Nathan Savage v. United States Postal Service ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
NATHAN A. SAVAGE, SR., DOCKET NUMBER
Appellant, AT-0752-16-0428-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: June 22, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Nathan A. Savage, Sr., Pensacola, Florida, pro se.
Donald Vicini, Esquire, Dallas, Texas, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed the appeal for lack of jurisdiction. 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 petit ioner
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 filed an application for disability retirement with the Office
of Personnel Management (OPM), claiming that he was disabled from his City
Carrier position with the agency based on his medical condition of post-traumatic
stress disorder. Initial Appeal File (IAF), Tab 17 at 10-18. On January 11, 2016,
OPM approved the application. Id. at 19-20. On April 4, 2016, the appellant
filed an appeal with the Board alleging that his disability retirement was
involuntary, asserting that the agency was aware of his disability and failed or
refused to accommodate him. IAF, Tab 1.
¶3 The administrative judge found that the appellant had made a nonfrivolous
allegation of involuntariness and held a jurisdictional hearing. IAF, Tab 19.
Based on the record, including the hearing testimony, the administrative judge
issued an initial decision finding that the appellant failed to meet his burden to
show that his retirement was involuntary. She found that a number of agency
witnesses testified that the appellant did not tell them that he had a disability and
that he never requested accommodation. IAF, Tab 21, Initial Decision (ID)
at 4-7. She found that the testimony of these witnesses was more credible than
the appellant’s testimony that he informed his supervisors that he had a disability.
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ID at 6. Thus, she found that the appellant failed to show that he requested an
accommodation for a known disability that would have allowed him to contin ue
working when he asked for a reassignment to a Custodian position, and he failed
to meet his burden to prove jurisdiction over his appeal. ID at 7.
¶4 In his petition for review, the appellant argues that the agency must attempt
to accommodate a disability through the interactive process prior to granting
disability retirement and it failed to do so. Petition for Review (PFR) File, Tab 2
at 2-5. 2 The agency has responded in opposition to the petition. PFR File, Tab 4.
DISCUSSION OF ARGUMENTS ON REVIEW
¶5 A retirement is presumed to be a voluntary act and, therefore, beyond the
Board’s jurisdiction. Morrison v. Department of the Navy, 122 M.S.P.R. 205, ¶ 5
(2015); see 5 C.F.R. § 752.401(b)(9). An appellant who alleges that a
presumptively voluntary action was involuntary bears the burden of proving
Board jurisdiction by a preponderance of the evidence. Garcia v. Department of
Homeland Security, 437 F.3d 1322, 1329 (Fed. Cir. 2006) (en banc); 5 C.F.R.
§ 1201.56(b)(2)(i)(A). In most cases, an appellant who alleges that his disability
retirement was involuntary must show by preponderant evidence that (1) he
indicated to the agency that he wished to continue working but that his medical
limitations required a modification of his work conditions or duties, i.e.,
accommodation; (2) there was a reasonable accommodation available during the
period between the date on which he indicated to the agency that he had medical
limitations but desired to continue working and the date that he was separated that
2
On March 30, 2017, the appellant submitted a document to the Board’s Atlanta
Regional Office (ATRO) that it docketed as a new appeal. While the appeal was
pending, the appellant stated that he did not wish to file a new appeal but instead
wanted to file a petition for review of the initial decision issued March 1, 2017. PFR
File, Tab 1. ATRO forwarded the appellant’s March 30, 2017 submission to the Office
of the Clerk of the Board for docketing as a petition for review. PFR File, Tab 2. The
Office of the Clerk of the Board acknowledged the appellant’s March 30, 2017
submission as a timely filed petition for review. PFR File, Tab 3.
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would have allowed him to continue working; and (3) the agency unjustifiably
failed to offer that accommodation. Mims v. Social Security Administration,
120 M.S.P.R. 213, ¶ 17 (2013).
¶6 Here, we agree with the administrative judge that the appellant failed to
meet his burden of proof to establish the first of these three elements, i.e., that he
indicated to the agency that he had medical limitations that required modifying
his work conditions or duties. The administrative judge found that the appellant
testified that he asked three supervisors for a transfer to a position that was less
stressful. ID at 3-4. However, she found that all three supervisors testified
credibly that, although the appellant had mentioned that he wanted to leave his
City Carrier position to become a Custodian, they did not know that he had a
disability or that it was the reason that he wanted to become a Custodian. ID at 5.
She also found that the Station Manager testified credibly that he did not know
that the appellant had a disability or that he needed an accommodation. ID at 4.
Likewise, she found that the Postmaster testified credibly that she did not know
that the appellant had a disability. ID at 5. The Board must defer to an
administrative judge’s credibility determinations when, as here, they are based,
explicitly or implicitly, on observing the demeanor of witnesses testifying at a
hearing. Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002) .
The administrative judge properly found that, because the appellant failed to meet
his burden to show that he informed the agency that he had medical limitations
that required accommodation, he failed to show that his disability retirement was
involuntary. See Garcia, 437 F.3d at 1329; Mims, 120 M.S.P.R. 213, ¶ 17.
¶7 Because the appellant failed to inform his supervisors and manager s that he
had a disability, he also failed to supply the agency with sufficient information
for it to determine that he was making a request for a reasonable accommodation
under the Rehabilitation Act of 1973. Thus, the agency had no obligation to
follow up with him, requesting more information about his accommodation needs
through an informal interactive process. Under these circumstances, the agency
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properly did not initiate the sort of exchange that is supposed to occur during the
interactive process. See 29 C.F.R. § 1630.2(o)(3) (to determine the appropriate
reasonable accommodation, an agency may need to “initiate an informal,
interactive process with the individual with a disability in need of the
accommodation”). Accordingly, we conclude that the appellant’s assertion on
petition for review that the agency failed in its obligation to accommodate his
disability through the interactive process prior to his receipt of disability
retirement is unavailing.
NOTICE OF APPEAL RIGHTS 3
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 possible choice s 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.
3
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.
6
(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).
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 particu lar
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
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receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (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 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:
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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
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 described 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. 4 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
4
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.
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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.
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.