Petition for Writ of Certiorari — Young v. Office of Personnel Management

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In the

Supreme Court of the United States

October Term, 1995

JOHN A. YOUNG

Petitioner,

OFFICE OF PERSONNEL MANAGEMENT

Respondent.

Petition for a Writ of Certiorari to the United States

Court of Appeals for the Federal Circuit

PETITION FOR A WRIT OF CERTIORARI

JOHN A. YOUNG, Pro Se

1644 Holland Road

Suffolk, Va 23434

804-934-3073

QUESTIONS PRESENTED

The Office of Personnel Management and the adminis-

trative judge's decision denying disability retirement was not

based upon all material issues of fact and law presented on the

record.

(1) Why would five accommodation efforts be necessary

or even considered if the statements certified by the Disability

Coordinator on Form 2824D were true.

(2) Why would all position descriptions for all transfers

involve tasks which required working in environments which

my doctors stated were not conducive to my medical condition.

(3) If the production control position was the main focus

of accommodation why was I transferred to a tunnel facility

after I declined the production control position.

(4) Why were no credibility determinations made by the

Merit Systems Protection Board J udge.

li

All parties do not appear in the caption of the case on the cover

page. A list of all parties to the proceeding in the court whose

judgment is the subject of this petition is as follows:

The Federal Court of Appeals

The Merit Systems Protection Board

The Office of Personnel Management Administrative Judge

TABLE OF CONTENTS

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CONSTITUTIONAL AND STATUTORY PROVISIONS

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STATEMENT FOR THE CASE..........cccccccscsseserecsorscssoces 2-4

REASONS FOR GRANTING THE WRIT ..............:00004 4-6

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INDEX TO THE APPENDICES

APPENDIX A DECISION OF THE UNITED STATES

COURT OF APPEALS FOR THE

FEDERAL CIRCUIT.

APPENDIX B DECISION OF THE UNITED STATES

MERIT SYSTEMS PROTECTION BOARD.

APPENDIX C DECISION OF THE ADMINISTRATIVE

JUDGE.

iv

TABLE OF CITATIONS

Cases Cited:

The Board, in Chavez- V-OPM6 MSPB 343 (1981)

made clear that the Board will review OPMs reasons

GOES SOU oii cider cited page 5.

Statutes and Rules Cited:

5 C.F.R. § 831.502, 29 C.F.R. § 791 et. seq. ....... cited page 5

> CFR; § 1261. TG a ears cited page 5

Other:

The Americans with Disabilities Act

The Uniformed Services Employment Act

The Civil Rights Act of 1964 and 1991

l

No.

In the

Supreme Court of the United States

October Term, 1995

JOHN A. YOUNG

Petitioner,

VS.

OFFICE OF PERSONNEL MANAGEMENT

Respondent.

Petition for a Writ of Certiorari to the United States

Court of Appeals for the Federal Circuit

PETITION FOR A WRIT OF CERTIORARI

John A. Young respectfully petitions for a writ of

certiorari to review the judgment, and the United States Court

of Appeals affirmation, of the United States of America Merit

Systems Protection Board, Washington, D.C.

OPINIONS BELOW

The decision of the United States Court of Appeals

appears (App., infra) is unpublished.

STATEMENT OF JURISDICTION

The United States Court of Appeals entered its judgment

on November 13, 1995. No petition for rehearing was timely

filed. The jurisdiction of this Court is invoked under 28 U.S.C.

§1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

If the Constitution of the United States establishes

justice and promotes the general welfare and secures the blessin gs

of liberty to its citizens, then the Civil Rights Act of 1964 and

the Civil Rights Act of 1991 along with Americans with

Disabilities Act must be part of my constitutional rights.

STATEMENT OF THE CASE

I was employed at NASA Langley Research Center in

Hampton, Virginia, for almost fifteen years. As an engineering

technician I was unavoidably exposed to chemical fumes, dust,

spray paints, adhesives, temperature and humidity changes

within the workplace. I developed a chronic sinusitis condition

with facial pain and repeated sinus infections along with an

allergic rhinitis condition. I requested a controlled environment

where I would not be exposed to such environments. I filed for

disability retirement in April, 1993. The agency certified that

they had accommodated my medical condition on Form 2824D.

