Angela Perkins-Moore v. Department of Veterans Affairs ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANGELA J. PERKINS-MOORE, DOCKET NUMBER
Appellant, CH-0752-22-0184-I-1
v.
DEPARTMENT OF VETERANS DATE: March 12, 2024
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Rayburn Wilkins , St. Louis, Missouri, for the appellant.
Erin E. Milligan , Esquire, St. Louis, Missouri, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision,
which dismissed for lack of jurisdiction her claim of involuntary retirement.
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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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).
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant has submitted additional evidence on review in support of
her claim of involuntary retirement. Petition for Review (PFR) File, Tab 1.
The Board generally will not consider evidence submitted for the first time with
the petition for review absent a showing that it was unavailable before the record
was closed despite the party’s due diligence. Chin v. Department of Defense,
2022 MSPB 34, ¶ 8; Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980);
5 C.F.R. § 1201.115(d). The appellant states that she was deprived of the
opportunity to submit evidence to the administrative judge because she received
prompts on e-Appeal Online instructing her not to upload/submit additional
documents and that she would be notified and instructed if/when to submit any
documents. PFR File, Tab 1 at 3-4. We find that the appellant’s alleged belief
that she was not to file evidence was unreasonable considering the administrative
judge’s clear orders to file evidence and/or argument by a deadline of
March 10, 2022. Initial Appeal File (IAF), Tab 3 at 3, Tab 7 at 1. Thus, we find
that the appellant has not shown due diligence under the circumstances.
3
In addition, her new evidence and argument are not material because they
do not amount to nonfrivolous allegations that she was subjected to an appealable
adverse action, even considered in conjunction with her timely raised allegations.
See Spivey v. Department of Justice, 2022 MSPB 24, ¶ 15; Russo v. Veterans
Administration, 3 M.S.P.R. 345, 349 (1980).
For instance, she describes a series of actions by the agency going back to
2016 that she alleges were discriminatory, culminating in her decision to retire.
PFR File, Tab 1 at 4-5, 19-20, 29-30. However, accepting her allegations as true,
she has failed to allege circumstances in which a reasonable person in her
position would have found no choice but to retire in response to the agency’s
alleged actions. See, e.g., Axsom v. Department of Veterans Affairs,
110 M.S.P.R. 605, ¶ 12 (2009) (stating that, if an employee claims that his
resignation was coerced by the agency creating intolerable working conditions,
the employee must show a reasonable employee in his position would have found
the working conditions so difficult or unpleasant that they would have felt
compelled to resign); see also Bean v. U.S. Postal Service, 120 M.S.P.R. 397,
¶ 11 (2013) (explaining the jurisdictional requirement in constructive adverse
action appeals that the appellant lacked a meaningful choice).
The appellant also submits additional correspondence with the agency
following its return-to-work letter, including her renewed request for indefinite,
extended leave to undergo back surgery. PFR File, Tab 1 at 27 -31. The appellant
asserts in her sworn petition for review that she provided the “redundant” medical
documentation requested by the agency and that the agency’s denial of her
extended leave request violated Federal law. 2 PFR File, Tab 1 at 5, 27-29, 37-38;
IAF, Tab 1 at 8. By stating that the medical documentation was “redundant,”
PFR File, Tab 1 at 29, the appellant does not appear to allege that her medical
documentation differed from the documentation previously submitted,
2
The appellant cites generally to the Americans with Disabilities Act of 1990 and the
Rehabilitation Act. PFR File, Tab 1 at 4, 6.
4
id. at 33-34, or responded to the agency’s specific request for documentation
regarding “whether the leave will be a block of time” and “when the need for
leave will end,” id. at 35. The appellant also does not contest the agency’s
statements that she had expended the maximum amount of leave that could be
authorized under the Family and Medical Leave Act and had been absent from
duty for an additional 544.5 hours between April 12, 2020-May 4, 2021. IAF,
Tab 1 at 8; PFR File, Tab 1 at 27, 32. Thus, she has failed to allege facts that
could support a finding that the agency acted improperly in failing to approve her
request for indefinite, extended leave and instructing her to return to duty or face
removal. See Bean, 120 M.S.P.R. 397, ¶ 13 (explaining the jurisdictional
requirement that an involuntary retirement must be precipitated by an improper
agency action); cf. Schultz v. U.S. Navy, 810 F.2d 1133, 1136 (Fed. Cir. 1987)
(finding that a supervisor’s refusal to reconsider an absent without leave charge
after receiving a medical certificate that fully supported the leave request was
improper). Thus, we affirm the administrative judge’s decision that the
appellant’s retirement is not an appealable adverse action over which the Board
has jurisdiction.
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
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.
5
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 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.
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(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. 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).
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.
8
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.