Cori A. Wilson v. Department of Justice ( 2015 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CORI A. WILSON, DOCKET NUMBERS
Appellant, DA-0752-13-0038-B-1
DA-0752-11-0582-I-3
v.
DEPARTMENT OF JUSTICE,
Agency. DATE: February 27, 2015
THIS FINAL ORDER IS NO NPRECEDENTIAL 1
James R. Hefflin, Newport Beach, California, for the appellant.
John T. LeMaster, Esquire, Washington, D.C., for the agency.
Tina Hauck, Esquire, Kansas City, Kansas, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her involuntary disability retirement and constructive suspension
appeals for lack of jurisdiction. Generally, we grant petitions such as this one
1
A nonprecedential order is one that the Board has determined does not add
sign ificantly 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 Parties may cite nonprecedential orders,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
only when: 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 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. See Title 5 of the Code of Federal
Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the
filings in these appeals, and based on the following points and authorities, 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. Except as expressly modified by this Final Order, we AFFIRM the
initial decision.
BACKGROUND
¶2 The appellant was a Correctional Officer with the Bureau of Prisons at the
Federal Correctional Institution in Bastrop, Texas. Wilson v. Department of
Justice, MSPB Docket No. DA-0752-13-0038-I-1, Initial Appeal File (0038
IAF), Tab 5 at 66. On April 18, 2000, the appellant reported that she had been
sexually assaulted by a coworker the previous day. See id. at 93-94. The agency
placed the alleged perpetrator on home duty pending an investigation of the
incident by the agency’s Office of Internal Affairs (OIA). Id. at 94. As a result
of its investigation, OIA determined that the appellant’s allegations could not be
sustained, and the alleged perpetrator returned to duty in June 2000. Id. at 118.
¶3 The appellant was absent from work following the incident, and she began
seeing a physician in May 2000, who recommended that the appellant not work
through June 4, 2000. Wilson v. Department of Justice, MSPB Docket No.
DA-0752-11-0582-I-3, Initial Appeal File (0582/3 IAF), Tab 31, Exhibit 1. In
3
July 2000, the appellant’s physician diagnosed her with Post Traumatic Stress
Disorder (PTSD) and Major Depressive Disorder and recommended that she and
the alleged perpetrator work different hours “for medical/mental health reasons.”
Id., Exhibits 8, 11. On August 15, 2000, the appellant’s physician recommended
that she not work from August 18, 2000, through September 2, 2000. Id.,
Exhibit 13. On August 29, 2000, the appellant asked to move to the Custody
Department (Custody) “for physical and mental purposes.” Id., Exhibit 15. The
agency granted her request. See id., Exhibit 18. On January 3, 2001, the
appellant’s physician released her from treatment, stating that the appellant had
no symptoms of depression or anxiety and that no psychiatric treatment was
needed at that time. Id., Exhibit 24.
¶4 On March 13, 2001, the appellant suffered numerous injuries in a
motorcycle accident. See 0582/3 IAF, Tab 31, Exhibit 25. The appellant
returned to work with restrictions in June 2001, was absent from work for
surgery in December 2001, returned to work with restrictions in January 2002,
and returned to her position in Custody on February 25, 2002. See id., Exhibits
32, 46, 51, 67. Following an encounter with the alleged perpetrator on February
28, 2002, the appellant requested a reassignment so that she would be away from
him. See 0038 IAF, Tab 4 at 25. On March 5, 2002, the agency granted the
appellant’s request. See id.
¶5 On September 10, 2003, the appellant returned to her physician and
reported having “severe depression and anxiety along with insomnia, low energy,
poor concentration, distractibility, anger, irritability, and poor
decision-making.” See 0582/3 IAF, Tab 31, Exhibit 104. The appellant did not
return to work after October 30, 2003. 2 See 0038 IAF, Tab 4 at 30 of 34. On
2
On October 31, 2003, the appellant’s physician placed her off work from November 1,
2003, through November 15, 2003. 0582/3 IAF, Tab 31, Exhibit 92. On November 14,
2003, he recommended that the appellant not work through February 14, 2004, stating,
“[s]he is not able to work.” I d., Exhibit 93. On February 3, 2004, he recommended that
the appellant not work from February 14, 2004, through March 14, 2004. I d., Exhibit
4
December 10, 2003, she applied for disability retirement, citing, inter alia, PTSD
and recurrence of PTSD as the bases for her request. 3 Wilson v. Department of
Justice, MSPB Docket No. DA-0752-11-0582-1-2, Initial Appeal File (0582/2
IAF), Tab 5, Subtab 4i at 4. In response to a question on her disability
retirement application asking her to describe how her disease or injury restricted
her activities, the appellant stated that she had “self-imposed restrictions” and
attempted to avoid contact with inmates and the alleged perpetrator as much as
possible. Id.
