United States Merit Systems Protection Board

Case Report for March 5, 2010


Note:
These summaries are descriptions prepared by individual MSPB employees. They do not represent official summaries approved by the Board itself, and are not intended to provide legal counsel or to be cited as legal authority.  Instead, they are provided only to inform and help the public locate Board precedents.


BOARD DECISIONS

 

Appellant: Dennis W. Simpson

Agency: United States Postal Service

Decision Number: 2010 MSPB 43

Docket Number: SF-0752-09-0479-I-1; SF-0752-09-0624-I-1

Issuance Date: March 1, 2010

Appeal Type: Adverse Action by Agency

Action Type: Removal

Jurisdiction
- Constructive Suspension
Discrimination – Physical/Mental Disability

The appellant filed a petition for review (PFR) of an initial decision that dismissed for lack of Board jurisdiction his constructive suspension appeal and affirmed the agency’s removal action. The appellant left work in 2006 due to a back condition and other medical problems. In 2007, he notified the agency that he wished to return to work in his prior position. The agency submitted requests for medical information that would clear the appellant to return to work, and an orthopedic fitness-for-duty examination was later conducted. Ultimately, the agency decided to remove the appellant for being on leave without pay in excess of 1 year due to illness, and he subsequently retired. On appeal to the Board, the appellant alleged that the agency’s failure to return him to work constituted a constructive suspension. In the removal appeal, he alleged the affirmative defenses of disability discrimination and retaliation for protected EEO activity. In dismissing the constructive suspension appeal for lack of jurisdiction, the administrative judge found that the appellant did not produce medical evidence showing that he could perform the essential functions of his job without posing a hazard to himself or others, and that the agency reasonably determined it had no work within his restrictions. In affirming the agency’s removal action, the administrative judge found that the appellant did not prove either of his affirmative defenses.

Holdings: The Board affirmed the initial decision as modified, still dismissing the constructive suspension appeal for lack of jurisdiction and sustaining the appellant’s removal:

1. The Board denied the appellant’s PFR because it failed to establish any error by the administrative judge. The Board reopened the appeal on its own motion to clarify the analysis of the appellant’s claims of disability discrimination in relation to his alleged constructive suspension and his removal.

2. The appellant is a person with a disability.

a. As a federal employee, the appellant’s claim arises under the Rehabilitation Act of 1973, but the regulatory standards for the Americans with Disabilities Act (ADA), including 29 C.F.R. part 1630, have been incorporated by reference into the Rehabilitation Act.

b. The appellant is a person with a disability. The Board determined in this regard that it need not determine whether the ADA Amendments Act of 2008 (ADAAA) applies retroactively to the appellant’s alleged constructive suspension in 2007, because the appellant is a person with a disability even under the more restrictive pre-ADAAA standard. The evidence establishes that he was substantially limited in the major life activities of lifting, sitting, and standing at all times relevant to these appeals.

3. The appellant did not show that he could have been accommodated and, thus, that he was constructively suspended or that his removal constituted disability discrimination.

a. The ADAAA did not change the statutory provision regarding reasonable accommodation. A qualified individual with a disability is a person with the skills, training and experience to perform the essential functions of a position, with or without reasonable accommodation.

b. The initial decision stated that to be a qualified individual with a disability, an individual must show that he could perform the essential functions of the position without endangering his health or safety or that of others. This health and safety showing is no longer part of the definition of a qualified individual with a disability and is not part of the appellant’s burden of proof. Instead, under 29 C.F.R.  1630.15(b)(2), an agency may defend a claim of discrimination by asserting that an individual poses a direct threat to the health or safety of himself or others.

c. Under 29 C.F.R.  1630.2(o)(3) and EEOC’s Enforcement Guidance, once an individual with a disability requests to return to work within his medical restrictions, the agency and the individual are required to engage in an interactive process to determine an appropriate accommodation.

d. The evidence shows the agency engaged in good faith in the required interactive process to determine an accommodation, but that the appellant was not responsive to the agency’s requests for medical information and never articulated a reasonable accommodation. Under these circumstances, the appellant did not prove that he was denied reasonable accommodation and, accordingly, did not show that the agency constructively suspended or unlawfully removed him.

