Lisa J. Hess v. United States Postal Service

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

LISA J. HESS, DOCKET NUMBER

Appellant, AT-0752-15-0576-I-1

v.

UNITED STATES POSTAL SERVICE, DATE: February 3, 2016

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Thomas J. Connick, Esquire, Beachwood, Ohio, for the appellant.

Jason L. Hardy, Esquire, and Margaret L. Baskette, Esquire, Tampa,

Florida, 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 her involuntary disability retirement 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

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

erroneous interpretation of statute or regulation or the erroneous application of

the law to the facts of the case; the administrative 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, 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 served as a supervisory employee with the agency in Tampa,

Florida. Initial Appeal File (IAF), Tab 7 at 113. Beginning in February 2013, the

appellant was absent from work and placed in an absence without leave (AWOL)

status. Id. The appellant returned to work for 1 day in April 2013, and was again

AWOL thereafter. Id. The appellant submitted an application for disability

retirement on May 10, 2013, citing several emotional and physical disabilities

that prevented her from performing her supervisory responsibilities. See Hess v.

U.S. Postal Service, MSPB Docket No. AT-0752-14-0058-I-1, Initial Appeal File

(0058 IAF), Tab 5 at 97-102.

¶3 While the appellant’s application for disability retirement was pending, the

agency initiated a removal action based upon attendance-related misconduct,

which it subsequently imposed and then rescinded. IAF, Tab 8 at 78. The agency

thereafter issued the appellant a second notice of proposed removal, again citing

her unacceptable attendance. Id. at 125-29. In response, the appellant submitted

a doctor’s note suggesting she could return to work on a part-time trial basis. Id.

at 92. The agency construed the appellant’s doctor’s note as a reasonable

accommodation request, and it referred her to its reasonable accommodation

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committee. Id. at 137. The agency’s reasonable accommodation committee asked

the appellant to supply supporting documentation for her request, and it scheduled

her for an accommodation meeting. Id. at 90, 93. Prior to the meeting, however,

the Office of Personnel Management (OPM) approved the appellant’s application

for disability retirement, which she accepted. 0058 IAF, Tab 26 at 58; see IAF,

Tab 8 at 140.

¶4 The appellant filed a separate Board appeal of her removal, during which

she alleged that the agency constructively removed her by forcing her to apply for

disability retirement. 0058 IAF, Tab 9. The administrative judge docketed the

appellant’s allegation of an involuntary disability retirement as a separate appeal,

and he apprised her of the burden of establishing the Board’s jurisdiction over her

appeal. IAF, Tabs 1-2. In response, the appellant alleged that she was subjected

to frequent harassment in 2012 and 2013, that she was subjected to discrimination

and retaliation for engaging in prior equal employment opportunity (EEO) and

whistleblowing activity, and that “[a]fter informal mediation of [her] EEO

complaint failed, [she] felt that [her] only choice was to seek disability

retirement.” IAF, Tab 1 at 67-70.

¶5 The administrative judge issued an initial decision dismissing the

appellant’s involuntary disability retirement appeal for lack of jurisdiction

without holding the hearing requested by the appellant. IAF, Tab 10, Initial

Decision (ID). In his initial decision, the administrative judge found that the

appellant failed to nonfrivolously allege either that she was coerced into seeking

disability retirement or that the agency denied her a reasonable accommodation

that would have allowed her to continue working. ID at 5-9. The appellant has

filed a petition for review arguing that the administrative judge erred in

dismissing her appeal because, among other things, he should have joined her

involuntary appeal with her removal appeal, and he employed a heightened

pleading standard in evaluating her allegations of coercion. Petition for Review

4

(PFR) File, Tab 1 at 12-18. The agency has filed a response in opposition to the

petition for review. PFR File, Tab 5.

¶6 Resignations and retirements are presumed to be voluntary and outside of

the Board’s jurisdiction. See Putnam v. Department of Homeland

Security, 121 M.S.P.R. 532, ¶ 21 (2014). An involuntary retirement, however, is

equivalent to a forced removal within the Board’s jurisdiction under chapter 75.

Id. An appellant must make nonfrivolous allegations of jurisdiction to be entitled

to a hearing, at which point she would be required to prove her claim by a

preponderance of the evidence. Id.

¶7 An appellant who claims that a retirement was involuntary may rebut the

presumption of voluntariness in a variety of ways, including by alleging that her

choice to retire was the result of agency misinformation or deception, intolerable

working conditions, or an unjustified threat of an adverse action. See Mims v.

