Nicanol Collazo v. United States Postal Service ( 2022 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
NICANOL COLLAZO, III, DOCKET NUMBER
Appellant, PH-3443-21-0263-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: July 29, 2022
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Nicanol Collazo, III, Barrington, New Jersey, pro se.
Theresa M. Gegen, Esquire, Dallas, Texas, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his appeal for lack of jurisdiction. For the reasons discussed below, we
GRANT the appellant’s petition for review, VACATE the initial decision, and
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
REMAND the case to the regional office for further adjudication in accordance
with this Remand Order.
BACKGROUND
¶2 In 2020, the appellant, an EAS-17 Supervisor, Distribution Operations at
the agency’s Philadelphia Processing and Distribution Center (Philadelphia
P&DC), requested a reasonable accommodation for his post-traumatic stress
disorder (PTSD). Initial Appeal File (IAF), Tab 1 at 1, 5, Tab 6 at 6, 10-11, 44.
On December 3, 2020, his treating physician submitted a form in support of his
request, wherein he indicated that “[the appellant’s PTSD] makes it essential that
he work daytime hours during business hours and that his schedule be kept
consistent” because working night shift and weekend hours exacerbates his
condition. IAF, Tab 5 at 57-58. On December 10, 2020, the appellant
participated in a meeting with the District Reasonable Accommodation
Committee (DRAC). IAF, Tab 5 at 53-54. In a letter dated December 18, 2020,
the DRAC determined that “there [were] no available accommodations that [met
his] request at the present time.” IAF, Tab 5 at 47. They did however identify a
vacant position at the Philadelphia P&DC in his current pay grade , level 17,
which was available for the appellant to request as a lateral transfer. Id. They
also provided the appellant with a list of vacant positions outside of the
Philadelphia P&DC, as he indicated that he would be willing to travel up to
25 miles, which were available for the appellant to request as a lateral transfer.
Id. Thereafter, the appellant requested a noncompetitive lateral transfer to the
position of Network Specialist, which the agency denied on January 18, 2021, due
to his performance and failure to be in regular attendance . IAF, Tab 1 at 5, Tab 5
at 43. Shortly thereafter, the agency offered the appellant a detail assignment to a
Network Specialist position for up to 90 days. IAF, Tab 5 at 30. According to
the appellant, the detail assignment was outside of his medical restrictions. IAF,
Tab 1 at 5. Subsequently in a letter dated April 14, 2021, the agency denied his
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request for a reasonable accommodation as he had declined an offered
accommodation that was very close to his ideal requested schedule , and he had
made no other efforts to bid on positions competitively and/or laterally. IAF, Tab
5 at 25-27.
¶3 The appellant filed an appeal with the Board, challenging the agency’s
denial of his accommodation and requesting a hearing. IAF, Tab 1 at 2-3, 5. The
administrative judge informed the appellant that the Board may not have
jurisdiction over his alleged failure to accommodate claim. IAF, Tab 2 at 2-4.
He explained, however, that the Board might have jurisdiction if the appellant
was raising his claim in conjunction with a Uniformed Services Employment and
Reemployment Rights Act of 1994 appeal, a Veterans Employment Opportunities
Act of 1998 appeal, or an individual right of action appeal, and he ordered the
appellant to file evidence and argument to establish why the appeal should not be
dismissed for lack of jurisdiction. Id. The appellant did not respond. In an
initial decision, the administrative judge dismissed the appeal without holding the
requested hearing, finding that the appellant failed to make a nonfrivolous
allegation of Board jurisdiction. IAF, Tab 6, Initial Decision (ID) at 1, 4.
¶4 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has filed a response to the petition for review. PFR File,
Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
¶5 On review, the appellant is challenging the initial decision , which dismissed
his appeal for lack of jurisdiction. PFR File, Tab 1. The appellant has not raised
a specific jurisdictional challenge on appeal or petition for review ; however, the
issue of jurisdiction is always before the Board and may be raised by either party
or sua sponte by the Board at any time during a Board proceeding . 2 Poole v.
2
The jurisdictional order issued by the administrative judge generally advised the
appellant of his burden of establishing the Board’s jurisdiction, including the threshold
4
Department of the Army, 117 M.S.P.R. 516, ¶ 9 (2012). Below, and on review,
the appellant alleges that the agency wrongfully denied him a reasonable
accommodation. IAF, Tab 1 at 5; PFR File, Tab 1 at 2-6, 24-27. Further, he
ostensibly asserts that the agency had vacant positions that it could have, but
failed to, reassign him to as a reasonable accommodation . IAF, Tab 1 at 5; PFR
File, Tab 1 at 2-6, 24-27.
The appellant nonfrivolously alleged that the agency constructively suspended
him based on its decision to deny his reasonable accommodation request.
