The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
THERESA G. KRISTEK, DOCKET NUMBER
Appellant, SF-0752-15-0574-I-1
v.
DEPARTMENT OF VETERANS DATE: March 10, 2016
AFFAIRS,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Sam L. Maze, Highland, California, for the appellant.
La’Chelle M. Woodert, Esquire, Loma Linda, California, 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 her appeal for lack of jurisdiction. For the reasons discussed below, we
GRANT the petition for review and REMAND the case to the regional office for
further adjudication in accordance with this Order.
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 The appellant, a preference-eligible veteran, was granted disability
retirement from the GS-4 position of File Clerk on the basis of post-traumatic
stress disorder (PTSD), chronic migraines, fibromyalgia, and other conditions.
Initial Appeal File (IAF), Tab 7, Subtabs 4G, 4U. She appealed, alleging that her
retirement was involuntary and that the agency discriminated against her on the
bases of disability and age, and retaliated against her for prior equal employment
opportunity activity. 2 IAF, Tabs 1, 3. The administrative judge gave the
appellant notice of the test to prove jurisdiction over an allegedly involuntary
disability retirement and notice of the general jurisdictional test to prove
jurisdiction over an allegedly involuntary retirement. IAF, Tab 2.
¶3 Based on the submissions of the parties, the administrative judge found that
the appellant failed to make a nonfrivolous allegation of jurisdiction under the
test to prove that her disability retirement was involuntary. He found that, once
the appellant and her physician identified the need for accommodation, the
agency complied by scheduling the appellant to work between 6 a.m. and
2:30 p.m., and moving the appellant to an area of the office where she could have
a cubicle with a door to reduce excessive contact with others, as recommended by
her physician. IAF, Tab 10, Initial Decision (ID) at 11. He also found that the
appellant failed to make a nonfrivolous allegation that the agency unjustifiably
failed to afford the appellant her preferred accommodation of removing her
supervisor from his office and then transferring her into that office, which was an
accommodation beyond that recommended by her physician. ID at 12.
2
The appellant filed an equal employment opportunity complaint on December 18,
2013, that included her claim that the agency coerced her disability retirement. The
complaint was accepted as a claim of hostile work environment. IAF, Tab 7, Subtab 3.
The agency completed the investigative report on April 28, 2014. Id. The record
does not show that the agency has issued a final decision on the appellant’s equal
employment opportunity complaint.
3
¶4 The administrative judge also found that, even if the Office of Personnel
Management had not granted the appellant’s application for disability retirement,
the appellant failed to make a nonfrivolous allegation of jurisdiction under the
general test for involuntary retirement. He found that the appellant failed to make
a nonfrivolous allegation that the agency misled her, deceived her, or created
intolerable working conditions that forced her to retire. He found that the
appellant failed to show that the agency’s notice of proposed removal based on
absence without leave (AWOL) could not be substantiated. ID at 13. He also
found that the appellant had once cancelled her request for disability retirement,
and she failed to show that the agency coerced her rescission of the cancellation
because she was well aware that she could cancel the rescission. ID at 13.
¶5 Finally, the administrative judge found that, to the extent that the appellant
alleged unlawful discrimination and retaliation in this appeal, because she has not
raised an otherwise appealable action, the Board has no jurisdiction to address
these allegations. ID at 14.
¶6 In her petition for review, 3 the appellant alleges that the administrative
judge erred in finding that the agency had accommodated her disability, and
failed to consider that the agency had accommodated the appellant for 12 years,
but withdrew that accommodation. Petition for Review File, Tab 1. 4 The
3
Attached to the appellant’s petition for review is a copy of the response to the
acknowledgment order that she submitted into the record below. Evidence that is
already part of the record is not new, and the Board will not consider the submission on
that basis. See Meier v. Department of the Interior, 3 M.S.P.R. 247, 256 (1980). The
Board will consider this evidence as part of its review of the record on petition
for review.
4
The appellant asserts that the administrative judge was biased because the appellant’s
representative had asked the administrative judge to recuse himself in a prior case. In
making a claim of bias or prejudice against an administrative judge, a party must
overcome the presumption of honesty and integrity that accompanies administrative
adjudicators. Oliver v. Department of Transportation, 1 M.S.P.R. 382, 386 (1980). An
administrative judge’s conduct during the course of a Board proceeding warrants a new
adjudication only if the administrative judge’s comments or actions evidence “a
deep-seated favoritism or antagonism that would make fair judgment impossible.”
4
appellant’s assertion that the administrative judge failed to consider the agency’s
prior accommodation of the appellant’s disability is correct, and, as explained
below, his failure is error that necessitates remand of the appeal.