However my supervisor knew the statements on Form 2824D

were not true. This fact was evident in my performance rating

as well as all of my performance plans, yet I was required to work

in environments not conducive to my medical condition despite

repeated letters from my doctors. I was offered a production

control position which I declined because of the environments

associated with the position. After.I declined the production

control position I was transferred to another tunnel facility

where I was required to workin environments of wide temperature

changes, epoxy, chemical odors, spray paints, dusty areas and

4

high humidity. It was in this position that I was reprimanded for

dozing despite my doctor's letters which stated drowsiness and

sedation was due to medication I had to take. This is the position

I held when terminated. The Merit Systems Protection Board

Judge found that Agency Management had accommodated my

medical condition by offering several positions including the

production control position. The administrative judge made no

determination as to who was telling the true facts as supported

by the record. The Federal Court of Appeals stated that because

of their limited review the decision of the board must be

affirmed. However the Federal Court of Appeals stated in their

opinion that I had provided evidence that all assignments

offered had environmental conditions that were not conducive

to my medical condition.

REASONS FOR GRANTING THE WRIT

I. This case should be reviewed to correct an unjust

decision which if left unchallenged would allow veterans and

individuals with disabilities to be subjected to much oppression.

II. This case should be reviewed because the federal

court of appeals stated in their opinion that I had provided

evidence that all of the assignments offered had environmental

conditions that were not conducive to my medical condition.

III. This case should be reviewed because the decision

to deny disability retirement is of absolute authority since the

issues and facts were not reviewed by the MSPB or the Federal

Court of Appeals. (Chavez V-OPM, 6 MSPB 343-1981)

IV. As a disabled veteran whose service connected

medical condition was exacerbated and then terminated, this

case should be reviewed.

V. The administrative judge erroneously interpreted the

reasonableness of accommodation offered. 5 C.F.R. § 831.503

(b) (6) 29 C.F.R. § 791 et. seq.

VI. The administrative judge erroneously interpreted

regulations in that she failed to make findings of fact and

conclusions of law supported by the evidence on record. 5

C.F.R. §1201.111 (b) (1)

VII. Because of conflicting certified statements this case

should be reviewed.

VIII. Being a federal employee for fifteen years and

because the federal government provides effective enforcement

of the Americans with Disabilities Act this petition should be

reviewed.

CONCLUSION

I respectfully request the Supreme Court of the United

States to reverse the decision denying disability retirement

based upon all material issues of fact and law presented on the

record and just compensation for undue hardship.

The petition for a Writ of Certiorari should be granted.

Respectfully submitted,

John A. Young, Pro Se

1644 Holland Road

Suffolk, Va 23434

804-934-3073

la

Appendix A—Affirmation of the U.S. Court of Appeals for the

Federal Court—Dated November 13, 1995

No. 95-3676

Docket Number PH8-31E-94-0516-I-1

John A. Young,

Petitioner,

vs

Office of Personnel Management,

Respondent.

Appeal from the United States Merit Systems Protection Board

(June 15, 1995)

Before MICHEL, PLAGER, and RADER, Circuit Judges.

RADER, Circuit Judge.

PER CURIAM: AFFIRMED. See Fed. Cir. R. 47.6

"Costs taxed against the petitioner."

Judgment entered November 13, 1995

For the Court: Francis X. Gindhart, Clerk

ISSUED AS MANDATE: 1/4/96

2a

Appendix A—Affirmation of the U.S. Court of Appeals for the

Federal Court—Dated November 13, 1995

No. 95-3676

Docket Number PH8-31E-94-0516-I-1

John A. Young,

Petitioner,

V.

Office of Personnel Management,

Respondent.

Appeal from the United States Merit Systems Protection Board

(June 15, 1995)

Before MICHEL, PLAGER, and RADER, Circuit Judges.

RADER, Circuit Judge.

PER CURIAM: AFFIRMED. See Fed. Cir. R. 47.6

Judgment entered November 13, 1995

Mr. John A. Young appeals the decision of the Merit System

Protection Board. The Board sustained the Office of Personnel

Management's (OPM) denial of Mr: Young's application for a

3a

disability retirement annuity. Because the Board applied the

correct legal and procedural standards, this court affirms.