¶6 The Board lacks jurisdiction over appeals of an employee ’s voluntary
actions. O’Clery v. U.S. Postal Service, 67 M.S.P.R. 300, 302 (1995), aff’d,
95 F.3d 1166 (Fed. Cir. 1996) (Table); 5 C.F.R. § 752.401(b)(9). However, the
Board has recognized that employee-initiated actions that appear voluntary on
their face are not always so and that the Board may have jurisdiction over such
actions as constructive adverse actions under chapter 75. Bean v. U.S. Postal
Service, 120 M.S.P.R. 397, ¶¶ 7-8 (2013). Although various fact patterns may
give rise to an appealable constructive suspension, all constructive suspension
claims have two things in common: (1) the employee lacked a meaningful choice
requirement for receiving a hearing on jurisdiction. IAF, Tab 2. However, the order
did not explicitly inform the appellant of what is required to establish jurisdiction over
a potential constructive suspension claim. See Burgess v. Merit Systems Protection
Board, 758 F.2d 641, 643-44 (Fed. Cir. 1985) (finding that an appellant must receive
explicit information on what is required to establish an appealable jurisdictional issue) ;
see also Sage v. Department of the Army, 108 M.S.P.R. 398, ¶ 7 (2008) (remanding the
appeal with instructions to advise the appellant of the elements of a constructive
suspension claim). Nonetheless, the lack of Burgess notice did not prejudice the
appellant’s substantive rights because the agency’s response put him on notice of what
he must do to establish jurisdiction over an alleged constructive suspension claim on
review. IAF, Tab 5 at 17-20; see Easterling v. U.S. Postal Service, 110 M.S.P.R. 41,
¶ 11 (2008) (finding that an administrative judge’s failure to provide an appellant with
proper Burgess notice can be cured if the agency’s pleadings provide information on
what is required to establish an appealable jurisdictional issue, thus affording the
appellant an opportunity to meet his jurisdictional burden on petition for review). As
such, we conclude that the administrative judge’s error is of no legal consequence
because it did not adversely affect the appellant’s substantive rights. See Panter v.
Department of the Air Force, 22 M.S.P.R. 281, 282 (1984).
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in the matter; and (2) it was the agency’s wrongful actions that deprived the
employee of that choice. Id. Assuming that the jurisdictional requirements of
5 U.S.C. chapter 75 are otherwise met, proof of these two things is sufficient to
establish Board jurisdiction. Id.¶7 If an appellant makes a nonfrivolous allegation of fact establishing Board
jurisdiction, he is entitled to a hearing at which he must prove jurisdiction by
preponderant evidence. Thomas v. Department of the Navy, 123 M.S.P.R. 628,
¶ 11 (2016). A nonfrivolous allegation of Board jurisdiction is an allegation of
fact that, if proven, could establish that the Board has jurisdiction over the matter
at issue. Ferdon v. U.S. Postal Service, 60 M.S.P.R. 325, 329 (1994); 5 C.F.R.
§ 1201.4(s). As set forth above, the appellant alleged that the agency denied his
reassignment to a vacant position within his restrictions despite finding him
eligible for a reasonable accommodation. PFR File, Tab 1 at 2-4, 22-26; IAF,
Tab 1 at 5. He also alleged that he was out of work without pay for almost a
month in emails to the agency. PFR File, Tab 1 at 10-11.
¶8 We find that the appellant has, by these claims, made a nonfrivolous
allegation that he was constructively suspended. See Bean, 120 M.S.P.R. 397,
¶¶ 13-14. Like the appellant in Bean, the appellant appears to claim that the
agency compelled him to absent himself from work because his only alternative
was to work in violation of his medical restrictions and that the agency forced
him into this untenable position by improperly failing to accommodate his
condition. Id., ¶ 14. There is no dispute that the other jurisdictional prerequisites
of chapter 75 otherwise appear to be satisfied because the appellant is a
preference-eligible, supervisory Postal Service employee with more than 1 year of
current continuous service, and his absence lasted for more than 14 days. IAF,
Tab 1 at 1, Tab 5 at 6; see 5 U.S.C. §§ 7511(a)(1)(B)(ii), 7512(2). Therefore,
under the principles set forth above, we remand this appeal for further
development of the record and a jurisdictional hearing.
6
¶9 On remand, the administrative judge should consider whether the
appellant’s medical condition would have compelled a reasonable person to take a
leave of absence rather than accept a detail outside of his medical restrictions and
whether the agency improperly failed to offer the appellant reassignment or an
alternative accommodation that would have allowed him to continue working.
We also note that enforcement guidance issued by the Equal Employment
Opportunity Commission (EEOC) provides that “[r]eassignment means that the
employee gets the vacant position if [he] is qualified for it. Otherwise,
reassignment would be of little value and would not be implemented as Congress
intended.” See EEOC Enforcement Guidance: Reasonable Accommodation and
Undue Hardship Under the Americans with Disabilities Act, Question 29,
Notice 915.002, 2002 WL 31994335 (Oct. 17, 2002).
ORDER
¶10 For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.