Travis Pencille v. Office of Personnel Management ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TRAVIS PENCILLE, DOCKET NUMBER
Appellant, CH-844E-21-0020-I-1
v.
OFFICE OF PERSONNEL DATE: October 7, 2024
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Andrew Henson , Esquire, Decatur, Georgia, for the appellant.
Sherri McCall , 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 reconsideration decision of the Office of Personnel Management
(OPM) denying his application for disability retirement benefits under the Federal
Employees’ Retirement System (FERS). Generally, we grant petitions such as
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 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 resigned from his position as a Cook Supervisor with the
Bureau of Prisons on June 18, 2019, after approximately 7 years of Federal
service. Initial Appeal File (IAF), Tab 9 at 26, 74-75. The appellant’s job duties
included supervision and training of inmates assigned to food service tasks,
maintaining security of the assigned work area, and oversight of the receipt,
storage, and issuance of food service items. Id. at 26-27, 63-67. In his
application for disability retirement benefits, dated April 12, 2020, the appellant
described his conditions as adjustment disorder with mixed anxiety and depressed
mood and post-traumatic stress disorder (PTSD). Id. at 24-27. He stated that he
has been unable to perform his job duties since January 2018 due to his symptoms
of “emotional numbing, an inability to focus, depressed mood, and irritability
directly caused by [his] job.” Id. at 26. OPM denied the appellant’s application
for disability retirement benefits on July 6, 2020. Id. at 12-17. The appellant
requested reconsideration and submitted additional medical documentation, and
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on September 15, 2020, OPM issued a reconsideration decision affirming its
denial of benefits. Id. at 4-7.
The appellant timely filed a Board appeal. IAF, Tab 1. Though he initially
requested a hearing, he later withdrew his request. IAF, Tab 10. Accordingly,
the administrative judge issued an initial decision based on the written record.
IAF, Tab 18, Initial Decision (ID). The initial decision affirmed OPM’s denial of
disability retirement benefits, finding that the appellant failed to meet his burden
to show that he became disabled while in a position subject to FERS, resulting in
deficient performance, conduct, or attendance, or that his medical conditions were
incompatible with either useful and efficient service or retention in his position.
ID at 10. The administrative judge further found that the appellant failed to
establish that he had a medical condition that was expected to last 1 year or more
following the application date for disability retirement benefits, and that
accommodation of his condition would be unreasonable. ID at 10-12. The
appellant has filed a petition for review. Petition for Review (PFR) File, Tab 1.
OPM has not filed a response.
DISCUSSION OF ARGUMENTS ON REVIEW
To be eligible for disability retirement under FERS, an employee must
show: (1) he completed at least 18 months of creditable civilian service,
(2) while employed in a position subject to FERS, he 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 must be
unreasonable, and (5) he did not decline a reasonable offer of reassignment to a
vacant position. 5 U.S.C. § 8451(a); see Thorne v. Office of Personnel
4
Management, 105 M.S.P.R. 171, ¶ 5 (2007). All elements must be met to
demonstrate eligibility for disability retirement benefits. 5 C.F.R. § 844.103.
The Board has held that there are two ways to meet the statutory
requirement that the individual “be unable, because of disease or injury, to render
useful and efficient service in the employee’s position”; namely, by showing that
the medical condition (1) caused a deficiency in performance, attendance, or
conduct or (2) is incompatible with useful and efficient service or retention in the
position. Henderson v. Office of Personnel Management, 117 M.S.P.R. 313, ¶ 16
(2012); see 5 U.S.C. § 8451(a)(1)(B); 5 C.F.R. § 844.103(a)(2); see also Jackson
v. Office of Personnel Management, 118 M.S.P.R. 6, ¶ 7 (2012) (finding that the
standard is the same under both the Civil Service Retirement System and FERS).
