                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     LISA J. HESS,                                   DOCKET NUMBER
                         Appellant,                  AT-0752-15-0576-I-1

                  v.

     UNITED STATES POSTAL SERVICE,                   DATE: February 3, 2016
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Thomas J. Connick, Esquire, Beachwood, Ohio, for the appellant.

           Jason L. Hardy, Esquire, and Margaret L. Baskette, Esquire, Tampa,
             Florida, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     dismissed her involuntary disability 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


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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. 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, 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).
¶2        The appellant served as a supervisory employee with the agency in Tampa,
     Florida. Initial Appeal File (IAF), Tab 7 at 113. Beginning in February 2013, the
     appellant was absent from work and placed in an absence without leave (AWOL)
     status. Id. The appellant returned to work for 1 day in April 2013, and was again
     AWOL thereafter.     Id.   The appellant submitted an application for disability
     retirement on May 10, 2013, citing several emotional and physical disabilities
     that prevented her from performing her supervisory responsibilities. See Hess v.
     U.S. Postal Service, MSPB Docket No. AT-0752-14-0058-I-1, Initial Appeal File
     (0058 IAF), Tab 5 at 97-102.
¶3        While the appellant’s application for disability retirement was pending, the
     agency initiated a removal action based upon attendance-related misconduct,
     which it subsequently imposed and then rescinded. IAF, Tab 8 at 78. The agency
     thereafter issued the appellant a second notice of proposed removal, again citing
     her unacceptable attendance. Id. at 125-29. In response, the appellant submitted
     a doctor’s note suggesting she could return to work on a part-time trial basis. Id.
     at 92.   The agency construed the appellant’s doctor’s note as a reasonable
     accommodation request, and it referred her to its reasonable accommodation
                                                                                       3

     committee. Id. at 137. The agency’s reasonable accommodation committee asked
     the appellant to supply supporting documentation for her request, and it scheduled
     her for an accommodation meeting. Id. at 90, 93. Prior to the meeting, however,
     the Office of Personnel Management (OPM) approved the appellant’s application
     for disability retirement, which she accepted. 0058 IAF, Tab 26 at 58; see IAF,
     Tab 8 at 140.
¶4        The appellant filed a separate Board appeal of her removal, during which
     she alleged that the agency constructively removed her by forcing her to apply for
     disability retirement. 0058 IAF, Tab 9. The administrative judge docketed the
     appellant’s allegation of an involuntary disability retirement as a separate appeal,
     and he apprised her of the burden of establishing the Board’s jurisdiction over her
     appeal. IAF, Tabs 1-2. In response, the appellant alleged that she was subjected
     to frequent harassment in 2012 and 2013, that she was subjected to discrimination
     and retaliation for engaging in prior equal employment opportunity (EEO) and
     whistleblowing activity, and that “[a]fter informal mediation of [her] EEO
     complaint failed, [she] felt that [her] only choice was to seek disability
     retirement.” IAF, Tab 1 at 67-70.
¶5        The administrative judge issued an initial decision dismissing the
     appellant’s involuntary disability retirement appeal for lack of jurisdiction
     without holding the hearing requested by the appellant.       IAF, Tab 10, Initial
     Decision (ID).   In his initial decision, the administrative judge found that the
     appellant failed to nonfrivolously allege either that she was coerced into seeking
     disability retirement or that the agency denied her a reasonable accommodation
     that would have allowed her to continue working. ID at 5-9. The appellant has
     filed a petition for review arguing that the administrative judge erred in
     dismissing her appeal because, among other things, he should have joined her
     involuntary appeal with her removal appeal, and he employed a heightened
     pleading standard in evaluating her allegations of coercion. Petition for Review
                                                                                        4

     (PFR) File, Tab 1 at 12-18. The agency has filed a response in opposition to the
     petition for review. PFR File, Tab 5.
¶6         Resignations and retirements are presumed to be voluntary and outside of
     the   Board’s   jurisdiction.    See    Putnam    v.    Department   of   Homeland
     Security, 121 M.S.P.R. 532, ¶ 21 (2014). An involuntary retirement, however, is
     equivalent to a forced removal within the Board’s jurisdiction under chapter 75.
     Id. An appellant must make nonfrivolous allegations of jurisdiction to be entitled
     to a hearing, at which point she would be required to prove her claim by a
     preponderance of the evidence. Id.
¶7         An appellant who claims that a retirement was involuntary may rebut the
     presumption of voluntariness in a variety of ways, including by alleging that her
     choice to retire was the result of agency misinformation or deception, intolerable
     working conditions, or an unjustified threat of an adverse action. See Mims v.
     Social Security Administration, 120 M.S.P.R. 213, ¶ 17 (2013).            The Board
     however, has recognized that involuntary disability retirement cases are
     somewhat different from ordinary involuntary retirement appeals.            Id.   To
     establish the Board’s jurisdiction over an involuntary disability retirement appeal,
     the appellant must show that: (1) she indicated to the agency that she wished to
     continue working, but that her medical limitations required a modification of her
     work conditions or duties; (2) there was a reasonable accommodation available
     during the period between the date on which she indicated to the agency that she
     had medical limitations but desired to continue working and the date that she was
     separated that would have allowed her to continue working; and (3) the agency
     unjustifiably failed to offer that accommodation. Id.
¶8         In certain cases, moreover, the Board has applied the general jurisdiction
     test for an involuntary retirement in an involuntary disability retirement appeal.
     Id., ¶ 17 n.3; Vaughan v. Department of Agriculture, 116 M.S.P.R. 493, ¶¶ 13-14
     (2011). In Vaughan, the Board explained that, under certain circumstances, it
     would consider an appellant’s allegations of agency coercion or hostility that
                                                                                         5

