                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     ARIEL HERNANDEZ-TORRES,                         DOCKET NUMBER
                  Appellant,                         AT-0752-15-0664-I-1

                  v.

     DEPARTMENT OF THE ARMY,                         DATE: September 12, 2016
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Sterling L. DeRamus, Birmingham, Alabama, for the appellant.

           Kathryn R. Shelton, Redstone Arsenal, Alabama, 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 his constructive removal 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
     interpretation of statute or regulation or the erroneous application of the law to

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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. Except as
     expressly MODIFIED by this Final Order to find that the appellant failed to prove
     that the agency’s alleged misinformation resulted in his retirement, we AFFIRM
     the initial decision, which is now the Board’s final decision.

                                      BACKGROUND
¶2           The appellant held the GS-04 position of Security Guard at the agency’s
     Directorate of Emergency Services (DES) in Redstone Arsenal, Alabama. Initial
     Appeal File (IAF), Tab 1 at 2.      The position was subject to periodic medical
     exams and medical qualifications and required, among other things, driving
     vehicles and handling firearms. IAF, Tab 10 at 9-11.
¶3           In September 2013, the appellant suffered an epileptic seizure while on
     duty.    IAF, Tab 17 at 16; Hearing Compact Disc (HCD) (01:12:25-01:13:20)
     (testimony of the appellant).    The appellant asserted, and the agency did not
     dispute, that he voluntarily took medical leave until December 9, 2013. IAF, Tab
     10 at 18.    He provided the agency with medical documentation that he could
     return to duty on December 9, 2013, with no driving until March 22, 2014. IAF,
     Tab 17 at 7, 16.     The agency further restricted him during this period from
     working on patrol or carrying a weapon. Id. at 5-6. At that point, the appellant
     requested to return to work on light duty. Id. at 16; HCD (01:18:50-01:23:30)
     (testimony of the appellant).      The agency provided him with a light-duty
                                                                                           3

     assignment beginning in March 2014. IAF, Tab 10 at 29, Tab 23 at 38. The
     light‑duty position was outside of DES and involved serving as a point of contact
     at the front desk in the Arsenal’s “One Stop” facility. IAF, Tab 10 at 29, Tab 23
     at    38;   HCD       (02:07:25-02:07:57)       (testimony     of    the    appellant),
     (03:07:47-03:08:10) (testimony of M.C.), (03:34:27-03:34:35) (testimony of
     K.D.). 2 The appellant requested an extension of his light-duty assignment, which
     the agency granted pending the completion of its assessment of his fitness to
     return to full-duty status. IAF, Tab 10 at 29, Tab 23 at 37.
¶4         The appellant submitted a request for a reasonable accommodation dated
     August 8, 2014, to the agency’s equal employment opportunity (EEO) office.
     IAF, Tab 17 at 20.      This request stated that he suffered from epilepsy, but
     responded well to medication and was cleared by his physician to perform any
     job. Id. The agency responded in an email sent on August 19, 2014, that the
     appellant’s request was not appropriate for the reasonable accommodation process
     because he did not list a “defined accommodation or limitation.” Id. at 18. The
     agency further stated that the EEO office would forward his request to his
     management office for consideration of returning him to his permanent position.
     Id.
¶5         On September 9, 2014, the agency’s physician recommended against
     returning the appellant to full-duty status. IAF, Tab 10 at 62-63.                  On
     October 20, 2014, M.C., the Chief of Guards, proposed the appellant’s removal
     based on his alleged medical inability to perform the duties of his position. IAF,
     Tab 1 at 2-3. The appellant, through his attorney, submitted a written reply to the
     proposed action on November 21, 2014. IAF, Tab 19 at 5-12. In his reply, the
     appellant stated that the only reasonable accommodation that he needed to
     perform the duties of his position was for the agency to allow him to take his
     2
      The appellant’s former second-line supervisor, M.C., holds the position of Chief of
     Guards, and his former fourth-level supervisor, K.D., holds the position of Chief of the
     Physical Security Division. IAF, Tab 23 at 9.
                                                                                       4