DECISION

Mr. Young worked at NASA Langley Research Center

in Hampton, Virginia, as an Engineering Technician. Mr.

Young suffers from chronic sinusitis and allergic rhinitis. These

conditions are affected by changes in the environment, dust, and

fumes from spray paints, adhesives and other chemicals. Because

of these conditions, Mr. Young could not work in his current

position.

An employee is entitled to disability retirement if, upon

completion of at least five years of civilian federal service, he

becomes unable, because of disease or injury, to render useful

and efficient service in his current position or in any other

position in the same agency at the same grade or pay level for

which he is qualified for resassignment. 5 U.S.C. § 8337(a)

(1994); Burns v. Office of Personnel Management, 58 M.S.P.R.

688, 691 (1993); 5 C.F.R. § 831.502(a) (1995). Mr. Young,

4a

without dispute, meets the five-year eligibility requirement for

disability.

The parties stipulated that Mr. Young has a disabling

condition. OPM attempted to accommodate Mr. Youn g's

condition. It offered Mr. Young several reassignments at the

same grade and pay level with less environmental disturbances.

Mr. Young found all of these reassignments unsatisfactory. He

provided evidence that these new assi gnments had environmental

conditions that were not conducive to his medical condition. He

also testified that he often fell asleep at these new assi gnments

due to medication.

Mr. Young requested an office Position with no

technician-type duties and witha controlled environment. OPM

then offered Mr. Young a production comptroller position that

required no technician-type work. The duties of this position

involved processing paper work in an air-conditioned office

environment and monitoring work in different buildings. Mr.

Young declined this position and never reported for work. He

5a

believed the chemicals in the facility under the office area would

permeate the rest of the building. He also testified that requiring

him to go from building to building would subject him to

changes in his environment. Mr. Young stated that he knew

some of the buildings had chemical odors, dusty areas, and high

humidity. He did not attempt to fill this position and did not

provide proof of these statements regarding the position. The

Board found Mr. Young rejected this position because he feared

falling asleep due to his medication.

The issue reviewed by the Board was whether Mr.

Young's medical condition could be and had been accommodated.

The Board found the OPM reasonably accommodated Mr.

Young's disability. Thus, the Board held that Mr. Young failed

to prove that he was entitled to disability retirement benefits.

This court must affirm the Board's decision unless it is

(1) arbitrary, capricious, an abuse of discretion, or otherwise not

in accordance with the law; (2) obtained without procedures

required by law, rule or regulation having been followed; or (3)

6a

unsupported by substantial evidence. 5 U.S.C. §7703(c) (1994),

In voluntary disability retirement decisions the factual

underpinnings are not subject to judicial review. This court is

only permitted to determine whether there has been a substantial

departure from important procedural rights, a misconstruction

of the governing legislation, or some like error going tothe heart

of the administrative determination. Lindahl v. Office of Personnel

Management, 470 U.S. 768, 791 (1985); Smith v. Office of

Personnel Management, 760 F.2d 244, 246 (Fed. Cir. 1985).

Mr. Young cites several letters from physicians and

argues that the determination of OPM and the Board was not

based on a preponderance of the evidence. He further argues that

OPM did notreasonably accommodate his disability. Therefore,

he claims he should be entitled to disability retirement benefits.

However, Mr. Young's factual allegations fall outside this

court's limited review.

An appellant has the burden of proving entitlement to

disability retirement by a preponderance of the evidence. Chavez

7a

v. Office of Personnel Management, 6 M.S.P.R. 404, 417

(1981). Where the evidence establishes that an employee is

unable to perform the regular duties of his position, he should

not be retired on disability if the disability could reasonably be

accommodated. Malan v. Department of Air Force, 55M.S.P.R.

283, 294 (1992).

The Board found that the agency reasonably

accommodated Mr. Young by attempting to assign him to an air-

conditioned work area in which the environmental factors could

reasonably be controlled. Hence, the Board found that Mr.

Young failed to prove by a preponderance of the evidence that

he was entitled to disability retirement benefits. On this court's

limited review, the decision of the Board must be affirmed.

8a

Appendix B—Order of the United States of America

Merit Systems Protection Board

Philadelphia Regional Office

Dated June 15, 1995

JOHN A. YOUNG }

Appellant, } Case No.

