Erol Taskin v. Department of Veterans Affairs

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

EROL O. TASKIN, DOCKET NUMBER

Appellant, SF-0752-19-0176-I-1

v.

DEPARTMENT OF VETERANS DATE: January 24, 2024

AFFAIRS,

Agency.

THIS ORDER IS NONPRECEDENTIAL 1

Erol O. Taskin , Orlando, Florida, pro se.

Vanessa Lichtenberger , San Francisco, California, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

REMAND ORDER

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

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

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

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

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

BACKGROUND

Effective September 1, 2017, the appellant resigned from a Medical

Technician position with the agency’s Veterans Health Administration in Palo

Alto, California. Initial Appeal File (IAF), Tab 6 at 178-80.

The appellant filed the instant appeal with the Board, and he did not

request a hearing. IAF, Tab 1 at 1-6. He checked the boxes on the initial appeal

form indicating that he was appealing the following actions: failure to

restore/reemploy/reinstate or improper restoration/reemployment/reinstatement;

involuntary resignation; and involuntary retirement. Id. at 2. The appellant

alleged that he began working a modified-duty schedule due to an on-the-job

injury from March 31, 2016, until he became fully disabled in a “spora[d]ic

period while attempting to return to full duty status,” but his requests for

“alternative work opportunities” after July 4, 2017, were “routinely ignored.” Id.

In an Acknowledgment Order, the administrative judge informed the

appellant that the Board might not have jurisdiction over his appeal, apprised him

of his jurisdictional burden regarding an involuntary resignation or retirement

claim, and ordered him to file evidence and argument amounting to a

nonfrivolous allegation that his resignation or retirement is a matter within the

Board’s jurisdiction. IAF, Tab 2 at 2-4. In response, the appellant alleged,

among other things, that he was forced to resign based on the following

circumstances: in the months prior to his resignation, the agency had refused to

provide him with light or limited duty or a new assignment when he had

submitted evidence of his return-to-work capabilities; based on information from

the Office of Workers’ Compensation Programs (OWCP) and the Office of

Personnel Management (OPM), he believed he had to take imminent action to

preserve his Federal employee health benefits as a result of accruing multiple

weeks of leave-without-pay status; and the agency would not return him to work

without additional medical information that he believed was unnecessary and

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burdensome to provide. IAF, Tab 5 at 5-6. He further claimed that the agency

discriminated against him by failing to accommodate his disability. Id. at 5.

In addition, the appellant submitted a copy of an email exchange indicating

that he made a written request to return to work on Sunday, September 3, 2017.

Id. at 14-15. A Laboratory Manager told him that he could return to work on

Tuesday, September 5, 2017, and asked him for updated medical documentation.

Id. The appellant responded that his request to return on September 3 was not

alterable and he would not provide updated medical documentation. Id. at 14.

The Laboratory Manager replied that he could not return to work without updated

medical documentation. Id.

The administrative judge issued a jurisdictional order regarding a potential

claim of involuntary disability retirement. IAF, Tab 7. In response, the appellant

clarified that he has not applied for disability retirement. IAF, Tab 8 at 4. The

agency requested the Board to dismiss the appeal for lack of jurisdiction. IAF,

Tab 6 at 11, Tab 9 at 4-5.

Based on the written record, the administrative judge issued an initial

decision granting the agency’s motion to dismiss the appeal for lack of

jurisdiction. IAF, Tab 11, Initial Decision (ID) at 1, 10-11. Specifically, she

found that the appellant failed to make nonfrivolous allegations of jurisdiction

regarding his constructive removal claim. ID at 6, 9-11.

The appellant has filed a petition for review challenging the administrative

judge’s jurisdictional findings. Petition for Review (PFR) File, Tab 1 at 4-7. The

agency has filed a response, PFR File, Tab 3, to which the appellant has replied,

PFR File, Tab 4.

DISCUSSION OF ARGUMENTS ON REVIEW

We remand this appeal to provide the appellant with proper jurisdictional notice

and an opportunity to establish the Board’s jurisdiction over a restoration claim.

