
¶3 After holding the requested hearing, the administrative judge issued an
initial decision finding that the agency constructively removed the appellant from
her position. IAF, Tab 17, Initial Decision (ID). She found that: (1) the
appellant is an individual with a disability; (2) the agency could have granted the
appellant the reasonable accommodation she requested without undue hardship,
yet unjustifiably failed to provide it; (3) the accommodation the appellant
requested did not conflict with the agency’s collectively bargained seniority
system; and (4) the agency’s actions were discriminatory and made the
appellant’s working conditions so difficult that a reasonable person in her
position would have felt compelled to resign. ID at 5-9. The administrative
judge ordered the agency to cancel the appellant’s resignation; restore her to her
previous position, effective March 25, 2014; and pay her the appropriate amount
of back pay. ID at 9. She also ordered interim relief. ID at 10-11.
¶4 The agency has filed a petition for review. Petition for Review (PFR) File,
Tab 3. It argues that the administrative judge erred in finding that the appellant
resigned involuntarily based on a failure to accommodate because: (1) the
2
The appellant first amended an equal employment opportunity (EEO) complaint to
include an allegation that her resignation constituted a constructive discharge, which
the agency processed as a mixed case. IAF, Tab 4 at 7. However, it is unclear whether
her appeal was timely filed because, among other things, we cannot determine whether
the agency issued a final agency decision before she filed her Board appeal and, if so,
when. See 5 C.F.R. § 1201.154(b) (a Board appeal must be filed within 30 days of the
appellant’s receipt of the final agency decision). In any event, we need not decide the
timeliness issue because we dismiss this appeal for lack of jurisdiction. See Fletcher v.
Office of Personnel Management, 118 M.S.P.R. 632, ¶ 10 n.2 (2012).
3
appellant failed to engage in the interactive process; (2) the administrative judge
misconstrued the law to require the agency to provide the appellant with the
accommodation of her choosing; (3) the administrative judge failed to recognize
that the accommodation the appellant requested was by law unreasonable because
it conflicted with the seniority provisions of the collective bargaining agreement;
and (4) the appellant’s failure to await the outcome of an equal employment
opportunity (EEO) complaint she filed regarding the alleged failure to
accommodate renders her resignation voluntary. Id. The appellant did not
respond, except to challenge the agency’s certification of interim relief. PFR
File, Tab 5.
The agency has complied with the interim relief order.
¶5 In the initial decision, the administrative judge ordered the agency to
provide the appellant with interim relief, in the event that either party filed a
petition for review, including: (1) effecting the appellant’s appointment to the
position of Legal Administrative Specialist, GS-901-09, retroactive to the date of
the initial decision; and (2) providing the appellant with the pay and benefits of
this position while any petition for review is pending. ID at 10-11.
¶6 Where the appellant is the prevailing party in an initial decision that grants
interim relief, any petition or cross petition for review filed by the agency must
be accompanied by a certification that the agency has complied with the interim
relief order either by providing the required interim relief or by satisfying the
requirements of 5 U.S.C. § 7701(b)(2)(A)(ii) and (B). Archerda v. Department of
Defense, 121 M.S.P.R. 314, ¶ 11 (2014). The agency is only required to take
appropriate administrative action by the deadline for filing the petition for review
that will result in the issuance of a paycheck for the interim relief period and is
not required to have paid the appellant by the deadline. Id., ¶ 13. An agency’s
inadvertent, minor mistake in providing an appellant with interim relief can be
excused if promptly corrected. Moore v. U.S. Postal Service, 78 M.S.P.R. 80, 84
(1998). If an agency fails to comply with an interim relief order, the Board has
4
discretion to dismiss the petition, but is not required to do so. Erickson v. U.S.
Postal Service, 120 M.S.P.R. 468, ¶ 11 (2013).
¶7 With its petition for review, the agency filed: (1) a declaration from agency
counsel averring under penalty of perjury that the agency has complied with the
interim relief order; (2) a letter to the appellant informing her of her interim
appointment and instructing her to report for duty; (3) a Standard Form (SF) 52
requesting the appellant’s interim appointment, retroactive to February 2, 2015;
and (4) an SF-50 documenting the same. PFR File, Tab 3 at 12-17.
¶8 The appellant challenged the agency’s certification of interim relief.
Specifically, she asserted that the agency did not fully comply with the interim
relief order because it: (1) placed her on leave without pay (LWOP) from
February 23, 2015, to February 27, 2015, totaling 36 hours; and (2) had not
processed her request for the continuation of her dental and vision insurance.
PFR File, Tab 5 at 4-5.
