Joan Harrup v. Department of Defense

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JOAN C. HARRUP, DOCKET NUMBER

Appellant, DC-0752-18-0667-I-1

v.

DEPARTMENT OF DEFENSE, DATE: May 17, 2024

Agency.

THIS ORDER IS NONPRECEDENTIAL 1

Chungsoo J. Lee , Jenkintown, Pennsylvania, for the appellant.

Daniel W. Moebs , Esquire, Richmond, Virginia, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

REMAND ORDER

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

dismissed her involuntary retirement appeal for lack of jurisdiction and, in the

alternative, as untimely filed. For the reasons discussed below, we GRANT the

appellant’s petition for review, VACATE the initial decision, and REMAND the

case to the Washington Regional Office for further adjudication in accordance

with this Remand Order.

1

A nonprecedential order is one that the Board has determined does not add

significantly to the body of MSPB case law. Parties may cite nonprecedential orders,

but such orders have no precedential value; the Board and administrative judges are not

required to follow or distinguish them in any future decisions. In contrast, a

precedential decision issued as an Opinion and Order has been identified by the Board

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).

2

BACKGROUND

The appellant, who served as a GS-11 Contract Administrator for the

Defense Logistics Agency Aviation in Richmond Virginia, retired from her

position effective May 31, 2014, listing the agency’s denial of her request for

reasonable accommodation and her eligibility for retirement as her reasons for

doing so. Initial Appeal File (IAF), Tab 10 at 4, Tab 11 at 4, 27.

On September 16, 2015 she filed an informal equal employment opportunity

(EEO) complaint alleging that the agency had denied her a reasonable

accommodation. IAF, Tab 10 at 10, Tab 21 at 4. On December 17, 2015,

she filed a formal EEO complaint, and asserted therein that she was forced to

retire. IAF, Tab 16 at 67-71, Tab 21 at 4. She requested a hearing before an

Equal Employment Opportunity Commission (EEOC) administrative judge,

who dismissed the complaint as untimely filed on June 23, 2017, and remanded

the matter to the agency for issuance of a Final Agency Decision (FAD).

IAF, Tab 10 at 29-30, Tab 21 at 5.

The agency issued an August 3, 2017 FAD finding that the appellant failed

to make initial contact with an EEO counselor within 45 days of her alleged

involuntary retirement and dismissing the complaint as untimely filed.

IAF, Tab 10 at 32-33, Tab 21 at 5. The appellant sought review of the FAD

before the EEOC’s Office of Federal Operations (OFO). IAF, Tab 10 at 36-37.

After OFO denied her appeal, she requested that it reconsider its decision. Id. In

an April 18, 2018 decision, OFO denied her request. IAF, Tab 10 at 36-38, Tab

21 at 5. The appellant filed this appeal on July 16, 2018. IAF, Tab 1.

In addition to the acknowledgment order, the administrative judge issued

an order on jurisdiction and timeliness. IAF, Tabs 2-3. On the jurisdictional

issue, the appellant asserted that she was forced to retire when the agency

suddenly denied her an ongoing and long-time accommodation. IAF, Tab 9 at 4.

On the timeliness issue, the appellant argued that the agency failed to give her

notice of her Board appeal rights when she retired, or at any point during the

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processing of her EEO complaint. IAF, Tab 21 at 4-6. She claimed her former

attorney did not explain the procedural requirements for filing a mixed case and

that she was unaware of her right to do so until she hired her current

representative on June 20, 2018. Id. at 5-6. She asserted that she timely filed this

Board appeal after her new representative explained to her that she could do so.

Id. at 6.

Without holding the appellant’s requested hearing, the administrative judge

dismissed the appeal for lack of jurisdiction, finding that the appellant failed to

make a nonfrivolous allegation that the agency coerced her retirement.

IAF, Tab 1 at 2, Tab 24, Initial Decision (ID) at 15-21. In the alternative, the

administrative judge found that, even if the appellant established jurisdiction over

her alleged involuntary retirement, the appeal was untimely filed without good

cause shown for the delay. ID at 21-28. In her petition for review, the appellant

challenges both findings. Petition for Review (PFR) File, Tab 1. The agency has

responded to the appellant’s petition for review and the appellant has filed a reply

to the agency’s response. PFR File, Tabs 3-4.