      caused or exacerbated the medical conditions underlying the appellant’s disability
      retirement application in determining whether she nonfrivolously alleged facts
      establishing jurisdiction over her involuntary disability retirement appeal.
      See 116 M.S.P.R. 493, ¶ 14.
¶9         Here, the administrative judge analyzed the appellant’s allegations of
      coercion and involuntariness under both standards, and he found that she failed to
      make a nonfrivolous allegation of jurisdiction under either framework. For the
      reasons that follow, we agree with the administrative judge’s jurisdictional
      analysis, which we affirm.
¶10        The appellant alleges that she was absent from duty in February and early
      March 2013 to care for her mother and that she was absent from duty for the rest
      of March and part of April 2013 “for [her] own illness.” 2 IAF, Tab 1 at 66. The
      appellant, however, has not alleged that she informed the agency of her medical
      limitations or requested a reasonable accommodation during this time, and we
      have found no indicia of such a request in the record. See id. Additionally, the
      appellant alleges that she was absent from employment beginning in late April
      2013 and did not return to work thereafter due to “health reasons.” Id. at 67. The
      appellant, however, has not alleged that she sought a reasonable accommodation
      from the agency during this time. See Lorenz v. U.S. Postal Service, 84 M.S.P.R.
      670, ¶ 9 (2000) (finding that an appellant generally must inform her employer of
      her need for an accommodation to prevail on a claim of involuntary disability
      retirement).
¶11        The only evidence suggesting that the appellant requested a reasonable
      accommodation is the letter from one of her physicians submitted in response to
      the agency’s second notice of proposed removal. IAF, Tab 8 at 92. The record
      demonstrates, however, that the agency initiated the reasonable accommodation

      2
        These assertions are contained in the appellant’s declaration and are assumed to be
      true for purposes of the Board’s jurisdictional analysis. See Carey v. Department of
      Health & Human Services, 112 M.S.P.R. 106, ¶¶ 6-7 (2009).
                                                                                         6

      process with the appellant upon receipt of this letter and that she accepted
      disability retirement before presenting medical documentation to, or meeting
      with, the agency’s reasonable accommodation committee.          Id. at 90, 93, 137.
      Based on this undisputed chronology, we concur with the administrative judge
      that the appellant failed to nonfrivolously allege that the agency unjustifiably
      failed to offer her an accommodation that would allow her to remain at work.
      See, e.g., Collins v. U.S. Postal Service, 100 M.S.P.R. 332, ¶¶ 11-14 (2005)
      (discussing that an appellant’s failure to engage in the interactive process is fatal
      to a claim of involuntary disability retirement).
¶12         Alternatively, in applying the general involuntary resignation or retirement
      analysis, the Board will look to the totality of the circumstances to ascertain
      whether the appellant has nonfrivolously alleged that a reasonable person in her
      position would have felt compelled to retire.       See Conforto v. Merit Systems
      Protection Board, 713 F.3d 1111, 1121 (Fed. Cir. 2013); Shoaf v. Department of
      Agriculture, 260 F.3d 1336, 1342 (Fed. Cir. 2001). In assessing the substance of
      an appellant’s allegations of coercion, the U.S. Court of Appeals for the Federal
      Circuit has emphasized that an appellant must “satisfy a demanding legal
      standard,” which requires more than an allegation of dissatisfaction with the
      options that the agency has made available to her. Conforto, 713 F.3d at 1121
      (quoting Staats v. U.S. Postal Service, 99 F.3d 1120, 1124 (Fed. Cir. 1996)).
      Although an appellant need only nonfrivolously allege that she was subjected to
      acts of coercion that deprived her of her freedom of choice to obtain a
      jurisdictional hearing in her appeal, an appellant still must allege that the agency
      effectively imposed her removal by taking improper acts that were so intolerable
      that she had no other choice but to retire. Id. at 1121-22.
¶13         We agree with the administrative judge that the appellant failed to
      nonfrivolously allege that the agency coerced her into seeking disability
      retirement under this standard. ID at 4-7. The record reflects that the appellant
      was absent from work beginning in February 2013, and that she applied for
                                                                                             7