The Federal Employees’ Compensation Act and OPM’s implementing

regulations at 5 C.F.R. part 353 provide, among other things, that Federal

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employees who suffer compensable injuries enjoy certain rights to be restored to

their previous or comparable positions. Hamilton v. U.S. Postal Service,

123 M.S.P.R. 404, ¶ 9 (2016); see 5 U.S.C. § 8151(b). 2 Under OPM’s

regulations, such employees have different substantive rights based on whether

they have fully recovered, partially recovered, or are physically disqualified from

their former or equivalent positions. Hamilton, 123 M.S.P.R. 404, ¶ 9; 5 C.F.R.

§ 353.301. Pursuant to 5 C.F.R. § 353.304, the Board has jurisdiction over

certain restoration claims. To establish the Board’s jurisdiction over a restoration

claim, an appellant must make nonfrivolous allegations 3 regarding the substantive

jurisdictional elements applicable to the particular restoration claim. 5 C.F.R.

§ 1201.57(b). Once jurisdiction has been established, an appellant must prove the

merits of his restoration claim by a preponderance of the evidence. 4 5 C.F.R.

§ 1201.57(c)(4).

Here, we find that the appellant raised a restoration claim in his initial

appeal because he checked the box indicating as such and alleged that, after

working a modified-duty schedule due to an on-the-job injury and being

“sporadically” disabled, he unsuccessfully attempted to return to full-duty status.

IAF, Tab 1 at 2. We further find that, based on his subsequent pleadings and

supporting documentation, he has continued to pursue a restoration claim

throughout this appeal and on review. PFR File, Tab 1 at 6, Tab 4 at 4; IAF,

Tab 5 at 5-6, 14-15, Tab 8 at 4-5, 12, 14-15; see Hosozawa v. Department of

Veterans Affairs, 113 M.S.P.R. 110, ¶ 7 (2010) (observing that pro se filings are

to be construed liberally). In particular, the appellant submitted medical

2

A compensable injury is defined as one that is accepted by OWCP as job-related and

for which medical or monetary benefits are payable from the Employees’ Compensation

Fund. Hamilton, 123 M.S.P.R. 404, ¶ 14.

3

A nonfrivolous allegation is an assertion that, if proven, could establish the matter at

issue. 5 C.F.R. § 1201.4(s).

4

A preponderance of the evidence is the degree of relevant evidence that a reasonable

person, considering the record as a whole, would accept as sufficient to find that a

contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).

5

documentation reflecting that he had a temporary total disability from January 23

through July 4, 2017, and he could return to light duty with certain restrictions on

July 5, 2017. IAF, Tab 8 at 12, 14-15. In addition, as described above, he

provided a copy of an email exchange showing that he made a written request to

return to work on September 3, 2017, but the agency ultimately responded that he

could not return to work unless he provided updated medical documentation.

IAF, Tab 5 at 14-15.

However, the administrative judge did not address a potential restoration

claim, and the appellant did not receive any notice of how to establish Board

jurisdiction over a restoration claim, either through the administrative judge’s

orders or initial decision or the agency’s pleadings. ID at 1-11; IAF, Tab 2

at 2-4, Tab 6 at 7-8, Tabs 7, 9; see Burgess v. Merit Systems Protection Board,

758 F.2d 641, 643-44 (Fed. Cir. 1985) (holding that an appellant must receive

explicit information on what is required to establish an appealable jurisdictional

issue). Because the nature of the appellant’s restoration claim is unclear based on

the current record and he did not have an opportunity to address the applicable

jurisdictional elements, we must remand the appeal for further adjudication. See

Brehmer v. U.S. Postal Service, 106 M.S.P.R. 463, ¶¶ 10, 15 (2007) (remanding

the appeal to, among other things, provide the appellant with proper jurisdictional

notice and an opportunity to establish Board jurisdiction over his restoration

claim). On remand, the administrative judge shall afford the appellant the

opportunity to establish Board jurisdiction over a restoration claim after

providing him with proper jurisdictional notice. See id.

On remand, the administrative judge shall make a new jurisdictional

determination on the appellant’s constructive removal claim after allowing further

development of the record.

An employee may establish the Board’s jurisdiction over an alleged

involuntary resignation as a constructive removal by proving, among other things,

that he lacked a meaningful choice in the matter, and it was the agency’s

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wrongful actions that deprived him of that choice. Bean v. U.S. Postal Service,

120 M.S.P.R. 397, ¶¶ 7-8, 11 (2013). To overcome the presumption that a

resignation is voluntary, an employee may show, for instance, that his resignation

was the product of agency misinformation, deception, or coercion. Vitale v.

