Clifford Singleton v. United States Postal Service ( 2014 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CLIFFORD SINGLETON, DOCKET NUMBERS
Appellant, SF-0752-13-0343-I-2
SF-0752-13-0399-I-2
v.
UNITED STATES POSTAL SERVICE,
Agency. DATE: December 5, 2014
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Guillermo Mojarro, Upland, California, for the appellant.
Natalie A. Bonanno, San Diego, California, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed for lack of jurisdiction his appeals of an alleged constructive
suspension and an allegedly involuntary retirement. Generally, we grant petitions
such as this one only when: the initial decision contains erroneous findings of
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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
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. See 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, and based on the following points and authorities, we conclude that the
petitioner has not established any basis under section 1201.115 for granting the
petition for review. Therefore, we JOIN the appeals for adjudication under
5 C.F.R. § 1201.36, DENY the petition for review and AFFIRM the initial
decision AS MODIFIED by this Final Order, which is now the Board’s final
decision. 5 C.F.R. § 1201.113(b). The Final Order modifies the initial decision’s
analysis of the constructive suspension issue to the extent it applies obsolete
precedent and by substituting our own analysis using the current jurisdictional
standard.
¶2 The appellant was formerly a city carrier who suffered a compensable
injury to his right shoulder in 2009. MSPB Docket No. SF-0752-13-0343-I-1,
Initial Appeal File (IAF), Tab 6 at 65. His physician submitted monthly
“Industrial Injury Status Reports” placing him off work from May 28, 2010,
through September 30, 2010. Id. at 50-52, 55. On September 8, 2010, the
appellant completed an Application for Immediate Retirement with an effective
date of November 30, 2010. Id. at 39-43.
¶3 The appellant thereafter filed an appeal in which he alleged that his
retirement was involuntary because it was based on misinformation about his
annuity provided by the agency’s Human Resources Shared Service Center
(HRSSC). IAF, Tab 1. When the appellant also raised a claim that he was
constructively suspended when he was not permitted to return to work on June 28,
3
2010, after a lengthy period of leave, the administrative judge docketed that claim
as a separate appeal. See MSPB Docket No. SF-0752-13-0399-I-1, Initial Appeal
File, Tab 1. Although the administrative judge did not formally join the appeals,
we do so here under 5 C.F.R. § 1201.36.
¶4 After a hearing, the administrative judge dismissed the appeals for lack of
jurisdiction. As to the constructive suspension claim, the administrative judge
found that the appellant, not the agency, initiated his absence and the appellant
did not request to return to work at any point in 2010, and therefore did not show
that he was suspended. Initial Decision (ID) at 7-12. The administrative judge
also found that the appellant failed to show that his retirement was involuntary
because he failed to produce any credible evidence to establish that the agency
provided him with incorrect or misleading information about his annuity and that
his actions were otherwise consistent with those of someone who wanted to retire.
ID at 12-19. In light of her disposition of the appeal, the administrative judge did
not address the apparent untimeliness of the appeal. ID at 2 n.1.
Constructive Suspension
¶5 In analyzing the appellant’s constructive suspension claim, the
administrative judge applied a jurisdictional standard that the Board has recently
clarified. In order to establish the Board’s jurisdiction over his appeal, the
administrative judge required the appellant to prove that he was absent from work
for medical reasons but was able to work within certain medical restrictions and
requested to return to work and the agency was bound by policy, regulation, or
contractual provision to offer him available work but failed to do so. See, e.g.,
Tardio v. Department of Justice, 112 M.S.P.R. 371, ¶ 24 (2009). 2 Applying this
analysis, the administrative judge found that the appellant initiated his absence
and did not show that he suffered a constructive suspension because he did not
2
Tardio has been superseded by Bean v. U.S. Postal Service, 120 M.S.P.R. 397 (2013),
discussed infra.
4
show that he requested to return to work or otherwise informed the agency that he
was willing to return to work. ID at 7-12. Although the administrative judge did
not apply the correct legal standard in this case, we find that this error does not
affect the outcome of this case or require a remand. See Panter v. Department of
the Air Force, 22 M.S.P.R. 281, 282 (1984) (an adjudicatory error that is not
prejudicial to a party’s substantive rights provides no basis for reversal of an
initial decision). The administrative judge held a hearing during which she took
evidence concerning all of the events, conversations, and documents that relate to
the appellant’s absence from work after June 28, 2010, so the record is fully
developed on these matters. After reviewing the record and for the reasons
discussed below, we find that the appellant has not established jurisdiction under
the applicable legal standard and his constructive suspension must still be
dismissed for lack of jurisdiction.
¶6 To establish jurisdiction over a constructive adverse action, including a
constructive suspension 3 such as is alleged here, the appellant must show that:
(1) he lacked a meaningful choice in his facially voluntary decision; and (2) this
was because of the agency’s improper actions. See Bean v. U.S. Postal Service,
120 M.S.P.R. 397, ¶ 11. A decision based on misinformation may satisfy this
standard. See Covington v. Department of Health & Human Services, 750 F.2d
937, 943 (Fed. Cir. 1984).
¶7 Here, the appellant has not shown that he lacked a meaningful choice.