OFFICE OF PERSONNEL } PH-831E-94-0516-I-1

MANAGEMENT }

Agency.

ORDER

After full consideration, we DENY the appellant's petition

for review of the initial decision issued on February 27, 1995,

because it does not meet the criteria for review set forth at 5

C.F.R. § 1201-115. This is the Board's final order in this appeal.

The initial decision in this appeal is now final. 5 C.F.R. §

1201.113(b).

FOR THE BOARD: Robert E. Taylor

Clerk of the Board

9a

Appendix C—Order of the United States of America

Merit Systems Protection Board

Philadelphia Regional Office

Dated February 27, 1995

JOHN A. YOUNG }

Appellant, } Case No.

OFFICE OF PERSONNEL } PH-831E-94-0516-I-1

MANAGEMENT }

Agency }

INITIAL DECISION

INTRODUCTION

On June 30, 1994, John A. Young timely appealed from

the June 7, 1994 reconsideration decision of the Office of

Personnel Management (hereinafter OPM) which affirmed its

earlier denial of his application for a disability retirement

annuity. The Merit Systems Protection Board (Board) has

jurisdiction in this appeal pursuant to 5 U.S.C. § 8347(d) and

SC.F.R. § 831.110(1994).

10a

Pursuant to the appellant's request, a hearing was held in

Norfolk, Virginia. For the reasons set forth below, the agency

action is AFFIRMED.

ANALYSIS AND FINDINGS

John A. Young was a CS-10 Engineering Technician

prior to appellant's April 26, 1993 application for disability

retirement, he has chronic sinusitis and allergic rhinitis which is

affected by changes in the environment, fumes from spray

paints, adhesives, and other chemicals. He claimed that the

different types of antihistamines and decongestants that he is

required to take to control his medical condition causes drowsi-

ness and lack of concentration which adversely affects his

ability to perform his duties as an engineering technician.

Appeal File (AF), Tab 5; Agency File, Tab D.

In a September 30, 1993 initial decision letter, the OPM

notified the appellant that he was not eligible for disability

retirement benefits based on the medical evidence he submitted

to support his application. /d. at Tab C. The appellant requested

lla

reconsideration of OPM's initial decision. /d. at B. On June 7,

1994, the OPM issued a reconsideration decision in which it

noted that after reviewing the appellant's original file and

considering the new documentation accompanying his recon-

sideration request, it was sustaining its earlier determination that

the appellant was not disabled for useful and efficient se: vice.

Id. at A.

Burden of Proof

An employee qualifies for disability retirement if, upon

completion of at least five years of civilian federal service, he

becomes unable, because of disease or injury, to render useful

and efficient service in his current position, or in any other

position for which he qualifies and to which he can be reas-

signed. 5 U.S.C. § 8337(a). There is no dispute that the appellant

meets the five-year eligibility requirement for disability.

The appellant has the burden of proving by preponderant

evidence that he is entitled to disability retirement. Chavez v.

Office of Personnel Management, 6 M.S.P.R. 404, 417 (1981).

12a

Although the appellant need not establish that he is totally

helpless to be considered disabled, Bauman v. Office of Person-

nel Management, 42 M.S.P.R. 257, 259 (1989), he must show

that because of disease or injury he is unable to render useful and

efficient service as an engineering technician, and that in all

probability, the condition will continue for at least one year. See

5 U.S.C. § 8337(a); Winslett v. Office of Personnel Manage-

ment, 30 M.S.P.R. 293, 295 (1986); McCoy v. Office of Person-

nel Management, 28 M.S.P.R. 185, 187 (1985); 5 C.F.R. § 831.

502 (1994).

A disability retirement claim must be based upon the

probative value of all the evidence, taking into account the

following elements of proof: (1) Objective Clinical findin gs; (2)

diagnosis and expert medical opinions; and (3) subjective

evidence of pain and disability together with (4) all evidence

relating to the effect of the appellant's condition upon his ability

to perform in the grade or class of the position he last occupied.

Chavez, 6 M.S.P.R. at 422-23 (1981).

