                     NOTE: This disposition is nonprecedential.


United States Court of Appeals for the Federal Circuit
                                      2007-3244

                             CHRISTI J. KOTSCHWAR,

                                                            Petitioner,

                                          v.

                     OFFICE OF PERSONNEL MANAGEMENT,

                                                            Respondent.


      Christi J. Kotschwar, of Rapid City, South Dakota, pro se.

      Robert C. Bigler, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With him on
the brief were Jeffrey S. Bucholtz, Acting Assistant Attorney General, Jeanne E.
Davidson, Director, and Brian M. Simkin, Assistant Director.

Appealed from: Merit Systems Protection Board
                       NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit
                                       2007-3244

                               CHRISTI J. KOTSCHWAR,

                                                       Petitioner,

                                            v.

                       OFFICE OF PERSONNEL MANAGEMENT,

                                                       Respondent.


Petition for review of the Merit Systems Protection Board in DE844E060261-I-1.

                            __________________________

                               DECIDED: July 14, 2008
                            __________________________

Before MICHEL, Chief Judge, LOURIE and LINN, Circuit Judges.

PER CURIAM.

       Christi J. Kotschwar (“Kotschwar”) petitions for review of a final decision of the

Merit Systems Protection Board (“Board”) affirming the denial of her application for

Federal Employees’ Retirement System (“FERS”) disability annuity benefits. Kotschwar

v. Office of Pers. Mgmt., No. DE-844E060261-I-1 (M.S.P.B. Nov. 9, 2006) (“Initial

Decision”), review denied, Kotschwar v. Office of Pers. Mgmt., No. DE-844E060261-I-1

(M.S.P.B. Mar. 21, 2007).     Because the Board did not depart from any important

procedural right, misconstrue governing legislation, or commit any similar error requiring

reversal, we affirm.
                                  I. BACKGROUND

      Prior to her termination, Kotschwar was an Administrative Office Assistant on the

Volatile Organic Chemicals National Synthesis team of the Department of the Interior’s

U.S. Geological Survey, in Rapid City, South Dakota. Kotschwar worked under the

supervision of John Zogorski, the team’s Supervisory Hydrologist.

      Kotschwar claims to have become disabled on October 17, 2003. That day,

Zogorski provided Kotschwar with a written evaluation and met with her to discuss her

performance. During the meeting, Zogorski was critical of aspects of Kotschwar’s job

performance. According to Kotschwar, both during and before this meeting, Zogorski

created a hostile work environment that resulted in Kotschwar developing disabling

stress, adjustment disorder with disturbance of anxiety, and major depression.

      Kotschwar was temporarily reassigned to the team’s computer section, away

from Zogorski. She worked there until March 2004, when she was ordered to report

back to her administrative duties under Zogorski. Instead, Kotschwar left the workplace

on approved sick leave. After her sick leave was exhausted, Kotschwar failed to return

to work and did not provide adequate medical documentation to support further leave.

She was terminated for being absent without leave and for failure to submit acceptable

medical documentation. She did not appeal the termination decision.

      In February 2005, Kotschwar submitted an application for FERS disability

retirement. The Office of Personnel Management denied her application on the ground

that she had not presented medical information documenting a disabling medical

condition. Kotschwar appealed to the Board. The Board affirmed the denial, reasoning

that: (1) Kotschwar’s anxiety was merely situational and based on her poor relationship

with Zogorski; and (2) she had failed to show whether her condition could be improved


2007-3244                                  2
or controlled, because she had refused antidepressant medications. Initial Decision at

8-9. Kotschwar appeals. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).

                                      II. DISCUSSION

       Kotschwar raises several arguments on appeal. However, our authority to review

the Board’s decision is limited. “This court is without authority to review the substantive

merits of disability determinations, or the factual underpinnings of such determinations.”

