Opinion

Geraldine Jones-Sailor v. Department of Justice

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Status: Unpublished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

GERALDINE JONES-SAILOR, DOCKET NUMBER

Appellant, AT-0752-17-0280-I-1

DEPARTMENT OF JUSTICE, DATE: May 1, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Jerry Girly , Esquire, Orlando, Florida, for the appellant.

Kathleen Harne , Esquire, Washington, D.C., for the agency.

Lee R. Jones , Kansas City, Kansas, 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 alleged involuntary retirement appeal for lack of jurisdiction. On

petition for review, the appellant challenges the administrative judge’s

jurisdictional finding, arguing that she made erroneous findings of fact and

improperly interpreted statutes. Generally, we grant petitions such as this one

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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 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. Except as expressly MODIFIED to

supplement the administrative judge’s analysis regarding the appellant’s claims

that her retirement was coerced by the agency’s unjustified failure to

accommodate her disability and by sexual harassment, we AFFIRM the initial

decision.

¶2 The appellant was employed as a GS-11 Correctional Treatment Specialist

(Case Manager) at a Bureau of Prisons correctional facility where she had been

employed since 1985. Hearing Transcript (HT) at 7 (testimony of the appellant).

Her position was designated as a law enforcement position. Initial Appeal File

(IAF), Tab 12, Appellant’s Exhibit C. Case Managers were generally assigned to

units on the same floor as the inmates whose cases they managed. However, the

appellant was assigned to a unit on the first floor, even though the inmates whose

cases she managed were housed on the second floor, and they were required to be

brought to her when she needed to see them. This arrangement was based on an

informal accommodation due to the appellant’s claimed difficulty in navigating

stairs as a result of an injury she suffered to her neck, shoulder, and back. IAF,

Tab 6 at 36-37 (Final Agency Decision (FAD)).

¶3 When a new supervisor arrived in August 2014, he informed the appellant

that her informal accommodation had expired and that she would have to move

her office to the second floor or provide updated medical documentation. IAF,

Tab 19 at 75-76; Tab 17 at 18. In response, the appellant submitted a Department

of Justice (DOJ) Form 100A, Request for Reasonable Accommodation, asking to

work in a lower level building “to avoid health damage to [her] physical body and

mental well- being” and stating that she was unable to climb stairs and lift over

10 pounds. IAF, Tab 12, Appellant’s Exhibit I. In support of her request, she

submitted a September 15, 2014 form from a treating physician, stating that the

appellant had suffered an injury to her shoulder, neck, and back and seeking the

same accommodations. Id., Appellant’s Exhibit H. The appellant’s supervisor

responded by requesting additional specific information from the appellant’s

physician. Id., Appellant’s Exhibit J. The appellant then submitted another DOJ

Form 100A requesting the same accommodations, id., Appellant’s Exhibit K,

accompanied by a November 4, 2014 supporting letter from her physician, asking

for the same accommodations for 12 weeks and indicating that the appellant

would be reassessed at the end of that period, id., Appellant’s Exhibit L. On

November 19, 2014, the appellant’s supervisor officially denied her reasonable

accommodation request as not supported by documentation, medical or otherwise,

and also stated that her requested accommodation would be ineffective, cause the

agency undue hardship, and remove essential functions from her law enforcement

position. Id., Appellant’s Exhibit M.

¶4 On December 8, 2014, the appellant filed an equal employment opportunity

(EEO) complaint based on sex, age, disability (physical/mental), and reprisal in

which she challenged a number of agency actions. 2 IAF, Tab 6 at 34-35 (FAD).

She later amended her complaint to include the matter that is the subject of this

appeal. On January 21, 2015, the agency directed the appellant to report for a

The appellant did not return to work beginning in late September 2014 and continuing

until the action here under review and was carried as absent without leave during this

time. IAF, Tab 7 at 33-51; Tab 19 at 19.

fitness-for-duty examination to determine if she was medically able to perform

the duties of her position. IAF, Tab 19 at 59. She reported for the examination

but left before it was conducted. HT at 53 (testimony of the appellant). On

May 13, 2015, the appellant submitted paperwork to retire, providing, as the

reason, that “[management] continues to retaliate and discriminate against me.”

IAF, Tab 6 at 222. The action was effective on May 29, 2015. IAF, Tab 7 at 7.

The agency issued its FAD on the appellant’s EEO complaint on January 23,

2017, finding that she had not established any of her claims. IAF, Tab 6 at 35-62.

On appeal from that decision, the appellant challenged her retirement as

involuntary, IAF, Tab 1 at 2, and requested a hearing, id. at 1.

¶5 The administrative judge issued an Order on Jurisdiction and Proof

Requirements regarding appeals of alleged involuntary actions, IAF, Tab 3, to

which the appellant responded, IAF, Tab 8. On review of the parties’

submissions, the administrative judge determined that the appellant was entitled

to a jurisdictional hearing which was duly scheduled and convened. IAF, Tab 9

at 1. Thereafter, the administrative judge issued an initial decision in which she

dismissed the appeal for lack of jurisdiction. IAF, Tab 30, Initial Decision (ID)

at 1, 11. The administrative judge considered the incidents upon which the

appellant relied in support of her claim, but found that a reasonable person in the

appellant’s position would not have felt compelled to retire under the

circumstances. ID at 611. The appellant has filed a petition for review, to which

the agency has not responded. 3 Petition for Review (PFR) File, Tab 3.

