Croal-Manuel v. Merit Systems Protection Board , 489 F. App'x 441 ( 2012 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
DARLENE M. CROAL-MANUEL,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
__________________________
2012-3070
__________________________
Petition for review of the Merit Systems Protection
Board in case no. AT0752110612-I-1.
___________________________
Decided: July 12, 2012
___________________________
DARLENE M. CROAL-MANUEL, of Pineville, Louisiana,
pro se.
MICHAEL A. CARNEY, General Attorney, Office of the
General Counsel, Merit Systems Protection Board, of
Washington, DC, for respondent. With him on the brief
were JAMES M. EISENMANN, General Counsel and KEISHA
DAWN BELL, Deputy General Counsel.
__________________________
CROAL-MANUEL v. MSPB 2
Before RADER, Chief Judge, O’MALLEY, and REYNA, Cir-
cuit Judges.
PER CURIAM.
Darlene M. Croal-Manuel petitions for review of the
final decision of the Merit Systems Protection Board (the
“Board”) affirming the Administrative Judge’s (“AJ”)
decision dismissing Ms. Croal-Manuel’s appeal alleging
involuntary retirement for lack of jurisdiction. Croal-
Manuel v. Dep’t of Transp., 117 M.S.P.R. 107 (2011)
(“Final Order”); Croal-Manuel v. Dep’t of Transp., 2011
MSPB LEXIS 3881 (June 20, 2011) (“Initial Decision”).
For the reasons explained below, we affirm.
BACKGROUND
Ms. Croal-Manuel began employment with the Fed-
eral Highway Administration’s (“FHWA”) Atlanta Admin-
istrative Services Team as a Human Resources Assistant
on June 16, 2002. On August 30, 2005, she was placed on
administrative leave pending a medical evaluation relat-
ing to erratic behavior she exhibited in her workplace four
days earlier. The behavior included verbal and physical
outbursts that resulted in emergency services being called
to render assistance. Ms. Croal-Manuel refused medical
treatment from the emergency personnel that responded
but was later driven to, and left in the care of, a family
member by two co-workers. In a letter to the FHWA
dated September 19, 2005, Ms. Croal-Manuel’s treating
physician, Dr. David Bedell, discussed the medical
evaluation of Ms. Croal-Manuel requested by the FHWA
and informed it of his diagnosis of generalized anxiety
disorder. Dr. Bedell indicated that it was highly probable
that Ms. Croal-Manuel would make a full recovery and be
capable of returning to work on October 3, 2005. He also
noted that he “brought up the possibility of a transfer” for
Ms. Croal-Manuel during a conversation with the FHWA
3 CROAL-MANUEL v. MSPB
and that he believed a transfer might “help her re-entry
and accommodation to work if that can be done.”
As a result of the evaluation, Ms. Croal-Manuel was
directed to return to work on October 3, 2005. FHWA
documentation indicates that accommodation efforts were
made upon Ms. Croal-Manuel’s return, including reas-
signment of critical projects to other staff members,
reduction in workload, and allowance for liberal leave.
On October 31, 2005, Ms. Croal-Manuel failed to show up
for work on time and, after being contacted by her super-
visor, informed her supervisor that she was considering
an application for disability retirement. The following
day, Dr. Bedell signed a statement that Ms. Croal-Manuel
would be unable to return to work “for an indefinite
period of time.” On or about November 3, 2005, the
petitioner filed an application for disability retirement.
In that application, Ms. Croal-Manuel described her
condition as “jerking, nervous, shaking, not aware of
surroundings at times, memory comes and go [sic], mem-
ory of date and time, crying intervals.” She indicated that
these problems would interfere with her performance,
attendance and conduct, making her “unable to maintain
daily working activities.” Ms. Croal-Manuel also stated
that her “[m]edical physician requested transfer out from
the agency.” In connection with the petitioner’s disability
retirement application, the FHWA certified, via a checked
box, that “Reassignment is not possible. There are no
vacant positions at this agency, at the same grade or pay
level and tenure within the same commuting area, for
which the employee meets minimum qualification stan-
dards.”
On November 21, 2005, Ms. Croal-Manuel submitted
an evaluation from Dr. Bedell in support of her applica-
tion for disability retirement. The evaluation noted a
history of depression and “escalating paranoia” dating
CROAL-MANUEL v. MSPB 4
back to 2000, and stated, in the opinion of Dr. Bedell, that
“she has not had a full recovery from Delusional Disorder
for well over a year and has had a severe relapse . . . [i]t is
not likely that she will recover within another year or
even longer.” According to Dr. Bedell, Ms. Croal-Manuel’s
condition may result in her becoming “static.” The Office
of Personnel Management (OPM) notified Ms. Croal-
Manuel on December 16, 2005, that it had approved her
disability retirement application and her retirement
became effective on January 6, 2006.
