Monique J Kinteh v. Office of Personnel Management ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MONIQUE J. KINTEH, DOCKET NUMBER
Appellant, AT-844E-20-0345-I-1
v.
OFFICE OF PERSONNEL DATE: August 20, 2024
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Monique J. Kinteh , Lawrenceville, Georgia, pro se.
Linnette Scott , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the final decision of the Office of Personnel Management (OPM),
denying her application for Federal Employees’ Retirement System (FERS)
disability retirement. Generally, we grant petitions such as this one only in the
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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
The appellant was a preference eligible GS-9 Clinical Nurse for the
Department of Defense. Initial Appeal File (IAF), Tab 9 at 71. On August 27,
2018, the appellant tendered her resignation, citing the advice of her healthcare
provider. IAF, Tab 7 at 7-8. Her resignation became effective September 21,
2018. IAF, Tab 7 at 8, Tab 9 at 71.
Meanwhile, on or about August 18, 2018, the appellant filed an application
for disability retirement, claiming disabling conditions of migraine headaches,
fibromyalgia, polymyositis, post-traumatic stress disorder, adjustment disorder,
depression, anxiety, osteoarthritis of both knees, asthma, hypertension, cardiac
dysrhythmia, left wrist carpal tunnel, lumbar spondylosis, cervical spondylosis
with reverse lordosis, sciatica, obstructive sleep apnea, left knee chondromalacia,
and a traumatic brain injury (TBI). IAF, Tab 8 at 61-66. On April 12, 2019,
OPM issued an initial decision denying the appellant’s application on the basis
that she failed to show an occupationally disabling condition expected to last at
3
least 1 year from the date of her application. Id. at 52-57. The appellant
requested reconsideration, and on February 10, 2020, OPM issued a final decision
affirming its initial decision. IAF, Tab 6 at 6-25.
The appellant timely filed the instant Board appeal, challenging OPM’s
determination. IAF, Tab 1 at 4-6. She waived her right to a hearing. IAF,
Tab 13. After the close of the record, the administrative judge issued an initial
decision affirming OPM’s final decision. IAF, Tab 21, Initial Decision (ID).
Although he found that the appellant showed that she has suffered from the
various conditions that she listed in her disability retirement application, he
nevertheless concluded that the appellant failed to show that these conditions
rendered her unable to provide useful and efficient service in her position. ID
at 15-18. He also found that the appellant failed to show that several of her
conditions had persisted for more than 1 year from the date of her application,
and that the record failed to support a finding that accommodation of her
conditions would be unreasonable. ID at 17-18.
The appellant has filed a petition for review, disputing the administrative
judge’s finding on the persistence of her claimed conditions and arguing that her
employing agency failed to provide her reasonable accommodation and
committed numerous other prohibited personnel practices against her. Petition
for Review (PFR) File, Tab 1 at 6-7. She has attached several pieces of
documentary evidence in support of her arguments. Id. at 8-31. OPM has filed a
response to the petition for review. PFR File, Tab 4.
ANALYSIS
An employee bears the burden of proving by preponderant evidence her
entitlement to disability retirement. Snow v. Office of Personnel Management,
74 M.S.P.R. 269, 273 (1997); 5 C.F.R. § 1201.56(b)(2)(ii). To qualify for
disability retirement benefits under FERS, an individual must meet the following
requirements: (1) she must have completed 18 months of creditable civilian
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service; (2) she must, while employed in a position subject to FERS, have become
disabled because of a medical condition resulting in a deficiency in performance,
conduct, or attendance, or if there is no such deficiency, the disabling medical
condition must be incompatible with either useful and efficient service or
retention in the position; (3) the disabling medical condition must be expected to
continue for at least 1 year from the date the application for disability retirement
is filed; (4) accommodation of the disabling medical condition in the position
held must be unreasonable; and (5) she must not have declined a reasonable offer
of reassignment to a vacant position. 5 U.S.C. § 8451; Christopherson v. Office
of Personnel Management, 119 M.S.P.R. 635, ¶ 6 (2013); 5 C.F.R. § 844.103(a).
The main issue in this appeal is whether the appellant’s claimed conditions
resulted in a deficiency in performance, conduct, or attendance, or were
incompatible with useful and efficient service or retention in her position.
In his initial decision, the administrative judge found insufficient evidence
to show that the appellant’s claimed conditions resulted in any actual service
deficiency, and we agree. ID at 9-10, 17. He considered evidence that the
appellant incurred approximately 238 hours of absence between January and
August 2017. ID at 9-10; IAF, Tab 9 at 65-69. However, although 162 hours of
this leave was related to the appellant’s April 15, 2017 TBI, there was no
evidence that the remainder of the leave was attributable to any of her other
claimed conditions. ID at 9-10, 17; IAF, Tab 7 at 12. Furthermore, we observe
that the record evidence of absences ends 1 year before the appellant’s
resignation, and there is nothing in the record to suggest that her attendance did
not improve following her recovery from the TBI. 2 Furthermore, we note that in
her Supervisor’s Statement to OPM, the appellant’s supervisor denied that the
2
On April 25, 2018, the appellant was evaluated by a neuropsychologist, who opined
that the April 15, 2017 injury resulted in a mild TBI to the appellant, the symptoms of
which “would be expected to resolve within a couple of weeks to months after the
injury.” IAF, Tab 8 at 74. The neuropsychologist found no indication from her
evaluation that the appellant currently met the criteria for a neurocognitive diagnosis.
