Claressa Delisha Ham v. Department of Veterans Affairs

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

CLARESSA DELISHA HAM, DOCKET NUMBER

Appellant, AT-0752-15-0518-I-1

v.

DEPARTMENT OF VETERANS DATE: February 19, 2016

AFFAIRS,

Agency.

THIS ORDER IS NONPRECEDENTIAL 1

Claressa Delisha Ham, Murfreesboro, Tennessee, pro se.

Keta J. Barnes, Nashville, Tennessee, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

REMAND ORDER

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

dismissed the appeal for lack of jurisdiction. For the reasons discussed below, we

GRANT the appellant’s petition for review, VACATE the initial decision, and

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

REMAND the case to the regional office for further adjudication in accordance

with this Remand Order.

¶2 The appellant resigned from her position as a GS-5 Human Resources

Assistant effective May 1, 2015. Initial Appeal File (IAF), Tab 1. She filed an

appeal alleging that her resignation was involuntary due to intolerable working

conditions. Id. The administrative judge stated that the appellant asserted that

her working conditions became intolerable because the agency did not select her

for 11 positions, denied her training opportunities, and denied her the opportunity

to telework. IAF, Tab 22, Initial Decision (ID) at 3. Without holding a hearing,

the administrative judge found that the appellant did not identify any deceptive

actions or objectively coercive behavior which would have led a reasonable

person to conclude that she had no choice but to resign. ID at 5. In her petition

for review, the appellant asserts that she had no choice but to resign because the

agency denied her request to accommodate her many health problems.

¶3 The appellant has the burden of proving the Board’s jurisdiction by a

preponderance of the evidence. Parrott v. Merit Systems Protection

Board, 519 F.3d 1328, 1332 (Fed. Cir. 2008); 5 C.F.R. § 1201.56(a)(2). An

employee-initiated action, such as a retirement or resignation, is presumed to be

voluntary, and thus outside the Board’s jurisdiction. See Vitale v. Department of

Veterans Affairs, 107 M.S.P.R. 501, ¶ 17 (2007). An involuntary resignation,

however, is equivalent to a forced removal and therefore is within the Board’s

jurisdiction. Garcia v. Department of Homeland Security, 437 F.3d 1322, 1328

(Fed. Cir. 2006) (en banc).

¶4 To overcome the presumption that a resignation is voluntary, the employee

must show that it was the result of the agency’s misinformation or deception or

was coerced by the agency. See Vitale, 107 M.S.P.R. 501, ¶ 19. To establish

involuntariness on the basis of coercion, the appellant must demonstrate that the

agency imposed the terms of the resignation, she had no realistic alternative but

to resign, and the resignation was the result of improper actions by the agency.

3

Garcia, 437 F.3d at 1329. If the employee claims that her resignation was

coerced by the agency’s having created intolerable working conditions, she must

show that a reasonable employee in her position would have found the working

conditions so oppressive that she would have felt compelled to resign. Id. When

an appellant raises an allegation of discrimination in connection with a claim of

involuntariness, the allegation may be addressed only insofar as it relates to the

issue of voluntariness. Axsom v. Department of Veterans Affairs, 110 M.S.P.R.

605, ¶ 12 (2009). Once the appellant presents nonfrivolous allegations of Board

jurisdiction—allegations of fact which, if proven, would establish the Board’s

jurisdiction—she is entitled to a hearing at which she must prove jurisdiction by a

preponderance of the evidence. Parrott, 519 F.3d at 1332; Garcia, 437 F.3d at

1344.

¶5 In his analysis, the administrative judge focused on the potential coercive

impact of the agency’s failure to select the appellant for numerous positions,

denial of training opportunities, and denial of ability to telework. ID at 3.

