Susan Hoffman v. United States Postal Service ( 2022 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SUSAN D. HOFFMAN, DOCKET NUMBER
Appellant, CH-0752-16-0242-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: July 21, 2022
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Alf E. Sivertson, Esquire, Saint Paul, Minnesota, for the appellant.
Deborah M. Levine, Esquire, Denver, Colorado, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her constructive removal appeal for lack of jurisdiction because she
failed to nonfrivolously allege that her decision to retire was involuntary due to
improper agency action and, thus, tantamount to an appealable removal action.
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based 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).
BACKGROUND
¶2 The appellant was employed with the agency as an EAS-20 Customer
Services Manager. Initial Appeal File (IAF), Tab 1 at 1, Tab 7 at 10. In 1998, in
the midst of a 35-year career with the agency, she suffered a back injury causing
her to work in a limited-duty position. IAF, Tab 7 at 10. The main components
of her modified job were that she could work in a supervisor y capacity for only
4 hours per day. Id. at 9. From June 2013 through the time period relevant to
this appeal, the appellant reported for duty at 5:30 a.m. as the opening supervisor.
IAF, Tab 1 at 41. In October 2014, the appellant underwent a 3-day functional
capacity evaluation. IAF, Tab 7 at 10-16. The Industrial Rehabilitation Therapist
concluded that he could not determine her objective capabilities due to the
appellant’s “self-limitation secondary to pain and her need to attend to her pain
by disengaging from work activities” throughout the evaluation. Id. at 15.
¶3 In April 2015, the appellant’s supervisor changed her shift from the opening
supervisor to the closing supervisor, which required her to report to du ty at
3
3:30 p.m., as opposed to 5:30 a.m. IAF, Tab 1 at 20, 41. The appellant was not
receptive to the schedule change and requested a formal job offer so that she
could present it to her physician to determine what medical restrictions would be
required on the new shift. IAF, Tab 7 at 17. The agency informed the appellant
that the closing supervisor assignment was the same as the opening supervisor
assignment, and on April 8, 2015, it instructed her to report to work at 3 :30 p.m.
for the following day. IAF, Tab 1 at 20, 37.
¶4 While on duty on April 9, 2015, the appellant met with her supervisor and
expressed her concern that looking at package scans to clear evening packages
would violate her bending restrictions because packages could be on the floor.
IAF, Tab 6 at 13. The appellant’s supervisor told her to take a picture of the bar
code to be scanned so that she would not have to bend down. Id. Later that same
day, the appellant suffered an on-duty injury while tugging on a vehicle door to
see if it was locked; the injury was later accepted by the Office of Workers’
Compensation Programs. IAF, Tab 1 at 21, 30, 44. After meeting with her
physician following the injury, the appellant was out of work through June 12,
2015. Petition for Review (PFR) File, Tab 1 at 8.
¶5 Upon her return to duty on June 12, 2015, the appellant provided the agency
with a “Work Ability” form wherein her physician requested that she “ [r]eturn to
work light duty. 4 [hours]/day. AM’s if possible.” IAF, Tab 7 at 18. In
response, the agency presented her with an offer of modified assignment (limited
duty). Id. at 19-22. The record shows that two offers were created on June 12,
2015, the first of which limited the appellant’s lifting restrictions to 50 pounds
and reflected a lower salary, and the second of which displayed handwritten
corrections of a 20-pound lifting restriction and her accurate salary. Id. The
appellant disputes that she received the second offer of modified assignment
form. PFR File, Tab 1 at 8-9. On June 12, 2015, the appellant returned to work
as the opening supervisor. Id. at 8.
4
¶6 On June 30, 2015, the District Reasonable Accommodation Committee
(DRAC) notified the appellant that she may have restrictions that do not allow her
to adequately perform the essential functions of her position. IAF, Tab 7 at 23.