DISCUSSION OF ARGUMENTS ON REVIEW

The appeal must be remanded for a jurisdictional hearing because the appellant

made a nonfrivolous allegation that her retirement was involuntary.

The administrative judge found that the appellant failed to make a

nonfrivolous allegation that the agency coerced her retirement. ID at 15-21.

However, the Board had repeatedly held that a jurisdictional hearing is warranted

when, as here, the appellant alleges that her decision to retire was coerced

because the agency denied a reasonable accommodation that would have

permitted her to perform her job duties. See, e.g., Hosozawa v. Department of

Veterans Affairs, 113 M.S.P.R. 110, ¶¶ 6-7 (2010) (remanding the appeal for a

jurisdictional hearing because the appellant alleged that her resignation was

involuntary for the reason that the agency denied her request for a reasonable

accommodation (telecommuting) that, according to her doctor, would have

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permitted her to continue to work full-time despite her medical condition);

Carey v. Department of Health and Human Services, 112 M.S.P.R. 106, ¶¶ 7-9

(2009) (same); Hernandez v. U.S. Postal Service, 74 M.S.P.R. 412, 418-19 (1997)

(finding that because the agency’s evidence that the appellant had exaggerated his

symptoms constituted mere factual contradiction of the appellant’s otherwise

adequate prima facie showing of jurisdiction, the administrative judge erred in

weighing the evidence and resolving the conflicting assertions of the parties and

dismissing the appellant’s alleged involuntary resignation appeal without holding

a hearing). Without any analysis, the administrative judge distinguished these

cases because the decisions did not contain a detailed discussion on the specific

facts and evidence introduced by the appellant. ID at 21 n.23.

Nevertheless, the exact same situation described in Hosozawa and Carey is

present in this matter. The agency in each instance denied an appellant’s request

for an accommodation that her doctor asserted would have permitted her to

continue to work. IAF, Tab 1 at 5-6, Tab 11 at 18, 24; Hosozawa, 113 M.S.P.R.

110, ¶ 7; Carey, 112 M.S.P.R. 106, ¶ 7. The lack of a detailed discussion of the

evidence in those decisions reflects that, once an appellant presents nonfrivolous

allegations of Board jurisdiction, i.e., allegations of fact that, if proven, would

establish the Board’s jurisdiction, she is entitled to a hearing at which she must

prove jurisdiction by a preponderance of the evidence. Carey, 112 M.S.P.R. 106,

¶ 6. Accordingly, the appellant is entitled to a jurisdictional hearing.

On remand, the administrative judge should take additional evidence on the issue

of timeliness.

Because we have determined that the appellant made a nonfrivolous

allegation that her retirement was involuntary, we must address the timeliness of

her appeal. In an appropriate case, an administrative judge may assume that an

appealable action occurred and that the appellant has standing to appeal and may

proceed to dismiss an appeal as untimely filed if the record on timeliness is

sufficiently developed. Brown v. U.S. Postal Service, 115 M.S.P.R. 609, ¶ 5,

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aff’d per curiam, 469 F. App’x 852 (Fed. Cir. 2011). Such an approach is not

appropriate, however, if the jurisdictional and timeliness issues are inextricably

intertwined, that is, if resolution of the timeliness issue depends on whether the

appellant was subjected to an appealable action. Id. The issues of timeliness and

jurisdiction are typically inextricably intertwined in an appeal based on an alleged

involuntary retirement because if the agency has subjected the employee to an

appealable action then the agency’s failure to inform an employee of her right to

appeal may excuse an untimely filed Board appeal. Id. Generally, an appellant

may establish good cause for an untimely filing of an involuntary resignation or

retirement appeal if, at the time of the employee’s resignation or retirement, the

agency knew or should have known of facts indicating that the action was

involuntary but did not inform the appellant of her appeal rights. Id. If an

agency failed to advise an employee of appeal rights when it should have done so,

the appellant is not required to show that she exercised due diligence in

attempting to discover her appeal rights; rather, the appellant must show that she

was diligent in filing an appeal after learning that she could do so.