On April 23, 2011, Ms. Croal-Manuel appealed her
disability retirement to the Board alleging that her re-
tirement in 2006 was involuntary and that she was the
target of harassment. The AJ issued an Order to Show
Cause on May 18, 2011, explaining that Ms. Croal-
Manuel bears the burden of establishing timeliness of her
filing and the Board’s jurisdiction over her appeal. In the
order, the AJ directed Ms. Croal-Manuel to answer a
series of questions designed to assist the Board in deter-
mining jurisdiction. Ms. Croal-Manuel responded on May
31, 2011, stating that she has no limitations in perform-
ing her duties and that Dr. Bedell requested the accom-
modation of a “better working environment.” She also
stated that no accommodation was provided, but acknowl-
edged that there were no positions available at any time
that she believed would have accommodated her medical
limitations.
The AJ issued the Initial Decision on June 20, 2011,
dismissing Ms. Croal-Manuel’s appeal for lack of jurisdic-
tion finding that Ms. Croal-Manuel had failed to make a
non-frivolous allegation that her retirement was involun-
tary. Initial Decision at 9-10. Specifically, the AJ found
that Ms. Croal-Manuel effectively rescinded any request
to continue working by informing her manager that she
wished to resign and seek disability retirement. Id. at 7.
5 CROAL-MANUEL v. MSPB
According to the AJ, this finding, coupled with her physi-
cian’s determination that Ms. Croal-Manuel was unable
to perform any work at all, relieved the FHWA of any
obligation it may otherwise have had to provide reason-
able accommodation. Id. The AJ also found that Ms.
Croal-Manuel made no allegation that a reasonable
accommodation was available during the period between
her notifying the FHWA of any medical condition and her
separation from the agency. Id. at 8. Finally, noting
again that Ms. Croal-Manuel’s physician certified that she
was unable to work at all, the AJ found that no non-
frivolous allegation had been made that the FHWA unjus-
tifiably failed to offer an available accommodation. Id.
Absent jurisdiction over Ms. Croal-Manuel’s separation,
the AJ found no jurisdiction existed over her claims of
harassment. Id. at 9. The AJ did not address the timeli-
ness of her appeal. Id. at 10.
On June 27, 2011, Ms. Croal-Manuel filed a petition
for review alleging that the agency failed to provide
written notice or explanation of any reasonable accommo-
dation and coerced her into retiring. In its Final Order,
dated December 1, 2011, the Board found no error in the
AJ’s determination and concluded that there was no new,
previously unavailable, evidence. Final Order at 2. The
Board also declined to address her arguments regarding
coercion, noting that “the Board will not consider argu-
ment[s] raised for the first time in a petition for review
absent a showing that they are based on new and mate-
rial evidence not previously available despite the party’s
due diligence.” Id.
Ms. Croal-Manuel timely appealed the Board’s final
decision to this court. We have jurisdiction pursuant to
28 U.S.C. § 1295(a)(9).
CROAL-MANUEL v. MSPB 6
STANDARD OF REVIEW
Our review of the Board’s decisions is limited by stat-
ute. Hamel v. President’s Comm’n on Exec. Exch., 987
F.2d 1561, 1564 (Fed. Cir. 1993) (“We review Board
decisions under a very narrow standard.”). We must
affirm a decision from the Board unless it is “(1) arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law; (2) obtained without procedures
required by law, rule, or regulation having been followed;
or (3) unsupported by substantial evidence.” 5 U.S.C.
§ 7703(c). Whether the Board has jurisdiction over an
appeal is a question of law, which we review de novo.
Herman v. Dep’t of Justice, 193 F.3d 1375, 1378 (Fed. Cir.
1999). The petitioner has the burden of establishing
Board jurisdiction by a preponderance of the evidence.
See 5 C.F.R. § 1201.56(a)(2).
DISCUSSION
The Board generally lacks jurisdiction over facially
voluntary acts such as resignations and retirements.
