                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     CORI A. WILSON,                                 DOCKET NUMBERS
                   Appellant,                        DA-0752-13-0038-B-1
                                                     DA-0752-11-0582-I-3
                  v.

     DEPARTMENT OF JUSTICE,
                 Agency.                             DATE: February 27, 2015



                THIS FINAL ORDER IS NO NPRECEDENTIAL 1

           James R. Hefflin, Newport Beach, California, for the appellant.

           John T. LeMaster, Esquire, Washington, D.C., for the agency.

           Tina Hauck, Esquire, Kansas City, Kansas, 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 disability retirement and constructive suspension
     appeals for lack of jurisdiction. Generally, we grant petitions such as this one

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     only when: the initial decision contains erroneous findings of 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 these appeals, 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.   Except as expressly modified by this Final Order, we AFFIRM the
     initial decision.

                                     BACKGROUND
¶2        The appellant was a Correctional Officer with the Bureau of Prisons at the
     Federal Correctional Institution in Bastrop, Texas.      Wilson v. Department of
     Justice, MSPB Docket No. DA-0752-13-0038-I-1, Initial Appeal File (0038
     IAF), Tab 5 at 66. On April 18, 2000, the appellant reported that she had been
     sexually assaulted by a coworker the previous day. See id. at 93-94. The agency
     placed the alleged perpetrator on home duty pending an investigation of the
     incident by the agency’s Office of Internal Affairs (OIA). Id. at 94. As a result
     of its investigation, OIA determined that the appellant’s allegations could not be
     sustained, and the alleged perpetrator returned to duty in June 2000. Id. at 118.
¶3        The appellant was absent from work following the incident, and she began
     seeing a physician in May 2000, who recommended that the appellant not work
     through June 4, 2000.     Wilson v. Department of Justice, MSPB Docket No.
     DA-0752-11-0582-I-3, Initial Appeal File (0582/3 IAF), Tab 31, Exhibit 1. In
                                                                                           3

     July 2000, the appellant’s physician diagnosed her with Post Traumatic Stress
     Disorder (PTSD) and Major Depressive Disorder and recommended that she and
     the alleged perpetrator work different hours “for medical/mental health reasons.”
     Id., Exhibits 8, 11. On August 15, 2000, the appellant’s physician recommended
     that she not work from August 18, 2000, through September 2, 2000.                  Id.,
     Exhibit 13. On August 29, 2000, the appellant asked to move to the Custody
     Department (Custody) “for physical and mental purposes.” Id., Exhibit 15. The
     agency granted her request.       See id., Exhibit 18.     On January 3, 2001, the
     appellant’s physician released her from treatment, stating that the appellant had
     no symptoms of depression or anxiety and that no psychiatric treatment was
     needed at that time. Id., Exhibit 24.
¶4          On March 13, 2001, the appellant suffered numerous injuries in a
     motorcycle accident.       See 0582/3 IAF, Tab 31, Exhibit 25.            The appellant
     returned to work with restrictions in June 2001, was absent from work for
     surgery in December 2001, returned to work with restrictions in January 2002,
     and returned to her position in Custody on February 25, 2002. See id., Exhibits
     32, 46, 51, 67. Following an encounter with the alleged perpetrator on February
     28, 2002, the appellant requested a reassignment so that she would be away from
     him. See 0038 IAF, Tab 4 at 25. On March 5, 2002, the agency granted the
     appellant’s request. See id.
¶5          On September 10, 2003, the appellant returned to her physician and
     reported having “severe depression and anxiety along with insomnia, low energy,
     poor      concentration,     distractibility,   anger,    irritability,    and    poor
     decision-making.” See 0582/3 IAF, Tab 31, Exhibit 104. The appellant did not
     return to work after October 30, 2003. 2 See 0038 IAF, Tab 4 at 30 of 34. On