13a

The evidence

The parties stipulated that the appellant has a disabling

medical condition. Hearing Tape (HT) 1, Side A. A Stipulation

is sufficient to prove the fact alleged. Swiftv. Office of Personnel

Management, 48 M.S.P.R. 441,445 (1991); 5C.F.R. § 1201.63

(1994). Moreover, the medical evidence documenting the

appellant's condition of chronic sinusitis and allergic rhinitis is

extensive. AF Tab 5, Subtab D, see also Tab 10, Appellant's

Exhibits S, T, U, V, W, X & Y.

An engineering technician provides technical, mechani-

cal and operational support to aerospace research conducted in

the 31 Inch Mach 10 Tunnel and the 14 Inch Mach 6 High

Temperature Tunnel of the Experimental Hypersonics Branch,

Space Division. As an engineering technician, the appellant

worked with the engineering staff, planning and carrying to

conclusion complex research projects. The work of an engineer-

ing technician is done in a wind-tunnel environment. /d. at Tab

5, Subtab D.

l4a

The appellant testified that as anen gineering technician

(tunnel mechanic), he worked in Building 1251. He noted that

the environmental factors in the building affected his medical

condition. He explained that while working in Building 1251,

he experienced breathing difficulties, multiple sinus infections,

sneezing, allergic rhinitis, and asthma attacks. He testified that

his medical condition flared up as a result of the dust and

chemical fumes emanating from adhesives, epoxy, and spray

paints. The high humidity in the building and rapid temperature

changes while traveling back and forth from the air conditioned

tunnels to non-air conditioned work areas aggravated his con-

dition. HT at 1, side A.

In a May 28, 1993 letter, the appellant's treating physi-

cian, Dr. Leo R. Carter, advised the agency that the appellant has

a long-standing history of allergic rhinitis for which medical and

immunotherapy have been unsuccessful. Dr. Carter recom-

mended that the appellant be restricted from an environment in

which excessive amounts of toxic fumes/chemicals, dust, and

iSa

high humidification are present. [AF at Tab 5, Subtab D. Based

on the parties’ stipulation, the appellant's medical evidence and

his testimony, I find that the appellant's condition restricts his

ability to perform his engineering technician duties.

Under OPM's regulations, an employee is entitled to

disability retirement if because of disease or injury, he is unable

to render useful and efficient service in his current position or

in a vacant position in the same agency at the same grade or pay

level for which he is qualified for reassignment. Burns v. Office

of Personnel Management, 58 M.S.P.R. 688, 691 (1993); 5

C.F.R. § 831.502(a) (1994). Reassignment is defined as a

change of an employee, while serving continuously within the

Same agency from one position to another without promotion or

demotion. /d. However, where the evidence establishes that an

employee is unable to perform the regular duties of his position,

he should not be retired on disability if the disability could

reasonably be accommodated. Malan v. Department of the Air

Force, 55 M.S.P.R. 283, 294 (1992); Benjamin v. Office of

l6a

Personnel Management, 45 M.S.P.R. 187, 190 (1990). Because

the parties have stipulated that the appellant has a disabling

condition, the remaining issue is whether the appellant's medical

condition can be accommodated.

Diane E. Forrest, the agency's Disability Program

Manager, completed Standard Form 2824D in which she

answered that reassignment was not necessary because the

appellant's service is fully successful and the appellant has no

medical restrictions which prevent him from either performing

his critical duties or from attending work altogether. She further

described the agency's accommodations efforts by noting that

the appellant had been reassigned to Building 1251A, Unitary

Wind Tunnel, into an engineering technician position at the

same grade, pay level, and tenure as his former position and

within the same commuting area. According to Ms. Forrest, the

appellant was assigned to an air-conditioned office, and

approximately once a day for 15-20 minutes, he is required to

check equipment in the basement which is not air-conditioned

17a

but which has less humidity and heat than the outside air. She

noted, however, that there are chemicals on the building site

which are used less than once a year. However, the building

houses a wind tunnel which does not have the fumes that

bothered the appellant's condition in the laboratory where he

originally worked. Ms. Forrest further stated that when the

appellant expressed dissatisfaction with the reassignment to

Building 1251A and requested an office position with no

technician-type duties and with a controlled environment, he

was offered an opportunity to return to his former position but

within an air-conditioned laboratory. He declined the new offer.

IAF at Tab 5, Subtab D.