¶6 The Office of Personnel Management (OPM) approved the appellant’s
application for disability retirement on August 4, 2004, 0582/2 IAF, Tab 5,
Subtab 4e, and her retirement became effective on August 8, 2004. Id., Tab 22,
Subtab 1 at 23.
¶7 On July 26, 2011, the appellant filed an appeal with the Board, alleging that
she was forced to retire due in part to the agency’s failure to accommodate her
disabilities, sexual harassment, and retaliation for her prior equal employment
97. In a document dated February 10, 2004, he stated that the appellant suffered from
PTSD, Generalized Anxiety Disorder, and Pan ic Disorder and that she was not able to
work. I d., Exhibit 98. He also stated that the appellant’s prognosis was poor and that,
if she returned to work, it was likely that she would seriously harm other employees at
her workplace. I d. On March 3, 2004, the appellant’s physician made the same
diagnoses and the same prognosis, stated that the appellant was not able to work, and
recommended that her “medical leave” be extended through May 9, 2004. I d., Exhibit
101. On May 5, 2004, he made the same diagnoses and the same prognosis and again
stated that the appellant was not able to work and would likely seriously harm other
employees at her workplace if she returned to work. In addition, he recommended that
she be off work due to medical reasons through August 8, 2004. I d., Exhibit 102.
3
In response to a question on her disability retirement application asking the appellant
to describe her diseases or injuries, the appellant also listed numerous physical injuries
that she sustained in the motorcycle accident. See 0582/2 IAF, Tab 5, Subtab 4i at 4.
However, in an affidavit that the appellant submitted in conjunction with her
constructive suspension appeal, she stated that she retired because of her mental
condition, not because of any injuries she sustained in the motorcycle accident. See
0038 IAF, Tab 4 at 32-33.
5
opportunity (EEO) activity. 4 See Wilson v. Department of Justice, MSPB Docket
No. DA-0752-11-0582-I-1, Initial Appeal File (0582/1 IAF), Tab 1. The appeal
was dismissed without prejudice and refiled twice, most recently in August 2012.
0582/1 IAF, Tab 29; 0582/2 IAF, Tabs 1, 26; 0582/3 IAF, Tab 4. The appellant
initially requested a hearing but subsequently withdrew her request. See 0582/1
IAF, Tab 14 at 2; 0582/3 IAF, Tab 51.
¶8 On October 23, 2012, while her involuntary disability retirement appeal was
pending before the administrative judge, the appellant filed a Board appeal
alleging that she was constructively suspended 5 effective October 30, 2003, due
to intolerable working conditions. 0038 IAF, Tab 1. The appellant initially
requested a hearing but subsequently withdrew her request. Id., Tab 15.
¶9 On February 20, 2013, the administrative judge issued an initial decision
dismissing the appeal as untimely filed without a showing of good cause to
waive the filing deadline. 0038 IAF, Tab 17 at 1, 7. On review, the Board
issued a nonprecedential order dated October 29, 2013, remanding the appeal for
further adjudication. RAF, Tab 1.
¶10 On remand, the administrative judge joined the appellant’s involuntary
disability retirement appeal and her constructive suspension appeal. RAF, Tab 9.
Based on the parties’ submissions, the administrative judge issued an initial
decision on February 28, 2014, dismissing both appeals for lack of jurisdiction.
RAF, Tab 13, Initial Decision (ID) at 2, 20.
¶11 The appellant has filed a petition for review. Wilson v. Department of
Justice, MSPB Docket No. 0752-13-0038-B-1, Remand Petition for Review
4
The record indicates that the appellant filed EEO complaints on November 30, 2000,
March 7, 2001, and December 27, 2002. 0038 IAF, Tab 5 at 56, 99, 116.
5
Although the appellant stated in her initial submission that she was “constructively
discharged” effective October 30, 2003, see 0038 IAF, Tab 1, on remand the appellant
indicated that she was raising a constructive suspension claim. See Wilson v.
Department of Justice, MSPB Docket No. DA-0752-13-0038-B-1, Remand Appeal File
(RAF), Tab 7.
