The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
AKI SINGAM, DOCKET NUMBER
Appellant, DC-0752-20-0382-I-4
v.
DEPARTMENT OF HEALTH AND DATE: May 21, 2024
HUMAN SERVICES,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Kumar Singam , Bethesda, Maryland, for the appellant.
Christy Te , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Chairman Harris and Vice Chairman Limon issue
separate, concurring opinions.
FINAL ORDER
The appellant has filed a petition for review of the initial decision that
dismissed her constructive suspension appeal for lack of jurisdiction. Generally,
we grant petitions such as this only in the following circumstances: the initial
decision contains erroneous findings of material fact; the initial decision is based
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
NOTICE OF APPEAL RIGHTS 2
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
2
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.
3
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
4
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
5
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. 3 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
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
3
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,
132 Stat. 1510.
6
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.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
CONCURRING OPINION OF CATHY A. HARRIS
in
Aki Singam v. Department of Health and Human Services
MSPB Docket No. DC-0752-20-0382-I-4
I agree with the administrative judge that the appellant has not established
that the agency constructively suspended her. Therefore, I concur in the result in
this case. Nevertheless, as discussed below, I disagree with the administrative
judge’s determination that the agency was within its rights to request additional
information from the appellant before making a decision on her accommodation
request.
The appellant is a G-12 Pharmacist with the agency. In July 2019, the
appellant submitted documentation to the agency from her physician, which stated
that she had functional restrictions that prohibited her from working in the
Intravenous Admixture Unit (IVAU) room between July 1, 2019, and July 15,
2019. Singam v. Department of Health and Human Services, MSPB Docket
No. DC-0752-20-0382-I-1, Initial Appeal File (IAF), Tab 1 at 26. As a result, the
agency reassigned the appellant to other work locations. On October 23, 2019,
the Pharmacy Supervisor directed the appellant to return to the full range of her
duties in the IVAU room effective October 25, 2019. Id. The supervisor
informed the appellant that, if she had a medical condition preventing her from
performing her duties, she may submit a reasonable accommodation request to the
agency’s Office of Equity, Diversity, and Inclusion (EDI). Id.
On November 7, 2019, the appellant sent the EDI a fax containing the
subject line “Reasonable Accommodation Forms” in which she included a
narrative stating that, on an unspecified date, she fell in the IVAU room. Singam
v. Department of Health and Human Services, MSPB Docket No. DC-0752-20-
0382-I-4, Appeal File (I-4 AF), Tab 68 at 33-37. The appellant also included a
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letter from a medical provider, which stated that the appellant’s impairment was
“recurrent falls” and “retinal detachment” and that the appellant was limited in
her ability to walk. Id. at 36-37. He suggested that the appellant “should avoid
working in the IV Room for the next 2 months.” Id. at 37.
The next day, the agency’s Occupational Medical Services (OMS)
completed a document entitled “OMS Medical Evaluation of Functional
Activities.” IAF, Tab 1 at 30. It stated that the appellant’s medical provider had
recommended that she not work in the IVAU room through January 30, 2020. Id.
EDI sent an email to the appellant requesting that she sign an “Authorization for
Disclosure form” authorizing the agency to speak with her medical provider. I-4
AF, Tab 68 at 38. The appellant refused to sign the form; instead, she repeatedly
stated that the document issued by OMS was “binding” and that she should be
permitted to work outside the IVAU room on that basis.
On November 15, 2019, the appellant wrote to EDI that “[a]t no time did
[she] reach out to process a request to no longer work in the IV room,” and “there
is no need for you to process a request that I did not make.” Id. at 55. On
November 26, 2019, the appellant wrote that “there is no accessibility request
from me to be closed or withdrawn.” Id. at 74. EDI then ceased any attempts to
process a reasonable accommodation request. The appellant used sick leave,
annual leave, and leave without pay from October 16, 2019, through at least
December 20, 2019, and on numerous dates in January 2020. On several
occasions in December 2019 and January 2020, the appellant’s supervisor
instructed that she must report to her assigned work area with clearance from
OMS or take leave.
On December 23, 2019, the appellant sent an email to EDI stating the
following: “[ ] I am requesting a temporary reasonable accommodation pursuant
to the OMS Blue Slip that was sent via Dr. [S] from the OMS for the period
11/06/19 through 01/01/20 to work outside the IV Room.” I-4 AF, Tab 14 at 91.
On December 30, 2019, EDI informed the appellant that it did not have sufficient
3
medical information to process a reasonable accommodation request and it asked
that she authorize the agency to speak with her medical provider. Id. at 93-94.
The appellant responded that she would not provide the authorization and again
asserted that the agency must comply with the form issued by OMS. Id. at 93.
On January 3, 2020, the agency explained that it needed further clarification on
the extent of the appellant’s limitations in the IVAU room and the nature and
duration of the limitations.
On January 14, 2020, the appellant asserted that she was on campus and
“will be completing mandatory work/special projects as a temporary
accommodation while I await hearing from you as to how you will comply with
my legally complete reasonable accommodation request.” I-4 AF, Tab 68 at 103.
Her supervisor responded that she had not been assigned any special projects or
temporary accommodations and that she must report to her assigned location in
the IVAU room or take leave until cleared by OMS. Id. On January 23, 2020, the
appellant sent an email stating, “[p]er my assignment to projects in the official
schedule, I have been working and documenting the mismanagement of the IV
Room by you and the consequent waste of [F]ederal funds.” IAF, Tab 1 at 38-39.