Id. at 73.
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appellant had any deficiencies in performance, attendance, or conduct. IAF,
Tab 8 at 63-64. Nor is there any evidence in the record, such as warnings,
counselings, disciplinary actions, or negative performance appraisals, to suggest
that such a deficiency existed. In fact, the appellant’s last rating of record prior
to her resignation stated that her performance was fully successful. IAF, Tab 16
at 19-26. For these reasons, we agree with the administrative judge that the
appellant did not prove that she exhibited any actual deficiency in service due to
her claimed conditions.
Nor is there sufficient evidence to conclude that the appellant’s conditions,
alone or in combination, were incompatible with useful and efficient service or
retention in her position. In his initial decision, the administrative judge
considered a May 2, 2018 letter from the appellant’s Licensed Clinical Marriage
and Family Therapist (LCMFT), which stated that the appellant suffered from
numerous psychological disorders, including cognitive impairments, which
affected her ability to do her job, and that the appellant “should be considered for
permanent release of her duties for retirement.” ID at 14, 16; IAF, Tab 7
at 75-76. He also considered a June 19, 2020 letter from the LCMFT, which
stated that the appellant’s TBI resulted in numerous psychological conditions,
including cognitive impairments, that prevented her from doing her job, and that
the appellant was “unable to provide useful and efficient service in the position of
record.” ID at 15-16; IAF, Tab 17 at 56-57.
However, the administrative judge found that the LCMFT’s letters were
outweighed by other evidence, including the results of an April 25, 2018
neuropsychological evaluation, in which the doctor opined that the appellant’s
cognitive functioning was generally within the normal range and that her
complaints of cognitive difficulties were more likely attributable to her physical
pain and mood symptoms than they were to her previous TBI. 3 ID at 13, 16-17;
3
The initial decision reflects that the neuropsychological evaluation took place on
March 27, 2018. ID at 13. The format of these records is somewhat confusing, but it
appears to us that the appellant was seen for a consultation on March 27, 2018, during
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IAF, Tab 8 at 73-74. Although the neuropsychologist recommended several
strategies for the appellant to reduce her symptoms, including effective pain
management, compliance with her physician’s sleep recommendations, and
engaging in healthy activities, she did not recommend that the appellant resign
from her position with the agency. IAF, Tab 8 at 74. The administrative judge
credited the neuropsychologist’s opinion over that of the LCMFT’s because the
LCMFT appeared to have formed her opinion based solely on the appellant’s
self-reporting of problems rather than a clinical evaluation, and it was not clear
that the LCMFT had even seen the appellant at any point during the 2 years
preceding the June 19, 2020 letter. ID at 15-16. The administrative judge also
considered records of the appellant’s October 2018 contacts with a veterans’
crisis hotline, which the appellant called to ensure continuation of services after
resigning her position and moving out of state. ID at 14-15. The Licensed
Clinical Social Worker who responded reported that the appellant presented as
coherent, alert, and oriented, with optimistic mood, good judgment and insight,
and normal speech, and that the appellant showed no signs of acute distress. IAF,
Tab 8 at 10-12.
Finally, the administrative judge considered that the appellant had received
a 100% service-connected disability rating from the Department of Veterans
Affairs (DVA), but he found that this evidence was not dispositive regarding
whether the appellant was disabled for purposes of FERS disability retirement,
particularly because the record lacked detailed information about the basis for the
rating. ID at 17; IAF, Tab 9 at 107; see Sachs v. Office of Personnel
Management, 99 M.S.P.R. 521, ¶ 11 (2005) (stating that the Board will consider
an award of benefits by the DVA, but it is not dispositive of an appellant’s
entitlement to disability retirement benefits). We also note that the appellant’s
100% DVA disability rating dates back at least to December 2014, and that she
which she was scheduled for an evaluation to take place on April 25, 2018. IAF, Tab 8
at 71-72. In any event, we find the discrepancy in dates to be immaterial.
7
was able to perform successfully as a Clinical Nurse for several years after that.
IAF, Tab 9 at 107. Furthermore, although this evidence is not dispositive either,
we take note that the appellant’s application for Social Security disability benefits
was denied. IAF, Tab 6 at 14; see Yoshimoto v. Office of Personnel Management ,
109 M.S.P.R. 86, ¶ 22 (2008) (considering the denial of an application for Social
Security disability benefits as relevant, but nonbinding, in a FERS disability
retirement appeal). In sum, the administrative judge’s finding that the appellant
was not disabled for purposes of FERS disability retirement is supported by the
record, and the appellant, who has not contested this finding on petition for
review, provides no basis for us to disturb it.