Appellant: Emmett W. McNeel

Agency: Office of Personnel Management

Decision Number: 2010 MSPB 44

Docket Number: DE-0831-09-0175-I-1

Issuance Date: March 2, 2010

Action Type: Retirement/Benefit Matter

Defenses and Miscellaneous Claims
- Collateral Estoppel/Res Judicata

The appellant petitioned for review of an initial decision that dismissed his appeal as barred by res judicata (claim preclusion) or collateral estoppel (issue preclusion). This case has a complicated history including several decisions by OPM and 4 previous Board appeals. The appellant began receiving disability retirements in 1994. OPM discontinued those benefits in 1997 on the basis that the appellant was fit to return to work. OPM reinstated his disability annuity in 2003. In his present appeal, the appellant raised a number of matters. The administrative judge characterized the appeal as a challenge to OPM’s decision terminating the appellant’s disability retirement annuity between 1997 and 2003 on the ground that it was based on flawed information from a physician. The appellant did not object to this characterization. The initial decision dismissed the appeal as barred by the doctrine of collateral estoppel because, in the first Board appeal, the appellant had already litigated the issue of whether OPM properly relied upon the physician’s information to terminate his disability annuity in 1997. In the alternative, the administrative judge found that, to the extent that the appellant’s claim was not actually litigated in his Board appeals, it could have been, and his appeal was also barred by res judicata.

Holdings: The Board denied the appellant’s PFR, reopened the appeal on its own motion, vacated the initial decision, and remanded the appeal to the field office for further adjudication:

1. The Board denied the appellant’s PFR because it concluded that there is no new, previously unavailable, evidence, and the appellant did not address the administrative judge’s reasons for dismissing his appeal. The Board agreed with the administrative judge’s conclusion that, to the extent that the instant appeal was an attempt to relitigate the first appeal upholding OPM’ s decision to discontinue his disability benefits in 1997, it was barred by the doctrine of res judicata.

2. The Board denied the appellant’s implicit request to reopen the first Board appeal. The Board will exercise its discretion to reopen an appeal only in unusual or extraordinary circumstances and when a request is made within a reasonably short period of time, usually measured in weeks, not months or years. Here, the Board found no unusual or extraordinary reasons to justify reopening an appeal that became final almost 11 years before the current appeal was filed.

3. The appellant’s claim that OPM should have reinstated his disability benefits prior to 2003 is not barred by res judicata or collateral estoppel.

a. In addition to challenging OPM’s decision to terminate his disability annuity in 1997, the appellant is also claiming implicitly that OPM should have reinstated his disability benefits prior to 2003. That issue has not been actually litigated in any of the appellant’s prior appeals, and is therefore not barred by the doctrine of collateral estoppel.

b. Although the Board’s final decision in the first appeal was a judgment on the merits of the termination of the appellant’s disability benefits in 1997, the issue of whether the appellant subsequently became eligible for reinstatement of his benefits is a different cause of action, and none of the appellant’s previous appeals has resulted in a judgment on the merits of the appellant’s reinstatement claim. Thus, the doctrine of res judicata does not apply.

4. There is an obvious question regarding the timeliness of the appellant’s appeal regarding his reinstatement claim, which should be addressed on remand.

Appellant: Robert Morton

Agency: Department of Veterans Affairs

Decision Number: 2010 MSPB 45

Docket Number: SF-0752-09-0661-I-1

Issuance Date: March 4, 2010

Appeal Type: Adverse Action by Agency

Action Type: Removal

Timeliness – PFR

The appellant petitioned for review of an initial decision that dismissed his appeal for failure to prosecute. The deadline specified in the initial decision for filing a PFR was October 4, 2009. The PFR was filed on October 20, 2009. The appellant’s attorney claimed that she did not receive the initial decision until October 13, 2009.

Holdings: The Board dismissed the PFR as untimely filed without good cause shown for the delay in filing:

1. The Board rejected the attorney’s contention that she did not receive the initial decision until October 13, as she was an e-filer. The Board’s regulation, 5 C.F.R.  1201.14(m)(2), provides that Board documents served electronically on registered e-filers are deemed received on the date of electronic submission, which was August 31, 2009. Although the appellant was not an e-filer, the record reflects that he received a copy of every Board document by regular mail.