¶9 Pursuant to 5 C.F.R. § 1201.116(b), the Clerk of the Board issued an order
affording the agency an opportunity to respond to the appellant’s challenge. PFR
File, Tab 6. In response, the agency submitted evidence that the 36-hour charge
to LWOP was corrected in March 2015. PFR File, Tab 7 at 5-6. As to dental and
vision insurance, the agency asserted that employees bear the responsibility to
initiate such benefits, that it advised the appellant of this information on several
occasions, and that it also provided the appellant with the contact information to
do so. Id. at 4.
¶10 The appellant filed a reply, submitting evidence that largely supports the
agency’s assertions. Namely, she submitted email correspondence indicating that
she enrolled for dental and vision benefits on March 31, 2015. PFR File, Tab 8
at 11-16. She also provided the Leave and Earnings Statement for the pay period
ending March 7, 2015, that reflects 36 hours of LWOP, as well as the Leave and
Earnings Statement for the following pay period reflecting that no LWOP had
been taken to date, which suggests that the error was corrected. Id. at 8-9. She
5
contends that the agency delayed her wages and her ability to sign up for dental
and vision benefits because it misspelled her last name on her appointment
paperwork. Id. at 4; see id. at 6 (the “s” was omitted from the appellant’s last
name in box 1 of the SF-50 documenting her appointment). However, she
attached evidence that the agency corrected this error on March 10, 2015. PFR
File, Tab 8 at 7.
¶11 Based on the foregoing, we find that the agency has complied with the
interim relief order. The agency clearly took appropriate administrative action,
prior to filing its petition for review, to effectuate the appellant’s interim
appointment. See PFR File, Tab 3 at 14-16. Whether the appellant received all of
the payment she was due by the time the agency filed its petition for review is
irrelevant. See Archerda, 121 M.S.P.R. 314, ¶ 13. Regardless, the issues the
appellant raises regarding the 36 hours of LWOP and her vision and dental
insurance both appear to have been corrected no later than March 31, 2015, less
than a month after the agency filed its petition for review. See Omites v. U.S.
Postal Service, 87 M.S.P.R. 223, ¶¶ 7-8 (2000) (finding that the agency’s delay in
paying back pay for 2.5 months after issuance of the initial decision did not
constitute noncompliance with the interim relief order because the agency
promptly initiated administrative action for the payment; the delayed receipt of
payment was inadvertent; and, even assuming arguendo that it constituted
noncompliance, the Board would exercise its discretion not to dismiss the
agency’s petition for review). To the extent that the agency’s misspelling of the
appellant’s name contributed to any delay, this minor error was promptly
corrected and there is no evidence that it was anything but inadvertent.
Therefore, we will not exercise our discretion to dismiss the agency’s petition for
review.
The appellant has not shown that her resignation was involuntary.
¶12 Medical documentation the appellant provided to the agency indicates that
her medical condition and the side effects of the medication she takes for that
6
condition cause insomnia, “morning somnolence,” and poor concentration,
making it unsafe for her to drive to work in the morning. IAF, Tab 8 at 42. Thus,
her physician recommended that she be permitted to participate in a van pool to
commute to work, so as to avoid morning driving. Id. The appellant requested to
modify her work schedule as a reasonable accommodation that would allow her to
participate in a van pool operated by her neighbor. IAF, Tab 12 at 13-14, 20;
Hearing Compact Disc (HCD) (testimony of the appellant). The van pool arrived
at work at approximately 7:00 a.m. and the appellant needed to end her work day
at 4:30 p.m. to ride home with the van pool. HCD (testimony of the appellant).
Accordingly, she requested to change her tour of duty, from 8:00 a.m. - 5:30 p.m.,
to 7:00 a.m. - 4:30 p.m. Id.; IAF, Tab 8 at 24-29, Tab 12 at 6-22, 26-27. To
allow the appellant time to find alternate transportation that would accommodate
her regular tour of duty, the agency temporarily granted this request from
May 2013, until February 2014, when it directed her to resume her
8:00 a.m. - 5:30 p.m. schedule. IAF, Tab 8 at 24-29, Tab 12 at 6-22, 26-27. The
appellant resigned less than 2 months later, stating in her resignation letter that
she was resigning “under extreme duress brought on by work related stressors
which aggravated health related issues.” 3 IAF, Tab 4 at 18.