The appellant does, however, contest the administrative judge’s finding that
she failed to show that certain of her claimed conditions were expected to last
more than a year from the date of her application. PFR File, Tab 1 at 6; ID
at 17-18. The administrative judge reasoned that the record contained no
evidence that the appellant continued to receive treatment for her mental health
conditions after she filed her application. ID at 17. On petition for review, the
appellant asserts, without any specific citations, that “medical evidence presented
demonstrated that my conditions [have] lasted over one year.” PFR File, Tab 1
at 6. We find that the appellant’s argument presents no basis to disturb the initial
decision because a petition for review must contain sufficient specificity to
enable the Board to ascertain whether there is a serious evidentiary challenge
justifying a complete review of the record. See Tines v. Department of the Air
Force, 56 M.S.P.R. 90, 92 (1992). Furthermore, we find that the appellant’s
argument constitutes mere disagreement with the administrative judge’s findings
on this issue and therefore does not warrant full review of the record by the
Board. See Weaver v. Department of the Navy , 2 M.S.P.R. 129, 133-34 (1980),
review denied, 669 F.2d 613 (9th Cir. 1982) (per curiam). As for the
administrative judge’s findings that the appellant failed to show that her
conditions could not be accommodated, the appellant does not appear to dispute
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this finding. ID at 18. In fact, the appellant’s petition could be read as being in
agreement with this finding to the extent that the appellant protests the agency’s
lack of reasonable accommodation efforts. PFR File, Tab 1 at 6-7.
The remainder of the appellant’s petition for review sets forth allegations
of wrongdoing by her employing agency. We interpret these to include
allegations of whistleblower reprisal, sex discrimination, disability
discrimination, retaliation for equal employment opportunity activity, retaliation
for grievance activity, and discrimination based on uniformed service. Id.Although the Board might have jurisdiction over some of these claims if the
appellant were to file an appeal against her employing agency, such as an
individual right of action appeal, a constructive removal appeal, or an appeal
under the Uniformed Services Employment and Reemployment Rights Act of
1994, we find that the Board lacks jurisdiction to consider these claims in the
context of the instant disability retirement appeal against OPM. See Bagian v.
Office of Personnel Management, 9 M.S.P.R. 541, 544-45 (finding that the Board
lacked jurisdiction over the appellant’s discrimination claim when the only
agency action under appeal was OPM’s denial of a disability retirement
application and there was no evidence or allegation that OPM’s decision was
based on discrimination).
We have also reviewed the documentary evidence that the appellant has
attached to her petition. However, the bulk of this evidence concerns her
allegations of discrimination and retaliation, and we therefore find that it is
immaterial to the outcome of the appeal. PFR File, Tab 1 at 9-26, 30-31. The
Board will not grant a petition for review based on newly filed evidence absent a
showing that it is of sufficient weight to warrant an outcome different from that
of the initial decision. Russo v. Veterans Administration, 3 M.S.P.R. 345, 349
(1980). Furthermore, all of this evidence predates the close of the record below,
and the appellant has not shown that she was unable to submit it to the
administrative judge despite her due diligence. See Clay v. Department of the
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Army, 123 M.S.P.R. 245, ¶ 6 (2016) (explaining that the Board generally will not
consider an argument raised for the first time in a petition for review absent a
showing that it is based on new and material evidence not previously available
despite the party’s due diligence). The appellant has also submitted some
evidence related to her continued mental health treatment following her
resignation. 4 PFR File, Tab 1 at 27-29. These documents could be relevant to
the issues of whether the appellant was “disabled” within the meaning of 5 C.F.R.
§ 844.103(a)(2) and whether her claimed disabling conditions continued for more
than 1 year under 5 C.F.R. § 844.103(a)(3), but these documents also predate the
close of the record below, and the appellant has not explained why she failed to
submit them previously. See Clay, 123 M.S.P.R. 245, ¶ 6.
NOTICE OF APPEAL RIGHTS 5
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
4
These documents consist of a list of medical and mental health appointments that the
appellant scheduled between December 2018 and February 2021, and a June 22, 2020
letter from a Clinical Nurse Specialist at the mental health clinic where the appellant
was being treated. PFR File, Tab 1 at 27-29. We note that the letter from the Clinical
Nurse Specialist consists largely of verbatim excerpts from the June 19, 2020 letter
from the LCMFT, contained in the record below. Compare PFR File, Tab 1 at 27, with
IAF, Tab 17 at 56-57. Therefore, even if we were to consider this letter, we find that it
would have minimal probative value.
5
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.
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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 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).
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.
11
(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. 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:
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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
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. 6 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).
6
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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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
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: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.