Opinion

Joanne Kendall v. Department of Defense

Court: Merit Systems Protection Board
Filed: May 1, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.9%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JOANNE KENDALL, DOCKET NUMBER

Appellant, AT-0752-18-0127-I-1

DEPARTMENT OF DEFENSE, DATE: May 1, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Nancy M. Kirby , Esquire, Prattville, Alabama, for the appellant.

Sterling Deramus , Esquire, Birmingham, Alabama, for the appellant.

Brandon Roby , Esquire, Fort Meade, Maryland, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

FINAL ORDER

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

dismissed her constructive removal 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 application

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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).

BACKGROUND

¶2 The appellant was a GS-12 Information Technology Specialist for the

agency’s Defense Intelligence Systems Agency (DISA). Initial Appeal File

(IAF), Tab 15 at 23. When the appellant was initially hired in 2010, she worked

the day shift, with duty hours of 7:00 a.m. to 3:00 or 4:00 p.m. IAF, Tab 15

at 25; Hearing Recording (HR), Track 1 at 4:45 (testimony of the appellant). In

2013, the appellant’s office underwent a reorganization, and the agency moved

her to the swing shift, with duty hours of 2:00 p.m. to 11:00 p.m. IAF, Tab 30

at 13-14; HR, Track 1 at 5:40 (testimony of the appellant). In May 2016, the

appellant applied for leave under the Family and Medical Leave Act of 1993

(FMLA) in order to help care for her husband, who had been diagnosed with

cancer, and the agency returned her to the day shift in order to help accommodate

her schedule. IAF, Tab 30 at 16-17; HR at 6:20 (testimony of the appellant).

¶3 Sometime around December 2, 2016, the appellant’s office underwent

another reorganization, and the agency informed her that it was moving her back

to the swing shift, Tuesday through Saturday, effective December 25, 2016.

IAF, Tab 30 at 8, 10. On December 2, 2016, the appellant emailed her first- and

second-line supervisors, asking them to reconsider placing her on the swing shift.

Id. at 8. The appellant cited her husband’s health, anticipating that she would

need to help care for him until at least the following April, as well as her own

health, which she stated had been affected by her previous time on the swing

shift. 2 Id. She stated that she would probably need to ask for a reasonable

accommodation. Id. The appellant also included on the email the human

resources Field Advisor who had been her point of contact regarding her FMLA,

and stated that they needed to touch base regarding her FMLA status. Id.

On December 12, 2016, the appellant submitted medical documentation to support

her request for reasonable accommodation. IAF, Tab 12 at 5, Tab 14 at 40-42.

Her claimed disabling condition was sleep apnea, and her requested

accommodation was to be allowed to remain on the day shift. IAF, Tab 14

at 40-42.

¶4 The agency did not act on the appellant’s request, and on

December 25, 2016, her change to the swing shift went into effect. HR, Track 1

at 26:00 (testimony of the appellant). The appellant immediately began taking

large amounts of leave in the evenings and on Saturdays so that she could get to

bed earlier and care for her husband. Id. at 26:10, (testimony of the appellant).

Around the middle of January 2017, the appellant ran out of paid leave and began

to use leave without pay. HR, Track 1 at 29:20, Track 3 at 21:15, 32:10

(testimony of the appellant). On January 11, 2017, the appellant submitted a

request to participate in the agency’s Voluntary Leave Transfer Program (VLTP).

IAF, Tab 8 at 29; see 5 C.F.R. § 630.901 (explaining that a VLTP allows for the

transfer of the accrued, unused annual leave of one employee to another employee

who needs such leave because of a medical emergency). Despite the appellant’s

further efforts during the following month, the agency never reached a decision

on her VLTP or reasonable accommodation requests, although it did afford her an

In her email, the appellant refers to the swing shift as the “night shift.” IAF, Tab 30

at 8.

interim accommodation by allowing her to begin her tour of duty 2 hours earlier.

IAF, Tab 8 at 3, Tab 17 at 29. Then, on February 14, 2017, the agency informed

the appellant that her FMLA approval would expire in 15 days if she did not

provide updated information on her husband’s medical condition. IAF, Tab 8

at 75. On February 24, 2017, the appellant tendered her resignation, effective

February 27, 2017. IAF, Tab 5 at 23-24.