Garcia v. Dep’t of Homeland Sec., 437 F.3d 1322, 1327-28
(Fed. Cir. 2006) (en banc). In order to establish a claim of
involuntary disability retirement, rebutting the general
presumption of voluntariness, the petitioner must prove
that: (1) after the onset of her disability and prior to her
retirement, she sought to continue working, despite her
medical limitations, with an accommodation; (2) an ac-
commodation was available on the date of her retirement
at, or above, her position level; and (3) the agency refused
to provide her with an accommodation. See Benavidez v.
Dep’t of Navy, 241 F.3d 1370, 1375 (Fed. Cir. 2001) (af-
firming the Board’s decision using these criteria). When a
petitioner makes non-frivolous claims that, if proven,
would establish the Board's jurisdiction, the petitioner
has a right to a hearing. Garcia, 437 F.3d at 1344. We
7 CROAL-MANUEL v. MSPB
agree with the Board and the AJ that the petitioner has
presented no such allegations here and, accordingly, that
Ms. Croal-Manuel’s appeal was properly dismissed for
lack of jurisdiction.
As the AJ determined, the record does not support a
non-frivolous allegation that Ms. Croal-Manuel sought to
continue working, despite medical limitations, with an
accommodation. Ms. Croal-Manuel points to the letter
submitted by her treating physician as evidence of re-
questing transfer as an accommodation. But, the actual
text of the letter is not consistent with Ms. Croal-Manuel’s
claims. Dr. Bedell merely noted that he raised the “possi-
bility of transfer” with Ms. Croal-Manuel’s supervisor and
his belief that transfer would assist in her re-entry to
work. In the next two paragraphs he stated that “ Ms.
Croal-Manuel is not disabled for work” and that “on
October 3, she will be fit to perform all her duties without
restrictions or accommodations.” We agree with the AJ
that this is insufficient to constitute a request for an
accommodation as a predicate to continuation of work.
Moreover, we agree with the AJ that Ms. Croal-
Manuel’s submissions in connection with her request for
disability retirement effectively rescinded any request for
accommodation that may have been made. Ms. Croal-
Manuel submitted letters from Dr. Bedell stating that she
was “unable to return to work for an indefinite period of
time” and that she was unlikely to recover in a year or
more. She herself stated in applying for disability retire-
ment that she was “unable to maintain daily working
activities.” The petitioner was unable to render useful
and efficient service, with or without accommodation, on
the effective date of her disability retirement, and, there-
fore, her retirement cannot constitute a constructive
removal over which we have jurisdiction. See, e.g., Nord-
CROAL-MANUEL v. MSPB 8
hoff v. Dep’t of Navy, 78 M.S.P.R. 88 (1998), aff'd, 185
F.3d 886 (Fed. Cir. 1999).
Similarly, Ms. Croal-Manuel has failed to make a non-
frivolous allegation that a reasonable accommodation was
available at the time of her retirement. Ms. Croal-Manuel
identified no available positions in any location that
would have been a suitable accommodation, and, as
described above, the record supports the AJ’s determina-
tion that no accommodation existed that would have
allowed Ms. Croal-Manuel to return to work. Absent
suitable accommodations, there can be no claim that the
FHWA withheld or refused to provide Ms. Croal-Manuel
with such an accommodation.
On appeal, Ms. Croal-Manuel also requests that we
address the question of why she received administrative
leave as opposed to worker’s compensation. The respon-
dent answers that this argument was not raised prior to
Ms. Croal-Manuel’s appeal to this court and cannot be
considered. We disagree. In her initial appeal to the
Board, Ms. Croal-Manuel specifically identified the failure
to receive worker’s compensation as part of the relief
requested. Regardless, because an employee may receive
only either worker’s compensation or disability retirement
benefits, we interpret Ms. Croal-Manuel’s complaint as
merely restating her allegation that her election to take
disability retirement was involuntary. Benavidez, 241
F.3d at 1373-74. For the reasons stated above, we find
this claim to be without merit.
Finally, Ms. Croal-Manuel asserts that the Board and
the FHWA failed to contact various FHWA employees and
other individuals. While it is unclear when Ms. Croal-
Manuel expected the Board or FHWA to contact these
persons, it is clear that this appeal is the first time that
such allegations have been raised. Because this argu-
9 CROAL-MANUEL v. MSPB
ment was not presented to the Board, we decline to con-
sider it. See Bosley v. Merit Sys. Prot. Bd., 162 F.3d 665,
668 (Fed. Cir. 1998).
CONCLUSION
For the reasons stated above, the final decision of the
Board dismissing Ms. Croal-Manuel’s appeal for lack of
jurisdiction is affirmed.
AFFIRMED
COSTS
Each party shall bear its own costs.