# Erol Taskin v. Department of Veterans Affairs

> Merit Systems Protection Board · January 24, 2024

URL: https://www.frixlaw.com/law-library/cases/9926760

## Case

- **Court:** Merit Systems Protection Board
- **Decided:** January 24, 2024
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9926760

## How later opinions describe it (automated extraction)

- holding that an appellant must receive explicit information on what is required to establish an appealable jurisdictional issue

## Opinion text

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THIS ORDER IS NONPRECEDENTIAL 1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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
3

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
4

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
6

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9926760. Public record. Not legal advice.