Instead of remaining in a leave status indefinitely, he could have exercised his
restoration rights if he were able to return to work with restrictions, or he could
3
Although the appellant in this case, and others in earlier Board decisions, have treated
the terms “enforced leave” and “constructive suspension” as if they were synonymous,
they actually are not. In Abbott v. U.S. Postal Service, 121 M.S.P.R. 294, ¶¶ 8-9
(2014), the Board clarified the difference between enforced leave, which is an action
that is involuntary on its face and is appealable under chapter 75 as a suspension if it
lasts for longer than 14 days, and a constructive suspension, which often appears to be a
voluntary action but actually is not.
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have returned to full duty if he were able to obtain a medical clearance from the
agency’s medical unit. He could have requested reasonable accommodation. He
could have bid for a job with less strenuous duties. Rather than exercising any of
these options, the appellant submitted cursory medical documentation on a
monthly basis stating that he was unable to work, see IAF, Tab 6 at 50-52, 55, as
well as (as relevant here) additional documentation, dated May 28, 2010, stating
that he was able to work with restrictions, that was in direct conflict with other
documentation from the same doctor dated the same day indicating he was unable
to work at all, compare IAF, Tab 6 at 57-58, with IAF, Tab 6 at 55. This
conflicting medical documentation created an ambiguity in his medical status that
he failed to clarify, and he never requested to return to work, 4 submitting instead
a retirement application in September 2010.
¶8 Second, the appellant has not shown that his continued absence from work
was caused by the agency’s bad actions. As noted above, the appellant created an
ambiguous situation. The agency could not simply return him to work because he
never requested to return to work, the vast majority of his medical documentation
indicated that he was unable to work, and he indicated that he did not want to
return to work when he filed his retirement application in September 2010.
Therefore, even under the new jurisdictional standard set forth in Bean, the
appellant has not shown that the Board has jurisdiction over his constructive
suspension claim.
¶9 In his petition for review, the appellant asserts that the agency does not
dispute that it placed him on enforced leave in June 2010. Petition for Review
4
The administrative judge correctly found that the appellant’s submissions of medical
documentation finding him unable to work were not requests to return to work because
they did not inform the agency that he was able to work and they did not inform the
agency that he wished to return to work. ID at 8-11; cf. Bynum v. U.S. Postal Service,
112 M.S.P.R. 403, ¶ 14 (2009) (submission of medical restrictions did not constitute
requests for restoration because they did not indicate a desire to return to duty), aff’d,
382 F. App’x 934 (Fed. Cir. 2010).
6
(PFR) File, Tab 3 at 9. Because the question of jurisdiction is a legal conclusion
to which the parties cannot stipulate, a statement of the agency’s general position
on the matter, without any facts on which a finding of jurisdiction could be based,
is not relevant. See, e.g., McCarty v. Environmental Protection Agency,
108 M.S.P.R. 45, ¶ 10 (2008).
Involuntary Retirement
¶10 An employee-initiated action, such as a retirement, is presumed to be
voluntary unless the appellant presents sufficient evidence to establish that the
action was obtained through duress or coercion or shows that a reasonable person
would have been misled by the agency. Miller v. Department of Homeland
Security, 111 M.S.P.R. 325, ¶ 8 (2009), aff’d, 361 F. App’x 134 (Fed. Cir. 2010).
A retirement is involuntary if an agency made misleading statements upon which
the appellant reasonably relied to his detriment. Petric v. Office of Personnel
Management, 108 M.S.P.R. 342, ¶ 9 (2008). Moreover, an agency is required to
provide information that is not only correct in nature, but adequate in scope to
allow an employee to make an informed decision. Miller, 111 M.S.P.R. 325, ¶ 8.
¶11 The crux of the appellant’s involuntary retirement claim is that an unnamed
person or persons at HRSSC told him during various conversations on
unidentified dates in the June through September 2010 time period that he would
receive an annuity supplement when he retired and that he retired based on his
expectation that he would receive the annuity supplement. IAF, Tab 18, Tab 19
at 5. As the administrative judge correctly found, the agency’s records of
telephone calls between the appellant and HRSSC do not support his assertion.
ID at 14-17; IAF, Tab 20 at 8-10, Tab 27 at 7. The appellant claims that the
records exist but that the agency is improperly withholding them. PFR File,
Tab 3 at 1. The appellant has proffered no factual basis to substantiate his
assertion that the agency has concealed evidence, and the administrative judge
7
was quite thorough in making sure that the agency properly searched,
authenticated, and produced its records. IAF, Tab 18 at 2, Tab 26, Tab 31.
¶12 Finally, the appellant on review reiterates his argument below that his
retirement was involuntary because the postmaster told him in July 2009, that he
could not return to work if he could not perform his duties. PFR File, Tab 3 at 5.
He alleges that this statement shows that the agency had already decided not to
return him to work as early as July 2009. Id. On the contrary, if the statement
shows anything, it shows that whether the appellant returned to work was entirely
dependent on his ability to work, a statement that is neither false, misleading, nor
coercive. In any event, the administrative judge correctly found that a single
ambiguous statement made over a year before the appellant decided to retire by a
postmaster who was no longer working at the appellant’s duty station at the time
of the appellant’s retirement does not render the appellant’s retirement
involuntary. ID at 8 n.6, 17-18.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
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If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information 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, and 11.
If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.