The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANDREA DUGGAR, DOCKET NUMBER
Appellant, CH-844E-16-0419-I-2
v.
OFFICE OF PERSONNEL DATE: April 19, 2022
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Kevin A. Graham, Esquire, Liberty, Missouri, for the appellant.
Shawna Hopkins, Washington, D.C., for the agency.
BEFORE
Raymond A. Limon, Vice Chair
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed the reconsideration decision of the Office of Personnel Management
(OPM) that disallowed her application for disability retirement under the Federal
Employees’ Retirement System (FERS). Generally, we grant petitions such as
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
this one only in the following circumstances: 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 o f 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 outc ome 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. 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).
BACKGROUND
¶2 The appellant was employed as a Revenue Officer at the Internal Revenue
Service (the agency). Duggar v. Office of Personnel Management, MSPB Docket
No. CH-844E-16-0419-I-1, Initial Appeal File (IAF), Tab 11 at 5. The agency
decided to remove her on the basis of misconduct effective February 21, 2014 .
IAF, Tab 5 at 237-41, Tab 11 at 6. On March 21, 2014, the appellant filed a
Board appeal challenging the removal. Duggar v. Department of the Treasury,
MSPB Docket No. CH-0752-14-0373-I-1, Initial Appeal File (0373 IAF), Tab 1.
On October 17, 2014, the agency and the appellant entered into a settlement of
that Board appeal and a pending equal employment opportunity complaint in
which the agency agreed to cancel the removal effective February 21, 2014, and
allow her to resign, after a period of leave without pay (LWOP), on December 13,
2014. 0373 IAF, Tab 16. After being allowed several additional periods of
LWOP, the appellant resigned from her position, effective June 12, 2015. IAF,
Tab 5 at 295-302, Tab 11 at 6.
3
¶3 Prior to her resignation, on December 1, 2014, the appellant submitted her
application for disability retirement. IAF, Tab 5 at 16 -18. OPM disallowed her
application on September 8, 2015, finding that she had submitted insufficient
evidence regarding the level of any medical impairment in contrast to her ability
to perform the duties and responsibilities of her job, or that her conditions were
of the magnitude to either prevent her from performing useful and efficient
service or warrant total absence from the workplace. Id. at 9-14. The appellant
filed a request for reconsideration of that decision. Id. at 8. In response to her
request, on May 19, 2016, OPM issued a reconsideration decision again
disallowing her application. Id. at 4-7. OPM found that she had not submitted
sufficient current medical evidence of a condition or combination of conditions
that was severe enough to warrant restriction from the workplace or that affected
either her attendance or the successful performance of her job. Id. at 6. OPM
also found that she did not establish that her conditions were beyond medical
management. Id. Further, OPM stated that the agency attempted to provide the
appellant an accommodation, which was found to be reasonable, and that she was
removed for misconduct. Id.
¶4 The appellant filed the instant Board appeal challenging OPM’s
reconsideration decision. IAF, Tab 1. After conducting the appellant’s requested
hearing, the administrative judge issued an initial decision that affirmed the
reconsideration decision. 2 Duggar v. Office of Personnel Management, MSPB
Docket No. CH-844E-16-0419-I-2, Refiled Appeal File (RAF), Tab 15, Refiled
Initial Decision (RID).
¶5 The appellant has filed a petition for review, and OPM has responded in
opposition to her petition. Petition for Review (PFR) File, Tabs 1, 3.
2
The administrative judge dismissed the appeal without prejudice and it was
automatically refiled. IAF, Tab 20, Initial Decision; RAF, Tab 1.
4
DISCUSSION OF ARGUMENTS ON REVIEW
¶6 To qualify for disability retirement benefits under FERS, an individual must
meet the following requirements: (1) the individual must have completed at least
18 months of creditable civilian service; (2) the individual, while employed in a
position subject to FERS, must have become disabled because of a medical
condition resulting in a deficiency in performance, conduct, or attendance, or if
there is no such deficiency, the disabling medical condition must be incompatible
with either useful and efficient service or retention in the position; (3) the
disabling medical condition must be expected to continue for at least 1 year from
the date the disability retirement benefits application is filed; (4) accommodation
of the disabling medical condition in the position held must be unreasonable; and
(5) the individual must not have declined a reasonable offer of reassignment to a
vacant position. 3 5 U.S.C. § 8451(a); Henderson v. Office of Personnel
Management, 109 M.S.P.R. 529, ¶ 8 (2008); 5 C.F.R. § 844.103(a). An
individual bears the burden of proving her entitlement to disability retirement
benefits by preponderant evidence. 4 Henderson, 109 M.S.P.R. 529, ¶ 8; 5 C.F.R.
§§ 1201.4(q), 1201.56(b)(2)(ii).
¶7 The administrative judge found that the appellant did not show that her
medical condition caused a deficiency in her performance. RID at 11-12. In so
finding, she considered that the agency previously removed the appellant and
attempted, but ultimately did not deny her a within-grade increase. RID at 11.
