The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
AMY THOMAS, DOCKET NUMBER
Appellant, SF-844E-20-0289-I-1
v.
OFFICE OF PERSONNEL DATE: February 5, 2024
MANAGEMENT,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Amy Thomas , Yerington, Nevada, pro se.
Albert Pete Alston, Jr. , Washington, D.C., 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
affirmed the reconsideration decision of the Office of Personnel Management
(OPM) that denied her application for disability retirement under the Federal
Employees’ Retirement System (FERS). 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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.
BACKGROUND
The appellant began working for the U.S. Postal Service (USPS) on
November 11, 2006, and she occupied a Rural Carrier position at the time
relevant to this appeal. Initial Appeal File (IAF), Tab 5 at 10, Tab 11 at 14.
Effective July 2, 2018, following her exhaustion of her Family Medical Leave Act
(FMLA) leave, the appellant entered the status of absent without leave (AWOL).
IAF, Tab 5 at 40, 57-60, 73, 82. The following day, on July 3, 2018, she applied
for FERS disability retirement annuity benefits with OPM. Id. at 73-76. The
appellant based her request for benefits on the following conditions: chronic
neck pain; cervical degenerative disc disease; cervical disc bulges; a cervical disc
extrusion; possible cervical fracture; asthma/frequent lower respiratory
infections; post-traumatic stress disorder; and chronic depression and anxiety. Id.
at 73. Thereafter, effective September 8, 2018, USPS terminated the appellant for
unacceptable attendance. Id. at 10. On October 15, 2018, the Social Security
Administration (SSA) determined that the appellant did not qualify for SSA
disability benefits. Id. at 36-39.
On April 10, 2019, OPM issued an initial decision concluding that the
appellant was not disabled for purposes of a FERS disability annuity. Id.
at 24-28. The appellant requested reconsideration of OPM’s initial decision, id.
at 18-19, 23, and, on January 28, 2020, the agency issued a reconsideration
decision again concluding that she was not entitled to disability retirement under
FERS, id. at 11-14. On February 28, 2020, the appellant appealed OPM’s
reconsideration decision to the Board. IAF, Tab 1. Although she initially
requested a hearing on the matter, id. at 2, the appellant subsequently withdrew
her hearing request in favor of a decision on the written record, IAF, Tab 7 at 4.
3
Based on the written record, the administrative judge issued an initial
decision affirming OPM’s reconsideration decision. IAF, Tab 13, Initial Decision
(ID) at 1, 19. In so doing, the administrative judge found that it was undisputed
that the appellant had completed the requisite 18 months of civilian service
creditable under FERS and that she had not declined a reasonable offer of
reassignment to a vacant position. ID at 14. She concluded, however, that the
appellant had not shown by preponderant evidence that she had become disabled
while in a position subject to FERS. ID at 14-19. In so finding, the
administrative judge explained that she “decline[d] to give the [appellant’s] SSA
decision weight one way or the other.” ID at 19. The administrative judge also
concluded that, although USPS had not sought to accommodate the appellant’s
medical conditions, there was no indication that the appellant had requested any
such accommodation. Id.
The appellant has filed a petition for review, and the agency has filed a
response. Petition for Review (PFR) File, Tabs 4, 6. In her petition for review,
the appellant avers that she was medically unable to perform her job functions.
PFR File, Tab 4 at 1-6. To this end, she asserts that she was on FMLA leave from
April 2018 until June 2018 and that, thereafter, she “still required extensive
amounts of leave for [her] medical conditions.” Id. at 3. She also asserts that
SSA had concluded that she was incapable of performing work that she had done
in the past. Id. Following the close of the record on review, the appellant filed a
request for leave to file an additional pleading, explaining that, on December 16,
2021, she received a subsequent, fully favorable SSA decision. PFR File, Tab 9
at 1.
DISCUSSION OF ARGUMENTS ON REVIEW
An appellant bears the burden of proving her entitlement to retirement
benefits by a preponderance of the evidence. 5 C.F.R. § 1201.56(b)(2)(ii). To be
eligible for a disability retirement annuity under FERS, an applicant must show
4
the following: (1) she completed at least 18 months of creditable civilian service;
(2) while employed in a position subject to FERS, she became 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 is
incompatible with either useful and efficient service or retention in the position;
(3) the disabling medical condition is expected to continue for at least 1 year
from the date that the application for disability retirement benefits was filed;
(4) accommodation of the disabling medical condition in the position held must
be unreasonable; and (5) she did not decline a reasonable offer of reassignment to
a vacant position. 5 U.S.C. § 8451(a); 5 C.F.R. § 844.103(a); see Thorne v.
