Opinion

Charlotte Cross v. Department of Veterans Affairs

Court: Merit Systems Protection Board
Filed: Feb 14, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.2%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

CHARLOTTE L. CROSS, DOCKET NUMBER

Appellant, CH-0752-16-0411-I-2

DEPARTMENT OF VETERANS DATE: February 14, 2024

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Denise J. Knecht , Esquire, Cleveland, Ohio, for the appellant.

Amber Groghan , Esquire, Akron, Ohio, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

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

dismissed her involuntary resignation appeal for lack of jurisdiction. Generally,

we grant petitions such as 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

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

application of 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 outcome 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).

Regarding her claim that she was forced to resign because the agency

would not grant her reasonable accommodation request, the appellant asserts that

the administrative judge failed to consider all of her evidence, took a biased and

incomplete view of witness testimony, did not consider that the agency violated

Federal law and agency policy, and raised issues not previously raised in the

record or presented at the hearing. Petition for Review (PFR) File, Tab 1 at 4.

These arguments are not persuasive.

For instance, the appellant challenges the administrative judge’s statement

that she (the appellant) did not consider options such as using public

transportation that would allow her to sit or stand, using private transportation,

getting a ride to and from the agency, or driving with intermittent stops to break

up the commute. PFR File, Tab 1 at 10-11; see Cross v. Department of Veterans

Affairs, MSPB Docket No. CH-0752-16-0411-I-2, Appeal File, Tab 39, Initial

Decision (ID) at 14. The appellant also challenges the administrative judge’s

statement that it was curious that she (the appellant) asserted that her

osteoarthritis prevented her from “all methods of traveling a distance of

45 minutes from her home” but did not preclude her from traveling 15 minutes to

“her self-owned coffee shop and then putting in a full day of work.” PFR File,

Tab 1 at 11-12; ID at 14-15. Additionally, the appellant asserts that the

administrative judge improperly noted that she did not try the agency’s offered

accommodation, she could have sought reconsideration of her accommodation

request, she could have renewed a formal request for accommodation after the

expiration of her leave under the Family and Medical Leave Act of 1993, she

could have supplemented the medical evidence that she provided to the agency,

and/or she could have pursued the Equal Employment Opportunity Commission

process while remaining at the agency. PFR File, Tab 1 at 12-13; ID at 15-16.

On review, the appellant’s attorney explains why other commuting options

were not feasible options. PFR File, Tab 1 at 10-12. However, the statements of

a party’s representative in a pleading do not constitute evidence, Hendricks v.

Department of the Navy, 69 M.S.P.R. 163, 168 (1995), and no affidavit or

declaration from the appellant was provided on review. Therefore, we do not

consider the attorney’s explanations in our analysis of this matter. Moreover, it is

appropriate for the administrative judge to consider inconsistencies in the record

and other legal and practical options that were available to the appellant at the

time of her resignation in order to evaluate whether her resignation was

involuntary. See, e.g., Miller v. Department of Defense, 85 M.S.P.R. 310, ¶¶ 10,

30, 32 (2000) (finding that the appellant failed to prove that the agency created

working conditions so intolerable that a reasonable person in her position would

have felt compelled to resign considering, among other things, that four agency

managers advised her of other options, such as filing a grievance, utilizing a

mediator, or taking some leave or leave without pay to consider the situation); see

also Hillen v. Department of the Army, 35 M.S.P.R. 453, 458 (1987) (noting that

witness character, prior inconsistent statements, and the contradiction of the

witness’s version of events by other evidence are relevant factors to consider in

assessing credibility). Accordingly, these arguments are without merit. 2

The agency has filed a motion to strike the appellant’s reply brief and correction to her

reply brief. PFR File, Tabs 4-6. We have considered the agency’s arguments, but we

deny this motion.

NOTICE OF APPEAL RIGHTS 3

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.

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:

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.

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.

(2) Judicial or EEOC review of cases involving a claim of

discrimination . This option applies to you only if you have claimed that you

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. 420 (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 respective

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 Employment

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:

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. 4 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).

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 the court at the