¶13 A decision to resign is presumed to be a voluntary act outside the Board’s
jurisdiction, and the appellant bears the burden of establishing by preponderant
evidence that her resignation was involuntary and therefore tantamount to a
forced removal. Hosozawa v. Department of Veterans Affairs, 113 M.S.P.R. 110,
¶ 5 (2010). One way for an employee to overcome the presumption that a
resignation is voluntary is to show that it was the result of coercion by the
agency. Id. If an employee claims that her resignation was coerced by the
agency’s creating intolerable working conditions, she must show that a reasonable
3
There is no medical evidence in the record to support the appellant’s claim that the
agency’s alleged failure to accommodate her disability exacerbated her alleged
disability or otherwise caused her health to decline.
7
person in her position would have found the working conditions so oppressive
that she would have felt compelled to resign. Id.
¶14 When an appellant raises a discrimination allegation in connection with a
claim of involuntariness, the Board may address the allegation only insofar as it
relates to the issue of voluntariness and not whether the evidence establishes
discrimination under a Title VII standard. Id.; Conover v. Department of the
Army, 78 M.S.P.R. 605, 612 (1998). In other words, even if an agency’s actions
are discriminatory, the appellant still must show how those actions coerced her
resignation. See Tripp v. Department of the Air Force, 59 M.S.P.R. 458, 461
(1993). Thus, an agency’s failure to accommodate an eligible employee is simply
a factor to be considered in assessing whether a resignation was involuntary. 4
Brown v. U.S. Postal Service, 115 M.S.P.R. 609, ¶ 16, aff’d, 469 F. App’x 852
(Fed. Cir. 2011), cert. denied, 133 S. Ct. 414 (2012). For the reasons set forth
below, we find that the appellant failed to satisfy this burden.
¶15 The appellant testified that she was able to ride with the 7:00 a.m. shift van
pool even when working the 8:00 a.m. shift. HCD (testimony of the appellant).
She said that she ordinarily slept in the van on the way to work, so she simply
continued sleeping until 7:45 a.m. to start work at 8:00 a.m. Id. Thus, she
explained, her need for a schedule change was not to facilitate her arrival at work,
but rather, to enable her to take the 4:30 p.m. van pool home at the end of the
day. Id. She stated that her husband, uncle or son could pick her up when she
4
In the initial decision, the administrative judge appears to have conflated the standard
for involuntary resignation appeals and the standard for involuntary disability
retirement appeals. See ID at 5 (citing Okleson v. U.S. Postal Service, 90 M.S.P.R. 415,
¶ 8 (2001)). The latter standard is inapplicable in this appeal. See Rule v. Department
of Veterans Affairs, 81 M.S.P.R. 282, ¶¶ 4-5 (1999) (remanding an appeal to afford the
appellant an opportunity to establish jurisdiction where the administrative judge set
forth the standard concerning the Board’s jurisdiction over involuntary resignation and
retirement appeals generally, but did not provide the appellant with notice concerning
the “special circumstances involved when an appellant claims that a disability
retirement was involuntary”). We discern no harm, however, because the
administrative judge issued a jurisdictional order containing correct notice. IAF, Tab 7.
8
worked until 5:30 p.m., but this required them to go out of their way and required
her to spend money on gas for her uncle and son. Id. She stated in her
prehearing submission that she had to wait “up to three hours after the end of her
shift” to be picked up, but during her hearing testimony referenced only one
occasion when she had to wait until 7:00 p.m. Id.; IAF, Tab 11 at 8. She testified
that using public transportation would have involved taking two buses and a train
because the area where she lives has limited mass transit options. HCD
(testimony of the appellant). Accepting as true the appellant’s assertions, it
appears that taking public transportation would have required approximately
2.5 hours of travel time one way. See id. (the appellant testified that if she were
to begin work at 9:00 a.m., she would have had to leave home at approximately
6:30 a.m.). It appears that her commute in the van pool was approximately
45 minutes one way. See id. (the appellant testified that the van pool generally
left at 6:15 a.m. to arrive in time for the 7:00 a.m. shift).
¶16 Even if the agency failed to accommodate the appellant’s disability when it
directed her to resume her regular schedule, which we need not decide here, we
do not agree with the administrative judge that this rendered the appellant’s
working conditions so intolerable that a reasonable person in her position would
have felt compelled to resign. As to waiting for rides, the appellant did not
indicate how long she had to wait on average or how frequently she had to wait
for significant periods of time and, in any event, did not explain how or why
waiting rendered her working conditions intolerable. As to the appellant’s claim
that she had to give her family members gas money, we discern no basis to
conclude that her overall commuting costs increased substantially. To the extent
that her costs did increase, she did not indicate by how much or explain how the
commuting costs rendered her working conditions intolerable. That the
appellant’s family members may have had to go out of their way to pick her up
has no relation to her working conditions. We also are not convinced that, had
the appellant taken public transportation, a reasonable person would have found
9
the increased commuting time intolerable; her daily commute home would have
increased by a total of 1.75 hours, assuming that the evening van pool took
45 minutes, whereas public transportation took 2.5 hours. 5 In sum, the appellant
has not presented sufficient evidence for us to conclude that a reasonable person
would have felt compelled to resign because of having to wait for a ride or take
public transportation, rather than using a more convenient mode of transportation.