Office of Personnel Management, 105 M.S.P.R. 171, ¶ 5 (2007).
An applicant for disability retirement may meet the requirements related to
the second criterion in one of two ways: (1) by showing that the medical
condition caused a deficiency in performance, attendance, or conduct; or (2) by
showing that the medical condition is incompatible with useful and efficient
service or retention in the position. See 5 U.S.C. § 8451(a)(1)(B); Rucker v.
Office of Personnel Management, 117 M.S.P.R. 669, ¶ 10 (2012); 5 C.F.R.
§ 844.103(a)(2). Under the first method, an individual can establish entitlement
by showing that the medical condition affects her ability to perform specific work
requirements, prevents her from being regular in attendance, or causes her to act
inappropriately. Jackson v. Office of Personnel Management, 118 M.S.P.R. 6, ¶ 8
(2012).
Here, as set forth in the initial decision, there is no dispute that the
appellant satisfied criterion (1) and criterion (5). ID at 14; PFR File, Tab 6 at 6.
Although the administrative judge concluded that the appellant failed to satisfy
criterion (2), ID at 19, she did not render explicit findings regarding the
remaining criteria, i.e., criterion (3) and criterion (4).
5
We remand this matter for the administrative judge to provide the parties with
notice regarding the Bruner presumption.
The appellant avers that she became disabled while employed by USPS.
PFR File, Tab 4 at 1-6. To this end, she contends that her medical conditions
required her to use “extensive amounts” of leave, i.e., that she satisfied the
second criterion because her medical conditions prevented her from being regular
in attendance. Id. at 3.
In Bruner v. Office of Personnel Management, 996 F.2d 290, 294 (Fed. Cir.
1993), the U.S. Court of Appeals for the Federal Circuit concluded that an
appellant’s removal for physical inability to perform the essential functions of her
position constitutes prima facie evidence that she is entitled to disability
retirement. 2 In so finding, the Federal Circuit explained that such a removal
action shifts the burden of production to OPM to produce evidence sufficient to
support a finding that the applicant is not entitled to disability retirement benefits.
Id. If OPM produces such rebuttal evidence, the appellant must then come
forward with evidence to rebut OPM’s assertion that she is not entitled to
benefits. Id. Notwithstanding the shifting burdens, however, the appellant
retains the burden of persuasion at all times to establish entitlement to disability
retirement benefits by preponderant evidence. Id. The Board has found that
removal for excessive absences is synonymous with removal for inability to
perform for medical reasons when the removal decision is accompanied by
specifications indicating that it was based on medical documentation showing that
the appellant was unable to perform her duties. See, e.g., Ayers-Kavtaradze v.
Office of Personnel Management, 91 M.S.P.R. 397, ¶ 11 (2002); see also
Smedley v. Office of Personnel Management, 108 M.S.P.R. 31, ¶¶ 12-13 (2008)
2
Although Bruner involved a disability retirement annuity under the Civil Service
Retirement System (CSRS), the Board has consistently applied the evidentiary
presumption set forth therein to appeals involving disability retirement benefits under
FERS. E.g., Bell v. Office of Personnel Management, 99 M.S.P.R. 133, ¶¶ 1, 10-12
(2005); McCurdy v. Office of Personnel Management, 96 M.S.P.R. 90, ¶¶ 1, 6-8 (2004).
Indeed, the statutory and regulatory requirements for disability retirement under CSRS
and FERS contain the same relevant language. Jackson, 118 M.S.P.R. 6, ¶ 7.
