Danny Lee v. Office of Personnel Management ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DANNY LEE, DOCKET NUMBER
Appellant, SF-844E-18-0754-I-1
v.
OFFICE OF PERSONNEL DATE: February 26, 2024
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Danny Lee , Poway, California, pro se.
Shaquita Stockes and Heather Dowie , Washington, D.C., 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
affirmed the reconsideration decision of the Office of Personnel Management
(OPM) that denied his application for disability retirement under the Federal
Employees’ Retirement System (FERS). Generally, we grant petitions such as
this one only in the following circumstances: the initial decision contains
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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).
On petition for review, the appellant argues that he has new evidence
supporting his disability retirement claim, including medical documentation
showing that he is suffering from an undiagnosed stomach problem, pancreatitis
and kidney cysts, depression, and constant pain. Petition for Review (PFR) File,
Tab 1 at 4-5. The appellant also argues that the initial decision sustaining OPM’s
decision denying his application for disability retirement in this case is contrary
to the decision in his involuntary resignation appeal filed against his former
employing agency. Id. at 3; see Lee v. Social Security Administration, MSPB
Docket No. SF-0752-18-0753-I-1, Initial Appeal File, Tab 27, Initial Decision
(0753 ID). The appellant also takes issue with conclusions drawn in the initial
decision, including the assertion that the move from the position of Case Intake
Technician to Senior Case Technician was a promotion, and argues that the
testimony from his former supervisor was not credible and that the supervisor
perjured himself. PFR File, Tab 1 at 4-5. The appellant also provides copies of
additional medical documentation and of emails he exchanged with the agency
representative during the pendency of his appeal. Id. at 6-38.
After considering the appellant’s arguments and reviewing the record, we
discern no reason to disturb the initial decision. In particular, we agree with the
administrative judge’s finding that the appellant has failed to show that his hip
condition caused a deficiency in his performance, attendance, or conduct, or that
3
it was incompatible with useful and efficient service or retention in his position. 2
Initial Appeal File (IAF), Tab 16, Initial Decision (ID) at 14-28; see 5 U.S.C.
§ 8451(a)(1)(B); 5 C.F.R. § 844.103(a)(2); see Rucker v. Office of Personnel
Management, 117 M.S.P.R. 669, ¶ 10 (2012).
Regarding the medical records the appellant submits for the first time on
review, the appellant has not shown that any of this information is both new and
material. PFR File, Tab 1 at 6-34; see Okello v. Office of Personnel Management,
112 M.S.P.R. 563, ¶ 10 (2009) (noting that under 5 C.F.R. § 1201.115(d), the
Board will not consider evidence submitted for the first time with a petition for
review absent a showing that it is both new and material). The first set of
medical records is dated November 15, 2018, before the November 20, 2018 close
of record in this case, and therefore these medical records are not “new.” PFR
File, Tab 1 at 6-14; See Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214
(1980) (explaining that, under 5 C.F.R. § 1201.115, the Board generally will not
consider evidence submitted for the first time on review absent a showing that it
was unavailable before the record was closed despite the party’s due diligence) .
The second set of medical records is dated August 21, 2019, after the record
2
One of the conditions the appellant discusses in his petition review—that he suffers
from depression—was briefly addressed by the administrative judge in the initial
decision. PFR File, Tab 1 at 4; Tab 6 at 4, 6; see Initial Appeal File (IAF), Tab 16,
Initial Decision (ID) at 17 n.7. The administrative judge acknowledged that both the
appellant’s FERS disability retirement application and OPM’s reconsideration decision
referenced the fact that the appellant had a prescription for antidepressant medications
and mentioned his claim that he suffered from the side effects of taking antidepressants,
but the administrative judge concluded that OPM’s decision noted that the appellant had
not submitted any medical evidence to support a diagnosis of depression, and that the
bulk of the supporting materials in the appellant’s application for FERS disability
retirement focused on his condition of avascular necrosis of the left hip. ID at 17 n.7.
Consequently, the administrative judge concluded that depression was not the basis
upon which the appellant sought a FERS disability retirement, and informed him that he
could file a new application on these grounds if he were so inclined. Id. We agree with
the administrative judge’s determination and find no error in this regard. See Clay v.
Department of the Army, 123 M.S.P.R. 245, ¶ 6 (2016) (finding no reason to disturb the
administrative judge’s findings where she considered the evidence as a whole, drew
appropriate inferences, and made reasoned conclusions on the issue of credibility);
Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 105-06 (1997) (same).
4
closed in this appeal. Id. at 15-34. However, these additional medical records
are not material, and therefore do not warrant a different outcome in this appeal.
Okello, 112 M.S.P.R. 563, ¶ 10. This second set of records is largely comprised
of a list of medications the appellant is currently taking, self-reported medical
issues, and laboratory blood and urinalysis results, as opposed to specific medical
diagnoses. PFR File, Tab 1 at 15-34. To the extent the medical records do
provide diagnostic information, they do not identify or explain how the
appellant’s condition rendered him unable to provide useful and efficient medical
service during the relevant period for the purpose of determining his eligibility
for a FERS disability retirement. Additionally, most of this second set of records
includes testing and diagnostic information concerning the appellant’s various
conditions during the period from July 22, 2019, onward, and therefore do not
explain how his conditions became disabling while he was employed in his
position, which is required to demonstrate entitlement to a FERS disability
retirement. See Henderson v. Office of Personnel Management , 109 M.S.P.R.
