Brown v. Department of Defense , 397 F. App'x 649 ( 2010 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
BENZENA M. BROWN
Petitioner,
v.
DEPARTMENT OF DEFENSE,
Respondent.
__________________________
2009-3191
__________________________
Petition for review of the Merit Systems Protection
Board in SF0752070771-B-1.
____________________________
Decided: October 13, 2010
____________________________
BENZENA M. BROWN, of Las Vegas, Nevada, pro se.
PATRYK J. DRESCHER, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for respondent. With
him on the brief were TONY WEST, Assistant Attorney
General, JEANNE E. DAVIDSON, Director, and DONALD E.
KINNER, Assistant Director.
__________________________
BROWN v. DEFENSE 2
Before LOURIE, LINN, and PROST, Circuit Judges.
PER CURIAM.
DECISION
Benzena Brown appeals from the decision of the Merit
Systems Protection Board (“the Board”) denying her
petition for review and adopting the initial decision of the
administrative judge (“AJ”) as the Board’s final decision.
Brown v. Dep’t of Defense, MSPB Docket No.
SF0752070771-B-1 (March 17, 2009). Because the Board
correctly found that it lacked jurisdiction based on
Brown’s failure to make a nonfrivolous allegation that her
disability retirement from the Department of Defense
(“the Agency”) was involuntary, we affirm.
BACKGROUND
Brown was an accounting technician with the Defense
Finance and Accounting Service (DFAS) in San Bernar-
dino, California. In May 2004, Brown submitted an
application for disability retirement, based on loss of
eyesight in her right eye, major depression, chest pains,
severe headaches, hypertension, stomach problems, and a
blood deficiency, in addition to being at risk for complete
blindness due to being a kidney donor. Separately, the
Agency began removal proceedings shortly thereafter,
which were cut short by the Office of Personnel Manage-
ment’s (“OPM’s”) approval of Brown’s application for
disability retirement. Brown retired in August 2004.
Separate from this litigation, Brown commenced two,
later-consolidated actions at the Equal Employment
Opportunity Commission (“EEOC”) alleging that she was
subject to a hostile work environment. Those actions
3 BROWN v. DEFENSE
were dismissed on summary judgment, following which
Brown filed an action in district court on her equal em-
ployment opportunity complaints. During the pendency
of that action, Brown went through bankruptcy. Her
bankruptcy trustee was substituted in the suit as the real
party in interest, after which the parties stipulated to a
dismissal with prejudice in March 2007. In addition,
Brown filed a complaint in October 2002 at the Depart-
ment of Labor, alleging an occupational injury due to
harassment and retaliation by her employer. The denial
of that claim was affirmed by the Department of Labor’s
Employees’ Compensation Appeals Board.
In August 2007, Brown brought this action, seeking
Board review of her disability retirement, which she
alleges was involuntary. The AJ dismissed the claim for
lack of jurisdiction. The Board reopened the appeal and
remanded the case with instructions to provide Brown
with information and an opportunity to establish Board
jurisdiction.
On remand, the AJ again found that Brown had failed
to put forth a nonfrivolous allegation of jurisdiction.
Specifically, the AJ found that Brown did not make non-
frivolous allegations that, if proven, would show that (1)
an accommodation was available between the time the
medical condition arose and the date of Brown’s separa-
tion that would have allowed her to continue her employ-
ment, (2) Brown communicated her desire to continue
working with those accommodations, and (3) that the
Agency failed to provide her those accommodations.
The AJ found that Brown had made allegations of
harassment and retaliation, creation of a hostile working
environment, failure to provide a safe working environ-
ment, disparate treatment in disciplinary actions, failure
to adhere to performance policies, false accusations, and
BROWN v. DEFENSE 4
abuse of authority by imposing a suspension and counsel-
ing and threatening her for carelessness in duties, thus
causing her health to suffer and forcing her into retire-
ment. However, the AJ found that these allegations were
inapplicable to an involuntary disability retirement (as
opposed to other involuntary retirements) because even if
proven, these allegations would not satisfy the jurisdic-
tional requirements of the Board. Thus, the AJ focused
on Brown’s allegation that the Agency failed to accommo-
date a “known disability.”
After discussing the submitted evidence, the AJ found
that Brown made nonfrivolous allegations that when she
applied for disability retirement, she communicated a
desire to continue working, with a modification of her
working conditions to accommodate her depression and
anxiety disorders, episodic hypertension, and vision loss
in her right eye. However, the AJ found that the Agency
had accommodated Brown’s request regarding her vision
by enlarging the font on her computer, as suggested by
her optometrist, and that no further request for accom-
modation—such as the use of a magnifier—had been
made. In addition, because of Brown’s absences from
work due to her psychiatric conditions, the AJ found that
Brown did not make a nonfrivolous allegation that any
further accommodation of her vision impairment would
have enabled her to continue working in her position.
With regard to Brown’s hypertension, depression, and
anxiety, the AJ found that the evidence showed that one
of Brown’s specific requests was accommodated by being
physically separated from Torres (a supervisor whom she
believed had threatened her) and his team members. The
AJ also found that the Agency had informed Brown that
her other specific request for reassignment to another
position so that she would not be in the chain of command
of five specific individuals was not a reasonable accommo-
5 BROWN v. DEFENSE
dation under the circumstances, that the Agency had
asked her to submit further medical information and
suggestions for a reasonable accommodation, and that she
had submitted no further suggestions.
The AJ therefore concluded that Brown made two
specific accommodation requests regarding Brown’s
psychiatric disabilities, one of which was met and the
other of which was found to be an unreasonable accom-
modation. These were the only specific accommodation
requests Brown made. Therefore, the AJ found that
Brown had not made a nonfrivolous allegation that the
Agency failed to provide Brown with a reasonable accom-
modation that would have allowed her to continue her
employment. The AJ thereupon dismissed the case for
lack of jurisdiction.