6
(explaining that the Board has applied the Bruner presumption based on physical
and/or psychological conditions). When an agency has removed an appellant for
such reasons, the administrative judge must inform the parties of their respective
burdens under Bruner. See Swadlo v. Office of Personnel Management,
100 M.S.P.R. 420, ¶ 9 (2005).
Here, documentation in the record evinced that, effective September 8,
2018, following her exhaustion of her FMLA leave, USPS terminated the
appellant based on a charge of unacceptable attendance. IAF, Tab 5 at 10, 40,
57-60, 73, 82. The record, however, was devoid of information regarding the
basis of the removal action, e.g., the decision letter or the notice of proposed
removal. 3 Ayers-Kavtaradze, 91 M.S.P.R. 397, ¶ 11 (stating that a charge must be
viewed in light of the accompanying specifications and circumstances). Because
the nature of the appellant’s removal may have implicated Bruner, the
administrative judge should have informed the parties of their respective burdens
under the same in order to allow them to submit evidence related thereto. See
Jones v. Office of Personnel Management, 75 M.S.P.R. 499, 502 (1997)
(explaining that the administrative judge must determine the basis for the
appellant’s removal, i.e., whether the Bruner presumption is applicable, before
determining the parties’ respective burdens of proof). The appellant, however,
did not receive notice of the Bruner presumption either prior to or in the initial
decision. Accordingly, we remand the appeal to the regional office for the
administrative judge to provide the parties with explicit notice of Bruner and to
allow for the submission of additional evidence. See Bell v. Office of Personnel
Management, 99 M.S.P.R. 133, ¶¶ 1, 10-12 (2005) (remanding a FERS disability
retirement appeal to provide the parties an opportunity to submit additional
3
Although OPM provided evidence suggesting that the appellant failed to provide
“proper [m]edical [d]ocumentation” to USPS to justify her AWOL status, IAF, Tab 5
at 57, this evidence did not make clear the underlying basis of the removal action.
Indeed, the record also contained documentary evidence indicating that USPS personnel
believed that any accommodation of the appellant was unfeasible “due to the severity of
[her] medical condition[s] and the physical requirements of [her] position.” Id. at 45.
7
evidence and argument when the administrative judge failed to inform them of
their respective burdens under Bruner); see also Ayers-Kavtaradze, 91 M.S.P.R.
397, ¶¶ 1, 11-12 (remanding a FERS disability retirement appeal when the
appellant was removed for having been on extended leave without pay status and
the administrative judge failed to provide the parties with notice of the Bruner
presumption). To the extent any such additional evidence implicates Bruner, the
administrative judge shall apply the appropriate burden of proof.
The administrative judge shall consider SSA’s disability determination on
remand.
In her petition for review, the appellant contends that SSA’s unfavorable
October 15, 2018 decision substantiates her entitlement to disability benefits.
PFR File, Tab 4 at 3. In her request for leave to file an additional pleading, she
explains that, on December 16, 2021, she received a subsequent, fully favorable
SSA decision. PFR File, Tab 9 at 1. In assessing disability retirement appeals,
the Board must consider an award of SSA disability benefits, along with the other
evidence of disability. Trevan v. Office of Personnel Management, 69 F.3d 520,
526 (Fed. Cir. 1995); see Redmond v. Office of Personnel Management ,
90 M.S.P.R. 4, ¶¶ 8, 10 (2001) (concluding that an award of SSA benefits was
material to a determination of whether the appellant was entitled to disability
retirement benefits under FERS). In her initial decision, the administrative judge
acknowledged SSA’s findings at the time the initial decision was issued, ID at 3;
however, she ambiguously indicated that, because “SSA generally does not
consider the availability of reasonable accommodation,” she “decline[d] to give
the SSA decision weight one way or the other,” ID at 18-19. On remand, the
administrative judge shall consider SSA’s findings in conjunction with the
medical evidence in the record. See McCurdy v. Office of Personnel
Management, 96 M.S.P.R. 90, ¶ 9 (2004) (concluding that remand was
8
appropriate when the administrative judge had not considered a favorable SSA
decision issued subsequent to the initial decision). 4
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: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
4
On remand, the appellant may provide the Board with SSA’s most recent decision as
well as any medical documentation on which SSA relied. See McCurdy, 96 M.S.P.R.
90, ¶ 10. On January 19, 2024, the appellant submitted a second motion for leave to
submit an additional pleading, requesting permission to submit evidence that she served
the agency with her petition for review. In light of the Board’s remand of this matter,
the appellant’s motion is denied.