                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     LISA R. JACOBS,                                 DOCKET NUMBER
                         Appellant,                  SF-0752-14-0514-I-1

                  v.

     DEPARTMENT OF VETERANS                          DATE: February 6, 2015
       AFFAIRS,
                 Agency.



             THIS FINAL ORDER IS NO NPRECEDENTIAL 1

           Lisa R. Jacobs, Beaumont, California, pro se.

           Lisa Holliday, Esquire, Los Angeles, 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 her involuntary retirement appeal for lack of jurisdiction. Generally,
     we grant petitions such as this one only when:         the initial decision contains
     erroneous findings of material fact; the initial decision is based on an erroneous

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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
     DENY the petition for review. In reaching our decision, however, we base our
     findings on a slightly different basis than the reasoning offered by the
     administrative judge.      Accordingly, we AFFIRM the initial decision as
     MODIFIED by note 4, below.        The initial decision, as modified by this Final
     Order, is the Board’s final decision in this matter. 5 C.F.R. § 1201.113(b).
¶2        The appellant applied for and received disability retirement effective
     January 23, 2013. Initial Appeal File (IAF), Tab 6 at 6, Tab 4, Subtab 4d. At the
     time of her retirement, the appellant served as a clerk, IAF, Tab 6 at 6; prior to
     holding this position, she served as a patient services assistant, and she accepted a
     demotion to the clerk position as part of a last chance settlement agreement in
     December 2010, IAF, Tab 7, Subtab 5i.         After being reassigned to the clerk
     position, she submitted a reasonable accommodation request based upon the
     physical conditions of her new workspace, which was granted.           IAF, Tab 4,
     Subtab 4j.   After the agency implemented the approved accommodations, the
     agency’s Chief of Occupational Safety and Health further recommended that the
     appellant be placed on a restricted work duty due to ongoing complications with
     her physical workspace. IAF, Tab 4, Subtab 4i. Based on this recommendation,
     the agency restarted the reasonable accommodation interactive process, during
     which the appellant requested to be returned to her prior patient services assistant
                                                                                      3

     position. IAF, Tab 4, Subtab 4f. In response to her request for a reassignment,
     the agency searched for a vacant funded position within the appellant’s medical
     restrictions, and it offered to interview her for a possible temporary reassignment
     as a program support clerk pending permanent appointment, which she declined.
     IAF, Tab 7, Subtab 5r (the agency email communication); IAF, Tab 4, Subtab 4e
     (the appellant’s statement that she “was offered a temporary position” which she
     “declined because she is permanent and full time”).
¶3        The appellant thereafter applied for disability retirement, and prior to
     receiving a decision from the Office of Personnel Management (OPM) on her
     application, she filed an equal employment opportunity (EEO) complaint alleging
     a denial of reasonable accommodation.      IAF, Tab 4, Subtab 4e.      After OPM
     approved the appellant’s application for disability retirement, the agency
     construed her EEO complaint to be a mixed-case complaint alleging both an
     involuntary retirement claim and a denial of reasonable accommodation claim,
     and it issued her a final agency decision with mixed-case appeal rights to the
     Board. IAF, Tab 4, Subtab 4a. The appellant filed a timely Board appeal, and the
     assigned administrative judge subsequently issued an initial decision dismissing
     her involuntary disability retirement appeal for lack of jurisdiction. IAF, Tab 13,
     Initial Decision (ID). In his initial decision, the administrative judge found that
     the agency did not unjustifiably deny the appellant a reasonable accommodation,
     and he further found that the appellant failed to allege that she was coerced or
     forced to retire. ID at 11-14.
¶4        An employee-initiated action, such as a retirement or resignation, is
     presumed to be voluntary and outside of the Board’s jurisdiction. SanSoucie v.
     Department of Agriculture, 116 M.S.P.R. 149, ¶ 14 (2011).          An involuntary
     retirement, however, is equivalent to a forced removal and falls within the
     Board’s jurisdiction. Id. The Board has found that there are generally two ways
     an employee can establish jurisdiction over an alleged involuntary disability
     retirement.   See Vaughan v. Department of Agriculture, 116 M.S.P.R. 493,
                                                                                         4