However, the administrative judge found that the appellant’s performance was
rated as “fully successful” and that the removal had been based on misconduct.
3
It is undisputed that the appellant completed at least 18 months of creditable civilian
service under FERS. IAF, Tab 5 at 290, Tab 11 at 5.
4
A preponderance of the evidence is that degree of relevant evidence that a reasonable
person, considering the record as a whole, would accept as sufficient to find th at a
contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).
5
Id. She also found that the appellant did not demonstrate that her medical
condition prevented her from standing or driving. RID at 11 -12.
¶8 Next, the administrative judge found that the appellant did not show that her
medical condition caused a deficiency in her attendance because there was no
evidence that her attendance was deficient after the agency placed her on a leave
restriction, the proposed removal did not reference attendance issues, and her
LWOP after the settlement agreement was unrelated to attendance issues. RID
at 12-13. The administrative judge also found that the appellant had not shown
that her condition caused a deficiency in her conduct because she did not
establish that the misconduct underlying her removal, such as threatening
taxpayers, was related to her condition. RID at-14-15. Further, the
administrative judge concluded that the appellant did not establish tha t her
medical condition was inconsistent with working in general, working in a
particular line of work, or working in a particular type of setting because, among
other things, she did not appeal her Social Security Administration (SSA) denial
and she acknowledged working 3 to 7.5 hours per day in another position. 5 RID
at 15-19. Last, the administrative judge stated that the appellant is not entitled to
disability retirement benefits because she did not demonstrate that she was
seeking to control her conditions through mental health treatment and through
controlling her morbid obesity. RID at 19.
5
Although we have considered SSA’s denial of benefits, it is not binding upon us. See
Bray v. Office of Personnel Management, 97 M.S.P.R. 209, ¶¶ 20, 23 (2004). We also
are mindful that the appellant’s ability to work in another position, if the position
involves duties and responsibilities that are different than her previously held position,
does not by itself exclude her from entitlement to disability retire ment benefits. See
5 U.S.C. § 8451(a); Angel v. Office of Personnel Management, 122 M.S.P.R. 424, ¶ 14
(2015) (finding that the appellant’s application for full -time positions and her
employment in various part-time positions did not exclude her from eligibility for
disability retirement benefits because she showed that her m igraine headaches
prevented her from performing the duties of her previously held Biological Science
Laboratory Technician position); 5 C.F.R. § 844.103(a).
6
The appellant is not entitled to disability retirement benefits because she failed to
establish the extent to which her conditions can be controlled.
¶9 The appellant asserts that the record is sufficient to establish the
significance of her medical conditions and pain and argues that OPM has not
refuted this evidence. 6 PFR File, Tab 1 at 13. She points to the opinion of the
doctor of osteopathy, who has treated her for at least 8 years, because he offered
numerous opinions about her inability to work while demonstrating significant
knowledge of her previous position. Id.; RAF, Tab 12 at 6-9. She states that he
also described how her conditions and medications affected her ability to render
useful and efficient service and maintain adequate performance, attendance, and
conduct. PFR File, Tab 1 at 13; RAF, Tab 12 at 6-9. She asserts that her
testimony and that of her domestic partner and coworker demonstrate t hat her
performance and attendance suffered at the end of her employment due to her
medical conditions. PFR File, Tab 1 at 14; RAF, Tab 14, Hearing Compact Disc,
Tracks 1-3. She further points to OPM’s evidence that establishes her deficient
attendance and leave usage. PFR File, Tab 1 at 14; IAF, Tab 5 at 252-79, Tab 10
at 10-18.
¶10 We have considered the appellant’s arguments. However, the Board has
repeatedly held that an applicant is not entitled to disability benefits when she
fails or refuses to accept normal treatment. See, e.g., Smedley v. Office of
Personnel Management, 108 M.S.P.R. 31, ¶ 23 (2008). Thus, unfortunately, she
is not entitled to disability retirement benefits because she did not comply with
her doctors’ advice to control her morbid obesity. RID at 19 -20; IAF, Tab 5
at 84; RAF, Tab 4 at 131-32, 136.
6
The doctor of osteopathy noted that the appellant experienced the following
conditions: fibromyalgia, limb pain, hand paresthesia, B-12 deficiency, Spina-Bifida
Occulata, Stein-Leventhal syndrome, obesity, whole body pain, irritable bowel
syndrome, anxiety, depression, migraines, degenerative disc disease, osteoarthritis,
hypertension, muscle spasms, spondylosis, carpel tunnel syndrome, and peripheral
neuropathy. RAF, Tab 12 at 5-6.
7
We consider that the appellant applied for disability retiremen t benefits in the
face of an impending removal.
