                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     STEVEN A. MILLER,                               DOCKET NUMBER
                   Appellant,                        PH-0752-14-0592-I-1

                  v.

     UNITED STATES POSTAL SERVICE,                   DATE: February 24, 2015
                   Agency.



                  THIS ORDER IS NO NPRECEDENTIAL 1

           Dan Klein, Clinton, Mississippi, for the appellant.

           Suzanne B. McCabe, Esquire, Philadelphia, Pennsylvania, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice Chairman
                                 Mark A. Robbins, Member


                                     REMAND ORDER
¶1        The appellant has filed a petition for review of the initial decision, which
     dismissed his involuntary disability retirement appeal for lack of jurisdiction.
     For the reasons discussed below, we GRANT the appellant’s petition for review



     1
        A nonprecedential order is one that the Board has determined does not add
     sign ificantly 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 Parties may cite nonprecedential orders,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

     and REMAND the case to the regional office for further adjudication in
     accordance with this Order.

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶2        The appellant worked as a Supervisor, Customer Services at the agency’s
     Jeannette Post Office in Jeannette, Pennsylvania. Initial Appeal File (IAF), Tab 4
     at 53. On October 26, 2012, the appellant applied for disability retirement. Id. at
     59-60. Around the same time period, he applied for Social Security disability
     benefits. Id. at 61-62. He retired from the agency with a disability retirement on
     March 11, 2013. Id. at 53. On May 27, 2013, the appellant filed a discrimination
     complaint with the agency alleging discrimination based on disability and
     retaliation for engaging in protected activity. Id. at 54. The agency issued a final
     agency decision (FAD) that found no evidence of discrimination or that the
     agency forced him to retire. Id. at 34, 38.
¶3        The appellant initiated a Board appeal alleging that his disability retirement
     was involuntary and that the agency discriminated against him by refusing to
     grant him a reasonable accommodation. IAF, Tab 1 at 2-3. The appellant also
     marked on the appeal form that he had filed a whistleblowing complaint with the
     Office of Special Counsel and a complaint with the Department of Labor (DOL)
     regarding either the Uniformed Services Employment and Reemployment Rights
     Act of 1994 (USERRA) or the Veterans Employment Opportunities Act of 1998
     (VEOA). Id. at 4. The agency filed a motion to dismiss the appeal for lack of
     jurisdiction. IAF, Tab 4 at 12. The administrative judge issued a jurisdictional
     order directing the appellant to file evidence and/or argument that the Board has
     jurisdiction over his involuntary retirement.    IAF, Tab 6 at 3.    The appellant
     requested additional time to respond, but never filed any additional response to
     the jurisdictional order. IAF, Tab 7.
¶4        The administrative judge issued an initial decision that dismissed the appeal
     for lack of jurisdiction. IAF, Tab 9, Initial Decision (ID) at 1. He found that the
                                                                                     3

     appellant failed to make a nonfrivolous allegation that (1) he informed the agency
     that he wished to continue working but required a reasonable accommodation, or
     (2) he was able to work with such an accommodation. ID at 5-6. He also found
     that the appellant failed to make a nonfrivolous allegation that the agency forced
     him to retire. ID at 6-7. The administrative judge also construed the appellant’s
     appeal form to allege that he was raising a USERRA discrimination claim. ID at
     7-8. He found that the appellant did not allege that his involuntary disability
     retirement was due to his prior military service, and that USERRA does not
     provide for a claim of discrimination based on a disability arising from his
     military service. ID at 8. The administrative judge granted the agency’s motion
     to dismiss because the appellant did not establish Board jurisdiction over his
     appeal. ID at 8.
¶5        The appellant has filed a timely petition for review. Petition for Review
     (PFR) File, Tab 1. The agency has responded to the petition for review. PFR
     File, Tab 3.