¶5 Having previously sought resolution through an equal employment

opportunity (EEO) counselor, on March 13, 2017, the appellant filed a formal

complaint of discrimination, which the agency processed as a mixed case because

it involved a claim of constructive removal. IAF, Tab 28 at 5-11. The agency

issued a final decision finding no discrimination, and the appellant filed the

instant Board appeal. IAF, Tab 1 at 4, 6, 9-43. After a hearing, the

administrative judge issued an initial decision dismissing the appeal for lack of

jurisdiction on the basis that the appellant failed to prove that her resignation was

involuntary. Initial Appeal File (IAF), Tab 139, Initial Decision (ID).

¶6 The appellant has filed a petition for review, arguing that the administrative

judge applied the wrong standard to her appeal when she failed to analyze it as an

involuntary disability retirement. Petition for Review (PFR) File Tab 1 at 9-10,

15-16. She argues that her resignation was involuntary because the agency

unjustifiably failed to offer her a reasonable accommodation for her sleep apnea.

Id. at 10-16. The agency has filed a response. PFR File, Tab 3.

ANALYSIS

¶7 Although various fact patterns may give rise to an appealable constructive

adverse action, all constructive adverse action claims have two things in common:

(1) the employee lacked a meaningful choice in the matter; and (2) it was the

agency’s wrongful actions that deprived the employee of that choice. Bean v.

U.S. Postal Service, 120 M.S.P.R. 397, ¶ 8 (2013). Assuming that the

jurisdictional requirements of 5 U.S.C. chapter 75 are otherwise met, proof of

these two things is sufficient to establish Board jurisdiction. Id. Notwithstanding

the broad similarity among all constructive adverse actions, proof of these

elements may be established in different ways, depending on the type of case at

issue. See id., ¶¶ 9-10.

¶8 As the appellant correctly argues on review, chapter 75 jurisdiction may be

established over a disability retirement if the agency unjustifiably refused to offer

the employee a reasonable accommodation that would have allowed her to

continue working. PFR File, Tab 1 at 9-10; see SanSoucie v. Department of

Agriculture, 116 M.S.P.R. 149, ¶ 15 (2011); Nordhoff v. Department of the Navy,

78 M.S.P.R. 88, 91 (1998), aff’d, 185 F.3d 886 (Fed. Cir. 1999) (Table).

However, we disagree that the analysis in this appeal should be restricted to that

applicable in disability retirement situations because the appellant did not, in fact,

retire on disability. She resigned. IAF, Tab 5 at 23. We note that we use the

term “restricted” because that is just what the Nordhoff line of cases does; it

restricts chapter 75 jurisdiction over disability retirements to situations in which

reasonable accommodation was available. Okleson v. U.S. Postal Service,

90 M.S.P.R. 415, ¶ 7 (2001). Thus, even if we were to apply this standard to the

appellant’s case, it would not inure to her benefit. Nevertheless, we understand

the appellant’s broader point that the administrative judge failed to make a

sufficient analysis of her claim that her resignation was coerced by the agency’s

unjustified failure to accommodate her disability. PFR File, Tab 1 at 10-16. We

address the appellant’s claim under the jurisdictional standard for constructive

adverse actions in general as set forth in Bean, 120 M.S.P.R. 397, ¶ 8.

¶9 Having thoroughly reviewed the record in this appeal, including the initial

decision, the hearing recording, and the parties’ documentary submissions, we

recognize that there were multiple factors at play in the appellant’s February 27,

2017 resignation. Underlying everything were the appellant’s extant medical

condition of sleep apnea and her personal responsibilities of caring for her

grandchildren and her sick husband. IAF, Tab 14 at 41, Tab 30 at 8.