6
(RPFR) File, Tab 1. The agency has filed a response in opposition to the petition
for review. RPFR File, Tab 3. The appellant has filed a reply to the agency’s
response. 6 RPFR File, Tab 4.
ANALYSIS
Involuntary Disability Retirement: Jurisdictional Standards
¶12 A retirement is presumed to be voluntary and therefore outside the Board’s
jurisdiction. See Vitale v. Department of Veterans Affairs, 107 M.S.P.R. 501,
¶ 17 (2007). An involuntary retirement, however, is equivalent to a forced
removal within the Board’s jurisdiction under 5 U.S.C. chapter 75. Garcia v.
Department of Homeland Security, 437 F.3d 1322, 1328 (Fed. Cir. 2006) (en
banc). Generally, an appellant who claims that a retirement was involuntary may
rebut the presumption of voluntariness in a variety of ways, for example, by
showing that the retirement was the result of misinformation or deception by the
agency, intolerable working conditions, or the unjustified threat of an adverse
action. SanSoucie v. Department of Agriculture, 116 M.S.P.R. 149, ¶ 14 (2011).
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 him of freedom of choice. Coufal v.
6
The appellant submits two documents with her reply: (1) a Health Care Provider
Certification Form signed by a psychotherapist on January 21, 2004; and (2) the
appellant’s written declaration in support of the joined appeals, dated May 9, 2014.
RPFR File, Tab 4 at 5-12. The form is already part of the record. See 0582/3 IAF, Tab
31, Exhibit 96. Accordingly, it is not new and we have not considered it. See Meier v.
Department of the Interior, 3 M.S.P.R. 247, 256 (1980) (evidence that is already part of
the record is not new). Although the appellant’s signed declaration postdates the close
of the record below, it is not new and material evidence because the information in the
declaration was available when the record closed. See Grassell v. Department of
Transportation, 40 M.S.P.R. 554, 564 (1989) (to constitute new and material evidence,
the information contained in the documents, not just the documents themselves, must
have been unavailable despite due diligence when the record closed). In fact, the
contents of the declaration are identical to the appellant’s declaration dated January 31,
2014, which she submitted during the proceedings below. See RAF, Tab 10, Exhibit 1.
Accordingly, we have not considered this document either.
7
Department of Justice, 98 M.S.P.R. 31, ¶ 22 (2004); Heining v. General Services
Administration, 68 M.S.P.R. 513, 519-20 (1995). Thus, in order to establish
involuntariness on the basis of coercion, an appellant must show that the agency
effectively imposed the terms of the resignation or retirement, that the appellant
had no realistic alternative but to resign or retire, and that the appellant’s
resignation or retirement was the result of improper acts by the agency. Id.
Consistent with this approach, the Board will find a retirement to be involuntary
where 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 resign or retire.
Markon v. Department of State, 71 M.S.P.R. 574, 577-78 (1996).
¶13 The Board usually takes a different approach when addressing the question
of voluntariness in the context of a disability retirement. In most cases, an
appellant who alleges that her disability retirement was involuntary must
establish the following: (1) she indicated to the agency that she wished to
continue working, but her medical limitations required a modification of her
work conditions or duties, i.e., accommodation; (2) there was a reasonable
accommodation available during the period between the date on which she
indicated to the agency that she had medical limitations but desired to continue
working and the date that she was separated, that would have allowed the
appellant to continue working; and (3) the agency unjustifiably failed to offer
that accommodation. SansSoucie, 116 M.S.P.R. 149, ¶ 15. The agency’s failure
to accommodate the appellant, standing alone, however, would not make the
decision to retire involuntary. Id. If accommodation was impossible, the
appellant’s disability retirement would not have been a constructive removal, and
other theories of involuntariness cannot lead to a different conclusion. Id. The
essence of other claims of involuntariness, including coercion, duress, and
intolerable working conditions, is that the appellant had a choice between
retiring and continuing to work but was forced to choose retirement by improper
8
acts of the agency. Id. If the appellant was unable to work because of a medical
condition that cannot be accommodated, she had no choice as to whether to
continue working. Id.
¶14 This standard is correct to determine the Board’s jurisdiction in most
involuntary disability retirement appeals. However, the Board has applied the
general principles for determining jurisdiction over alleged involuntary
retirements to assess the voluntariness of a disability retirement when, as here,
an appellant has alleged that the agency created a discriminatory, hostile work
environment, which not only led to intolerable working conditions, but which
also caused or exacerbated the medical conditions underlying the appellant’s
disability retirement. See Vaughan v. Department of Agriculture, 116 M.S.P.R.