2. The appellant failed to show good cause for the 14 day delay in filing the PFR.

Appellant: Dennis J. Pariseau

Agency: Department of the Air Force

Decision Number: 2010 MSPB 46

Docket Number: SF-0752-09-0278-I-1

Issuance Date: March 4, 2010

Appeal Type: Adverse Action by Agency

Action Type: Constructive Adverse Action

Jurisdiction
- Involuntary Disability Retirement
Hearings – Waiver

The appellant petitioned for review of an initial decision that dismissed for lack of jurisdiction his appeal of an alleged involuntary disability retirement. After retiring on disability, the appellant filed a formal discrimination complaint alleging that the agency discriminated against him on the basis of age and disability by forcing him to take disability retirement. In finding no discrimination, the agency concluded, among other things, that the appellant was disabled under 29 C.F.R.  1630.2(g), that he requested accommodation for his medical limitations, and that no accommodation was available. In his Board appeal, the appellant reiterated his allegations that his disability retirement was involuntary and the result of age and disability discrimination. During the processing of the appeal, the appellant withdrew his request for a hearing, citing his mother’s illness and expected death. The administrative judge dismissed the appeal for lack of jurisdiction based on the written record.

Holdings: The Board granted the appellant’s PFR, vacated the initial decision, and remanded the case to the regional office for further adjudication:

1. The appellant did not make an informed decision to withdraw his request for a hearing.

a. Because of the strong policy in favor of granting an appellant a hearing on the merits of his case, a decision to withdraw a hearing request must be informed, i.e., the appellant must be fully apprised of the relevant adjudicatory requirements and options, including the right to request a postponement or continuance or dismissal of the appeal without prejudice to refiling.

b. There is no indication in the record that the administrative judge apprised the appellant of the alternatives to withdrawing his hearing request.

2. The appellant made a non-frivolous allegation that his disability retirement was involuntary, and is therefore entitled to a hearing on the issue of jurisdiction.

a. To establish jurisdiction over an allegedly involuntary disability retirement was involuntary, an appellant make nonfrivolous allegations that: (1) he indicated to the agency that he wished to continue working, but that his medical limitations required accommodation; (2) there was a reasonable accommodation available during the period between the date on which he indicated to the agency that he indicated to the agency that he had medical limitations but desired to continue working and the date that he was separated that would have allowed him to continue working; and (3) the agency unjustifiably failed to offer that accommodation.

b. The Board found that the appellant had made allegations that, if proven, could establish that his disability retirement was an involuntary action within the Board’s jurisdiction.

COURT DECISIONS

Petitioner: Christopher D. Roche

Respondent: Merit Systems Protection Board

Tribunal: U.S. Court of Appeals for the Federal Circuit

Docket Number: 2009-3111

Issuance Date: March 4, 2010

Jurisdiction – “Employee”

This case was on appeal from the Board’s decision, 110 M.S.P.R. 286 (2009), which dismissed the appeal for lack of jurisdiction. The appellant was Air Traffic Control Specialist with the Federal Aviation Administration (FAA), who was removed on misconduct charges after having been employed for less than 2 years. The Board held that an individual such as the appellant appealing to the Board under 49 U.S.C.  40122 must meet the definition of employee as set forth in 5 U.S.C.  7511, and that the appellant did not meet that requirement, as he was an excepted service employee who had not been employed for the requisite 2 years.

Holdings: The court affirmed the Board’s decision. It found that the case hinges on the applicable definition of the word “employee,” i.e., whether the FAA’s internal definition should apply, or whether the definition in 5 U.S.C.  7511 should apply. The court agreed with the Board that Board jurisdiction over those employed by the FAA is governed by 5 U.S.C.  7511.

 

Nonprecedential Decisions

The U.S. Court of Appeals for the Federal Circuit issued nonprecedential decisions in the following cases:

Jhin v. Office of Personnel Management, No. 2009-3272 (Mar. 3, 2010) (MSPB Docket No. DC-0841-09-0172-I-1)(affirming the Board’s decision, which affirmed OPM’s determination that the appellant was not entitled for service credit under the Civil Service Retirement System for his service as an interpreter and administrative assistant for the United States Army from 1950 to 1955)

Dade v. Department of Commerce, No. 2009-3192 (Mar. 3, 2010) (MSPB Docket No. DC-0752-08-0605-I-1) (affirming the Board’s decision, which dismissed the appeal of a removal action for lack of jurisdiction on the basis of a waiver of appeal rights in a last chance agreement)

Davis v. Department of Justice, No. 2008-3202 (Mar. 3, 2010) (MSPB Docket No. NY-0752-07-0114-I-1) (affirming the Board’s decision, which sustained the agency’s removal action on misconduct charges)