Keziah Ford v. Office of Personnel Management ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KEZIAH M. FORD, DOCKET NUMBER
Appellant, DA-844E-20-0265-I-1
v.
OFFICE OF PERSONNEL DATE: October 22, 2024
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
McRae Cleaveland , Esquire, Dallas, Texas, for the appellant.
Albert Pete Alston, Jr. , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed the reconsideration decision of the Office of Personnel Management
(OPM) denying her application for disability retirement benefits under the Federal
Employees’ Retirement System (FERS). For the reasons discussed below, we
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
GRANT the appellant’s petition for review, REVERSE the initial decision, and
ORDER OPM to award a disability retirement annuity to the appellant.
¶2 The appellant began working with the Defense Logistics Agency (DLA) as a
Document Management Assistant in 2014. Initial Appeal File (IAF), Tab 7
at 10-11, 32. Her duties included interacting with customers and procuring
supplies and materials. Id. at 80.
¶3 The appellant was diagnosed with collagenous colitis in 2017. IAF, Tab 12
at 61. The appellant was also diagnosed with a post-cervical spine injury with
neck fusion and cervical radiculopathy. IAF, Tab 7 at 103. The collagenous
colitis causes the appellant to experience frequent and severe gastrointestinal
issues each day. IAF, Tab 11 at 27. The appellant’s post-cervical spine injury
with fusion and cervical radiculopathy cause consistent and constant pain in the
appellant’s neck, back, and shoulder. Id. at 28.
¶4 The appellant applied for a FERS disability annuity on August 29, 2018.
IAF, Tab 7 at 57-59. OPM issued an initial decision denying her application. Id.
at 27. The appellant requested reconsideration of this decision, and OPM issued a
reconsideration decision affirming its initial decision. Id. at 12-15, 21. In
reaching this decision, OPM relied on the lack of documented service deficiencies
for performance, attendance, or conduct and concluded that the appellant had not
proven that she had a medical condition that was incompatible with her
performance of useful and efficient service or retention in her position. Id.
at 12-14.
¶5 She appealed OPM’s reconsideration decision to the Board. IAF, Tab 1.
The administrative judge issued an initial decision based on the written record,
affirming OPM’s reconsideration decision, which denied the appellant’s
application for a FERS disability retirement annuity. IAF, Tab 16, Initial
Decision (ID) at 1-2. He concluded that the appellant did not establish that: (1) a
deficiency in her performance, conduct, or attendance was caused by one or more
of her medical conditions; (2) one or more of her medical conditions was
3
incompatible with either useful and efficient service or retention in her position;
and (3) accommodation of her medical conditions would be unreasonable. ID
at 27-31.
¶6 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1 at 4-11.
DISCUSSION OF ARGUMENTS ON REVIEW
¶7 In an appeal from an OPM decision denying a FERS disability retirement
application, the appellant must establish that she meets the following conditions:
(1) she completed at least 18 months of creditable civilian service; (2) while
employed in a position subject to FERS, she became 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 is
incompatible with either useful and efficient service or retention in the position;
(3) the disabling medical condition is expected to continue for at least 1 year
from the date that the application for disability retirement benefits was filed;
(4) accommodation of the disabling medical condition in the position held must
be unreasonable; and (5) the employee did not decline a reasonable offer of
reassignment to a vacant position. Chavez v. Office of Personnel Management,
111 M.S.P.R. 69, ¶ 6 (2009). Ultimately, the appellant bears the burden of
proving by preponderant evidence her entitlement to disability retirement
benefits. Id.; 5 C.F.R. § 1201.56(b)(2)(ii).
¶8 The record shows, and it is not disputed, that the appellant had completed
more than 18 months of civilian service creditable under FERS at the time she
filed her application, her medical condition continued for at least 1 year from the
date of her application, and she did not decline an offer of reassignment to a
vacant position. IAF, Tab 7 at 44, Tab 14 at 111-12; ID at 27. Thus, the
appellant’s entitlement to a disability retirement annuity depends on whether she
4
had a disabling medical condition and whether accommodation of the disabling
medical condition was unreasonable.
The appellant established that her medical condition was incompatible with useful
and efficient service or retention in the position.
¶9 On review, the appellant argues that her medical documentation sufficiently
demonstrated that she had a disabling medical condition that was incompatible
with her position. PFR File, Tab 1 at 9. The second element of establishing
entitlement to a disability retirement annuity requires demonstrating that the
appellant’s disabling medical condition either: (1) caused a deficiency in
performance, attendance, or conduct; or (2) is incompatible with useful and
efficient service or retention in the position. Jackson v. Office of Personnel
Management, 118 M.S.P.R. 6, ¶ 7 (2012); 5 C.F.R. § 844.103(a)(2); see 5 U.S.C.
§ 8451(a)(1)(B). As applicable here, under the second method, an individual can
establish entitlement by showing that the medical condition is inconsistent with
working in general, working in a particular line of work, or working in a
particular type of setting. Jackson, 118 M.S.P.R. 6, ¶ 8. In determining an
applicant’s entitlement to disability retirement, the Board considers all pertinent
evidence, including objective clinical findings, diagnoses and medical opinions,
subjective evidence of pain and disability, and evidence showing the effect of her
condition on her ability to perform the duties of her position. Henderson v.
Office of Personnel Management, 117 M.S.P.R. 313, ¶ 19 (2012). The ultimate
question, based on all relevant evidence, is whether the individual’s medical
impairments precluded her from rendering useful and efficient service in her
position. Id., ¶ 20.