     anti-seizure medication. Id. at 12. Before the agency could render a decision on
     the proposed removal, however, the appellant applied for disability retirement,
     and the Office of Personnel Management (OPM) approved his application on
     March 19, 2015.    IAF, Tab 1 at 4-6.     OPM found him to be disabled for his
     Security Guard position based on a seizure/epileptic disorder. Id. at 7. His last
     day on duty was April 3, 2015. IAF, Tab 9 at 61.
¶6        The appellant filed a Board appeal in which he alleged that he was forced to
     retire and that he was fully capable of performing his duties as a Security Guard.
     IAF, Tab 1 at 1. He alleged that he applied for disability retirement because he
     felt that he had no option but to retire and that employees at the agency’s Civilian
     Personnel Advisory Center (CPAC) advised him to do so. IAF, Tab 5 at 1; HCD
     (01:45:30-01:48:35) (testimony of the appellant). He also alleged that the agency
     subjected him to disability discrimination by failing to accommodate him and
     determining that he could not be returned to the full duties of his position. IAF,
     Tab 24 at 5-8.
¶7        In an order on jurisdiction, the administrative judge informed the appellant
     of his burden of proving the Board’s jurisdiction over his alleged involuntary
     disability retirement claim. IAF, Tab 3 at 2-4. He ordered the appellant to file
     evidence and argument on the jurisdictional issue.        Id. at 4.   Both parties
     responded.   IAF, Tabs 5, 9-10.     After reviewing the parties’ submissions, the
     administrative judge determined that the appellant had made a nonfrivolous
     allegation of Board jurisdiction sufficient to entitle him to a hearing on the
     jurisdictional issue. IAF, Tab 11 at 1.
¶8        After holding a hearing, the administrative judge issued an initial decision
     dismissing the appeal for lack of jurisdiction. IAF, Tab 29, Initial Decision (ID)
     at 1, 12-13. He found that the appellant failed to demonstrate that there was an
     accommodation available that would have allowed him to continue working in the
     Security Guard position, or a vacant position to which the agency could have
     reassigned him. ID at 8 n.3, 11. He also considered the appellant’s allegations of
                                                                                         5

      disability discrimination and coercion but found that they failed to show that his
      retirement was involuntary. ID at 6 n.2, 12 nn.5-6.
¶9         The appellant has filed a petition for review. Petition for Review (PFR)
      File, Tab 1. The agency has filed a response. PFR File, Tab 3.

                      DISCUSSION OF ARGUMENTS ON REVIEW
¶10        The Board’s jurisdiction is limited to those matters over which it has been
      given jurisdiction by law, rule, or regulation.         Maddox v. Merit Systems
      Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). An employee-initiated action,
      such as a retirement, is presumed to be voluntary and therefore outside the
      Board’s jurisdiction. Vitale v. Department of Veterans Affairs, 107 M.S.P.R. 501,
      ¶ 17 (2007). An involuntary retirement is tantamount to a removal, however, and
      is therefore subject to the Board’s jurisdiction.     Id.   The appellant bears the
      burden of proving jurisdiction by a preponderance of the evidence. 3 5 C.F.R.
      § 1201.56(b)(2)(i)(A).

      The administrative judge properly found that the appellant failed to prove that his
      disability retirement was involuntary.
¶11        An appellant who claims that a retirement was involuntary may rebut the
      presumption of voluntariness in a variety of ways, including by showing that his
      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) he indicated to the agency that he wished to
      continue working, but that his medical limitations required a modification of his
      3
       A preponderance of the evidence is the degree of relevant evidence that a reasonable
      person, considering the record as a whole, would accept as sufficient to find that a
      contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).
                                                                                        6

      work conditions or duties, i.e., accommodation; (2) there was a reasonable
      accommodation 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 unjustifiably failed to offer that
      accommodation. Id.
¶12         Here, the administrative judge properly found that the appellant failed to
      demonstrate that his disability retirement was involuntary.          ID at 6, 12.
      Specifically, the administrative judge found that the appellant failed to establish
      that he notified the agency that his medical limitations required a modification of
      his work conditions or duties.    ID at 9.   The administrative judge based this
      finding on the appellant’s testimony and prior statements to the agency that he did
      not need any modifications to his Security Guard position and that he should be
      returned to full-duty status because his seizure disorder was controlled by
      medication. Id.; IAF, Tab 10 at 32-33; HCD (02:11:10-02:12:10) (testimony of
      the appellant).
¶13         In his petition for review, the appellant continues to assert that he is
      “asymptomatic” of his medical condition and does not require any modification to
      his working conditions. PFR File, Tab 1 at 7-9. Thus, the appellant has failed to
      satisfy the first prong of the involuntary disability retirement test. See Mims,
      120 M.S.P.R. 213, ¶ 17. Further, the administrative judge properly found that he
      failed to meet his burden of proving that there was a reasonable accommodation
      available that would have allowed him to continue working. ID at 7-11. The
      appellant does not challenge this well-reasoned finding on review, and we find no
      reason to disturb it.