     2
       On October 31, 2003, the appellant’s physician placed her off work from November 1,
     2003, through November 15, 2003. 0582/3 IAF, Tab 31, Exhibit 92. On November 14,
     2003, he recommended that the appellant not work through February 14, 2004, stating,
     “[s]he is not able to work.” I d., Exhibit 93. On February 3, 2004, he recommended that
     the appellant not work from February 14, 2004, through March 14, 2004. I d., Exhibit
                                                                                             4

     December 10, 2003, she applied for disability retirement, citing, inter alia, PTSD
     and recurrence of PTSD as the bases for her request. 3 Wilson v. Department of
     Justice, MSPB Docket No. DA-0752-11-0582-1-2, Initial Appeal File (0582/2
     IAF), Tab 5, Subtab 4i at 4.          In response to a question on her disability
     retirement application asking her to describe how her disease or injury restricted
     her activities, the appellant stated that she had “self-imposed restrictions” and
     attempted to avoid contact with inmates and the alleged perpetrator as much as
     possible. Id.
¶6         The Office of Personnel Management (OPM) approved the appellant’s
     application for disability retirement on August 4, 2004, 0582/2 IAF, Tab 5,
     Subtab 4e, and her retirement became effective on August 8, 2004. Id., Tab 22,
     Subtab 1 at 23.
¶7         On July 26, 2011, the appellant filed an appeal with the Board, alleging that
     she was forced to retire due in part to the agency’s failure to accommodate her
     disabilities, sexual harassment, and retaliation for her prior equal employment




     97. In a document dated February 10, 2004, he stated that the appellant suffered from
     PTSD, Generalized Anxiety Disorder, and Pan ic Disorder and that she was not able to
     work. I d., Exhibit 98. He also stated that the appellant’s prognosis was poor and that,
     if she returned to work, it was likely that she would seriously harm other employees at
     her workplace. I d. On March 3, 2004, the appellant’s physician made the same
     diagnoses and the same prognosis, stated that the appellant was not able to work, and
     recommended that her “medical leave” be extended through May 9, 2004. I d., Exhibit
     101. On May 5, 2004, he made the same diagnoses and the same prognosis and again
     stated that the appellant was not able to work and would likely seriously harm other
     employees at her workplace if she returned to work. In addition, he recommended that
     she be off work due to medical reasons through August 8, 2004. I d., Exhibit 102.
     3
       In response to a question on her disability retirement application asking the appellant
     to describe her diseases or injuries, the appellant also listed numerous physical injuries
     that she sustained in the motorcycle accident. See 0582/2 IAF, Tab 5, Subtab 4i at 4.
     However, in an affidavit that the appellant submitted in conjunction with her
     constructive suspension appeal, she stated that she retired because of her mental
     condition, not because of any injuries she sustained in the motorcycle accident. See
     0038 IAF, Tab 4 at 32-33.
                                                                                          5

      opportunity (EEO) activity. 4 See Wilson v. Department of Justice, MSPB Docket
      No. DA-0752-11-0582-I-1, Initial Appeal File (0582/1 IAF), Tab 1. The appeal
      was dismissed without prejudice and refiled twice, most recently in August 2012.
      0582/1 IAF, Tab 29; 0582/2 IAF, Tabs 1, 26; 0582/3 IAF, Tab 4. The appellant
      initially requested a hearing but subsequently withdrew her request. See 0582/1
      IAF, Tab 14 at 2; 0582/3 IAF, Tab 51.
¶8         On October 23, 2012, while her involuntary disability retirement appeal was
      pending before the administrative judge, the appellant filed a Board appeal
      alleging that she was constructively suspended 5 effective October 30, 2003, due
      to intolerable working conditions.     0038 IAF, Tab 1.      The appellant initially
      requested a hearing but subsequently withdrew her request. Id., Tab 15.
¶9         On February 20, 2013, the administrative judge issued an initial decision
      dismissing the appeal as untimely filed without a showing of good cause to
      waive the filing deadline.    0038 IAF, Tab 17 at 1, 7.       On review, the Board
      issued a nonprecedential order dated October 29, 2013, remanding the appeal for
      further adjudication. RAF, Tab 1.
¶10        On remand, the administrative judge joined the appellant’s involuntary
      disability retirement appeal and her constructive suspension appeal. RAF, Tab 9.
      Based on the parties’ submissions, the administrative judge issued an initial
      decision on February 28, 2014, dismissing both appeals for lack of jurisdiction.
      RAF, Tab 13, Initial Decision (ID) at 2, 20.
¶11        The appellant has filed a petition for review.       Wilson v. Department of
      Justice, MSPB Docket No. 0752-13-0038-B-1, Remand Petition for Review