¶10 The record here includes the position description for the appellant’s position
as a Document Management Assistant. IAF, Tab 7 at 79. Among her duties were
advising customers on the proper procedures on how to conduct business with
DLA Document Services, responding to routine customer inquiries, and
interfacing with DLA Document Services contracting representatives. Id. at 80.
5
¶11 The appellant’s medical providers gave unambiguous statements that the
appellant cannot continue to work. The appellant’s physician wrote that, “in my
opinion, the patient should be retired with disability. She is totally unable to
continue her job, even from home because of the severe disabilities with the
collagenous colitis and the cervical radiculopathy.” Id. at 103. The appellant’s
nurse practitioner echoed these remarks when she wrote that requiring the
appellant to work would be impractical because “there are many days she can
only lay in bed, and race to the restroom when necessary. . . . [R]equiring her to
work at this point would cause extreme hardship, and ultimately exacerbate all of
her chronic conditions.” IAF, Tab 14 at 112.
¶12 At the time of her disability retirement application, the appellant had a
reasonable accommodation that allowed her to telework from home 4 days per
week and required her to go to the office 1 day per week. IAF, Tab 11 at 25.
Due to her collagenous colitis, the appellant required numerous, sudden trips to
the restroom for extended periods of time. Id. at 27. The appellant detailed the
embarrassment and humiliation she experienced due to this condition. Id. The
appellant reported that her condition affected not only her time in the office but
also negatively impacted her commute to work. Id. at 28.
¶13 One of the appellant’s job functions was to talk to customers on the
telephone. Id. When she was at the office, the appellant’s symptoms were
incompatible with holding telephone calls with customers. Id. The appellant
spent significant portions of her mornings in the restroom at work, and her
supervisor verbally reprimanded her on multiple occasions for being away from
her computer for too long. Id. The appellant’s job duties also included
performing inventory, but her post-cervical spine injury and cervical
radiculopathy prevented her from being able to lift boxes or crawl under desks to
confirm serial numbers. Id. In addition, the appellant’s cervical radiculopathy
caused consistent and constant pain in her neck, back, and shoulder, as well as
headaches, migraines, and blurry vision. Id. The appellant reported that her
6
headaches could be so intense that she had to go to the emergency room for
treatment. Id. Working in front of a computer under white light exacerbated
these symptoms. Id.¶14 The appellant also experienced unique challenges when trying to telework
from home. The appellant often found it necessary to work out of her bathroom
due to her symptoms. Id. When she was not working from her bathroom, the
appellant would work with the lights off and the curtains drawn, and would
recline on the bed or couch to try to minimize the frequency of her headaches. Id.¶15 In light of the evidence discussed above, we find that the appellant has
produced competent and unrefuted medical evidence that her conditions
precluded her from performing the duties as a Document Management Assistant.
Based on the evidence from the appellant’s medical providers and her own
subjective description of her disabilities, we find that the appellant proved by
preponderant evidence that she was precluded from useful and efficient service or
retention in her position.
The appellant established that accommodation of the disabling medical condition
was unreasonable.
¶16 The administrative judge found that “the agency provided effective
reasonable accommodations to the appellant right up until the point she retired.”
ID at 31 (citing IAF, Tab 7 at 43-44, Tab 11 at 25-29). The administrative judge
referenced exhibits acknowledging the existence of the agency’s reasonable
accommodation that permitted the appellant to telework 4 days per week, but
neither of them describes the accommodation as “effective.” In addition, the
administrative judge noted the lack of reassignment requests made by the
appellant or other requests for reasonable accommodation. ID at 31. However,
the appellant’s burden for this element is to prove that the accommodation for her
position was unreasonable, not to request another position or accommodation.
¶17 Although the agency assigned the appellant to a location apart from other
employees on days she was required to work in the office, we find that the
7
appellant’s affidavit persuasively explains why her conditions could not be
reasonably accommodated in that setting. IAF, Tab 11 at 25, 27-28. When she
teleworked, her conditions caused her to work out of her bathroom for significant
periods of time. Id. at 28. When she was not working out of the bathroom, the
appellant had to work in darkness from a supine position. Id. Taken together, we
find that the appellant has provided preponderant evidence that she was
physically unable to perform the duties of her position, and no reasonable
accommodation could have assisted her in performing these duties.
¶18 The appellant has therefore met all the criteria for disability retirement
under FERS and is entitled to a disability retirement annuity. Accordingly, we
reverse the initial decision and do not sustain OPM’s reconsideration decision.
ORDER
¶19 We ORDER OPM to award the appellant a disability retirement annuity.
OPM must complete this action no later than 20 days after the date of this
decision.
¶20 We also ORDER OPM to tell the appellant promptly in writing when it
believes it has fully carried out the Board’s Order and of the actions it has taken
to carry out the Board’s Order. We ORDER the appellant to provide all necessary
information OPM requests to help it carry out the Board’s Order. The appellant,
if not notified, should ask OPM about its progress. See 5 C.F.R. § 1201.181(b).
¶21 No later than 30 days after OPM tells the appellant it has fully carried out
the Board’s Order, the appellant may file a petition for enforcement with the
office that issued the initial decision on this appeal if the appellant believes that
OPM did not fully carry out the Board’s Order. The petition should contain
specific reasons why the appellant believes OPM has not fully carried out the
Board’s Order and should include the dates and results of any communications
with OPM. See 5 C.F.R. § 1201.182(a).
8
¶22 This is the final decision of the Merit Systems Protection Board in this
appeal. 5 C.F.R. § 1201.113(c).
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set out at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
NOTICE OF APPEAL RIGHTS 2
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.
2
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.
9
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.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
10
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.
11
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
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. 3 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).
3
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.
12
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.