Under the first method, an individual can establish entitlement by showing that
the medical condition affects his ability to perform specific work requirements,
prevented him from being regular in attendance, or caused him to act
inappropriately. Henderson, 117 M.S.P.R. 313, ¶ 16. 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. Id.A determination of disability is based on objective clinical findings,
diagnoses and medical opinions, subjective evidence of pain and disability, and
evidence showing the effect of the individual’s condition on his ability to perform
the duties of his position. Id., ¶ 19. The ultimate question, based on all relevant
evidence, is: do the individual’s medical impairments preclude him from
rendering useful and efficient service in his position? Id., ¶ 20. This question
must be answered in the affirmative if the totality of the evidence makes that
conclusion more likely to be true than not true. Id.It is undisputed that the appellant completed at least 18 months of
creditable service. IAF, Tab 9 at 74-75. On review, the appellant asserts that the
administrative judge erred in finding that he did not meet the remaining elements
5
to establish entitlement to disability retirement benefits. PFR File, Tab 1 at 8 -10.
As set forth below, we agree with the administrative judge’s findings on these
criteria.
We affirm the administrative judge’s finding that the appellant failed to prove
that, because of his medical condition, he was unable to render useful and
efficient service in his position.
In support of his application for disability retirement benefits, the appellant
submitted therapy records, two letters from his therapist, and a written narrative
describing his conditions as adjustment disorder with mixed anxiety and
depressed mood and PTSD. IAF, Tab 9 at 23-61. We agree with the
administrative judge’s finding that the record evidence is insufficient to support a
finding that the appellant’s conditions caused a deficiency in the appellant’s
conduct, performance, or attendance, or were incompatible with useful and
efficient service in his position. ID at 11-12; see Henderson, 117 M.S.P.R. 313,
¶ 16.
The administrative judge considered both the objective medical evidence
and the appellant’s written narrative regarding how his condition impaired his
ability to function in the workplace. See Henderson, 117 M.S.P.R. 313, ¶ 19
(describing the evidence that is relevant in determining whether an appellant is
entitled to disability retirement); Chavez v. Office of Personnel Management,
6 M.S.P.R. 404, 421-22 (1981) (noting the ultimate determination of disability
must be based upon the probative value of all evidence, including objective
medical findings, diagnoses and expert medical opinion, and subjective evidence
of pain and disability, together with all evidence relating to the effect of the
employee’s condition upon his ability to perform his job). She noted that the
appellant’s medical records did not contain clinical findings or references to
progress notes or tests, and did not include medical letterhead or a signature
block. ID at 7. The administrative judge further noted that examination notes did
not reflect opinions, other than the appellant’s, that his medical conditions were
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incompatible with useful and efficient service or retention in the Cook Supervisor
position. ID at 9. She found that, rather, the examination notes for the period
reflected all positive marks for appearance, behavior, speech, affect, thought
process, thought contact, insight, consciousness, and orientation. Id. The
administrative judge further considered that the signed supervisor’s statement that
the appellant submitted as part of his disability retirement application did not
document a service deficiency in the appellant’s performance, conduct, or
attendance during his employment with the Bureau of Prisons. ID at 5; IAF,
Tab 9 at 28-29. She also found that the record evidence was insufficient to
establish that the appellant was taking prescribed medication in an attempt to
control his adjustment disorder, mixed anxiety, and depressed mood during the
relevant time period. ID at 8-9. Finding the medical evidence to be ambiguous at
best, she concluded that the appellant failed to establish that he became disabled
due to a medical condition, resulting in deficient performance, conduct, or
attendance, or that he had a medical condition that was incompatible with useful
and efficient service or retention in his position. ID at 10.
While the appellant challenges the administrative judge’s weighing of the
evidence in his petition for review, he has not identified any factual or legal
errors that would warrant a different outcome. PFR File, Tab 1 at 9. We agree
with the administrative judge’s finding that the appellant’s medical records were
not very persuasive because they were unsupported by medical evidence such as
clinical findings and tests. ID at 7, 10; see Tanious v. Office of Personnel
Management, 34 M.S.P.R. 107, 111 (1987).