      4
       The record indicates that the appellant filed EEO complaints on November 30, 2000,
      March 7, 2001, and December 27, 2002. 0038 IAF, Tab 5 at 56, 99, 116.
      5
        Although the appellant stated in her initial submission that she was “constructively
      discharged” effective October 30, 2003, see 0038 IAF, Tab 1, on remand the appellant
      indicated that she was raising a constructive suspension claim. See Wilson v.
      Department of Justice, MSPB Docket No. DA-0752-13-0038-B-1, Remand Appeal File
      (RAF), Tab 7.
                                                                                              6

      (RPFR) File, Tab 1. The agency has filed a response in opposition to the petition
      for review. RPFR File, Tab 3. The appellant has filed a reply to the agency’s
      response. 6 RPFR File, Tab 4.

                                            ANALYSIS
      Involuntary Disability Retirement: Jurisdictional Standards
¶12         A retirement is presumed to be voluntary and therefore outside the Board’s
      jurisdiction. See Vitale v. Department of Veterans Affairs, 107 M.S.P.R. 501,
      ¶ 17 (2007).     An involuntary retirement, however, is equivalent to a forced
      removal within the Board’s jurisdiction under 5 U.S.C. chapter 75. Garcia v.
      Department of Homeland Security, 437 F.3d 1322, 1328 (Fed. Cir. 2006) (en
      banc). Generally, an appellant who claims that a retirement was involuntary may
      rebut the presumption of voluntariness in a variety of ways, for example, by
      showing that the retirement was the result of misinformation or deception by the
      agency, intolerable working conditions, or the unjustified threat of an adverse
      action. SanSoucie v. Department of Agriculture, 116 M.S.P.R. 149, ¶ 14 (2011).
      The touchstone of the “voluntariness” analysis is whether, considering the
      totality   of   the    circumstances,     factors   operated     on    the   employee’s
      decision-making process that deprived him of freedom of choice.                Coufal v.

      6
        The appellant submits two documents with her reply: (1) a Health Care Provider
      Certification Form signed by a psychotherapist on January 21, 2004; and (2) the
      appellant’s written declaration in support of the joined appeals, dated May 9, 2014.
      RPFR File, Tab 4 at 5-12. The form is already part of the record. See 0582/3 IAF, Tab
      31, Exhibit 96. Accordingly, it is not new and we have not considered it. See Meier v.
      Department of the Interior, 3 M.S.P.R. 247, 256 (1980) (evidence that is already part of
      the record is not new). Although the appellant’s signed declaration postdates the close
      of the record below, it is not new and material evidence because the information in the
      declaration was available when the record closed. See Grassell v. Department of
      Transportation, 40 M.S.P.R. 554, 564 (1989) (to constitute new and material evidence,
      the information contained in the documents, not just the documents themselves, must
      have been unavailable despite due diligence when the record closed). In fact, the
      contents of the declaration are identical to the appellant’s declaration dated January 31,
      2014, which she submitted during the proceedings below. See RAF, Tab 10, Exhibit 1.
      Accordingly, we have not considered this document either.
                                                                                      7