     This appeal must be remanded for further adjudication of the appellant’s
     involuntary disability retirement claim.
¶6        The administrative judge found that the appellant failed to make a
     nonfrivolous allegation that his disability retirement was involuntary. ID at 4-6.
     The Board has recognized that involuntary disability retirement appeals are
     somewhat different from ordinary involuntary retirement appeals. Mims v. Social
     Security Administration, 120 M.S.P.R. 213, ¶ 17 (2013).        In most cases, an
     appellant who alleges that his disability retirement was involuntary must show
     that: (1) he indicated to the agency that he wished to continue working, but that
     his medical limitations required a modification of his work conditions or duties,
     i.e., accommodation; (2) a reasonable accommodation was available during the
     period between the date on which 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
                                                                                               4

     unjustifiably failed to offer that accommodation.              Id.        To invoke Board
     jurisdiction, the appellant must raise nonfrivolous allegations that, if true, would
     meet    the    elements   of    this   test. 2      See   Brown      v.    Department     of
     Defense, 109 M.S.P.R. 493, ¶ 15 (2008).
¶7          The administrative judge found no evidence that the appellant notified the
     agency that he wished to continue working. ID at 5. The appellant provided no
     such evidence below and the agency provided the appellant’s sworn affidavit
     from his equal employment opportunity (EEO) complaint in which he admitted
     that he retired due to his inability to perform the duties of his job. IAF, Tab 4 at
     46.    The affidavit also contained statements that the appellant requested
     reasonable accommodation to the district manager and the human resources
     manager, but the request was not acted upon. Id. at 42, 46. Affidavits that are
     not rebutted constitute evidence of matters asserted therein.              Schaefer v. U.S.
     Postal Service, 42 M.S.P.R. 592, 595 (1989).              At the jurisdiction stage, the
     administrative judge may not weigh evidence and resolve conflicting assertions of
     the parties. Ferdon v. U.S. Postal Service, 60 M.S.P.R. 325, 329 (1994). We find
     that the appellant’s sworn statement that he requested accommodation from the
     agency is evidence that he made a nonfrivolous allegation that he wished to
     continue working.
¶8          The    administrative   judge   also      found that   the    appellant   failed   to
     nonfrivolously allege that there was a reasonable accommodation available that
     would have allowed him to continue working. ID at 5-6. The appellant provided
     no evidence of his medical restrictions.           The appellant admitted in his EEO

     2
       The documentation submitted by the appellant with his petition for review includes a
     request to continue working with potential work restrictions, his application for
     workers’ compensation benefits and initial denial of his claim, information regarding
     settlement of an equal employment opportunity (EEO) complaint in 2001 and a 2010
     Family and Medical Leave Act absence, and the first page of his 2013 EEO complaint.
     PFR File, Tab 1 at 2-12. The evidence submitted goes only to the first jurisdictional
     element that he wished to continue working. It does not show that a reasonable
     accommodation was available or that the agency failed to offer such an accommodation.
                                                                                        5

     affidavit that he never provided any medical documentation to the agency
     regarding any work restrictions. IAF, Tab 4 at 42. He also never identified any
     position that was available that could function as a reasonable accommodation.
     IAF,    Tab   1,   Tab   4   at   41-48;    see    SanSoucie   v.   Department     of
     Agriculture, 116 M.S.P.R. 149, ¶ 21 (2011) (second jurisdictional element met
     when the appellant alleged that an open position was available between the date
     on which he indicated he had medical limitations and the date he was separated).
     Because the record contains no evidence of the appellant’s need for
     accommodation or any identification of a position that could accommodate him,
     we agree with the administrative judge that the appellant has not made a
     nonfrivolous allegation that a reasonable accommodation was available that
     would have allowed him to continue working. Because we find that the appellant
     did not make a nonfrivolous allegation that a reasonable accommodation was
     available, he also has not made a nonfrivolous allegation that the agency
     unjustifiably failed to offer the accommodation.
¶9          In his petition for review, however, the appellant appears to be claiming,
     inter alia, that his involuntary disability retirement was actually a constructive
     removal that was a result of whistleblower retaliation. In Vaughan v. Department
     of Agriculture, 116 M.S.P.R. 493, ¶ 13 (2011), we held that in some involuntary
     disability retirement appeals, it is appropriate to apply the elements generally
     applicable to involuntary adverse actions. Further, in Burke v. Department of the
     Treasury, 53 M.S.P.R. 434, 439 (1992), the Board ruled that allegations that an
     appellant’s retirement resulted from retaliation for his whistleblowing should be
     considered in the same manner as allegations that the coercion was based on
     discrimination, i.e., such allegations should be considered in the first instance for
     the purpose of determining whether they support a finding of coercion. See Shoaf
     v. Department of Agriculture, 260 F.3d 1336, 1340, 1342-43 (Fed. Cir. 2001)
     (remanding for further adjudication of an allegation that a retirement was
     compelled by reprisal for whistleblowing). Moreover, in Shelly v. Department of
                                                                                        6