¶7 A retirement is presumed to be voluntary and therefore outside the Board’s
jurisdiction. See Vitale v. Department of Veterans Affairs, 107 M.S.P.R. 501,
¶ 17 (2007). An involuntary retirement, however, is equivalent to a forced
removal within the Board’s jurisdiction under chapter 75. Garcia v. Department
of Homeland Security, 437 F.3d 1322, 1328 (Fed. Cir. 2006) (en banc). If an
appellant makes nonfrivolous allegations of jurisdiction, i.e., allegations that, 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. Id.
at 1344; Goodwin v. Department of Transportation, 106 M.S.P.R. 520, ¶ 12
(2007). In determining whether the appellant has made a nonfrivolous allegation,
the Board may consider the agency’s documentary submissions; however, to the
extent that the agency’s evidence constitutes mere factual contradiction of the
appellant’s otherwise adequate prima facie showing of jurisdiction, the
administrative judge may not weigh evidence and resolve conflicting assertions of
the parties, and the agency’s evidence may not be dispositive. Ferdon v. U.S.
Postal Service, 60 M.S.P.R. 325, 329 (1994).
¶8 Generally, an appellant who claims that a retirement was involuntary may
rebut the presumption of voluntariness in a variety of ways, for example, by
showing that the retirement was the result of misinformation or deception by the
agency, intolerable working conditions, or the unjustified threat of an adverse
action. SanSoucie v. Department of Agriculture, 116 M.S.P.R. 149, ¶ 14 (2011).
Bieber v. Department of the Army, 287 F.3d 1358, 1362–63 (Fed. Cir. 2002) (quoting
Liteky v. United States, 510 U.S. 540, 555 (1994)). We find that the appellant’s
allegations of bias do not meet this standard. The appellant has identified no statement
or action by the administrative judge to suggest that he was biased against the
appellant’s representative because of the representative’s actions during another case
before the administrative judge.
5
However, the Board has recognized that involuntary disability retirement cases
are somewhat different from ordinary involuntary retirement appeals. In most
cases, an appellant who alleges that her disability retirement was involuntary
must show: (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, i.e., accommodation; (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 the appellant to continue working; and (3) the
agency unjustifiably failed to offer that accommodation. Id., ¶ 15. 5
¶9 Contrary to the initial decision, we find the appellant has made nonfrivolous
allegations under the SanSoucie test sufficient to entitle her to a hearing on the
question of whether her disability retirement was voluntary. The appellant
alleged that the agency had accommodated her disability for 12 years by allowing
her to work in a quiet area, “away from other staff, as requested by her medical
provider.” IAF, Tab 3 at 10. That the appellant was afforded the accommodation
that she references is corroborated by her third-line supervisor during the
investigation into the appellant’s equal employment opportunity complaint when
he stated that “previous reasonable accommodation was provided. . . . A cubicle
in the very back part of the building, in a very quiet section of the file room.”
IAF, Tab 7, Subtab 4E at 4. The third-level supervisor stated that the appellant
“accepted that cubicle with no problem.” Id. It appears that this accommodation
was afforded the appellant in 2001 pursuant to a statement from her physician
5
In unusual cases, the Board has applied the general jurisdictional tests for involuntary
retirement in the disability retirement context. See, e.g., Vaughan v. Department of
Agriculture, 116 M.S.P.R. 493, ¶¶ 13–14 (2011) (finding that the appellant
nonfrivolously alleged that he was coerced into retirement because the agency’s
conduct in creating a discriminatory, hostile work environment caused him to be
disabled). This exception is not relevant here. There is no evidence that the agency
caused the disabilities that led to the appellant’s disability retirement.
6
that “high levels of direct contact with people has brought the crowding, noise,
and other factors that currently are detrimental [to the appellant].” IAF, Tab 4,
Subtab B. The accommodation afforded the appellant in 2001 was consistent
with the work restriction request from her mental health providers in 2013 that, as
an accommodation to her chronic PTSD, she work “by herself with objects and
data and with minimal contacts with people.” Id., Subtab C. In fact, the 2013
request for accommodation by the appellant’s health care providers references the
language in the 2001 request for accommodation and repeats some of it verbatim.
Id., Subtab F.
¶10 For unexplained reasons, in April 2013, the appellant’s third-line supervisor
stopped the accommodation that had been effective for the appellant for 12 years,
and the appellant filed a formal request for disability accommodation. IAF,
Tab 4, Subtab D. The agency approved the 2013 accommodation request. Id. As
the administrative judge found, the agency attempted to comply with the request
for accommodation by scheduling the appellant to work between 6 a.m. and
2:30 p.m., and moving the appellant to an area of the office where she could have
a cubicle with a door to reduce excessive contact with others. However, this
accommodation proved ineffective as reflected in the appellant’s treating
physicians’ off-work orders that covered the period from October 15, 2013,
through August 11, 2014. IAF, Tab 7, Subtabs 4D, 4I, 4K-4L, 4N-4Q, 4S.