     ¶¶ 11-12 (2011).        First, the Board may have jurisdiction over an alleged
     involuntary disability retirement when an appellant nonfrivolously alleges:
     (1) that she expressed an interest in working, rather than retiring, by requesting
     an accommodation; (2) that a reasonable accommodation was available which
     would have allowed her to continue working; and (3) the agency unjustifiably
     failed to offer her the accommodation. Id., ¶ 12. Alternatively, an appellant can
     establish Board jurisdiction over an involuntary disability retirement appeal by
     nonfrivolously alleging that the agency created a hostile work environment which
     not only led to intolerable working conditions, but also caused or exacerbated the
     medical conditions underlying her disability retirement, thereby causing her to
     involuntarily seek disability retirement. 2 Id., ¶ 14.
¶5         In his initial decision, the administrative judge assessed the appellant’s
     allegations of an involuntary disability retirement under both jurisdictional
     standards and found that she could satisfy neither.        Upon our review of the
     record, we agree with the administrative judge’s findings.       The record reflects
     that the agency engaged in the interactive process with the appellant and granted
     her several accommodations, including changes and alterations to her workspace.
     See IAF, Tab 4, Subtab 4j. The agency, moreover, also considered reassigning
     the appellant to another position of employment as a form of reasonable
     accommodation, which she declined. See IAF, Tab 4, Subtab 4e. The Board has
     found that an appellant cannot establish a disability-based denial of reasonable
     accommodation when she declines an agency’s reasonable accommodation offer,
     and it has further found that an appellant does not have the right to the
     accommodation      of    her   choice.     See    Miller   v.   Department    of   the
     Army, 121 M.S.P.R. 189, ¶ 21 (2014).



     2
       The Board has further recognized that, under limited circumstances, an appellant can
     establish her decision to seek disability retirement was involuntary based upon
     misinformation, duress, or coercion. See Vaughan, 116 M.S.P.R. 493, ¶ 13.
                                                                                           5

¶6         Here, it is undisputed that the agency engaged in the interactive process
     with the appellant, provided her with several accommodations, and offered to
     consider her for a reassignment to a temporary position pending permanent
     reassignment, which she declined. IAF, Tab 4, Subtab 4e. For the purposes of
     establishing the Board’s jurisdiction over an alleged involuntary disability
     retirement, we find that these facts fail to demonstrate that the agency improperly
     denied the appellant a reasonable accommodation. 3 See Vaughan, 116 M.S.P.R.
     493, ¶ 12; see also Wilson v. Immigration & Naturalization Service, 55 M.S.P.R.
     40, 44 (1992) (finding no disability-based discrimination where the employee
     rejected a proposed reassignment). Accordingly, we agree with the administrative
     judge’s ultimate conclusion that the appellant failed to nonfrivolously allege that
     she had no choice but to leave federal employment and seek disability
     retirement. 4 ID at 12-13.
¶7         We further agree with the administrative judge that the appellant offered no
     argument that the agency created a hostile work environment which caused or

     3
       Because we find that the appellant failed to nonfrivolously allege facts establishing
     the Board’s jurisdiction over her invo luntary disability retirement appeal, we do not
     reach the merits of whether the appellant established a denial of reasonable
     accommodation. See Collins v. U.S. Postal Service, 100 M.S.P.R. 332, ¶ 17 n.3 (2005)
     (absent jurisdiction over an alleged invo luntary retirement, the Board cannot consider
     the merits of an appellant’s discrim ination affirmative defense).
     4
       In his initial decision, the administrative judge found that the agency did not
     unjustifiably deny the appellant reassignment to her prior position because she had
     recently been transferred out of that position pursuant to the terms of a last chance
     settlement agreement. ID at 12. Because we find that the agency satisfied its
     reasonable accommodation obligation when it offered the appellant a possible
     reassignment—at least insofar as that obligation bears on the question of the Board’s
     jurisdiction over an involuntary disability retirement appeal, see Collins, 100 M.S.P.R.
     322, ¶ 17 n.3—we have no reason to consider whether the agency justifiab ly denied the
     appellant reassignment to her prior position. ID at 12-13. As noted in paragraph 5
     above, an appellant does not have the right to the accommodation of her choice, and the
     agency’s offer of a possible reassignment, which the appellant declined, demonstrates
     that the appellant had some choice in applying for disability retirement and that the
     agency did not effectively impose the appellant’s separation from federal service. See
     Miller, 121 M.S.P.R. 189, ¶ 21.
                                                                                       6

     exacerbated the medical conditions underlying her disability retirement, thus
     causing    her    to   seek     disability   retirement    involuntarily.       See
     Vaughan, 116 M.S.P.R. 493, ¶ 14; ID at 14. The appellant, moreover, has not
     alleged that her decision to seek disability retirement was the product of duress,
     coercion, or misinformation on the part of the agency, and we have no reason to
     find that she nonfrivolously alleged facts which could establish the Board’s
     jurisdiction under these alternative standards. See Vaughan, 116 M.S.P.R. 493,
     ¶ 13 (explaining that the Board has applied its regular principles for determining
     jurisdiction over alleged involuntary retirements in unusual circumstances); ID at
     13.
¶8         We accordingly AFFIRM as MODIFIED the jurisdictional dismissal of the
     appellant’s involuntary disability retirement appeal.

                      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).
           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
                                                                                7

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.