Compounding these difficulties was the appellant’s return to the swing shift on

December 25, 2016. IAF, Tab 30 at 8, 10; HR at 26:00 (testimony of the

appellant). To deal with these difficulties, the appellant sought three distinct

benefits from the agency: (1) Reasonable accommodation in the form of a return

to the day shift, (2) FMLA leave to care for her husband, and (3) participation in

the agency’s VLTP to offset the financial difficulties that set in once her paid

leave was used up. IAF, Tab 8 at 29, Tab 12 at 5, Tab 30 at 7. However, at the

time of her resignation, the appellant had been unable to secure any of these

benefits to her satisfaction.

¶10 Regarding the FMLA leave, the appellant had been working with the same

human resources Field Advisor on FMLA matters related to her husband’s

medical condition since at least May of 2016. IAF, Tab 30 at 16. On

December 2, 2016, after the appellant learned that she was being moved back to

the swing shift, she sent an email to the Field Advisor, with copies to her first-

and second-line supervisors, explaining the situation and stating that they would

need to touch base again about her FMLA. IAF, Tab 30 at 8.

On December 7, 2016, the appellant’s first-line supervisor informed her that the

Field Advisor was in the process of determining how much FMLA leave the

appellant had used to date. Id. at 7. Subsequently, the appellant began using

significant amounts of FMLA leave. IAF, Tab 8 at 36; HR, Track 1 at 26:10

(testimony of the appellant). On January 31, 2017, the appellant’s first-line

supervisor informed her that she would need to submit updated medical

documentation for her husband to support continued FMLA status. IAF, Tab 8

at 68. On February 1, 2017, the appellant forwarded the Field Advisor the

updated documentation. Id. at 67. Then, on February 13, 2017, the Field Advisor

informed the appellant that she had reviewed the documentation, and although it

was “difficult to determine what [was] being considered,” there was enough

information to approve FMLA up to March 6, 2017. Id. at 75. The Field Advisor

posited that this would give the appellant some time to offer “more succinct

information” because the appellant’s husband would have had additional

diagnostic procedures and another doctor’s visit during that time. Id. She

notified the appellant that, if she were unable to submit updated documentation

by March 6, 2017, her FMLA enrollment would expire. Id. Nevertheless, there is

no indication that the agency ever denied the appellant any requested leave under

the FMLA or otherwise prior to her resignation.

¶11 Regarding the VLTP, the appellant first notified the agency on

January 11, 2017, that she was seeking to participate in the program, and that

same day, the Field Advisor sent the appellant some information on the program

and how to apply. IAF, Tab 8 at 29. It appears that the appellant first provided

the requested information on February 1, 2017, in conjunction with the FMLA

documentation discussed in the preceding paragraph. 3 IAF, Tab 16 at 22, Tab 30

at 67. The appellant resubmitted the information on February 9, 2017, and

requested a status update. IAF, Tab 8 at 67, 70. The following day, the

appellant’s first-line supervisor informed her that the Field Advisor would need to

approve her VLTP eligibility before management could sign the paperwork and

the process could move forward. Id. at 72. Then, on February 13, 2017, the Field

Advisor informed the appellant that her VLTP request could not be approved

without further medical documentation specifying the nature of the medical

emergency, the appellant’s role in her husband’s recovery, and the expected

duration of the emergency. Id. at 74. The agency never affirmatively denied the

appellant’s request, but the appellant seems to have stopped making efforts

toward it after this date.

¶12 Regarding reasonable accommodation, the record shows that the appellant

first informed the agency that she would likely be seeking reasonable

accommodation on December 2, 2016, although she did not specify the medical

condition at issue or what accommodation she might be seeking. IAF, Tab 30

The appellant relied on the same medical documentation to support her VLTP request

and her FMLA request. IAF, Tab 8 at 67-68; HT, Track 4 at 8:45 (testimony of the

appellant).

at 8. By December 8, 2016, the appellant became aware that the Disability

Program Manager with DISA’s Office of Equality, Diversity, and Inclusion

(OEDI) was the appropriate point of contact for her reasonable accommodation

request. IAF, Tab 16 at 5, Tab 30 at 7. The appellant submitted her request on

December 12, 2016, including a note from her doctor stating that the appellant

suffered from sleep apnea, which interfered with her ability to sleep and resulted

in excessive tiredness at work and a danger in driving. IAF, Tab 12 at 5, Tab 14

at 40-42. The appellant’s doctor recommended that, as an accommodation, the

appellant should be allowed to work the day shift. IAF, Tab 14 at 41-42.