Moreover, contrary to the appellant’s assertions on review, neither the
medical evidence nor the appellant’s written submissions clearly establish how
the appellant’s medical condition affected his ability to perform his job. PFR
File, Tab 1 at 5, 8. Rather, they state generally that the appellant experiences
numbness, irritability, and an inability to focus in the workplace. IAF, Tab 9
at 26-27, 30-61. For example, the appellant’s written narrative and his therapist’s
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February 4, 2020 statement assert that the appellant is “unable to concentrate on
making sure all of [his] supervisee inmates are acting appropriately,” however,
neither the appellant nor his therapist explain under what conditions the appellant
experiences an inability to concentrate, how often it happens, for how long he is
unable to concentrate, or how his medical condition causes his inability to
concentrate. Id. at 27, 33. The appellant and his therapist also state that,
“[b]ecause of [his] adjustment disorder and PTSD,” the appellant has “feelings of
numbness that render [him] unable to properly carry out [his] duties.” Id. We
agree with the administrative judge’s finding that, while stress and anxiety could
lead to errors in judgment, the therapist did not provide a medical correlation to
the appellant’s job duties and the record evidence does not show a deficiency in
performance, conduct, or attendance. ID at 11. We find that the administrative
judge thoroughly reviewed and analyzed the record, including the appellant’s
subjective medical evidence, and we agree with her conclusion that the appellant
did not establish that, due to his medical conditions, he had deficient
performance, conduct, or attendance, or that his medical conditions were
incompatible with either useful and efficient service or retention in his position.
ID at 10; see Johnson v. Office of Personnel Management , 43 M.S.P.R. 392,
395-96 (1990), appeal dismissed, 918 F.2d 187 (Fed. Cir. 1990) (Table) (finding
that the appellant failed to meet her burden to establish entitlement to disability
retirement benefits when the appellant’s supervisor stated her performance was
satisfactory and the medical evidence was conclusory and failed to persuasively
show why she could not perform her duties).
We affirm the administrative judge’s finding that the appellant failed to prove
that reasonable accommodation of his condition would have been unreasonable,
and we find that the appellant’s remaining assertions do not provide a basis for
review.
It is undisputed that the appellant did not request a reasonable
accommodation from the Bureau of Prisons. IAF, Tab 9 at 29, Tab 17 at 6. On
review, the appellant notes that his therapist stated that no accommodations
8
would have been possible. PFR File, Tab 1 at 8. The administrative judge
considered the therapist’s assertion that accommodation was unreasonable, but
found that the therapist’s conclusions were entitled to low probative value for the
reasons set forth above. See infra pp. 5-6; ID at 7-11. The appellant’s therapist
did not explain her basis for her conclusion that accommodation would have been
unreasonable. For example, she did not state what, if any, accommodations were
unsuccessful or why the appellant is impaired from performing any position in the
Bureau of Prisons, including positions that do not require interaction with
inmates. We also note that the therapist’s conclusion is undermined by the
appellant’s assertion that he attempted to apply for other jobs “outside of this
environment,” but was not selected. IAF, Tab 17 at 6-7. The appellant could
have, but did not, request reassignment as a reasonable accommodation. PFR
File, Tab 1 at 6-7. We therefore affirm the administrative judge’s finding that the
appellant failed to prove that accommodation of his condition would have been
unreasonable.
We need not consider the appellant’s arguments on review regarding
whether his disabling condition was expected to last 1 year or more because he
has not met the other elements to prove entitlement to disability retirement
benefits, as explained herein. We do not consider the appellant’s arguments
regarding alleged errors in OPM’s reconsideration decision because the
administrative judge considered the record de novo and made findings as to each
of the elements, and therefore did not adopt OPM’s findings. See Cook v. Office
of Personnel Management, 31 M.S.P.R. 683, 686 (1986) (stating that, in
adjudicating a disability retirement appeal, the Board must consider de novo all
relevant evidence presented by both parties). To the extent the appellant argues
that the administrative judge improperly considered the appellant’s employment
after his resignation from Federal service, we find that this evidence is not
material to the issues on review, and even excluding it, the appellant has failed to
9
prove that he was disabled from his position as Cook Supervisor. PFR File, Tab 1
at 8. Accordingly, we deny the petition for review and affirm the initial decision.
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.
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:
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.
10
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
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
11
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
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
12
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).
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.
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.
13
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.