She agreed to meet with the DRAC to be considered for a reasonable
accommodation. Id. Prior to the meeting, the appellant filed a formal Equal
Employment Opportunity (EEO) complaint of discrimination alleging that the
agency discriminated against her when it denied her request for a reasonable
accommodation beginning April 1, 2015, by changing her schedule. IAF, Tab 1
at 9. The appellant met with the DRAC on August 11, 2015, and scheduled
retirement counseling on August 13, 2015. Id. at 37. Before the DRAC reached a
decision regarding the appellant’s medical restrictions, she retire d effective on, or
about, September 1, 2015. Id. at 4, 37. Following her retirement, the appellant
amended her discrimination complaint to allege that the agency forced her to
retire. Id. at 9. The agency issued a Final Agency Decision, finding no
discrimination. Id. at 52-53.
¶7 The appellant filed an appeal with the Board alleging that her retirement
was involuntary and constituted a constructive removal. Id. at 2. The
administrative judge dismissed the appeal for lack of jurisdiction, finding that the
appellant failed to nonfrivolously allege that her working conditions were so
intolerable that she was forced to retire. IAF, Tab 8, Initial Decision (ID) at 5-6.
The appellant has filed a petition for review arguing that the Board has
jurisdiction over her appeal because her retirement was involuntary. PFR File,
Tab 1 at 6-9. The agency has not responded to the appellant’s petition.
DISCUSSION OF ARGUMENTS ON REVIEW
¶8 The appellant has the burden of proving by preponderant evidence that the
Board has jurisdiction over her appeal. 5 C.F.R. § 1201.56(b)(2)(i)(A). An
employee-initiated action, such as retirement, is presumed to be voluntary and ,
thus, outside the Board’s jurisdiction. Vitale v. Department of Veterans Affairs,
5
107 M.S.P.R. 501, ¶ 17 (2007). An involuntary retirement, however, is
equivalent to a forced removal and, therefore, is within the Board’s jurisdiction.
Id. If an appellant presents nonfrivolous allegations of Board jurisdiction, i.e.,
allegations of fact that, if proven, could establish the Board’s jurisdiction, then
she is entitled to a hearing at which she must prove jurisdiction by a
preponderance of the evidence. Id., ¶ 18.
¶9 To overcome the presumption that a retirement is voluntary, the employee
must show that it was the result of the agency’s misinformation or deception or
that she was coerced by the agency to retire. Id., ¶ 19. The touchstone of the
“voluntariness” analysis is whether, considering the totality of the circumstances,
factors operated on the employee’s decision-making process that deprived her of
freedom of choice. Id. On review, the appellant contends that her working
conditions were so intolerable that she had no choice but to retire. PFR File,
Tab 1 at 9. In cases such as this, the Board will find an action involuntary only if
the employee demonstrates that the employer engaged in a course of action that
made working conditions so difficult or unpleasant that a reasonable person in
that employee’s position would have felt compelled to retire. Vitale,
107 M.S.P.R. 501, ¶ 20. The Board addresses allegations of discrimination and
reprisal in connection with an alleged involuntary retirement only insofar as those
allegations relate to the issue of voluntariness and not whether they would
establish discrimination or reprisal as an affirmative defense. See, e.g.,
Pickens v. Social Security Administration, 88 M.S.P.R. 525, ¶ 6 (2001).
¶10 On review, the appellant alleges that her working conditions were difficult
and unpleasant for several reasons. She claims that the agency switched her
position from the opening supervisor to the closing supervisor and would not
provide her with a new job offer for her physician to approve. PFR File, Tab 1
at 7-8. She also asserts that, when the agency did respond, it informed her that
she was required to perform the closing supervisor shift or she would “be out of
work.” Id. at 8. She also claims that, after her April 9, 2015 injury, the agency
6
failed to efficiently communicate with her and her physician, causing her to take
sick leave for several more weeks. Id. She asserts that, when she was put back to
work on the morning shift after her injury, the agency’s offer of modified
assignment (limited duty) improperly required her to lift up to 50 pounds, despite
her physician’s recommendation of a 20-pound lifting restriction. Id.; IAF, Tab 7
at 19-20. Although the appellant acknowledges a second offer of modified
assignment (limited duty), she asserts that she never received that document.