      Department of Justice, 98 M.S.P.R. 31, ¶ 22 (2004); Heining v. General Services
      Administration, 68 M.S.P.R. 513, 519-20 (1995).      Thus, in order to establish
      involuntariness on the basis of coercion, an appellant must show that the agency
      effectively imposed the terms of the resignation or retirement, that the appellant
      had no realistic alternative but to resign or retire, and that the appellant’s
      resignation or retirement was the result of improper acts by the agency.       Id.
      Consistent with this approach, the Board will find a retirement to be involuntary
      where the employee demonstrates that the employer engaged in a course of
      action that made working conditions so difficult or unpleasant that a reasonable
      person in that employee’s position would have felt compelled to resign or retire.
      Markon v. Department of State, 71 M.S.P.R. 574, 577-78 (1996).
¶13        The Board usually takes a different approach when addressing the question
      of voluntariness in the context of a disability retirement.    In most cases, an
      appellant who alleges that her disability retirement was involuntary must
      establish the following:   (1) she indicated to the agency that she wished to
      continue working, but her medical limitations required a modification of her
      work conditions or duties, i.e., accommodation; (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 the
      appellant to continue working; and (3) the agency unjustifiably failed to offer
      that accommodation. SansSoucie, 116 M.S.P.R. 149, ¶ 15. The agency’s failure
      to accommodate the appellant, standing alone, however, would not make the
      decision to retire involuntary.    Id.   If accommodation was impossible, the
      appellant’s disability retirement would not have been a constructive removal, and
      other theories of involuntariness cannot lead to a different conclusion. Id. The
      essence of other claims of involuntariness, including coercion, duress, and
      intolerable working conditions, is that the appellant had a choice between
      retiring and continuing to work but was forced to choose retirement by improper
                                                                                        8

      acts of the agency. Id. If the appellant was unable to work because of a medical
      condition that cannot be accommodated, she had no choice as to whether to
      continue working. Id.
¶14        This standard is correct to determine the Board’s jurisdiction in most
      involuntary disability retirement appeals. However, the Board has applied the
      general principles for determining jurisdiction over alleged involuntary
      retirements to assess the voluntariness of a disability retirement when, as here,
      an appellant has alleged that the agency created a discriminatory, hostile work
      environment, which not only led to intolerable working conditions, but which
      also caused or exacerbated the medical conditions underlying the appellant’s
      disability retirement.   See Vaughan v. Department of Agriculture, 116 M.S.P.R.
      493, ¶¶ 13-14 (2011). The Board has held that the general test for involuntary
      retirement is applicable in such circumstances because, in effect, the appellant
      has alleged that he was coerced into retirement because the agency’s
      discriminatory conduct caused him to become disabled. Id., ¶ 14.

      The appellant failed to establish Board jurisdiction over her involuntary disability
      retirement appeal.
¶15        In the initial decision, the administrative judge considered the appellant’s
      involuntary disability retirement claim under both of the standards set forth
      above.    ID at 10-15.     Applying the jurisdictional standard that the Board
      typically applies in involuntary disability retirement appeals, the administrative
      judge noted the following:      the record does not contain any documentation
      regarding the appellant’s mental disorders that was drafted between January
      2001, when her physician found that her symptoms had resolved and released the
      appellant from treatment, and September 2003, when the appellant began seeing
      her physician again; there is no evidence that the appellant sought treatment from
      any healthcare professional for those disorders during that time; on her disability
      retirement application, the appellant stated that the restriction that she avoid
      contact with the alleged perpetrator and inmates was “self-imposed”; and, after
                                                                                       9