Social Security Administration, 120 M.S.P.R. 213, ¶ 17 (2013). The Board

however, has recognized that involuntary disability retirement cases are

somewhat different from ordinary involuntary retirement appeals. Id. To

establish the Board’s jurisdiction over an involuntary disability retirement appeal,

the appellant must show that: (1) she indicated to the agency that she wished to

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

work conditions or duties; (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 her to continue working; and (3) the agency

unjustifiably failed to offer that accommodation. Id.

¶8 In certain cases, moreover, the Board has applied the general jurisdiction

test for an involuntary retirement in an involuntary disability retirement appeal.

Id., ¶ 17 n.3; Vaughan v. Department of Agriculture, 116 M.S.P.R. 493, ¶¶ 13-14

(2011). In Vaughan, the Board explained that, under certain circumstances, it

would consider an appellant’s allegations of agency coercion or hostility that

5

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

retirement application in determining whether she nonfrivolously alleged facts

establishing jurisdiction over her involuntary disability retirement appeal.

See 116 M.S.P.R. 493, ¶ 14.

¶9 Here, the administrative judge analyzed the appellant’s allegations of

coercion and involuntariness under both standards, and he found that she failed to

make a nonfrivolous allegation of jurisdiction under either framework. For the

reasons that follow, we agree with the administrative judge’s jurisdictional

analysis, which we affirm.

¶10 The appellant alleges that she was absent from duty in February and early

March 2013 to care for her mother and that she was absent from duty for the rest

of March and part of April 2013 “for [her] own illness.” 2 IAF, Tab 1 at 66. The

appellant, however, has not alleged that she informed the agency of her medical

limitations or requested a reasonable accommodation during this time, and we

have found no indicia of such a request in the record. See id. Additionally, the

appellant alleges that she was absent from employment beginning in late April

2013 and did not return to work thereafter due to “health reasons.” Id. at 67. The

appellant, however, has not alleged that she sought a reasonable accommodation

from the agency during this time. See Lorenz v. U.S. Postal Service, 84 M.S.P.R.

670, ¶ 9 (2000) (finding that an appellant generally must inform her employer of

her need for an accommodation to prevail on a claim of involuntary disability

retirement).

¶11 The only evidence suggesting that the appellant requested a reasonable

accommodation is the letter from one of her physicians submitted in response to

the agency’s second notice of proposed removal. IAF, Tab 8 at 92. The record

demonstrates, however, that the agency initiated the reasonable accommodation

2

These assertions are contained in the appellant’s declaration and are assumed to be

true for purposes of the Board’s jurisdictional analysis. See Carey v. Department of

Health & Human Services, 112 M.S.P.R. 106, ¶¶ 6-7 (2009).

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process with the appellant upon receipt of this letter and that she accepted

disability retirement before presenting medical documentation to, or meeting

with, the agency’s reasonable accommodation committee. Id. at 90, 93, 137.

Based on this undisputed chronology, we concur with the administrative judge

that the appellant failed to nonfrivolously allege that the agency unjustifiably

failed to offer her an accommodation that would allow her to remain at work.

See, e.g., Collins v. U.S. Postal Service, 100 M.S.P.R. 332, ¶¶ 11-14 (2005)

(discussing that an appellant’s failure to engage in the interactive process is fatal

to a claim of involuntary disability retirement).

¶12 Alternatively, in applying the general involuntary resignation or retirement

analysis, the Board will look to the totality of the circumstances to ascertain

whether the appellant has nonfrivolously alleged that a reasonable person in her

position would have felt compelled to retire. See Conforto v. Merit Systems

Protection Board, 713 F.3d 1111, 1121 (Fed. Cir. 2013); Shoaf v. Department of

Agriculture, 260 F.3d 1336, 1342 (Fed. Cir. 2001). In assessing the substance of

an appellant’s allegations of coercion, the U.S. Court of Appeals for the Federal

Circuit has emphasized that an appellant must “satisfy a demanding legal

standard,” which requires more than an allegation of dissatisfaction with the

options that the agency has made available to her. Conforto, 713 F.3d at 1121

(quoting Staats v. U.S. Postal Service, 99 F.3d 1120, 1124 (Fed. Cir. 1996)).

Although an appellant need only nonfrivolously allege that she was subjected to

acts of coercion that deprived her of her freedom of choice to obtain a

jurisdictional hearing in her appeal, an appellant still must allege that the agency

effectively imposed her removal by taking improper acts that were so intolerable

that she had no other choice but to retire. Id. at 1121-22.