493, ¶¶ 13-14 (2011). The Board has held that the general test for involuntary
retirement is applicable in such circumstances because, in effect, the appellant
has alleged that he was coerced into retirement because the agency’s
discriminatory conduct caused him to become disabled. Id., ¶ 14.
The appellant failed to establish Board jurisdiction over her involuntary disability
retirement appeal.
¶15 In the initial decision, the administrative judge considered the appellant’s
involuntary disability retirement claim under both of the standards set forth
above. ID at 10-15. Applying the jurisdictional standard that the Board
typically applies in involuntary disability retirement appeals, the administrative
judge noted the following: the record does not contain any documentation
regarding the appellant’s mental disorders that was drafted between January
2001, when her physician found that her symptoms had resolved and released the
appellant from treatment, and September 2003, when the appellant began seeing
her physician again; there is no evidence that the appellant sought treatment from
any healthcare professional for those disorders during that time; on her disability
retirement application, the appellant stated that the restriction that she avoid
contact with the alleged perpetrator and inmates was “self-imposed”; and, after
9
the appellant began seeing her physician again in September 2003, the only
restriction he imposed upon her was that she not work at all. ID at 12-13.
¶16 Based on this evidence, the administrative judge found that the appellant
failed to establish that her disability retirement was in voluntary. Specifically,
the administrative judge found that, because the appellant’s restrictions were
self-imposed, she failed to establish that the agency improperly denied her
requests for accommodation. ID at 15. The administrative judge further found
that, in light of the appellant’s physician’s assessment in 2003 that the appellant
was unable to work, accommodation was impossible. ID at 13 (citing 0582/3
IAF, Tab 31, Exhibit 104). Therefore, the administrative judge found that the
appellant’s disability retirement was not a constructive removal because the
theory of involuntariness requires that the person had a choice between retiring
or continuing to work, and the appellant had no choice. ID at 13.
¶17 We discern no reason to disturb this finding. As previously noted, the
documentation from the appellant’s physician established that the appellant was
unable to work from November 2003 until her disability retirement in August of
2004. See 0582/3 IAF, Tab 31, Exhibits 92, 93, 97, 98, 101, 102. Therefore, the
appellant failed to demonstrate that there was a reasonable accommodation
available that would have allowed her to continue working. Accordingly, the
administrative judge correctly found that the appellant failed to meet her burden
of showing that her disability retirement was a constructive removal under the
standard that the Board generally applies in involuntary disability retirement
cases. See ID at 12-13, 15.
¶18 Applying the jurisdictional standard that the Board generally applies in
involuntary retirement appeals, the administrative judge next considered the
appellant’s claim that her disability retirement was involuntary because the
agency created a discriminatory and hostile work environment that exacerbated
her medical condition. See ID at 13-15. The administrative judge found that the
preponderance of the evidence in the record did not support this allegation. ID at
10
14. In support of this finding, the administrative judge noted that, after declaring
that the appellant had no need for treatment in January 2001, her physician
specifically refused to blame agency officials for her condition in November
2003. ID at 14 (citing 582/2 IAF, Tab 22, Exhibit 5). The administrative judge
found that the agency did not coerce the appellant to retire and that her
retirement was not the result of improper acts by the agency. ID at 14.
¶19 The appellant appears to challenge this finding on review, asserting that the
administrative judge improperly failed to cite a January 21, 2004 letter from a
psychotherapist stating that “the appellant was forced out of her job due to a
hostile work environment.” PFR File, Tab 4 at 3, 5-7. This argument is
unavailing. The administrative judge’s failure to mention all of the evidence of
record does not mean that he did not consider it in reaching his decision.
Marques v. Department of Health & Human Services, 22 M.S.P.R. 129, 132
(1984), aff’d, 776 F.2d 1062 (Fed. Cir. 1985) (Table). Moreover, the fact that
another health care provider had a different opinion from the appellant’s
physician provides no basis to disturb the administrative judge’s finding that the
appellant failed to prove by preponderant evidence her allegation that
management created an environment that exacerbated the appellant’s condition.
¶20 We also find unpersuasive the appellant’s argu ment on review that, because
OPM approved her disability retirement application, and she stated in her
application that her disabling condition started on the date of the alleged assault
by her coworker, she “has in fact been found to have a compensable disability
due in part to the agencies [sic] horrific conduct.” PFR File, Tab 4 at 3. While
OPM approved her disability retirement application, it did not find that any of
the injuries she listed in support of her request for disability retirement,
including PTSD, were caused or exacerbated by the agency. See 0582/2 IAF,
Tab 5, Subtab 4e.