Also attached was a release form for Federal Occupational Health (FOH)

physicians to be able to discuss the appellant’s medical condition with her doctor.

Id. at 40. On December 16, 2016, the Disability Program Manager contacted the

appellant’s first-line supervisor to discuss her accommodation request.

IAF, Tab 31 at 4-5. On Monday, December 19, 2016, the appellant’s second-line

supervisor informed her that management was supposed to have an update on her

request status by the end of the week, and on Thursday, December 22, 2016, the

Disability Program Manager informed the appellant that she had met with the

first- and second-line supervisors, and that either she or management would

provide the appellant with an update soon. Id. at 4.

¶13 It appears that nothing happened until January 6, 2017, when the Disability

Program Manager sent an email to the appellant’s first- and second-line

supervisors, reminding them of the appellant’s situation and of their obligation to

participate in the interactive process. IAF, Tab 8 at 28. Management failed to

respond, and on January 13, 2017, the Disability Program Manager emailed the

appellant’s first- and second-line supervisors again, reminding them that the

reasonable accommodation process is time-sensitive and that they should make

every effort to work with the appellant to reach a resolution as quickly as

possible. Id. at 32. That same day, the appellant sent her first- and second-line

supervisors an email requesting a meeting. Id. at 30. The appellant’s first-line

supervisor responded, informing the appellant that she was still awaiting OEDI’s

official decision on the appellant’s request for reasonable accommodation. Id.

at 34. The supervisor mentioned two potential day shift positions, which they had

apparently discussed before, and she set up a meeting for the following week. Id.

¶14 The appellant met with her first- and second-line supervisors on

January 17, 2017. IAF, Tab 10 at 8; HR, Track 1 at 31:20 (testimony of the

appellant). They expressed to her that there were, indeed, two day shift positions

that she might move into, but that they were still awaiting a final decision from

OEDI as to whether the appellant satisfied the requirements for receiving a

reasonable accommodation. IAF, Tab 10 at 8. On January 25, 2017, the

appellant and her attorney met with the Disability Program Manager and another

OEDI official, who apparently offered the appellant one of the two day shift

positions, which the appellant agreed to accept, pending a written job description,

including salary and duty hours. IAF, Tab 8 at 36. The following day, the

Disability Program Manger apprised the appellant’s first- and second-line

supervisors of the meeting and notified them of the appellant’s tentative

acceptance of one of the day shift positions. Id. at 5. She also noted that there

was an outstanding medical question regarding the safety of the appellant’s

driving. Id. The appellant’s first-line supervisor responded, asking why the

agency would be willing to accommodate the appellant in light of her FMLA

leave usage, especially on the weekends, and the difficulty of fully staffing a 24/7

office under those circumstances. Id. at 4-5. She questioned whether it might be

more appropriate to find the appellant a position in another office that might be

better able to accommodate her needs. Id. at 5. She did agree, however, that the

agency should engage FOH to determine why it was safe for the appellant to drive

to and from the day shift, but not to and from other shifts. Id. at 5.

The Disability Program Manager responded, informing the first-line supervisor

that an employee is entitled to use FMLA and reasonable accommodation

simultaneously, and that reasonable accommodation cannot be denied on the basis

that the employee has been approved for FMLA. Id. at 4. She stated that the

appellant’s use of leave on weekends was a separate issue from reasonable

accommodation. Id.

¶15 On January 27, 2017, the appellant’s attorney emailed the Disability

Program Manager, asking for the written information on the day shift positions.

Id. at 42. On January 30, 2017, the Disability Program Manager inquired of

management whether they had forwarded this information to the appellant.

IAF, Tab 27 at 37. The appellant’s first-line supervisor responded, stating that

she was “not comfortable” providing the appellant position descriptions to choose

from for the same reasons she stated previously, and again suggested that OEDI

should broaden its search to find another position in another office that would be

a better fit. Id. She also expressed that there was still an outstanding question

about the safety of the appellant’s driving, and that, at a more basic level,

she would want to have a clearer understanding of the nature, duration, and

severity of the appellant’s sleep apnea, as well as an explanation of the activities

that it affects. Id.