      the appellant began seeing her physician again in September 2003, the only
      restriction he imposed upon her was that she not work at all. ID at 12-13.
¶16        Based on this evidence, the administrative judge found that the appellant
      failed to establish that her disability retirement was in voluntary. Specifically,
      the administrative judge found that, because the appellant’s restrictions were
      self-imposed, she failed to establish that the agency improperly denied her
      requests for accommodation. ID at 15. The administrative judge further found
      that, in light of the appellant’s physician’s assessment in 2003 that the appellant
      was unable to work, accommodation was impossible. ID at 13 (citing 0582/3
      IAF, Tab 31, Exhibit 104). Therefore, the administrative judge found that the
      appellant’s disability retirement was not a constructive removal because the
      theory of involuntariness requires that the person had a choice between retiring
      or continuing to work, and the appellant had no choice. ID at 13.
¶17        We discern no reason to disturb this finding.      As previously noted, the
      documentation from the appellant’s physician established that the appellant was
      unable to work from November 2003 until her disability retirement in August of
      2004. See 0582/3 IAF, Tab 31, Exhibits 92, 93, 97, 98, 101, 102. Therefore, the
      appellant failed to demonstrate that there was a reasonable accommodation
      available that would have allowed her to continue working. Accordingly, the
      administrative judge correctly found that the appellant failed to meet her burden
      of showing that her disability retirement was a constructive removal under the
      standard that the Board generally applies in involuntary disability retirement
      cases. See ID at 12-13, 15.
¶18        Applying the jurisdictional standard that the Board generally applies in
      involuntary retirement appeals, the administrative judge next considered the
      appellant’s claim that her disability retirement was involuntary because the
      agency created a discriminatory and hostile work environment that exacerbated
      her medical condition. See ID at 13-15. The administrative judge found that the
      preponderance of the evidence in the record did not support this allegation. ID at
                                                                                       10

      14. In support of this finding, the administrative judge noted that, after declaring
      that the appellant had no need for treatment in January 2001, her physician
      specifically refused to blame agency officials for her condition in November
      2003. ID at 14 (citing 582/2 IAF, Tab 22, Exhibit 5). The administrative judge
      found that the agency did not coerce the appellant to retire and that her
      retirement was not the result of improper acts by the agency. ID at 14.
¶19        The appellant appears to challenge this finding on review, asserting that the
      administrative judge improperly failed to cite a January 21, 2004 letter from a
      psychotherapist stating that “the appellant was forced out of her job due to a
      hostile work environment.”      PFR File, Tab 4 at 3, 5-7.       This argument is
      unavailing. The administrative judge’s failure to mention all of the evidence of
      record does not mean that he did not consider it in reaching his decision.
      Marques v. Department of Health & Human Services, 22 M.S.P.R. 129, 132
      (1984), aff’d, 776 F.2d 1062 (Fed. Cir. 1985) (Table). Moreover, the fact that
      another health care provider had a different opinion from the appellant’s
      physician provides no basis to disturb the administrative judge’s finding that the
      appellant failed to prove by preponderant evidence her allegation that
      management created an environment that exacerbated the appellant’s condition.
¶20        We also find unpersuasive the appellant’s argu ment on review that, because
      OPM approved her disability retirement application, and she stated in her
      application that her disabling condition started on the date of the alleged assault
      by her coworker, she “has in fact been found to have a compensable disability
      due in part to the agencies [sic] horrific conduct.” PFR File, Tab 4 at 3. While
      OPM approved her disability retirement application, it did not find that any of
      the injuries she listed in support of her request for disability retirement,
      including PTSD, were caused or exacerbated by the agency. See 0582/2 IAF,
      Tab 5, Subtab 4e.
¶21        In determining whether the appellant established that her disability
      retirement was involuntary, the administrative judge also considered the
                                                                                       11

      appellant’s allegation that she was subjected to harassment in 2003 because of
      the following: her receipt of good, but not “outstanding” evaluations; the keying
      of her car, 7 and coworkers sneaking up on her or refusing to talk to her. ID at
      14. The administrative judge correctly found that the situation and incidents the
      appellant identified would not have created such intolerable working conditions
      that a reasonable person in her position would have felt compelled to retire. ID
      at 14.
¶22        The administrative judge also correctly found that nothing in the record
      suggests that the agency was forcing the appellant to make any type of decision
      in December 2003, as there was no pending proposal to remove her from her
      position. ID at 15. Rather, the administrative judge found that the appellant’s
      decision to apply for disability retirement appears to have been entirely
      self-initiated. ID at 15. Last, the administrative judge noted that, at the time she
      filed her application for disability retirement, the appellant was pursuing her
      discrimination and sexual harassment complaint, in which she eventually
      prevailed.    ID at 15 (citing Axsom v. Department of Veterans Affairs,
      110 M.S.P.R. 605 (2009) (a pre-existing discrimination affords the appellant the
      option of contesting alleged discrimination, harassment, and retaliation, rather
      than resigning/retiring)).
¶23        Based on her consideration of the record in its entirety, the administrative
      judge found that the appellant failed to establish that the agency created a hostile
      work environment, which not only led to intolerable working conditions but
      which caused or exacerbated the medical conditions underlying her disability
      retirement. ID at 15. Accordingly, the administrative found that the appellant
      failed to establish that the Board has jurisdiction over her involuntary retirement
      appeal. ID at 15.