Id.; Gingrich v. U.S. Postal Service, 67 M.S.P.R. 583, 588 (1995).

The appellant indicated in her retirement paperwork that she was retiring,

in pertinent part, because agency management denied her request for reasonable

accommodation. IAF, Tab 11 at 4, 27. She also indicated in her formal EEO

complaint that she was forced to retire when her supervisor denied her reasonable

accommodation. IAF, Tab 16 at 69. In the letter accepting her formal EEO

complaint for investigation, the agency acknowledged the issue as whether the

appellant had retired when the agency denied her reasonable accommodation

because she “believed [she] had no recourse.” IAF, Tab 10 at 21. She also

argued constructive discharge in a brief before the EEOC. IAF, Tab 14 at 157-61.

When, as here, an employee puts an agency on notice that she considers an action

to be involuntary, it triggers a duty on the part of the agency to provide the

employee with appeal rights. See Gingrich, 67 M.S.P.R. at 587 (1995). Thus, we

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find that the agency should have provided the appellant with notice of her Board

appeal rights when she retired. The record does not reflect that it did so.

Nevertheless, the administrative judge found that the appellant understood

that her involuntary retirement claim constituted a mixed case appealable to the

Board. ID at 24-28. He based his finding on the fact that, in 2013, the appellant

filed a furlough appeal with the Board; in September 2015, the agency advised

her of her mixed-case appeal rights in connection with her EEO complaint; and in

February 2017, her prior attorney, who was experienced in EEO law, recognized

the appellant’s EEO complaint was mixed and her alleged constructive suspension

was appealable to the Board. ID at 23-26. Because we are remanding this appeal

for further proceedings related to jurisdiction, we do not reach the timeliness

issue. See Brown, 115 M.S.P.R. 609, ¶¶ 5, 8. Nonetheless, we address the

administrative judge’s timeliness finding to provide further guidance for

processing the appeal on remand.

When, as here, an agency has an obligation to provide notice of appeal

rights, the obligation is not satisfied by a mere reference to Board appeal rights.

Drose v. U.S. Postal Service, 85 M.S.P.R. 98, ¶ 10 (2000). In addition, general

notice of Board appeal rights from a source other than the agency does not excuse

the agency’s failure to inform an employee of her appeal rights, when the notice

does not inform her of the time limit for filing an appeal and lacks other

information on where and how to file such an appeal. Id. The appellant filed her

furlough appeal in 2013, after the agency specifically advised her of

her right to do so. Harrup v. Department of Defense, MSPB Docket

No. DC-0752-13-5718-I-1, Initial Appeal File (5718 IAF), Tab 1 at 13-15.

During that appeal, the agency did not advise the appellant that she might have

the right to appeal an alleged involuntary retirement. See Gingrich, 67 M.S.P.R.

at 588 (finding that a widely-publicized Board decision regarding the right to

appeal certain reassignments as reduction-in-force demotions was insufficient to

put an appellant on notice that he might be able to appeal his retirement as

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involuntary). Instead, the agency’s 2013 furlough decision specifically advised

the appellant that she could appeal “this [furlough] action,” without explaining

why the action was appealable. 5718 IAF, Tab 1 at 13-14.

Similarly, we disagree with the administrative judge’s finding that the

agency’s September 2015 letter related to the appellant’s EEO complaint of her

alleged involuntary retirement put her on notice of her appeal rights. ID at 24;

IAF, Tab 16 at 67-71, 114-29. That letter explained to the appellant that “[i]f

[her] claim is related or stems from an action that can be appealed to the

[Board],” it is a mixed case to which mixed-case procedures apply. IAF, Tab 16

at 117, 125. It did not identify the appellant’s claim as raising a matter

appealable to the Board, or advise her that an alleged involuntary suspension was

an appealable action. Id. Thus, the letter was insufficient notice.