      The appellant has failed to show that his retirement was involuntary because it
      was the product of the agency’s misinformation, deception, or coercion.
¶14         In certain cases, the Board has applied the general jurisdictional test for an
      alleged involuntary retirement in an involuntary disability retirement appeal.
                                                                                          7

      Mims, 120 M.S.P.R. 213, ¶ 17 n.3; see, e.g., Vaughan v. Department of
      Agriculture, 116 M.S.P.R. 493, ¶ 14 (2011) (remanding for a jurisdictional
      hearing the appellant’s allegation that he was coerced into disability retirement
      because the agency’s conduct in creating a discriminatory and hostile work
      environment caused him to become disabled); Hosford v. Office of Personnel
      Management, 107 M.S.P.R. 418, ¶¶ 7, 9, 12-14 (2007) (finding that an appellant’s
      disability retirement was involuntary because her employing agency misinformed
      her that she was not eligible for immediate optional retirement, and ordering
      OPM to convert her disability retirement to an optional retirement).
¶15         Here, the administrative judge properly found that the appellant failed to
      establish the involuntariness of his disability retirement under the general
      jurisdictional standard for constructive removal appeals. ID at 6 n.2, 12 nn.5-6;
      see Vitale, 107 M.S.P.R. 501, ¶ 19 (stating that, to overcome the presumption that
      a retirement was voluntary, an employee must show that it was the product of the
      agency’s   misinformation,     deception,   or   coercion).        Specifically,   the
      administrative judge found that the appellant was free to choose between
      contesting his proposed removal, the process of which he was aware as evidenced
      by his submission of a written reply through his attorney, and applying for and
      accepting disability retirement. ID at 12 n.5; see Lawson v. U.S. Postal Service,
      68 M.S.P.R. 345, 350 (1995) (stating that the fact that an employee is faced with
      an inherently unpleasant situation, or that his choices are limited to unpleasant
      alternatives, does not make his decision to retire involuntary).
¶16         Further, the administrative judge found that the appellant failed to prove
      that the agency’s action in proposing his removal based on medical inability to
      perform the duties of his position was coercive because the agency knew that the
      reason for the proposed removal could not be sustained. ID at 6 n.2; IAF, Tab 1
      at 2; see Schultz v. Department of the Navy, 810 F.2d 1133, 1136 (Fed. Cir. 1987)
      (stating that a threatened agency action is coercive if an employee shows that the
                                                                                      8

      agency knew that the reason for the action could not be substantiated).       The
      appellant disputes this finding on review. PFR File, Tab 1 at 10.
¶17        When, as here, an employee occupies a position with medical standards or
      physical requirements and the finding that he was unable to perform was based on
      medical history, the agency is required to show the following to establish a
      charge of physical inability to perform:     (1) the disabling condition itself is
      disqualifying; (2) its recurrence cannot be ruled out; and (3) the duties of the
      position are such that a recurrence would pose a reasonable probability of
      substantial harm.   Sanders v. Department of Homeland Security, 122 M.S.P.R.
      144, ¶ 11, aff’d per curiam, 625 F. App’x 549 (Fed. Cir. 2015); see 5 C.F.R.
      § 339.206.
¶18        In proposing the appellant’s removal, the agency relied on its physician’s
      memorandum reviewing the medical records and fitness-for-duty examination
      findings for the appellant.    IAF, Tab 1 at 2, Tab 10 at 62-63.     The agency’s
      physician explained that epilepsy is a disqualifying neurological disorder
      according to Army Regulation 190-56, Appendix C, section C-3, paragraph d(13).
      IAF, Tab 1 at 2, Tab 10 at 62, Tab 23 at 27. He determined that there was a
      continued risk that the appellant would have another seizure and that his medical
      condition was considered permanent. IAF, Tab 10 at 62-63. He further found
      that the appellant’s seizure disorder may “create a risk of substantial harm to
      [himself] and the public in several ways.”     Id. at 63.   Thus, we find that the
      appellant has failed to show that the agency knew that the reason for the proposed
      removal could not be substantiated.
¶19        The appellant also disputes the administrative judge’s finding that the
      agency’s proposed removal was not discriminatory based on disability. PFR File,
      Tab 1 at 8-14; ID at 6 n.2; see Markon v. Department of State, 71 M.S.P.R. 574,
      578 (1996) (stating that the Board considers allegations of discrimination and
      reprisal in an alleged constructive removal appeal only insofar as they relate to
      the issue of voluntariness).     The appellant alleges that he can perform the
                                                                                        9