      disability retirement a few months later. IAF, Tab 1 at 66-67; 0058 IAF, Tab 5
      at 97.     The only specific allegation of alleged harassment proffered by the
      appellant concerns her interaction with a coworker in November 2012. 3 IAF, Tab
      1 at 43-46. The administrative judge properly considered this allegation as part
      of the totality of the circumstances surrounding the appellant’s decision to seek
      disability retirement, and he found that a reasonable person in the appellant’s
      position would not have felt compelled to resign based on this interaction with a
      colleague. See Shoaf, 260 F.3d at 1342 (“[I]n measuring the voluntariness of an
      employee’s resignation or retirement, all of the activities surrounding his or her
      resignation or retirement, even events not immediately preceding the leave of
      employ, must be considered.”); ID at 7. Based on the lapse in time between this
      event and the appellant’s application for disability retirement, we agree that this
      incident does not reveal working conditions so intolerable that a reasonable
      person would have felt compelled to leave employment. See Shoaf, 260 F.3d at
      1342 (explaining that “the most probative evidence of involuntariness” is that
      which occurs in “a relatively short period of time between the employer’s alleged
      coercive acts and the employee’s retirement”).
¶14            We note, moreover, that the appellant has failed to allege how this one
      incident caused or exacerbated the medical conditions underlying her disability
      retirement. To establish the Board’s jurisdiction over her involuntary disability
      retirement under Vaughan, the appellant must show that the agency’s improper
      acts caused or exacerbated her underlying medical conditions. See 116 M.S.P.R.
      493, ¶ 14.     We find that the appellant has failed to allege any such linkage
      between her November 2012 interaction with a coworker and her May 2013

      3
        The appellant also has asserted generally that she was harassed by her supervisor prior
      to applying for disability retirement. IAF, Tab 1 at 67. In Conforto, the Federal Circuit
      found the employee’s generic allegation of discrimination insufficient to establish the
      Board’s jurisdiction over her involuntary retirement appeal. See 713 F.3d at 1123.
      Here, we find the appellant’s general allegation of harassment insufficient to constitute
      a nonfrivolous allegation of jurisdiction.
                                                                                           8

      disability retirement application for purposes of establishing the Board’s
      jurisdiction over her involuntary disability retirement appeal.
¶15         Finally, we find no merit to the appellant’s argument that the administrative
      judge erred in failing to join the instant appeal with her removal appeal. PFR
      File, Tab 1 at 12-14. Importantly, the appellant applied for disability retirement 1
      month before the agency initiated its removal proceedings; any evidence
      concerning the agency’s charge of misconduct, or her affirmative defenses, would
      have no connection to her earlier decision to seek disability retirement. 4 See
      Bean v. U.S. Postal Service, 120 M.S.P.R. 397, ¶ 10 (2013) (explaining that a
      removal or resignation may be involuntary when an employee elects to resign or
      retire to avoid a threatened action that the agency knows it cannot substantiate).
      Additionally, because the jurisdictional analysis in this appeal differs from the
      issues presented in the appellant’s removal appeal, we find that the administrative
      judge did not abuse his discretion in adjudicating the appeals separately.
      See 5 U.S.C. § 7701(f)(2); 5 C.F.R. § 1201.36(b).
¶16         The administrative judge’s jurisdictional dismissal of the appellant’s
      involuntary disability retirement appeal is affirmed, and the appellant’s petition
      for review is denied.




      4
        We acknowledge that a second removal proposal was pending when the appellant
      accepted OPM’s approval of her disability retirement application. IAF, Tab 8 at 125-29
      (second notice of proposed removal); 0058 IAF, Tab 26 at 58 (approval of disability
      retirement). Because the agency was engaged in the reasonable accommodation
      interactive process with the appellant during this time, IAF, Tab 8 at 137, and because
      the agency had not yet issued a final decision on the proposed action, we cannot
      conclude that the pendency of the second proposed removal left the appellant with no
      alternative but to retire. See Garland v. Department of the Air Force, 44 M.S.P.R. 537,
      541 (1990). The appellant, moreover, has failed to nonfrivolously allege that there was
      no arguable basis for the agency’s attendance-related charge, and it is undisputed that
      she was absent from employment for the period of time specified in the agency’s second
      notice of proposed removal. IAF, Tab 8 at 35-37, 125-29.
                                                                                  9

                NOTICE TO THE APPELLANT REGARDING
                   YOUR FURTHER REVIEW RIGHTS
      You have the right to request review of this final decision by the U.S.
Court of Appeals for the Federal Circuit. You must submit your request to the
court at the following address:
                             U.S. 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
title 5 of the U.S. 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 U.S. 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 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
                                                                                 10

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.