Finally, the administrative judge cited a February 2017 brief submitted by

the appellant’s then-attorney in her EEOC appeal as evidence that the appellant

knew of her Board appeal rights. ID at 24-25. In that brief, the attorney

acknowledged that the appellant could pursue an involuntary retirement claim

before the Board, but argued that it belonged before the EEOC because the

appellant raised it in an amendment to her EEO complaint, and not in the initial

complaint. 2 IAF, Tab 14 at 157-61. The administrative judge imputed to the

appellant her attorney’s error in failing to file a Board appeal upon recognizing

that the appellant could do so. ID at 26-27.

As the administrative judge observed, an appellant is responsible for the

errors of her chosen representative in failing to meet a filing deadline.

ID at 26-27; Gaetos v. Department of Veterans Affairs, 121 M.S.P.R. 201, ¶ 6

(2014). Nonetheless, an appellant is not accountable for her attorney’s errors

when her diligent efforts to prosecute her appeal were, without her knowledge,

thwarted by her representative’s deceptions or negligence. Herring v. Merit

2

The attorney served a copy of this brief on agency counsel, but the certificate of

service does not reflect that he mailed a copy to appellant. IAF, Tab 14 at 164.

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Systems Protection Board, 778 F.3d 1011, 1015-18 (Fed. Cir. 2015); Crawford v.

Department of State, 60 M.S.P.R. 441, 445-46 (1994). The appellant provided a

sworn declaration below that, on June 20, 2018, when she retained her current

representative, she learned for the first time she could appeal her involuntary

retirement to the Board as a mixed case. 3 IAF, Tab 1 at 8. In a second sworn

declaration, she averred that her former attorney never explained to her that she

“had the right to file [a] forced retirement claim with [the Board].” IAF, Tab 23

at 4. Unrebutted sworn statements are competent evidence of the matters asserted

therein. See Aldridge v. Department of Agriculture, 110 M.S.P.R. 21, ¶ 9 (2008).

Although the appellant has provided evidence that her attorney was

negligent, on the record before us we cannot determine whether the appellant

made diligent efforts to pursue her appeal. The record does not reflect if the

appellant regularly contacted her attorney or the extent to which, if at all, her

long-term cognitive impairment affected her ability to maintain such contact or

understand its importance. IAF, Tab 11 at 6 -7, 9-10, 18, Tab 12 at 5. These facts

may be relevant to determining whether the appellant’s diligent efforts to

prosecute her appeal were, without her knowledge, thwarted by her

representative’s deceptions or negligence. Herring, 778 F.3d at 1014-15

(considering the appellant’s relevant medical conditions and her contact with her

attorney just days prior to the deadline as favorable factors in determining

whether she acted with due diligence in filing her appeal despite her attorney’s

error in untimely filing).

In addition, because the timeliness and jurisdictional issues are intertwined,

we cannot resolve the timeliness issue first. Therefore, we remand this appeal.

On remand, the administrative judge must first determine whether the Board has

jurisdiction over the appeal after holding the appellant’s requested hearing.

IAF, Tab 1 at 2; Brown, 115 M.S.P.R. 609, ¶ 5. Because, as discussed above,

3

The appellant filed her appeal on July 16, 2018, 26 days later. IAF, Tab 1;

see 5 C.F.R. § 1201.22(b)(1) (providing that an appellant generally must appeal within

30 days of learning of the agency’s decision).

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timeliness and jurisdiction are intertwined here, the administrative judge should

also hear issues related to the timeliness issue. After holding that hearing, he can

make his final determination as to both issues.

The administrative judge previously suspended discovery deadlines at the

appellant’s request. IAF, Tab 13. Prior to holding the hearing, he should inquire

whether the parties wish to engage in discovery and, if so, provide them an

opportunity to do so.

ORDER

For the reasons discussed above, we remand this case to the Washington

Regional Office for further adjudication in accordance with this Remand Order.

FOR THE BOARD: ______________________________

Gina K. Grippando

Clerk of the Board

Washington, D.C.