David Cook v. Office of Personnel Management ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DAVID A. COOK, DOCKET NUMBER
Appellant, AT-844E-19-0183-I-1
v.
OFFICE OF PERSONNEL DATE: May 7, 2024
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Kevin A. Graham , Esquire, Liberty, Missouri, for the appellant.
Albert Pete Alston, Jr. , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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. Except as expressly
MODIFIED to find that the appellant failed to show that his medical conditions
caused a deficiency in his attendance or conduct, we AFFIRM the initial decision.
On petition for review, the appellant contends that the administrative judge
failed to consider treatment notes, which, he asserts, show that his psychological
conditions contributed to his documented performance deficiencies. Petition for
Review (PFR) File, Tab 1 at 13; Initial Appeal File (IAF), Tab 6 at 86-92,
132-34. He further contends that the administrative judge failed to give
appropriate weight to the impact that his physical conditions, such as his neck and
back issues, had on his job performance, and he avers that these conditions
caused him to miss work frequently. PFR File, Tab 1 at 7, 13-15.
After considering the appellant’s arguments on review and reviewing the
record, we agree with the administrative judge that the appellant failed to show
that his medical conditions caused a deficiency in his performance. IAF, Tab 19,
Initial Decision (ID) at 6-10; see Henderson v. Office of Personnel Management,
117 M.S.P.R. 313, ¶¶ 16, 19 (2012) (setting forth the framework to analyze a
disability retirement claim under the Civil Service Retirement System (CSRS));
see also Jackson v. Office of Personnel Management, 118 M.S.P.R. 6, ¶¶ 7-8
(2012) (finding that the framework to analyze a disability retirement claim is the
3
same under CSRS and FERS); 5 C.F.R. § 844.103(a)(2). 2 Although the
administrative judge did not explicitly discuss the treatment notes that the
appellant references, IAF, Tab 6 at 132-34, an administrative judge’s failure to
mention all of the evidence in the record does not mean that he did not consider it
in reaching his decision. Marques v. Department of Health and Human Services,
22 M.S.P.R. 129, 132 (1984), aff’d, 776 F.2d 1062 (Fed. Cir. 1985) (Table).
Moreover, neither the treatment notes nor the appellant’s testimony clearly
explained how the appellant’s psychological conditions caused his documented
performance deficiencies. IAF, Tab 6 at 86-92, 132-34; see Marucci v. Office of
Personnel Management, 89 M.S.P.R. 442, ¶ 8 (2001) (explaining that disability
determinations based on mental illness often depend on whether the record
contains a reasoned explanation of how the appellant’s psychological condition
disables the employee from performing specific job duties).
In addition, we are not persuaded by the appellant’s assertion that the
administrative judge failed to appropriately consider the impact that his physical
conditions, such as his neck and back issues, had on his job performance. PFR
File, Tab 1 at 13-14. As set forth in the initial decision, the record is devoid of
any medical documentation indicating that the appellant was ever placed on any
work restriction, such as light duty. ID at 9. To this end, none of the treatment
notes in the record indicate that the appellant was physically unable to perform
his job functions. See Anderson v. Office of Personnel Management, 96 M.S.P.R.
299, ¶ 16 (2004) (explaining that a doctor’s conclusion that an employee is
disabled is persuasive only if the physician explains how the medical condition
affects the employee’s specific work requirements), aff’d, 120 F. App’x 320 (Fed.
2
Although the appellant applied for disability retirement under FERS, the initial
decision cited a regulatory provision regarding the requirements for disability
retirement under CSRS. ID at 3 (citing 5 C.F.R. § 831.1203(a)(2)). However, because
the relevant regulatory provisions under either system are nearly identical, compare
5 C.F.R. § 831.1203(a)(2), with 5 C.F.R. § 844.103(a)(2), this misstatement is
immaterial to the outcome of this appeal, see Panter v. Department of the Air Force,
22 M.S.P.R. 281, 282 (1984) (finding that an adjudicatory error that is not prejudicial to
a party’s substantive rights provides no basis for reversal of an initial decision).
4
Cir. 2005). Moreover, we agree with the administrative judge that the other
evidence in the record, to include the appellant’s testimony, also failed to make
such a showing. ID at 11. To the extent the appellant contends on review that his
pain impacted his job performance, the record suggests that his pain levels may
have been manageable with medication but that he rarely took such medication.
E.g., IAF, Tab 6 at 139, 171; see Confer v. Office of Personnel Management,
111 M.S.P.R. 419, ¶ 21 (2009) (explaining that, to prove entitlement to disability
retirement, an applicant must show that the medical condition at issue cannot be
controlled by medication or other reasonable means).
Last, the appellant asserts that his medical conditions caused him to miss
work frequently. PFR File, Tab 1 at 7. As set forth in the initial decision, an
appellant may establish entitlement to a disability retirement under FERS by
showing by preponderant evidence that his medical conditions caused a
deficiency in either his attendance or his conduct. ID at 3; see Henderson,
117 M.S.P.R. 313, ¶ 16. Because the administrative judge did not render explicit
findings in this regard, we hereby supplement the initial decision to find that the
appellant failed to show by preponderant evidence that his medical conditions
prevented him from being regular in attendance or caused him to act
inappropriately. See Henderson, 117 M.S.P.R. 313, ¶ 16. To this end, the record
is devoid of any attendance records or leave requests, and it provides no clear
indication of how much work the appellant missed as a result of his medical
issues. IAF, Tab 6 at 70, Tab 18, Hearing Recording (HR) at 17:30-19:00
(testimony of the appellant’s coworker, file 1); 1:00:07-1:00:48, 1:19:17-1:19:58
(testimony of the appellant, file 1); 26:02-27:11 (testimony of the appellant’s
supervisor, file 2). Moreover, both the appellant and the appellant’s supervisor
explicitly testified that the appellant never had any conduct or behavioral issues.
HR at 1:20:14-1:20:29 (testimony of the appellant, file 1); 25:30-25:58
(testimony of the appellant’s supervisor, file 2). Thus, the appellant failed to
show that his medical conditions caused a deficiency in his performance,
5
attendance, or conduct, or that they were incompatible with useful and efficient
service or retention in his position. See Henderson, 117 M.S.P.R. 313, ¶ 16; see
also Jackson, 118 M.S.P.R. 6, ¶¶ 7-8.
NOTICE OF APPEAL RIGHTS 3
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
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
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
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
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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
(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
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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
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
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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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.