¶16 On February 1, 2017, the appellant’s attorney again asked the Disability

Program Manager for the details of the two day shift positions. IAF, Tab 8 at 49.

On February 3, 2017, the Disability Program Manager sent the appellant’s

first-line supervisor a lengthy email, stating that the agency could only engage

FOH if the appellant signed a waiver, 4 advising that the agency had the

opportunity of offering the appellant a temporary accommodation, apparently

disagreeing that the appellant had not provided medical documentation sufficient

to satisfy the first-line supervisor’s concerns, stating that the appellant was

entitled to receive information about the positions being offered or considered as

accommodations, and stating that, although management could search outside the

appellant’s office for an accommodation position, the appellant’s weekend leave

The Disability Program Manager apparently overlooked the FOH waiver that the

appellant had already executed in December. IAF, Tab 8 at 40.

was not related to her disability and was therefore not a reasonable

accommodation matter. IAF, Tab 124 at 5-6.

¶17 Having received no response thus far, on February 9, 2017, the appellant’s

attorney sent the agency a final email requesting further written information about

the two day shift positions. IAF, Tab 8 at 58. The following day,

February 10, 2017, the appellant’s first-line supervisor sent the appellant an

email, informing her that she must provide medical documentation in response to

twelve specific questions because the medical documentation that she submitted

on December 12, 2016, was insufficient to determine whether she was a qualified

person with a disability, what job functions were impaired, and how her “alleged”

sleep apnea affects her differently during the day than at night. Id. at 2-3.

She offered the appellant a temporary accommodation of a 2-hour earlier start to

her swing shift, which the appellant accepted, but the appellant resigned without

providing the additional requested medical documentation. IAF, Tab 8 at 3,

Tab 17 at 29.

¶18 Combined with the underlying stressors related to her personal health, her

husband’s health, her familial responsibilities, and her return to the swing shift,

we find that the appellant was under significant pressure in February 2017,

related to her requests for benefits under the FMLA, VLTP, and Americans with

Disabilities Act (ADA). Although the pressure had been building for some time,

it appears to have come to a head on February 10 and 13, 2017, when the agency

informed her that her documentation on record was insufficient to support any of

her requests. Considering the facts as set forth above, we find that some of this

was due to the agency’s wrongdoing, and some of it was not. The difficulties

inherent in the appellant’s caregiving responsibilities were not due to the

wrongdoing of the agency. Nor is there any reason to believe that the agency’s

decision in late 2016 to return the appellant to the swing shift was improper. 5

Although it appears that the agency may have placed the appellant on the day shift in

May 2016 to accommodate her caregiving situation, HR at 6:20 (testimony of the

appellant), neither the FMLA nor the ADA would have required it to do so. The FMLA

¶19 As for the appellant’s request under the FMLA, we find no wrongful agency

action here either. There is no record of the agency requesting updated medical

documentation between May 2016 and January 31, 2017, and there was nothing

improper about the agency requiring updated medical documentation at that point.

In fact, the law specifically authorizes the agency to request updated

documentation every 30 days. 5 C.F.R. § 630.1208(a), (j). There is no reason to

believe that the agency was attempting to harass the appellant or was otherwise

acting in bad faith by requiring her to update her information more than 7 months

after FMLA leave had been initially approved. Nor is there any evidence that

would support a finding that the appellant’s February 1, 2017 medical

documentation was sufficient to meet the medical certification requirements of

5 C.F.R. § 630.1208(b), or that the Field Advisor was incorrect that additional

information was required. 6 We further find that, although nearly 2 weeks had

elapsed between the appellant’s submission of FMLA documentation on

February 1, 2017, and the February 13, 2017 notification that the documentation

was deficient, the delay was not excessive, the appellant was not prejudiced by it,

and the agency showed good faith in allowing her an additional 15 business days

to submit further documentation. IAF, Tab 8 at 75.

¶20 Likewise, with the appellant’s request under the VLTP, there is no evidence

to support a finding that the documentation that she submitted with her

February 1, 2017 application was sufficient. Neither the documentation itself nor

the agency’s requirements appear to be contained in the record. See 5 C.F.R.