DISCUSSION OF ARGUMENTS ON REVIEW

¶6 Generally, an appellant may overcome the presumption that a retirement is

voluntary by showing that it resulted from misinformation or deception by the

With her petition for review, the appellant has submitted a copy of the hearing

transcript, Petition for Review File, Tab 3, not certified by the court

reporter, id. at 411. We have not considered it, but rather have considered the certified

copy provided to the Board by the court reporter as it constitutes the official hearing

record. 5 C.F.R. § 1201.53(b).

agency or was the product of coercion by the agency. Terban v. Department of

Energy, 216 F.3d 1021, 1024 (Fed. Cir 2000). The touchstone of the

“voluntariness” is whether, considering the totality of the circumstances, factors

operated on the employee’s decision-making process that deprived her of freedom

of choice. Coufal v. Department of Justice, 98 M.S.P.R. 31, ¶ 22 (2004); Heining

v. General Services Administration, 68 M.S.P.R. 513, 519-20 (1995). Therefore,

in order to establish involuntariness on the basis of coercion, an appellant must

show that the agency effectively imposed the terms of the retirement, that she had

no realistic alternative but to retire, and that the retirement was the result of

improper acts by the agency. The Board will find a retirement involuntary when

the employee demonstrates that the employer engaged in a course of action that

made working conditions so difficult or unpleasant that a reasonable person in

that employee’s position would have felt compelled to retire. Markon v.

Department of State, 71 M.S.P.R. 574, 577-78 (1996). This mode of analysis

remains appropriate when the appellant’s appeal is from an agency’s FAD based

on the employee’s underlying complaint in which she claims that her retirement

was involuntary based on discrimination. See, e.g., Williams v. Department of

Agriculture, 106 M.S.P.R. 677, ¶¶ 10-11 (2007). When allegations of

discrimination and reprisal for prior EEO activity are made in connection with a

claim of involuntariness, such allegations may only be addressed insofar as they

relate to the issue of voluntariness and not whether they would establish

discrimination or reprisal as an affirmative defense. Pickens v. Social Security

Administration, 88 M.S.P.R. 525, ¶ 6 (2001). Thus, evidence of discrimination or

reprisal goes to the ultimate question of coercion. Id.

¶7 The appellant first challenges the administrative judge’s finding that,

because the appellant’s requested accommodation would eliminate the essential

functions of her position, there was no reasonable accommodation available. ID

at 8. The appellant asserts that she is physically able to perform her duties and

that she did so successfully under the accommodation before her new supervisor

arrived. PFR File, Tab 1 at 9. However, the issue in this case is not whether the

agency was required to grant the appellant’s requested accommodation, but rather

the extent to which the agency’s failure to continue her informal accommodation

was a factor in her decision to retire. Pickens, 88 M.S.P.R. 525, ¶ 6. 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). We disagree, however, 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. 4 We therefore modify the initial

decision to the extent the administrative judge applied the standard for disability

retirements to the instant case. ID at 7. Nevertheless, we understand the

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

analysis of her claim that her retirement was coerced by the agency’s unjustified

failure to accommodate her disability.

¶8 We agree with the appellant that the administrative judge did not

sufficiently analyze this claim. The administrative judge noted that, in support of

her claim, the appellant testified that she is physically able to perform the duties

of her position as a Case Manager but that her medical restrictions require she

stay on the first floor, not climb stairs, and not lift or pull more than 10 pounds.

ID at 7; HT (testimony of the appellant). The administrative judge noted that, in

addition to the duties pertaining to appellant’s position as a Case Manager, such

as counseling inmates and implementing and monitoring their treatment plans, the

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.

appellant was also required to perform law enforcement functions and respond to

emergencies when needed. Citing to the appellant’s position description, the

administrative judge found that the appellant’s medical limitations required more

than a modification of her working conditions. ID at 8. The administrative judge

concluded that, if the appellant could not perform her law enforcement duties,

there was no reasonable accommodation available because she could not perform

the essential functions of her position. Id. However, as raised by the appellant

on review, the administrative judge did not address the fact that the appellant had

been performing her Case Manager duties successfully for some time with the

informal accommodation, that she could climb stairs if necessary, and that she

had responded to emergency alarms as necessary. PFR File, Tab 3 at 5-7, 9; HT

at 82, 84, 112 (testimony of the appellant). We find the agency’s explanation for

denying the appellant a reasonable accommodation in denying her request to work

on the first floor to be unpersuasive. Notwithstanding the agency's unpersuasive

analysis in this regard, the agency’s shortcomings in the reasonable

accommodation process are simply a factor to be considered in assessing whether

a resignation was involuntary. Brown v. U.S. Postal Service, 115 M.S.P.R. 609,

¶ 16, aff’d, 469 F. App’x 852 (Fed. Cir. 2011). The Board examines the totality

of the circumstances under an objective standard to determine voluntariness and

does not rely on the employee’s purely subjective evaluation. Coufal,

98 M.S.P.R. 31, ¶ 22. As further explained below, the appellant has not shown

that this rendered her working conditions so intolerable that a reasonable person

in her position would have felt compelled to resign. See Vitale v. Department of

Veterans Affairs, 107 M.S.P.R. 501, ¶ 26 (2007) (finding that, although an agency

official may have caused the appellant apprehension and exacerbated his medical

ailments, the appellant failed to establish that his working conditions were so

intolerable that a reasonable person in his position would have felt compelled to

retire).