      7
        The record indicates that the car keying incident occurred on June 2, 2002.   See
      0582/3 IAF, Tab 31, Exhib it 81.
                                                                                          12

¶24        We discern no reason to disturb the administrative judge’s explained
      findings. Even if the appellant genuinely felt that she had no alternative but to
      retire due to her medical conditions, she has failed to make a sufficient allegation
      of a coercive or improper act on the part of the agency that could have left a
      reasonable person in her position with no other choice but to retire in August
      2004. See Brown v. U.S. Postal Service, 115 M.S.P.R. 609, ¶ 17, aff'd sub nom.
      Brown v. Merit Systems Protection Board, 469 F. App’x 852 (Fed. Cir. 2011)
      (even if the appellant’s medical condition left her no alternative but to retire, she
      failed to tie her circumstances to an improper agency act). Therefore, we agree
      with the administrative judge that the appellant failed to establish that the Board
      has jurisdiction over her involuntary retirement appeal. ID at 15.

      The appellant has failed to prove that the Board has jurisdiction over her
      constructive suspension appeal.
¶25        In the initial decision, the administrative judge found that “no hearing was
      necessary” in the appellant’s constructive suspension appeal because she failed
      to raise a nonfrivolous allegation that the Board has jurisdiction over her appeal.
      See ID at 2 n.3. As noted above, however, the appellant withdrew her initial
      request for a hearing.      See IAF-0582/3, Tab 51.        Consequently, the threshold
      question in her appeal is not whether the appellant raised a nonfrivolous
      allegation of jurisdiction but whether she established jurisdiction by a
      preponderance of the evidence.        See Vitale, 107 M.S.P.R. 501, ¶ 18 (citing
      Garcia, 437 F.3d at 1344).
¶26        In   analyzing   the     appellant’s   constructive     suspension   appeal,   the
      administrative judge stated that there are two distinct situations which can give
      rise to constructive suspension claims: (1) when an agency places an employee
      on enforced leave pending an inquiry into her ability to perform; and (2) when an
      employee, absent due to medical restrictions, requests to return to work within
      these medical restrictions and the agency is bound by policy, regulation, or
      contractual provision to offer available work to the employee, but fails to do so.
                                                                                      13

      ID at 18. The administrative judge also stated that, for purposes of jurisdiction
      in a case involving enforced leave, the key question is whether the agency or the
      employee initiated the leave. ID at 18. The administrative judge found that the
      appellant did not show that the agency constructively suspended her from
      October 30, 2003, through August 7, 2004, or that the Board has jurisdiction
      over her constructive suspension appeal, for two reasons: (1) the appellant did
      not allege that either of the two situations described above exists here; and (2)
      the record indicates that the appellant initiated her absence during the relevant
      time period by requesting leave pursuant to her doctor’s recommendations. ID at
      19.
¶27         Prior to the issuance of the initial decision, however, the Board revamped
      its jurisprudence regarding constructive suspension claims in Bean v. U.S. Postal
      Service, 120 M.S.P.R. 397 (2013), and Abbott v. U.S. Postal Service,
      121 M.S.P.R. 294 (2014). In particular, the Board noted that it has recognized
      several fact patterns that may give rise to an involuntary constructive suspension
      and, therefore, rejected as misleading the statement in a line of Board cases that
      constructive suspensions arise in two situations. Bean, 120 M.S.P.R. 397, ¶ 8
      n.4. The Board further found that the issue of whether the agency or employee
      initiated the absence is dispositive only in enforced leave suspension appeals, not
      in involuntary leave-type constructive suspension appeals.       Id., ¶ 8 n.5; see
      Abbott, 121 M.S.P.R. 294, ¶ 10 (clarifying that enforced leave suspensions are
      not “constructive” and that the case law concerning constructive suspensions
      does not apply).   The Board explained that the application of the “initiation”
      standard does not further the analysis in involuntary leave-type constructive
      suspension appeals because the very essence of an involuntary leave-type
      constructive suspension is that the absence was employee-initiated.          Bean,
      120 M.S.P.R. 397, ¶ 8 n.5.     Instead, the Board held that, assuming that the
      jurisdictional requirements of 5 U.S.C. chapter 75 are otherwise met, proof of the
      following is sufficient to establish Board jurisdiction over such an appeal:
                                                                                     14