¶13 We agree with the administrative judge that the appellant failed to

nonfrivolously allege that the agency coerced her into seeking disability

retirement under this standard. ID at 4-7. The record reflects that the appellant

was absent from work beginning in February 2013, and that she applied for

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disability retirement a few months later. IAF, Tab 1 at 66-67; 0058 IAF, Tab 5

at 97. The only specific allegation of alleged harassment proffered by the

appellant concerns her interaction with a coworker in November 2012. 3 IAF, Tab

1 at 43-46. The administrative judge properly considered this allegation as part

of the totality of the circumstances surrounding the appellant’s decision to seek

disability retirement, and he found that a reasonable person in the appellant’s

position would not have felt compelled to resign based on this interaction with a

colleague. See Shoaf, 260 F.3d at 1342 (“[I]n measuring the voluntariness of an

employee’s resignation or retirement, all of the activities surrounding his or her

resignation or retirement, even events not immediately preceding the leave of

employ, must be considered.”); ID at 7. Based on the lapse in time between this

event and the appellant’s application for disability retirement, we agree that this

incident does not reveal working conditions so intolerable that a reasonable

person would have felt compelled to leave employment. See Shoaf, 260 F.3d at

1342 (explaining that “the most probative evidence of involuntariness” is that

which occurs in “a relatively short period of time between the employer’s alleged

coercive acts and the employee’s retirement”).

¶14 We note, moreover, that the appellant has failed to allege how this one

incident caused or exacerbated the medical conditions underlying her disability

retirement. To establish the Board’s jurisdiction over her involuntary disability

retirement under Vaughan, the appellant must show that the agency’s improper

acts caused or exacerbated her underlying medical conditions. See 116 M.S.P.R.

493, ¶ 14. We find that the appellant has failed to allege any such linkage

between her November 2012 interaction with a coworker and her May 2013

3

The appellant also has asserted generally that she was harassed by her supervisor prior

to applying for disability retirement. IAF, Tab 1 at 67. In Conforto, the Federal Circuit

found the employee’s generic allegation of discrimination insufficient to establish the

Board’s jurisdiction over her involuntary retirement appeal. See 713 F.3d at 1123.

Here, we find the appellant’s general allegation of harassment insufficient to constitute

a nonfrivolous allegation of jurisdiction.

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disability retirement application for purposes of establishing the Board’s

jurisdiction over her involuntary disability retirement appeal.

¶15 Finally, we find no merit to the appellant’s argument that the administrative

judge erred in failing to join the instant appeal with her removal appeal. PFR

File, Tab 1 at 12-14. Importantly, the appellant applied for disability retirement 1

month before the agency initiated its removal proceedings; any evidence

concerning the agency’s charge of misconduct, or her affirmative defenses, would

have no connection to her earlier decision to seek disability retirement. 4 See

Bean v. U.S. Postal Service, 120 M.S.P.R. 397, ¶ 10 (2013) (explaining that a

removal or resignation may be involuntary when an employee elects to resign or

retire to avoid a threatened action that the agency knows it cannot substantiate).

Additionally, because the jurisdictional analysis in this appeal differs from the

issues presented in the appellant’s removal appeal, we find that the administrative

judge did not abuse his discretion in adjudicating the appeals separately.

See 5 U.S.C. § 7701(f)(2); 5 C.F.R. § 1201.36(b).

¶16 The administrative judge’s jurisdictional dismissal of the appellant’s

involuntary disability retirement appeal is affirmed, and the appellant’s petition

for review is denied.

4

We acknowledge that a second removal proposal was pending when the appellant

accepted OPM’s approval of her disability retirement application. IAF, Tab 8 at 125-29

(second notice of proposed removal); 0058 IAF, Tab 26 at 58 (approval of disability

retirement). Because the agency was engaged in the reasonable accommodation

interactive process with the appellant during this time, IAF, Tab 8 at 137, and because

the agency had not yet issued a final decision on the proposed action, we cannot

conclude that the pendency of the second proposed removal left the appellant with no

alternative but to retire. See Garland v. Department of the Air Force, 44 M.S.P.R. 537,

541 (1990). The appellant, moreover, has failed to nonfrivolously allege that there was

no arguable basis for the agency’s attendance-related charge, and it is undisputed that

she was absent from employment for the period of time specified in the agency’s second

notice of proposed removal. IAF, Tab 8 at 35-37, 125-29.

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NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision by the U.S.

Court of Appeals for the Federal Circuit. You must submit your request to the

court at the following address:

U.S. 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 U.S. 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 U.S. 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 an appeal to

the U.S. 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

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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.