PFR File, Tab 1 at 8-9. The appellant argues that, cumulatively, “[the] stressors
imposed upon her by [the agency] would not end and[,] with her doctor’s
recommendation that her quality of life would be better if she retired, [she]
involuntarily chose to retire effective September 1 , 2015.” Id. at 9.
¶11 Regarding the schedule shift from the morning supervisor to the evening
supervisor, which the appellant categorized as a failure to accommodate, the
administrative judge found that the appellant did not sufficiently allege that the
agency subjected her to intolerable working conditions by denying the alleged
request for a reasonable accommodation to schedule her back on the morning
shift. ID at 6. The administrative judge reasoned that the appellant did not claim
or assert that “any facet of her day-to-day working conditions was intolerable.”
Id. She also stated that the appellant had not “shown” that the agency refused to
engage in the interactive process or otherwise acted improperly. Id. We note that
the appellant was not required to prove her allegations at this stage, see Bump v.
Department of the Interior, 64 M.S.P.R. 326, 332 (1994), but we find that the
appellant failed to make a nonfrivolous allegation that the agency did not engage
in the interactive process. It is undisputed that both the appellant and the DRAC
met on August 11, 2015, and discussed her physical limitations and possible
options. IAF, Tab 1 at 37. Further, she does not allege that she remained on the
closing shift, subject to intolerable conditions, until the date of her retirement.
Rather, she acknowledges that, when she returned after her April 9, 2015 injury,
she was returned to the opening shift position. PFR File, Tab 1 at 8.
7
¶12 We agree with the administrative judge’s finding that the appellant failed to
nonfrivolously allege that she reasonably feared serious injury as a conseque nce
of performing her modified duties. ID at 6. Although the appellant allegedly
feared injury, she has made no allegation that, in any specific instance, the agency
forced her to perform any particular duty outside of her medical restrictions,
namely, lifting more than 20 pounds. Even if we take as true her assertion that
she was never presented with the amended offer of modified assignment (limited
duty), which reduced her lifting restrictions from 50 to 20 pounds, she has made
no specific allegation that the agency actually required her to lift anything
weighing either 50 or 20 pounds.
¶13 Regarding the appellant’s discrimination and retaliation claims, which she
does not renew on review, the administrative judge correctly determined that the
Board does not have jurisdiction over these claims. ID at 7. To the extent they
relate to the question of voluntariness, we find that the appellant has failed to
nonfrivolously allege that any discrimination or retaliation on the part of the
agency rendered the appellant’s retirement involuntary. The appellant had
already begun the process of addressing the alleged discrimination before she
retired and could have waited for the outcome of her formal EEO complaint to
determine if retirement was necessary. See Axsom v. Department of Veterans
Affairs, 110 M.S.P.R. 605, ¶ 17 (2009). Simply because the appellant may have
been faced with the option of waiting for the agency’s ruling on her formal
discrimination complaint or deciding to retire does not render her decision
involuntary. See Lawson v. U.S. Postal Service, 68 M.S.P.R. 345, 350 (1995).
¶14 Based on the foregoing, we find that the appellant has failed to
nonfrivolously allege that a reasonable person faced with these working
conditions would have felt compelled to retire. As correctly found by the
administrative judge, without any such allegation, the Board lacks jurisdiction
over the appellant’s claim that she retired involuntarily. ID at 6-7; see Brown v.
8
U.S. Postal Service, 115 M.S.P.R. 609, ¶¶ 10-11, aff’d, 469 F. App’x 852 (Fed.
Cir. 2011).
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 possibl e choices of review
below to decide which one applies to your particular case. If you have questions
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).
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.
9
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
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. ____ , 137 S. Ct. 1975 (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
10
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
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
11
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 describe d 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
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
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.
12
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: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.