      the Treasury, 75 M.S.P.R. 411, 414-15 (1994), the Board stated that, because
      jurisdiction in constructive adverse action appeals is tied to proof that the action
      is truly adverse, it has jurisdiction over appeals under the Whistleblower
      Protection Act upon proof that the constructive action was caused by
      whistleblower reprisal.
¶10        Thus, this appeal must be remanded for consideration of the appellant’s
      allegations of whistleblower reprisal for the purpose of determining whether they
      support a finding of coercion.      The administrative judge did not address the
      appellant’s whistleblowing allegations or provide the appellant with any
      jurisdictional notice regarding how he could meet his jurisdictional burden for
      this claim. Because the Board would have jurisdiction to consider the appellant’s
      whistleblower claims as an affirmative defense upon proof of jurisdiction over
      the constructive action, the appellant also must receive jurisdictional notice on
      these claims.   5 U.S.C. § 2302(a)(2)(C); Burgess v. Merit Systems Protection
      Board, 758 F.2d 641, 643-44 (Fed. Cir. 1985); Mack v. U.S. Postal
      Service, 48 M.S.P.R. 617, 620-21 (1991).

      The appeal also must be remanded for the appellant to receive jurisdictional
      notice for his VEOA claim.
¶11        The appellant indicated on his initial appeal that he filed a complaint with
      DOL and received a response on October 18, 2011.           IAF, Tab 1 at 4.     The
      appellant did not specify whether he was alleging a violation of USERRA or
      VEOA.     The administrative judge did not provide any notice to the appellant
      regarding how he could establish jurisdiction over a VEOA claim; however, he
      did provide notice of how to establish jurisdiction over a USERRA discrimination
      appeal in the initial decision. ID at 7.
¶12        An appellant must receive explicit information on what is required to
      establish an appealable jurisdictional issue.     Burgess, 758 F.2d at 643-44.
      However, the failure to provide an appellant with proper Burgess notice in an
      acknowledgment order or show cause order can be cured if the initial decision
                                                                                      7

itself puts the appellant on notice of what he must do to establish jurisdiction so
as to afford him the opportunity to meet his jurisdictional burden for the first time
on review. Caracciolo v. Department of the Treasury, 105 M.S.P.R. 663, ¶ 11
(2007).      Because the administrative       judge   addressed    the    jurisdictional
requirements for a USERRA discrimination appeal in the initial decision, the
appellant was on notice that he must make a nonfrivolous allegation that he was
discriminated against based on his prior military service.               Therefore, the
appellant’s substantive rights were not prejudiced as they relate to any USERRA
claim.    See Caracciolo, 105 M.S.P.R. 663, ¶ 12.       However, the administrative
judge’s failure to provide Burgess notice regarding the potential VEOA claim did
prejudice the appellant’s substantive rights. Therefore, we also must remand the
appeal for the appellant to receive proper notice of how to establish Board
jurisdiction over a VEOA claim. 3




3
   The appellant indicated in his appeal that DOL issued a decision regarding h is
complaint on October 18, 2011. IAF, Tab 1 at 4. Normally, an appellant must file a
VEOA appeal with the Board with in 15 days of receiving DOL’s notice closing the
complaint. 5 C.F.R. § 1208.22(b). Equitable tolling may be available where the
appellant, despite having diligently pursued his rights, was unable to make a timely
filing. 5 C.F.R. § 1208.22(c). Here, the appellant filed his appeal on March 10, 2014,
over 16 months after DOL issued its decision. IAF, Tab 1 at 4, envelope. Therefore,
the appellant will need to demonstrate his diligence in pursuing his rights or have his
claim d ismissed for failure to timely file a VEOA appeal. See Kirkendall v. Department
of the Army, 479 F.3d 830, 837-44 (Fed. Cir. 2007).
                                                                         8

                                    ORDER
     For the reasons discussed above, we REMAND this case to the regional
office for further adjudication in accordance with this Remand Order.




FOR THE BOARD:                          ______________________________
                                        William D. Spencer
                                        Clerk of the Board
Washington, D.C.