      (1) the employee lacked a meaningful choice in the matter; and (2) it was the
      agency’s wrongful actions that deprived the employee of that choice.        Bean,
      120 M.S.P.R. 397, ¶ 8.
¶28        Like Bean, the instant case involves an involuntary leave-type constructive
      suspension appeal because it concerns a claim that leave that appeared to be
      voluntary actually was not. Consequently, the administrative judge should have
      analyzed the appellant’s constructive suspension appeal under the framework set
      forth in Bean.   Thus, to establish jurisdiction in her constructive suspension
      appeal, the appellant must show that:      (1) she lacked a meaningful choice
      regarding her absence beginning on October 30, 2003; and (2) this was because
      of the agency’s improper actions. See Bean, 120 M.S.P.R. 397, ¶ 11.
¶29        Although Bean was issued before the administrative judge issued the
      jurisdictional notice on remand, the administrative judge did not, consistent with
      Burgess v. Merit Systems Protection Board, 758 F.2d 641, 643-44 (Fed. Cir.
      1985), correctly inform the appellant of the requirements for establishing Board
      jurisdiction over her constructive suspension appeal.         See RAF, Tab 8.
      Nonetheless, we find that it is unnecessary to remand the appeal for proper
      jurisdictional notice. The Board has found that an administrative judge’s
      defective notice can be cured if the agency’s pleadings contain the notice that
      was lacking in the acknowledgement order.       Scott v. Department of Justice,
      105 M.S.P.R. 482, ¶ 6 (2007).    In its response to the jurisdictional order, the
      agency cured the defective Burgess notice by apprising the appellant of what she
      must do to establish the Board’s jurisdiction over her constructive suspension
      appeal under Bean. See RAF, Tab 11 at 34.
¶30        Applying the framework set forth in Bean, we note that the appellant was
      absent from work from October 30, 2003, through August 7, 2004, the effective
      date of her disability retirement, based on her physician’s assessment that she
      was “unable to work.” See 0582/3 IAF, Tab 31, Exhibits 92, 93, 97, 98, 101,
      102. Thus, although the appellant requested leave, we find that she lacked a
                                                                                      15

      meaningful choice in the matter because her physician stated that she was unable
      to work due to her medical condition. See Bean, 120 M.S.P.R. 397, ¶¶ 13-14.
¶31        We next turn to the issue of whether the appellant proved by preponderant
      evidence that the agency’s improper actions deprived her of a meaningful choice
      regarding her absence from work. As previously discussed, the appellant was
      absent from work beginning October 30, 2003, based on her physician’s
      assessment that she was unable to work due to her medical condition; however,
      the appellant failed to prove that her condition was caused or exacerbated by the
      improper acts of the agency.      In other words, although the appellant had no
      choice but to absent herself from work beginning October 30, 2003, she has not
      shown that her lack of choice in the matter is attributable to any improper acts by
      the agency. Thus, the second prong of the jurisdictional test set forth in Bean
      has not been satisfied, and the Board lacks jurisdiction over the appellant’s
      constructive suspension 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).
                                                                                 16

     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.