¶9 The appellant also argues on review that she was placed in an absent

without leave status because she was sent home for her own safety. PFR File,

Tab 3 at 6-7. She alleges that she refused to take any form of personal leave

because she had been able to perform the duties of her Case Manager position

with an accommodation. While a resignation or retirement procured in violation

of the regulations for granting leave may be coercive, the appellant did not assert

that she was denied any request to use leave. Cf. Landahl v. Department of

Commerce, 83 M.S.P.R. 40, ¶¶ 7-11 (1999) (finding a nonfrivolous allegation of

involuntariness based on the appellant's claim that the agency coerced his

resignation by violating the regulations for granting leave under the Family and

Medical Leave Act of 1993). Moreover, to the extent that the appellant’s claim

might have formed the basis for a constructive suspension appeal, there is no

indication that she filed any such appeal. See Schultz v. U.S. Postal Service,

78 M.S.P.R. 159, 163 (1998) (holding that, if a disabled employee who is absent

from work requests to return with altered duties or working conditions, and if

there was a reasonable accommodation available that the agency was bound by

the Rehabilitation Act to offer but did not, the employee’s absence becomes a

constructive suspension).

¶10 Further, the appellant reiterates on review her allegations that she was

subjected to sexual harassment by male inmates and that the agency took no steps

to remedy the situation. PFR File, Tab 3 at 10-12. We modify the initial decision

to further address the appellant’s assertions. In support of these allegations, the

appellant notes that the agency settled a class action suit about the rampant sexual

harassment that occurred in that facility. Id. at 11. The administrative judge

considered the appellant’s testimony that inmates would make cat calls towards

her, use offensive and crude language, and expose themselves. ID at 9 & n.8.

However, the administrative judge found that a reasonable person in the

appellant’s position—a Case Manager with over 29 years of experience with the

Federal Bureau of Prisons—would not have felt compelled to retire. ID at 10.

While the appellant has raised serious allegations of sexual harassment, we

ultimately agree with the administrative judge’s conclusion. In relevant part, the

appellant has not alleged that the harassment she endured escalated to a level that

potentially endangered her safety. See Bates v. Department of Justice,

70 M.S.P.R. 659, 671-72 (1996) (finding that the appellant was effectively

coerced into resigning by the continuous and unredressed pattern of harassment,

which had escalated to a level potentially endangering her safety). While the

appellant may have been subjected to stressful working conditions, it is

well-settled that an employee is not guaranteed a stress-free work environment

and difficult or unpleasant working conditions generally are not so intolerable as

to compel a reasonable person to resign. Miller v. Department of Defense,

85 M.S.P.R. 310, ¶ 32 (2000).

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

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

wrongful agency actions and some of which were not. 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

retirement. See Coufal, 98 M.S.P.R. 31, ¶ 22. We further agree with the

administrative judge that the appellant failed to establish this element.

¶12 Although the appellant’s retirement 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 retire. While a reasonable person might have felt that

retirement 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). Moreover, the most probative evidence of

involuntariness will usually be evidence in which there is a relatively short period

of time between the employer’s alleged coercive act and the employee’s

retirement. Terban, 216 F.3d at 1024. In the instant case, the appellant has not

established any precipitating event that occurred relatively close in time to the

retirement that would have given a reasonable employee no choice but to retire.

See id. at 1025; cf. Bates, 70 M.S.P.R. at 671-72 (while the Board considered

evidence of a 5-year period of harassment, that evidence only served to put into

context the life-endangering incident that precipitated her retirement). The length

of time between which the appellant filed her EEO complaint and then retired

also undermines her claim that her retirement was involuntary due to intolerable

working conditions. The appellant initially raised allegations of discrimination

on December 8, 2014, when she filed her EEO complaint, but she did not file an

application for retirement until May 13, 2015. IAF, Tab 6 at 34-35, 222. This

5-month lapse of time undercuts the appellant’s assertion that her working

conditions were so intolerable as to have compelled her retirement. Searcy v.

Department of Commerce, 114 M.S.P.R. 281, ¶ 13 (2010).

¶13 We therefore find that the appellant’s retirement was not involuntary and

that she has not established jurisdiction over her retirement as a constructive

removal under 5 U.S.C. chapter 75. 5

NOTICE OF APPEAL RIGHTS 6

The initial decision, as supplemented by this Final Order, constitutes the

Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain

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.

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:

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. 7 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