Cf. Gerald v. University of Puerto Rico, 707 F.3d 7, 26 (1st Cir. 2013) (holding
that the fact that an employee’s “commute increased by a couple hours and there
was associated gasoline and tolls costs” due to a transfer did not render her
working conditions so intolerable that a reasonable person in her place would feel
forced to resign as opposed to staying on the job while seeking redress). 6
¶17 The record evidence also suggests that it was the mere fact that the agency
directed the appellant to return to her regular schedule, more so than the actual
5
The appellant testified that it would be unsafe for her to take public transportation
because she could be sleepy or otherwise not fully alert due to her medical condition
and medications. HCD (testimony of the appellant). However, she conceded that her
doctor never prepared any documentation indicating that she could not use mass transit
or ride a bus. Id. It also is unclear whether the appellant experienced these symptoms
in the evening and, if so, how frequently or severely. The medical documentation she
submitted to the agency stated that she experienced “morning somnolence,” that the van
pool would allow her to “circumvent morning driving,” and that she was “most likely to
have lingering side effects from current medications” in the morning. IAF, Tab 8 at 42;
but see IAF, Tab 12 at 6 (medical documentation indicating that the appellant
experiences “excessive daytime sleepiness”). Further, the appellant testified that she
did not have any difficulty focusing at work once she was able to “shake off” any
lingering side effects of her medication. HCD (testimony of the appellant). There also
is no evidence that the appellant informed the agency that she believed public
transportation to be infeasible. In any event, public transportation was not her only
alternative. Based on the foregoing, the appellant’s assertion that it would have been
unsafe for her to take public transportation does not alter our analysis as to the
voluntariness of her resignation. Although not directly applicable here, we also note
that the Board has stated that an employee is responsible for getting to and from her
work site. See Letcher v. U.S. Postal Service, 22 M.S.P.R. 560, 563 (1984).
6
Other than decisions of the U.S. Court of Appeals for the Federal Circuit, the
decisions of the circuit courts are not binding on the Board, but the Board may follow
them if it finds their reasoning persuasive. Bowman v. Small Business Administration,
122 M.S.P.R. 217, ¶ 13 n.8 (2015).
10
effects of that action upon her, which prompted her to resign. Specifically, the
appellant testified that she felt that the agency had betrayed her, was not taking
care of her, and did not care about her because her request for a schedule change
was reasonable and could have been granted. HCD (testimony of the appellant).
She stated that she was a good employee and always “went above and beyond” for
the agency, and it “wasn’t going to kill” the agency to allow her to leave at
4:30 p.m. Id. We also note that the appellant’s resignation letter made no
specific mention of her transportation issues or her accommodation request. IAF,
Tab 4 at 18. The appellant’s dissatisfaction with the agency’s failure to facilitate
her use of the mode of transportation she found most convenient, without more,
does not render her resignation involuntary.
¶18 Based on the foregoing, we find that the appellant has not presented
sufficient evidence for us to conclude that her resignation was involuntary. We
therefore must DISMISS her appeal for lack of jurisdiction. 7 Because we lack
jurisdiction, this is not a mixed case and the agency must recommence processing
this matter as a non-mixed complaint. See Miranne v. Department of the
Navy, 121 M.S.P.R. 235, ¶ 14 (2014) (citing Blickenstaff v. Department of
Justice, EEOC Appeal No. 01A42427, 2004 WL 1084919, at *2 (E.E.O.C. May 5,
2004)); see also 29 C.F.R. § 1614.302(c)(2)(ii).
¶19 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c)
(5 C.F.R. § 1201.113(c)).
7
We find it unnecessary to address with specificity the agency’s arguments that the
appellant failed to engage in the interactive process, was not entitled to the
accommodation of her choosing, and should have awaited the outcome of the EEO
process before resigning, or that granting her desired accommodation was unreasonable
because it conflicted with seniority provisions of the collective bargaining agreement.
The main thrust of the agency’s petition for review, with which we agree, is that the
administrative judge erred in finding that the appellant resigned involuntarily.
Moreover, the question of whether the appellant resigned involuntarily implicates
jurisdiction, an issue that is always before the Board. See Ney v. Department of
Commerce, 115 M.S.P.R. 204, ¶ 7 (2010).
11
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 appeal to
the United States Court of Appeals for the Federal Circuit, 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
12
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.