§ 630.904(b) (setting forth the requirements for a VLTP leave recipient’s

application, and allowing employing agencies to set forth additional

pertains to leave, and not to schedule adjustments, see 5 U.S.C. § 5382; 5 C.F.R.

§ 630.1203, and the ADA does not prescribe accommodations for employees in their

capacity as caregivers, see Jordan v. Department of Defense, EEOC Appeal

No. 0120055250, 2006 WL 3877372, at *6 (Dec. 28, 2006).

The medical documentation that the appellant submitted on February 1, 2017, does not

appear to be contained in the voluminous record in this appeal, and if it does, the parties

have not identified its location.

requirements). Again, as with the FMLA matter discussed above, we find that

2 weeks was not an excessive amount of time for the agency to make a

determination and to notify the appellant that additional information was

required. IAF, Tab 8 at 74. It appears that the Field Advisor carefully reviewed

and considered the appellant’s application and tried to advise her on what further

information she needed to submit. We see no negligence, bad faith, or other

malfeasance in the agency’s handling of the appellant’s VLTP request.

¶21 The appellant’s reasonable accommodation request, however, is a different

matter. Although the appellant submitted her reasonable accommodation request

on December 12, 2016, for more than a month, nothing whatsoever happened

except for internal discussions between management and OEDI, and empty

promises from the agency that the appellant would have an answer soon.

IAF, Tab 8 at 28, 32; Tab 31 at 4-5. It appears that the appellant’s case was stuck

in limbo because OEDI and management were both waiting for the other to do

something before they proceeded. IAF, Tab 8 at 28, 32, 34. The first time the

appellant’s supervisors actually met with her was January 17, 2017, when they

informed the appellant that management was waiting on OEDI to render an

official decision on the appellant’s qualification for accommodations.

IAF, Tab 10 at 8. What happened next was that OEDI offered the appellant one

of two day shift positions (an offer that it was apparently not authorized to make),

followed by more agency infighting about the proper course of action.

IAF, Tab 8 at 4-5, 36, 42, 46, Tab 27 at 37, Tab 124 at 5-6; HR, Track 7 at 10:30

(testimony of the appellant’s first-line supervisor). While this was going on for

2 weeks, the appellant was shut out of the process completely, believing the entire

time that the only thing left to resolve was the position description, but that

management was stonewalling her on this relatively simple matter. IAF, Tab 8 at

42, 49, 58. Then, it would appear that the disagreements between the appellant’s

first-line supervisor and the Disability Program Manager resulted in a fracture,

whereupon the first-line supervisor took matters into her own hands and notified

the appellant for the first time that the medical documentation that she submitted

2 months prior was deficient. IAF, Tab 8 at 2-3. Whoever was right about the

whole thing, the first-line supervisor or the Disability Program Manager, it

matters not. Either way, the agency bungled this badly. It spent almost the entire

time occupied with internal miscommunications and interoffice disputes, cutting

the appellant out of this supposed “interactive process” as much as possible, until

nearly 2 months after she started, she found herself nearly back to square one. 7

We find that the agency’s handling of this matter was improper.

¶22 Considering all of the evidence together, we find that the appellant’s

resignation was precipitated by several factors, some of which were the result of

wrongful agency actions and some of which were not. Cf. Bean, 120 M.S.P.R.

397, ¶ 8. Nevertheless, in the final analysis, we agree with the administrative

judge that this case turns on the voluntariness element, i.e., whether the appellant

had a meaningful choice in her resignation. ID at 12-13. We further agree with

the administrative judge that the appellant failed to establish this element.

ID at 12-13.