Ms. Forrest testified that four attempts were made to

accommodate the appellant's condition. She testified that he was

reassigned to Buildings 1251A (the wind tunnel), Building

1247B, Building 1267, and Building 1221. Although Ms.

Forrest acknowledged that Building 1221 has a small wind

tunnel on the side, she specifically testified that when she went

18a

to Building 1221 and she could not detect fumes and dust. She

further noted that model airplanes are not painted in the wind

tunnel, that the painting and cleaning work is performed before

the airplanes are placed in the wind tunnel. HT at 1, Side A.

In order to accommodate the appellant's medical

restrictions, Ms. Forrest further explained that the appellant was

offered a production comptroller position at the same pay and

grade level of his engineering position. Although she had not

seen the position description for the comptroller position, Ms.

Forrest explained that she works with production comptrollers

on a regular basis. She testified that the duties of the position

involve processing paper work in an office environment. When

Ms. Forrest went to the work site, she could not detect odors or

fumes in the work area. Ms. Forrest testified that the appellant

rejected the production comptroller position because he feared

falling asleep as aresultof his sleep problem and the medications

that he was taking. /d.

The appellant admitted that he was offered several

19a

positions. He testified that he was offered a position in Building

1148 and when he toured the building, he noticed the smell of

epoxy. He noted that there was a large build-up of dust and that

spray painting was performed in the building even though the

building's large roll-up doors were open. He opined that because

of the pungent odor of epoxy in the buildin g, he could not work

in Building 1148. Jd. at Side A.

In support of his testimony regarding the environmental

conditions in Building 1148, the appellant submitted a sworn

affidavit from Walter Fay Presson, an engineering technician,

who worked in Building 1148 prior to his retirement in 1993.

Mr. Presson averred that many types of plastics, adhesives, and

other materials are tested in Building 1148. He stated that the

buildin gisdusty and dirty andcontainsa heavy volume of fumes

resulting from spray paints, resin, and other materials. He

acknowledged that the temperature and humidity inside the

building are inconsistent and the air quality in the building is

poor even though the roll-up doors are left open durin g working

20a

hours. Appellant's Exhibit 2.

The appellant acknowledged that he was offered a

position in work control which would have required him to go

to different buildings and monitor work being performed.

Although he did not know which buildings he would be expected

to go to, he testified that he would have to go to laboratory or

tunnel-like facilities where mostof the work involved chemicals.

The appellant concluded that whenever he was in Building 1148

or 1251, he was exposed to environmental conditions which

aggravated his medical condition. He noted that going to a

different environment such as an air-conditioned room helped

to relieve any discomfort that occurred as result of the

environment. The appellant did not discuss the production

comptroller position with Ms. Forrester. He admitted that he did

not accept the position because he feared falling asleep as aresult

of the medication that he takes for his condition. As to the

environmental factors which aggravate the appell:nt's condition

and restrict his ability to perform, the appellant explained that

2la

he believed the chemicals in the tunnel facility under the work

control area would permeate the rest of the building. HT at 1,

Side A.

An employee whose disability can be reasonably

accommodated by the employing agency has not met his burden

of establishing entitlement to disability retirement benefits.

Schwaier v. Office of Personnel Management, 61 M.S.P.R. 49,

53 (1994); Dec v. Office of Personnel Management, 47 M.S.P.R.

72, 79, (1991). In this case, I find the agency made several

attempts to accommodate the appellant's medical condition by

offering to him several positions in different locations which

would have been more conducive to the appellant's respiratory

problems. The agency attempted to assign the appellant to an

air-conditioned workarea in which the environmental factors

could reasonably be controlled. There is no evidence that the

appellant reported to the work area where the production

comptroller pos:. sn was located. However, he refused to accept

the reassignment because he feared falling asleep and he believed

22a

chemicals in atunnel under the worksite could possibly permeate

the work area. Based on the record as a whole, I find that the

appellant failed to prove by a preponderance of the evidence that

he is entitled to disability retirement benefits. Thus, OPM's

reconsideration decision must be affirmed.

DECISION

The agency's reconsideration is AFFIRMED.

FOR THE BOARD:

Wilhelmina Douglas Stevenson

Administrative Judge

SN rie of ja uatnadion gia: <1 Oe