¶21 In determining whether the appellant established that her disability
retirement was involuntary, the administrative judge also considered the
11
appellant’s allegation that she was subjected to harassment in 2003 because of
the following: her receipt of good, but not “outstanding” evaluations; the keying
of her car, 7 and coworkers sneaking up on her or refusing to talk to her. ID at
14. The administrative judge correctly found that the situation and incidents the
appellant identified would not have created such intolerable working conditions
that a reasonable person in her position would have felt compelled to retire. ID
at 14.
¶22 The administrative judge also correctly found that nothing in the record
suggests that the agency was forcing the appellant to make any type of decision
in December 2003, as there was no pending proposal to remove her from her
position. ID at 15. Rather, the administrative judge found that the appellant’s
decision to apply for disability retirement appears to have been entirely
self-initiated. ID at 15. Last, the administrative judge noted that, at the time she
filed her application for disability retirement, the appellant was pursuing her
discrimination and sexual harassment complaint, in which she eventually
prevailed. ID at 15 (citing Axsom v. Department of Veterans Affairs,
110 M.S.P.R. 605 (2009) (a pre-existing discrimination affords the appellant the
option of contesting alleged discrimination, harassment, and retaliation, rather
than resigning/retiring)).
¶23 Based on her consideration of the record in its entirety, the administrative
judge found that the appellant failed to establish that the agency created a hostile
work environment, which not only led to intolerable working conditions but
which caused or exacerbated the medical conditions underlying her disability
retirement. ID at 15. Accordingly, the administrative found that the appellant
failed to establish that the Board has jurisdiction over her involuntary retirement
appeal. ID at 15.
7
The record indicates that the car keying incident occurred on June 2, 2002. See
0582/3 IAF, Tab 31, Exhib it 81.
12
¶24 We discern no reason to disturb the administrative judge’s explained
findings. Even if the appellant genuinely felt that she had no alternative but to
retire due to her medical conditions, she has failed to make a sufficient allegation
of a coercive or improper act on the part of the agency that could have left a
reasonable person in her position with no other choice but to retire in August
2004. See Brown v. U.S. Postal Service, 115 M.S.P.R. 609, ¶ 17, aff'd sub nom.
Brown v. Merit Systems Protection Board, 469 F. App’x 852 (Fed. Cir. 2011)
(even if the appellant’s medical condition left her no alternative but to retire, she
failed to tie her circumstances to an improper agency act). Therefore, we agree
with the administrative judge that the appellant failed to establish that the Board
has jurisdiction over her involuntary retirement appeal. ID at 15.
The appellant has failed to prove that the Board has jurisdiction over her
constructive suspension appeal.
¶25 In the initial decision, the administrative judge found that “no hearing was
necessary” in the appellant’s constructive suspension appeal because she failed
to raise a nonfrivolous allegation that the Board has jurisdiction over her appeal.
See ID at 2 n.3. As noted above, however, the appellant withdrew her initial
request for a hearing. See IAF-0582/3, Tab 51. Consequently, the threshold
question in her appeal is not whether the appellant raised a nonfrivolous
allegation of jurisdiction but whether she established jurisdiction by a
preponderance of the evidence. See Vitale, 107 M.S.P.R. 501, ¶ 18 (citing
Garcia, 437 F.3d at 1344).
¶26 In analyzing the appellant’s constructive suspension appeal, the
administrative judge stated that there are two distinct situations which can give
rise to constructive suspension claims: (1) when an agency places an employee
on enforced leave pending an inquiry into her ability to perform; and (2) when an
employee, absent due to medical restrictions, requests to return to work within
these medical restrictions and the agency is bound by policy, regulation, or
contractual provision to offer available work to the employee, but fails to do so.
13
ID at 18. The administrative judge also stated that, for purposes of jurisdiction
in a case involving enforced leave, the key question is whether the agency or the
employee initiated the leave. ID at 18. The administrative judge found that the
appellant did not show that the agency constructively suspended her from
October 30, 2003, through August 7, 2004, or that the Board has jurisdiction
over her constructive suspension appeal, for two reasons: (1) the appellant did
not allege that either of the two situations described above exists here; and (2)
the record indicates that the appellant initiated her absence during the relevant
time period by requesting leave pursuant to her doctor’s recommendations. ID at
19.