¶23 We acknowledge that the agency’s mishandling of the appellant’s

reasonable accommodation request must have been very frustrating and caused

her a great deal of distress and trouble. However, we do not find that this matter

would have been sufficient to compel a reasonable person to resign her position at

the time the appellant did. See Gregory v. Federal Communications Commission,

79 M.S.P.R. 563, ¶ 8 (1998) (finding that the ultimate question on voluntariness

is whether a reasonable person would have felt compelled to resign under the

circumstances). This is especially so considering that the appellant’s supervisor

was finally beginning to engage with her in the interactive process in a

meaningful way, to include the offer of a temporary, partial accommodation, as

Although there are exceptions, the reasonable accommodation process at DISA

typically takes less than 30 days, consistent with the written requirements of DISA’s

reasonable accommodation procedures. IAF, Tab 44 at 9; HR, Track 5 at 58:35

(testimony of the Disability Program Manager).

well as specific instructions on the type of medical documentation that she needed

to submit. IAF, Tab 8 at 2-3. As for the FMLA and VLTP matters, as explained

above, we find that the agency did not mishandle them in any way.

Supra ¶¶ 19-20. Although it must have been disappointing for the appellant to

have submitted paperwork, only to be told 2 weeks later that it was deficient, we

find that this situation is not beyond the realm of expectation and would not have

contributed significantly to a reasonable person’s resignation.

¶24 Apart from these matters, as the administrative judge noted, the appellant

testified repeatedly that she resigned because she was “scared” and that she

believed she was being set up to be fired. ID at 9 & n.13; HR, Track 1; at 57:00,

Track 3 at 9:45 (testimony of the appellant). She was also laboring under the

mistaken belief, through no fault of the agency, that she was an “at will”

employee, i.e., an employee who can be fired without cause. HR, Track 1

at 1:00:40, Track 4 at 29:40 (testimony of the appellant). Based on the

appellant’s testimony, this factor appears to have played a major, if not the

decisive, role in her resignation. In fact, the appellant testified that she could

have continued working the swing shift at the agency but for the fact that she was

about to get fired. HR, Track 2 at 1:06:30 (testimony of the appellant). We find

that this fear would not have motivated a reasonable person to resign because

there is no evidence that the agency either threatened or proposed any

disciplinary action against the appellant. She has simply identified no basis for

her belief that management was getting ready to fire her. To the extent that the

appellant’s belief that she was an at will employee played into her fears, we find

that this was unreasonable as well because the appellant’s employment was

governed by Federal law, not State law, and she could only have been removed

from her position for cause, with 30 days’ advance written notice and an

opportunity to respond. 8 See 5 U.S.C. § 7513(a)-(b). In addition, as the

Even if the appellant were facing removal, her decision to resign rather than oppose

the adverse action would still be voluntary. See Baldwin v. Department of Veterans

Affairs, 109 M.S.P.R. 392, ¶ 12 (2008).

administrative judge accurately noted, on February 11, 2017, the appellant sent an

email to her first-line supervisor strongly suggesting that her forthcoming

resignation was more about work-life balance than any of the matters discussed

above. IAF, Tab 65 at 19. The appellant does not dispute this finding on review.

¶25 Considering the record as a whole, we find that, although the appellant’s

resignation was precipitated in part by the agency’s wrongful actions in

connection with her reasonable accommodation request, the combined

circumstances were not of the nature and severity that would have made a

reasonable person in the appellant’s situation believe that she had no realistic

alternative but to resign. Although a reasonable person might have felt that

resignation was her best option, she would not have felt that it was her only

option. See Lawson v. U.S. Postal Service, 68 M.S.P.R. 345, 350 (1995)

(finding that the fact that an employee is faced with an inherently unpleasant

situation or that her choices are limited to unpleasant alternatives does not make

her decision involuntary). We therefore find that the appellant’s resignation was

not involuntary and that she has not established jurisdiction over her resignation

as a constructive removal under 5 U.S.C. chapter 75. 9

NOTICE OF APPEAL RIGHTS 10

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

Because the appellant raised a claim of disability discrimination in this constructive

removal appeal, and the Board has now issued a Final Order dismissing the appeal for

lack of jurisdiction, the agency is required, under Equal Employment Opportunity

Commission (EEOC) regulations, to reissue a notice under 29 C.F.R. § 1614.108(f)

giving the appellant the right to elect between a hearing before an EEOC administrative

judge and an immediate final decision. See 29 C.F.R. § 1614.302(b).

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.

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:

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. 11 The court of appeals must receive your petition for

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,

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