Brown petitioned the Board for review. The Board
denied Brown’s petition and the AJ’s initial decision
became the final decision of the Board. Brown timely
appealed.
DISCUSSION
The scope of our review in an appeal from a Board de-
cision is generally limited. We can only set aside the
Board’s decision if it was “(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) unsup-
ported by substantial evidence.” 5 U.S.C. § 7703(c); see
Briggs v. Merit Sys. Prot. Bd., 331 F.3d 1307, 1311 (Fed.
Cir. 2003). Whether the Board has jurisdiction over an
appeal is a question of law, which we review de novo.
Delalat v. Dep’t of Air Force, 557 F.3d 1342, 1343 (Fed.
Cir. 2009).
BROWN v. DEFENSE 6
Brown argues that the Agency did not give a reason
for not accommodating her disability. Brown also alleges
that OPM found the Agency was not justified in not
accommodating her. Brown argues that the Agency erred
in failing to apply “Disability and Rehabilitation” laws to
her action. In addition, Brown argues that the Board
failed to consider that providing her with a magnifying
screen for her computer would have assisted her. Brown
argues that she made numerous requests for reasonable
accommodation that were continuously denied despite
medical documentation. She clarifies that her request
was for a reassignment, not a change in supervisor.
Lastly, Brown argues that the Agency considered only one
of her two disabilities, though she does not specify which.
The government argues that the Agency considered
Brown’s requests for accommodation and gave reasons for
its responses. In terms of the psychiatric disabilities, the
government notes that the Agency moved Torres away
from Brown to ensure Brown’s comfort in the workplace.
The government argues that Brown failed to make non-
frivolous allegations that further accommodations with
regard to Torres would have allowed her to continue
working. The government further argues that reassign-
ment to a different supervisor is not an accommodation
required of an agency. The government further responds
that Brown’s challenge to the Board’s application of law
does not specify which laws were misapplied or which
“Disability and Rehabilitation Laws” should have been
applied. Regarding Brown’s vision, the government
argues that the Agency provided the suggested accommo-
dation and was asked for no further accommodation. The
government argues that the Agency considered Brown’s
psychiatric as well as her physical disabilities in making
its determination.
7 BROWN v. DEFENSE
We conclude that the Board correctly determined that
it lacked jurisdiction. The Board derives its jurisdiction
by law, rule, or regulation. 5 U.S.C. § 7701(a). The Board
has no jurisdiction over voluntary acts, which, absent
evidence to the contrary, retirement is presumed to be.
Covington v. Dep’t of Health & Human Services, 750 F.2d
937, 941 (Fed. Cir. 1984). A hearing regarding jurisdic-
tion is required only if the employee makes a nonfrivolous
allegation that, if proved, would establish Board jurisdic-
tion. Coradeschi v. Dep’t Homeland Security, 439 F.3d
1329, 1332 (Fed. Cir. 2006). If the appellant fails to make
such allegations, the appeal will be dismissed without
hearing for lack of jurisdiction. Id.Brown failed to make nonfrivolous allegations that, if
proved, would establish Board jurisdiction. The record
supports the Board’s characterization of Brown’s requests
for reasonable accommodation, and Brown does not
appear to dispute that she made two specific requests for
accommodation, in addition to numerous other requests of
a general nature, stating simply that she requested
“reasonable accommodation,” without specifying what
that accommodation might be.
Brown’s request for accommodation regarding her
physical disability was accompanied by documentation
from a medical professional. Her specific request was
that the font on her computer screen be enlarged. Al-
though Brown switched the font back to normal and
complained that she was unable to see multiple pages at
once on her monitor when the font was enlarged, she did
not request any further, specific accommodations. Thus,
Brown’s allegation that the Agency failed to accommodate
her by installing a magnifying screen does not give rise to
jurisdiction where she failed to request that specific
accommodation from the Agency. Although Brown may
be correct that a magnifying screen would have allowed
BROWN v. DEFENSE 8
her to continue her employment, there are no communica-
tions in the record reflecting a request for that accommo-
dation and her desire to continue her employment with
that accommodation.
Brown’s request for accommodation regarding her
psychiatric disabilities included two elements and was
also accompanied by documentation from a medical
professional. She requested that she not be physically
near Torres and also that she be removed from any posi-
tion in the chain of command of five different supervisors.
Torres and his team were removed from her area as an
accommodation, thus satisfying that part of Brown’s
requested accommodation. The Agency informed Brown
that her request to change her supervisor was not consid-
ered a reasonable accommodation and that because she
had not responded to the Agency’s requests for additional
medical information and other possible accommodations,
the Agency could not make an informed decision on what
might be a reasonable accommodation. Thus, the Agency
responded to Brown’s specific requests for accommodation
regarding her psychiatric disabilities. As a result, there
were no outstanding, specific requests for accommodation
for Brown’s psychiatric disabilities.
Brown’s clarification that she was requesting reas-
signment, rather than assignment to other supervisors,
does not change the fact that her specific request was
based on a desire to be in a position out of the chain of
command of any of the five identified supervisors. Thus,
there was no error in the Board’s analysis of that request.
In any case, a request for wholesale reassignment is
different in nature from a request for an accommodation
that would allow an employee to continue her current
employment. Because the record contains no other com-
munications that could constitute a request for a specific
accommodation that would have allowed Brown to con-
9 BROWN v. DEFENSE
tinue her employment, there is no basis for Board juris-
diction in this case.
Accordingly, we affirm the Board’s decision dismiss-
ing the appeal for lack of jurisdiction.
AFFIRMED
COSTS
No costs.