Brunner v. Office of Pers. Mgmt., 996 F.2d 290, 291 (Fed. Cir. 1993). Specifically, “we

may not review the Board’s factual determination as to whether [Kotschwar] was

disabled within the meaning of the FERS statute.” Trevan v. Office of Pers. Mgmt., 69

F.3d 520, 524 (Fed. Cir. 1995). Instead, our “review of disability-based actions is limited

to determining whether there has been a substantial departure from important

procedural rights, a misconstruction of the governing legislation, or some like error

going to the heart of the administrative determination.”      Brunner, 996 F.2d at 292

(internal quotation marks omitted).

       We address each of Kotschwar’s arguments in turn, within the limits of our

jurisdiction. First, Kotschwar argues that the Board erred by finding that she refused

medical treatment. We have no authority to review or disturb this finding. See id. But

even if we did, it would not have affected the outcome of Kotschwar’s appeal. The

Board’s conclusion that Kotschwar’s anxiety was not a disabling medical condition was

also independently and adequately supported by its finding that her anxiety was merely

situational and based on her poor relationship with Zogorski. See Initial Decision at 8-9.

       Second, Kotschwar argues that the Board failed to account for the seriousness of

her hostile work environment.         As the Board correctly recognized, see id. at 8,

Kotschwar’s burden was to prove that she could not “render useful and efficient service


2007-3244                                    3
in [her] position” in general—not solely in the context of a hostile relationship with a

particular supervisor. 5 U.S.C. § 8451(a)(1)(B); Tan-Gatue v. Office of Pers. Mgmt., 90

M.S.P.R. 116, 123 (2001) (“The Board has held that an appellant must show that she is

unable to perform her job duties in general and not only in the context of what she sees

as a hostile environment.”), aff’d 52 Fed. Appx. 511 (Fed. Cir. 2002). Kotschwar’s

argument is thus misplaced and is not within our authority to review.

       Third, Kotschwar claims that the Board incorrectly interpreted the testimony of

one witness, and trivialized the testimony of a second witness. We are without authority

to review the Board’s factual findings. See Brunner, 996 F.2d at 291.

       Finally, Kotschwar has submitted records purporting to show the medical

disability of one of her co-workers, which she argues demonstrate a hostile work

environment. These records were not made part of the record before the Board and are

therefore not properly before us. See Mueller v. U.S. Postal Serv., 76 F.3d 1198, 1201-

02 (Fed. Cir. 1996) (“Because we are limited to reviewing decisions of the Board based

on the record before the deciding official, we decline to base our judgment on evidence

that was not part of the record before the administrative judge.” (citation omitted)). In

any event, the disability of a co-worker is not relevant to Kotschwar’s disability claim.

       Before the Board, Kotschwar had the burden of proving that she was “unable,

because of disease or injury, to render useful and efficient service in [her] position.” 5

U.S.C. § 8451(a)(1)(B); Trevan, 69 F.3d at 522. As we established in Brunner, when an

agency dismisses an employee because of that employee’s disability, the burden of

production shifts to the government. 996 F.2d at 294. When an employee who seeks

FERS benefits has been terminated by the employing agency, the Board must first




2007-3244                                    4
determine whether the employee was terminated because of his or her disability (in

which case the burden of production shifts to the government under Brunner), or

whether the employee was terminated for some other reason (in which case the burden

of production remains with the employee).        See id. (“[T]he government’s action in

separating an employee for disablement produces a presumption of disability that

serves to shift to the government the burden of production.”). Here, the Board found

that Kotschwar’s removal was the result of her misconduct, not because of any

disability. See Initial Decision at 8. Therefore, the Board correctly assigned the burden

of proof to Kotschwar and found that she had not carried it. See id. We therefore

conclude that the Board did not depart from any important procedural right, misconstrue

governing legislation, or commit any similar error requiring reversal.

                                    III. CONCLUSION

       For the foregoing reasons, we affirm the order of the Board.

                                         COSTS

       No costs.




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