¶27 Prior to the issuance of the initial decision, however, the Board revamped
its jurisprudence regarding constructive suspension claims in Bean v. U.S. Postal
Service, 120 M.S.P.R. 397 (2013), and Abbott v. U.S. Postal Service,
121 M.S.P.R. 294 (2014). In particular, the Board noted that it has recognized
several fact patterns that may give rise to an involuntary constructive suspension
and, therefore, rejected as misleading the statement in a line of Board cases that
constructive suspensions arise in two situations. Bean, 120 M.S.P.R. 397, ¶ 8
n.4. The Board further found that the issue of whether the agency or employee
initiated the absence is dispositive only in enforced leave suspension appeals, not
in involuntary leave-type constructive suspension appeals. Id., ¶ 8 n.5; see
Abbott, 121 M.S.P.R. 294, ¶ 10 (clarifying that enforced leave suspensions are
not “constructive” and that the case law concerning constructive suspensions
does not apply). The Board explained that the application of the “initiation”
standard does not further the analysis in involuntary leave-type constructive
suspension appeals because the very essence of an involuntary leave-type
constructive suspension is that the absence was employee-initiated. Bean,
120 M.S.P.R. 397, ¶ 8 n.5. Instead, the Board held that, assuming that the
jurisdictional requirements of 5 U.S.C. chapter 75 are otherwise met, proof of the
following is sufficient to establish Board jurisdiction over such an appeal:
14
(1) the employee lacked a meaningful choice in the matter; and (2) it was the
agency’s wrongful actions that deprived the employee of that choice. Bean,
120 M.S.P.R. 397, ¶ 8.
¶28 Like Bean, the instant case involves an involuntary leave-type constructive
suspension appeal because it concerns a claim that leave that appeared to be
voluntary actually was not. Consequently, the administrative judge should have
analyzed the appellant’s constructive suspension appeal under the framework set
forth in Bean. Thus, to establish jurisdiction in her constructive suspension
appeal, the appellant must show that: (1) she lacked a meaningful choice
regarding her absence beginning on October 30, 2003; and (2) this was because
of the agency’s improper actions. See Bean, 120 M.S.P.R. 397, ¶ 11.
¶29 Although Bean was issued before the administrative judge issued the
jurisdictional notice on remand, the administrative judge did not, consistent with
Burgess v. Merit Systems Protection Board, 758 F.2d 641, 643-44 (Fed. Cir.
1985), correctly inform the appellant of the requirements for establishing Board
jurisdiction over her constructive suspension appeal. See RAF, Tab 8.
Nonetheless, we find that it is unnecessary to remand the appeal for proper
jurisdictional notice. The Board has found that an administrative judge’s
defective notice can be cured if the agency’s pleadings contain the notice that
was lacking in the acknowledgement order. Scott v. Department of Justice,
105 M.S.P.R. 482, ¶ 6 (2007). In its response to the jurisdictional order, the
agency cured the defective Burgess notice by apprising the appellant of what she
must do to establish the Board’s jurisdiction over her constructive suspension
appeal under Bean. See RAF, Tab 11 at 34.
¶30 Applying the framework set forth in Bean, we note that the appellant was
absent from work from October 30, 2003, through August 7, 2004, the effective
date of her disability retirement, based on her physician’s assessment that she
was “unable to work.” See 0582/3 IAF, Tab 31, Exhibits 92, 93, 97, 98, 101,
102. Thus, although the appellant requested leave, we find that she lacked a
15
meaningful choice in the matter because her physician stated that she was unable
to work due to her medical condition. See Bean, 120 M.S.P.R. 397, ¶¶ 13-14.
¶31 We next turn to the issue of whether the appellant proved by preponderant
evidence that the agency’s improper actions deprived her of a meaningful choice
regarding her absence from work. As previously discussed, the appellant was
absent from work beginning October 30, 2003, based on her physician’s
assessment that she was unable to work due to her medical condition; however,
the appellant failed to prove that her condition was caused or exacerbated by the
improper acts of the agency. In other words, although the appellant had no
choice but to absent herself from work beginning October 30, 2003, she has not
shown that her lack of choice in the matter is attributable to any improper acts by
the agency. Thus, the second prong of the jurisdictional test set forth in Bean
has not been satisfied, and the Board lacks jurisdiction over the appellant’s
constructive suspension appeal.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
16
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information 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, and 11.
If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.