529, ¶ 8 (2008).
Further, to the extent the appellant is arguing on review that he is suffering
from additional diagnosed and undiagnosed conditions, including pancreatitis and
kidney cysts, as the administrative judge noted in the initial decision, the only
condition OPM considered for the appellant’s disability retirement application
was his hip condition, and if the appellant wishes to seek disability retirement for
any other condition beyond his hip condition he must file a new disability
retirement application with OPM. 3 See ID at 17 n.7. The appellant would have
the right to appeal an adverse final OPM decision to the Board. See 5 U.S.C.
§ 8461(e)(1); 5 C.F.R. § 841.308. Accordingly, we also have not considered this
second set of medical records because the documents contained therein are not
material to the outcome of this appeal.
3
As the administrative judge correctly noted, any such application would be subject to
timeliness considerations and the Board makes no representation about the timeliness of
any potential application.
5
With respect to the appellant’s argument that the administrative judge’s
decision in this disability retirement appeal is contrary to the decision in his
involuntary resignation appeal, there is no support for this assertion. PFR File,
Tab 1 at 3; see 0753 ID. The instant appeal concerns the appellant’s application
for a FERS disability retirement and is directed at OPM, while the other appeal
concerns the appellant’s claim that his resignation was involuntary and was
directed at his former employing agency, the Social Security Administration. The
administrative judge in the appellant’s involuntary resignation appeal dismissed
that appeal for lack of Board jurisdiction, concluding that the appellant failed to
make a nonfrivolous allegation that his resignation was involuntary, and nothing
in that decision is inconsistent with the decision reached by the administrative
judge in the instant appeal. See 0753 ID. 4
Regarding the appellant’s argument that his former supervisor “perjured”
himself, there is similarly no support for this claim. PFR File, Tab 1 at 3, 5;
Tab 6 at 4-5. In his petition for review, the appellant argues that his former
supervisor perjured himself regarding the issues of “leave and removal of
telework,” but he does not specifically identify what testimony he believes
constitutes perjury. PFR File, Tab 1 at 5; see PFR File, Tab 6 at 5. The appellant
appears to be referring to a series of questions he asked his supervisor during
cross-examination regarding why his number of telework days was reduced from
3 days per week to 2 days per week, and eventually, to 1 day per week. IAF,
Tab 19, Hearing Compact Disc 2 (HCD 2) (testimony of the appellant’s former
supervisor). In response to the question, the supervisor testified that, after
management determined that the amount of non-portable work had increased to a
level that required employees to perform the additional work on-site, the
appellant, along with a number of other employees, had their number of allowable
4
On February 23, 2024, the Board denied the appellant’s petition for review in his
separate involuntary resignation appeal and affirmed the initial decision in that matter.
Lee v. Social Security Administration, MSPB Docket No. SF-0752-18-0753-I-1, Final
Order (Feb. 23, 2024).
6
telework days reduced in a manner consistent with the union contract. Id. In a
follow-up question, the appellant alleged that he was the only employee who had
his telework days reduced, which the appellant’s former supervisor explicitly
denied, reasserting that other employees similarly had their telework days
reduced in a manner consistent with the union contract to the point that the
agency could meet its non-portable work requirements. Id. Aside from generally
asserting that the supervisor “perjured” himself in this testimony, the appellant
has not provided any contrary evidence regarding this issue on review.
Additionally, in the initial decision, the administrative judge declined to credit
the appellant’s testimony on this point, concluding that the appellant’s testimony
was “exaggerated,” and we defer to the administrative judge’s credibility
determination in this regard. ID at 19-20; see Haebe v. Department of Justice,
288 F.3d 1288, 1301 (Fed. Cir. 2002) (finding that the Board must give deference
to an administrative judge’s credibility determinations when they are based,
explicitly or implicitly, on the observation of the demeanor of witnesses
testifying at a hearing; the Board may overturn such determinations only when it
has “sufficiently sound” reasons for doing so).
Similarly, regarding the appellant’s allegation that his supervisor perjured
himself in his testimony concerning the appellant’s leave requests, although
difficult to discern, the appellant appears to restate his argument that, despite his
supervisor’s testimony otherwise, he was denied requested leave and was
threatened with absence without leave. PFR File, Tab 1. At the hearing, the
appellant’s former supervisor testified that he generally approved the appellant’s
requests to use annual leave or to grant credit hours in lieu of sick leave when he
ran out of sick leave. HCD 2 (testimony of the appellant’s former supervisor).
Additionally, the administrative judge considered and rejected the appellant’s
assertion in the initial decision, concluding that it was not credible because it was
in conflict with the appellant’s own concession that he was allowed to regularly
use requested leave, and with his supervisor’s testimony that the appellant did not
7
have any attendance issues. ID at 18. Accordingly, we find no reason to disturb
the administrative judge’s findings in this regard.
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).
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
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
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.
8
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.
(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
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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:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
10
(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).
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.
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.
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.