Department of Veterans Affairs, 107 M.S.P.R. 501, ¶ 19 (2007). To establish

involuntariness on the basis of coercion, an employee must show that the agency

effectively imposed the terms of his resignation, he had no realistic alternative

but to resign, and his resignation was the result of improper agency acts. Id. The

touchstone of a voluntariness analysis is whether, considering the totality of the

circumstances, factors operated on the employee’s decision-making process that

deprived him of freedom of choice. Id.

Here, the administrative judge dismissed the appeal for lack of jurisdiction,

finding that the appellant failed to make nonfrivolous allegations of jurisdiction

regarding his constructive removal claim. ID at 1, 6, 9-11. Specifically, she

found that the appellant’s statement that his requests for “alternative work

opportunities” were ignored was too generalized and conclusory to constitute a

nonfrivolous allegation. ID at 9. She further found that he was not compelled to

resign because the agency allowed him to return to work on September 5, 2017,

and the agency’s request for updated medical documentation was reasonable. ID

at 9-10. In addition, she found that he resigned based on his understanding of

healthcare costs and benefits—not improper actions by his employing agency. ID

at 10.

We find that the administrative judge failed to consider the appellant’s

argument that he resigned based, in part, on the agency’s violation of his

restoration rights. IAF, Tab 5 at 6. In particular, the administrative judge found

that the agency allowed the appellant to return to work on September 5, 2017, and

the agency did not act improperly in denying his request to return on

September 3, 2017. ID at 9-10. However, there is contrary record evidence

indicating that the agency ultimately told him that he could not return to work in

7

September 2017 without updated medication documentation. IAF, Tab 5

at 14-15. Further, the administrative judge did not acknowledge the appellant’s

allegations of disability discrimination based on a failure to accommodate. Id.

at 5; see Vitale, 107 M.S.P.R. 501, ¶ 20 (explaining that the Board addresses

allegations of discrimination in connection with an alleged involuntary

resignation only insofar as they relate to the issue of voluntariness). Because we

find that the administrative judge failed to consider the totality of the

circumstances in determining whether the Board has jurisdiction over the

appellant’s constructive removal claim, we vacate the initial decision and remand

the appeal for a new jurisdictional determination on his constructive removal

claim. See Brehmer, 106 M.S.P.R. 463, ¶¶ 5, 14-15 (remanding the appeal for the

administrative judge to conduct a new jurisdictional analysis of the appellant’s

constructive removal claim by, in part, considering the pertinence of his related

restoration claim).

Moreover, the appellant clearly indicated on the initial appeal form that he

did not want a hearing, IAF, Tab 1 at 1, and he has not requested a hearing on

review, PFR File, Tab 1. In addition, he did not request a hearing within the time

period specified in the Acknowledgment Order. IAF, Tab 2 at 1-2. Therefore, we

find that the appellant made an informed decision to waive his right to a hearing

by clear, unequivocal, and decisive action. See Axsom v. Department of Veterans

Affairs, 110 M.S.P.R. 605, ¶ 10 (2009). Because the appellant waived his right to

a hearing, the relevant inquiry on remand is whether he has proven Board

jurisdiction over his constructive removal claim by a preponderance of the

evidence based on the written record. Id. Accordingly, on remand, the

administrative judge shall allow the parties a full and fair opportunity to develop

the record on this issue before making a new jurisdictional determination. 5 See

5

Because we find that this appeal must be remanded for further development of the

record for the foregoing reasons, we make no finding regarding the appellant’s

allegedly new and material evidence that he has included with his petition for review.

PFR File, Tab 1 at 4, 9-11. To the extent the appellant believes that any of the

8

5 C.F.R. § 1201.59(b) (providing that, if the appellant waives the right to a

hearing, the record will close on the date the administrative judge sets as the final

date for the receipt or filing of submissions of the parties); see also Benson v.

Office of Personnel Management, 83 M.S.P.R. 549, ¶¶ 4-5 (1999) (finding that

the administrative judge erred by failing to set a close-of-record date).

ORDER

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: ______________________________

Jennifer Everling

Acting Clerk of the Board

Washington, D.C.

documentation that he has submitted on review is relevant to whether the Board has

jurisdiction over his restoration and/or constructive removal claims, he may resubmit

such documentation on remand.