¶11 The appellant argues that the administrative judge should not have relied
upon the rescinded removal in determining her eligibility for disability retirement
benefits because the agency agreed to expunge it f rom her record in the
settlement agreement. PFR File, Tab 1 at 15-17; RID at 5-6, 11-14, 17; 0373
IAF, Tab 16 at 4; IAF, Tab 5 at 237-50, 302. She notes that the agency submitted
both the proposal and the removal letters and that both the supervisor’s st atement
and the reassignment and accommodation form reference the removal. PFR File,
Tab 1 at 15; IAF, Tab 5 at 20, 22, 237-50, 302. In support of her argument, the
appellant cites Conant v. Office of Personnel Management, 255 F.3d 1371,
1375-76 (Fed. Cir. 2001), for the proposition that the initial decision must be
overturned because the agency fundamentally breached the settlement agreement
by injecting evidence that it agreed not to submit. PFR File, Tab 1 at 16-17.
¶12 In Conant, the U.S. Court of Appeals for the Federal Circuit determined that
the agency breached a settlement agreement when it submitted documents
regarding the appellant’s proposed removal that it had agreed to rescind.
255 F.3d at 1376-77. Further, the court found that, although the agency promised
to use its best efforts to effectuate the appellant’s disability retirement,
submitting these documents actually undermined her application to a degree. Id.
Here, the agency agreed to make its best effort to send n otice to OPM advising
that the appellant was reinstated. 0373 IAF, Tab 16 at 4. However, unlike in
Conant, the agency did not agree to make its best efforts to effectuate the
appellant’s disability retirement. Id. at 4, 6.
¶13 While removal for misconduct does not preclude receipt of disability
retirement benefits, an applicant’s request for disability retirement in the face of a
pending removal for misconduct may cast doubt upon the veracity of the
application. Henderson, 109 M.S.P.R. 529, ¶ 9. Thus, since Conant, the Board
has clarified that OPM and the Board may consider evidence of a cancelled
8
removal when the agreement to cancel the removal was an attempt to allow the
applicant to qualify for retirement benefits and as a relevant factor detracting
from the application. See, e.g., Stevenson v. Office of Personnel Management,
103 M.S.P.R. 481, ¶¶ 11-12 (2006) (finding that the administrative judge should
have considered evidence of a cancelled removal action for alleged misconduct in
adjudicating the appellant’s disability retirement application because his failure
to submit his application until after his removal for misconduct was relevant and
detracted from his application).
¶14 Here, the appellant did not apply for disability retirement benefits until
after her removal and the settlement agreement rescinding it. IAF, Tab 5
at 16-18; 0373 IAF, Tab 16. We find that this timing casts doubt as to the
veracity of her application. See Wall v. Office of Personnel Management,
116 M.S.P.R. 188, ¶ 15 (2010) (finding that doubt regarding the appellant’s
assertions of disability was appropriate when his asserted symptoms coincided
with his termination), aff’d, 417 F. App’x 952 (Fed. Cir. 2011). Further, she was
reinstated for several periods of LWOP and applied for disability retirement
benefits thereafter, but she was never returned to duty. IAF, Tab 5 at 16 -18, 252,
Tab 11 at 6; 0373 IAF, Tab 16. Thus, it appears that her reinstatement
constituted an attempt to allow her to apply for disability retirement.
Accordingly, we find that the administrative judge properly considered the
appellant’s application for disability retirement benefits after she had been
removed for misconduct in rendering a decision.
¶15 The appellant also states that the administrative judge should not have
considered her disability retirement application as having been made on the basis
of an imminent removal because the settlement agreement rescinding the removal
was signed in October 2014, and she did not file her disability retirement
application until December 2014. PFR File, Tab 1 at 16; 0373 IAF, Tab 16 at 7;
IAF, Tab 5 at 292-94. We disagree. The settlement agreement, which was signed
on October 15, 2014, states that the appellant agreed to resign and would be
9
carried in an LWOP status until December 13, 2014, regardless of any OPM
actions or decisions concerning her retirement contributions. 0373 IAF, Tab 16
at 6. Although the appellant signed the settlement agreement rescinding the
removal in October 2014, she submitted her application while she was already
placed on LWOP status. 0373 IAF, Tab 16; IAF, Tab 5 at 16 -18, Tab 11 at 6.
We find that she submitted her application for disability retirement benefits after
she knew that she would resign and prior to the last day of her LWOP status and
that this constitutes a resignation in the face of a removal.
¶16 We conclude that the appellant has not established the extent to which her
medical conditions could be controlled and that her application for disability
retirement benefits in the face of her removal further detracts from her case.
Accordingly, we affirm OPM’s reconsideration decision that denied the
appellant’s application for disability retirement benefits.
NOTICE OF APPEAL RIGHTS 7
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
7
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
10
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit 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, 10, 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 visi t 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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination. This option applies to you only if you have claimed that you
11
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims—by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court-appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their resp ective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
Alternatively, you may request review by the Equal Employm ent
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
12
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction. 8 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
8
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
13
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to t he court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit 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, 10, 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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the lin k below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.