Although the appellant alleged that these circumstances contributed to creating a

hostile working environment, she also alleged below, as she does on petition for

review, that it was the agency’s denial of reasonable accommodation for her

numerous medical problems that precipitated her resignation. IAF, Tab 5. She

submitted copies of her applications for reasonable accommodation that she filed

with the agency on February 12 and March 13, 2015. Id. The appellant asserts

that the agency failed to process her accommodation requests. She asserts further

that, based on discussions with her supervisor in which the supervisor noted the

appellant’s low leave balance and emphasized that granting leave without pay

(LWOP) is discretionary, she believed that her supervisor would deny her request

for LWOP when she needed to be off work due to her medical conditions.

Indeed, the appellant submitted an email from her supervisor denying the

appellant’s request for LWOP to go to specifically listed appointments. The

appellant, fearing a charge of absence without leave, decided to resign.

4

¶6 The administrative judge noted that the appellant had filed an equal

employment opportunity (EEO) complaint alleging race discrimination.

However, after she filed her requests for reasonable accommodation, the appellant

amended her complaint to include discrimination on the basis of denial of

accommodation. IAF, Tab 1. The appellant submitted a copy of the agency’s

letter that indicated that her discrimination claim on the basis of denial of

accommodation had been accepted as an amendment to her EEO complaint. Id.

The administrative judge did not note this amendment to the appellant’s EEO

complaint and failed to analyze the appellant’s claim that her resignation was

prompted by the denial of her requests for accommodation. Further, the

administrative judge did not refer to any of the appellant’s evidence of her

medical conditions. He did not acknowledge that the appellant’s doctor’s reports

also included the limitation that the appellant should be permitted to work at

home (telecommute) due to her medical conditions and ongoing treatment. IAF,

Tab 5.

¶7 Pro se filings are to be construed liberally. Farooq v. Corporation for

National & Community Service, 109 M.S.P.R. 73, ¶ 11 (2008). Here, the

appellant adequately alleged that her resignation was involuntary because the

agency denied her request for a reasonable accommodation (telecommuting) that,

according to her doctor, would have permitted her to continue to work full-time

despite her medical conditions. By the appellant’s admission, the agency

contended that telecommuting was not feasible in light of her responsibilities.

However, the appellant asserts that vacant positions at her grade level existed for

which she was qualified that allowed incumbents to telework. See Clemens v.

Department of the Army, 120 M.S.P.R. 616, ¶ 10 (2014) (finding that, under the

Rehabilitation Act, “reasonable accommodation” includes modifications to the

manner in which a position is customarily performed to enable a qualified

individual with a disability to perform the essential job functions, or reassigning

the employee to a vacant position whose duties the employee can perform); see

5

also Rehabilitation Act of 1973, § 501(g), 29 U.S.C. § 791(g). Thus, under the

particular circumstances of this case, we find that the appellant has made a

nonfrivolous allegation of the Board’s jurisdiction. See Carey v. Department of

Health & Human Services, 112 M.S.P.R. 106, ¶ 7 (2009) (concluding that the

appellant’s allegations, that she was forced to retire because the agency refused to

accommodate her disability by allowing her to telecommute, were adequate to

entitle her to a hearing); see also Garcia, 437 F.3d at 1324 (holding that the

agency’s failure to renovate the appellant’s workspace to accommodate her

medical condition may have forced her to accept a demotion). Therefore, we find

that the appellant was entitled to the hearing that she requested. IAF, Tab 1; see

Carey, 112 M.S.P.R. 106, ¶ 8.

¶8 Accordingly, we vacate the initial decision and remand this case to the

regional office for a hearing on the issue of whether the appellant’s resignation

was the result of coercion based on intolerable working conditions and therefore

an involuntary act within the Board’s jurisdiction. If, on remand, the

administrative judge determines that the Board has jurisdiction over this appeal

and the appellant’s resignation was involuntary, then the administrative judge

shall adjudicate the appellant’s discrimination claim on the merits under the

substantive standards of antidiscrimination law. See Garcia, 437 F.3d at 1341;

Carey, 112 M.S.P.R. 106, ¶ 9.

6

ORDER

¶9 For the reasons discussed above, we REMAND this case to the regional

office for further adjudication in accordance with this Remand Order.

FOR THE BOARD: ______________________________

William D. Spencer

Clerk of the Board

Washington, D.C.