On January 30, 2020, the appellant returned to work in the IVAU room. I-4 AF,
Tab 68 at 20.
The appellant filed a Board appeal on February 15, 2020, alleging that the
agency subjected her to a constructive suspension between October 2019 and
January 2020. IAF, Tab 1. The administrative judge found that the appellant
made a nonfrivolous allegation of Board jurisdiction over a constructive
suspension claim with an affirmative defense of failure to accommodate and
scheduled a jurisdictional hearing. I-4 AF, Tab 23. Thereafter, the appellant
withdrew her hearing request, and the administrative judge issued an initial
decision on the written record finding that the appellant did not establish
jurisdiction over her constructive suspension claim by preponderant evidence. I -4
AF, Tab 74, Initial Decision (ID). In relevant part, the administrative judge
4
found that the medical evidence in the record is insufficient to find that working
in the IVAU room was against the appellant’s medical restrictions, which would
have deprived her of a meaningful choice. The appellant subsequently filed a
petition for review.
As an initial matter, I agree with the administrative judge that the
framework set forth in Bean v. U.S. Postal Service, 120 M.S.P.R. 397, ¶ 11
(2013) is applicable here. ID at 8. Like Bean, the instant case involves an
involuntary leave-type constructive suspension appeal because it concerns a claim
that leave that appeared to be voluntary actually was not. Thus, to establish
jurisdiction in her constructive suspension appeal, the appellant must show that:
(1) she lacked a meaningful choice regarding her absence; and (2) this was
because of the agency’s improper actions. See Bean, 120 M.S.P.R. 397, ¶ 11.
Regarding the first prong under this test, the appellant established that she
lacked a meaningful choice in her absence. “[T]he Americans With Disabilities
Act, which applies to Federal employees pursuant to the Rehabilitation Act
Amendment of 1992, prohibits disability-related inquiries, including inquiries as
to the nature and severity of a disability, unless such inquiry is shown to be
job-related and consistent with business necessity.” Hartless v. U.S. Postal
Service, EEOC Appeal No. 0120101017, 2010 WL 2345516, *1 (June 4, 2010).
In response to a request for reasonable accommodation, an agency “cannot ask for
documentation in response to a request for reasonable accommodation . . . when:
(1) both the disability and the need for reasonable accommodation are obvious, or
(2) the individual has already provided the agency with sufficient information to
substantiate that s/he has . . . a disability [under the Rehabilitation Act] and needs
the reasonable accommodation requested.” See EEOC Enforcement Guidance:
Reasonable Accommodation and Undue Hardship Under the Americans with
Disabilities Act, Notice 915.002 (Oct. 17, 2002),
https://www.eeoc.gov/laws/guidance/enforcement-guidance-reasonable-
accommodation-and-undue-hardship-under-ada (last visited May 21, 2024). An
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agency may request “relevant supplemental medical information if the
information submitted by the requester is insufficient” for the purposes of
explaining “the nature of the individual’s disability, his or her need for
reasonable accommodation, and how the requested accommodation, if any, will
assist the individual to apply for a job, perform the essential functions of a job, or
enjoy the benefits and privileges of the workplace.” See 29 C.F.R. 1614.203(d)
(3). In addition, the Equal Employment Opportunity Commission has found that,
when there is a bona fide dispute regarding the application of an employee’s
restrictions to certain duties, an agency is permitted to obtain further medical
information to determine the need for reasonable accommodation. See Ross v.
Department of the Treasury, EEOC Appeal No. 01982708, 2001 WL 1103786, *8
(August 2, 2001).
Here, as stated above, the medical documentation submitted by the
appellant stated that her impairment was “recurrent falls” and “retinal
detachment” and that she was limited in her ability to walk. The appellant’s
medical provider stated the appellant “should avoid working in the IV Room for
the next 2 months.” This medical information sufficiently explained the nature of
the appellant’s disability and the need for an accommodation under the
Rehabilitation Act. The record does not reflect that there was a bona fide dispute
as to whether the appellant could work in the IVAU room, and the appellant’s
medical documentation was sufficient to substantiate that she needed the
reasonable accommodation requested.
However, the appellant has ultimately not established by preponderant
absence that it was the agency’s wrongful actions that deprived her of a
meaningful choice in the matter. The appellant sent confusing and conflicting
correspondence to the agency, and, most significantly, unequivocally instructed
the agency to stop processing a request for accommodations. She also refused to
meet with her supervisor to discuss her request. Thus, under these circumstances,
the appellant did not meet her burden of establishing by preponderant evidence
6
that the agency acted wrongfully in not processing her reasonable accommodation
request. I therefore concur with the Board’s determination that the appellant did
not establish by preponderant evidence that the agency constructively suspended
her.
/s/
Cathy A. Harris
Chairman
CONCURRING OPINION OF RAYMOND A. LIMON
in
Aki Singam v. Department of Health and Human Services
MSPB Docket No. DC-0752-20-0382-I-4
As both the administrative judge in the initial decision and the Chairman in
her Concurring Opinion state, to establish jurisdiction over this constructive
suspension appeal, the appellant must show that: (1) she lacked a meaningful
choice regarding her absence; and (2) this was because of the agency’s improper
actions. Bean v. U.S. Postal Service, 120 M.S.P.R. 397, ¶ 11 (2013). I believe
the record tends to support the administrative judge’s findings with respect to the
first prong of this test, but a detailed review is not necessary as I concur with the
Chairman’s and the administrative judge’s findings that the appellant has not met
her burden on the second prong of this test.
/s/
Raymond A. Limon
Vice Chairman