¶11 In April 2014, the appellant applied for disability retirement. Id.,
Subtab 4I. However, on June 25, 2014, she rescinded her application. Id.,
Subtab 4R. The agency was aware that the appellant cancelled her application, as
proven by the fact that, upon her cancellation, the agency changed her leave
status from leave without pay (LWOP) to AWOL. 6 IAF, Tab 4, Subtab K. In her
6
During the period of time from August 2013, when the appellant claimed that the
agency’s attempted accommodation was ineffective, to April 2014, when she applied
for disability retirement, the appellant was absent from work on approved and
donated leave.
7
rescission letter, the appellant stated that she did not want to retire and that her
facility was discriminating against her by not providing a reasonable
accommodation for her disability. IAF, Tab 7, Subtab 4R. Further, the medical
evidence in the record indicates that the appellant was capable of working full
time if the agency provided the accommodation that had been previously
provided. IAF, Tab 4, Subtabs F, H. We find that, under these circumstances, the
appellant made a nonfrivolous allegation that if proven would satisfy the first
prong of the test to establish that a disability retirement is involuntary, i.e., that
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, i.e.,
accommodation. See SanSoucie, 116 M.S.P.R. 149, ¶ 15.
¶12 Further, as noted, there had been an effective accommodation for the
appellant for 12 years, and the agency failed to explain why that accommodation
was unavailable. There appears therefore to have been a reasonable
accommodation available during the period between the date on which the
appellant reiterated to the agency that she had medical limitations but desired to
continue working and the date that she was separated that would have allowed the
appellant to continue working. Thus, we find that the appellant made a
nonfrivolous allegation that satisfied the second prong of the test to prove that her
disability retirement was involuntary. Id.
¶13 As the agency has offered no explanation for ending the accommodation
that had been successful for the appellant for 12 years, we find that the appellant
nonfrivolously alleged that the agency unjustifiably failed to offer that
accommodation. See De John v. U.S. Postal Service, EEOC DOC 07A20030,
2004 WL 1084818, at *5 (May 10, 2004) (holding that the agency committed
disability discrimination when it withdrew the reasonable accommodation that
allowed the appellant to perform the essential functions of his position). Thus,
the appellant made a nonfrivolous allegation that satisfied the third prong of the
test for involuntary retirement. See SanSoucie, 116 M.S.P.R. 149, ¶ 15. Because
8
the appellant’s allegations, taken as true, could support a finding that her
disability retirement was involuntary, she is entitled to a jurisdictional hearing. 7
Cf. Atkins v. Department of Commerce, 81 M.S.P.R. 246, ¶¶ 9–11 (1999)
(remanding the appeal to give the appellant an additional opportunity to establish
that his disability retirement was involuntary based on allegations that he applied
for retirement, not because he wanted to retire, but to force the agency to reassign
him to a less stressful and physically-demanding position that would not
aggravate his underlying condition).
7
The record shows that, in April 2014 when the appellant applied for disability
retirement, she had exhausted her leave, and the agency carried her in LWOP status
while her application was pending. However, when the appellant withdrew her
application, the agency placed the appellant in AWOL status, notwithstanding that her
physicians had certified that she was incapacitated for duty during that period of time,
IAF, Tab 4, Subtab H, and proposed her removal on that basis, id., Subtab K. As noted,
the administrative judge found that the appellant failed to make a nonfrivolous
allegation of jurisdiction under the general test for involuntary retirement, finding in
part that the appellant failed to show that the agency’s notice of proposed removal
based on AWOL could not be substantiated. ID at 13. We do not reach the issue of
whether the appellant made a nonfrivolous allegation of involuntary retirement under
the general test, and thus do not make any determination whether the agency’s placing
the appellant in AWOL status after she rescinded her application for disability
retirement could be substantiated. See Wesley v. U.S. Postal Service, 94 M.S.P.R. 277,
¶ 18 (2003) (“A charge of AWOL will not be sustained if the appellant presents
evidence to the Board showing that he was incapacitated for duty during the relevant
time period.”); Murray v. Department of the Navy, 41 M.S.P.R. 260, 263 (1989)
(discussing that, in cases involving medical excuses, the Board will examine the record
as a whole to determine whether the agency’s denial of LWOP was reasonable under
the circumstances).
9
ORDER
¶14 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.