      essential functions of the Security Guard position and that the agency unlawfully
      discriminated against him by proposing his removal without conducting an
      individualized assessment of his medical capacity. PFR File, Tab 1 at 11-14.
¶20        If, as here, an agency asserts that an individual fails to meet the minimum
      standards established for a position, it may defend against a claim of disability
      discrimination by asserting that an individual poses a “direct threat” to the health
      or safety of himself or others in the workplace.         42 U.S.C. § 12113(a)-(b);
      Simpson v. U.S. Postal Service, 113 M.S.P.R. 346, ¶ 14 (2010); 29 C.F.R.
      § 1630.15(b)(2). “Direct threat means a significant risk of substantial harm to the
      health or safety of the individual or others that cannot be eliminated or reduced
      by reasonable accommodation.”        29 C.F.R. § 1630.2(r).    Discrimination law
      requires an agency to conduct an individualized assessment of an employee’s
      qualifications in determining whether an employee poses a direct threat because
      of a disability.   McAlexander v. Department of Defense, 105 M.S.P.R. 384,
      ¶¶14-15 (2007). An individualized assessment is “based on a reasonable medical
      judgment that relies on the most current medical knowledge and/or on the best
      available objective evidence.” 29 C.F.R. § 1630.2(r).
¶21        Assuming for purposes of analysis that the appellant is disabled, we agree
      with the administrative judge’s finding that the agency properly performed an
      individualized assessment of the appellant.      ID at 6 n.2; see McAlexander,
      105 M.S.P.R. 384, ¶ 14 (finding that, despite not personally examining the
      appellant, a physician conducted an individualized assessment by basing her
      opinion on medical reports from physicians who did examine him).                The
      administrative judge credited the testimony of the agency’s physician that he
      considered the appellant’s medical records and concluded that he was at a
      continued risk for a seizure based on his history of previous seizures and an
      electroencephalogram test showing abnormal brain activity. ID at 6 n.2; HCD
      (00:26:15-00:29:40, 00:38:50-00:40:00, 00:48:45-00:49:30, 00:53:20-00:54:35)
      (testimony of Dr. D.C.). We find that the testimony of the agency’s physician
                                                                                              10

      shows that he conducted an individualized assessment based on reasonable
      medical judgment. 4 See Haebe v. Department of Justice, 288 F.3d 1288, 1301
      (Fed. Cir. 2002) (explaining that the Board must give deference to an
      administrative judge’s credibility determinations when they are based, explicitly
      or implicitly, on the observation of the demeanor of witnesses testifying at a
      hearing).
¶22         The appellant claims that the direct threat defense is not available to the
      agency because it required a “100% guarantee . . . that there would be no further
      problems related to [the] [a]ppellant’s epilepsy.” PFR File, Tab 1 at 13. We
      disagree.   The agency’s physician considered such factors as the potential for
      “sudden incapacitation,” as well as the risk of recurrence, which he assessed at
      between 18% to 60%, depending on the amount of time that had passed since the
      last seizure. IAF, Tab 10 at 62-63; see Cano v. U.S. Postal Service, 107 M.S.P.R.
      284, ¶ 14 (2007) (indicating that factors relevant in determining whether an
      individual with a disability poses a direct threat include the nature of the risk, the
      severity of the potential harm, the probability that the potential harm will occur,
      and the imminence of the harm); 29 C.F.R. § 1630.2(r) (stating the same factors
      slightly differently).     He also considered the possible side effects of the
      appellant’s medication and the nature of the appellant’s job duties. IAF, Tab 10
      at 62-63. Ultimately, the administrative judge concluded that there was “a risk of
      substantial harm to the officer and the public” from a seizure “occur[ing] while
      driving, directing traffic, or result[ing] in loss of control of a weapon.” Id. at 63.
¶23         The administrative judge also considered the appellant’s claim that the
      agency allowed other security guards with disabling medical conditions to

      4
        We find that the appellant’s assertions that the agency’s physician relied on outdated
      medical information, was outside of the same medical specialty as the appellant’s
      physician, and failed to consider several factors affecting the risk of seizure recurrence,
      do not provide reasons to disturb the administrative judge’s finding that the agency
      conducted an individualized assessment. PFR File, Tab 1 at 10-12; IAF, Tab 19
      at 35-36.
                                                                                        11

      perform the full duties of the Security Guard position without restrictions. ID
      at 12    n.6;    HCD    (01:59:00-02:02:15,   02:07:50-02:09:20,    2:27:40-2:28:40,
      2:39:10-02:41:50) (testimony of the appellant), (03:21:30-03:24:50) (testimony
      of M.C.), (03:38:00-03:40:10, 03:44:00-03:45:10) (testimony of K.D.).            The
      administrative judge found that the testimony established that the agency
      proposed the removal of another security guard with epilepsy for medical
      inability to perform his position due to epilepsy but that he too ultimately
      obtained disability retirement. ID at 12 n.6; HCD (03:21:30-03:24:50) (testimony
      of M.C.).       The administrative judge further found that the evidence of other
      employees with disabling medical conditions does not support a finding of
      disability discrimination that rendered the appellant’s disability retirement
      involuntary. ID at 12 n.6.
¶24           Finally, the appellant argues that he applied for disability retirement based
      on the recommendation of personnel in CPAC.           PFR File, Tab 1 at 6, 12-13.
      Although he raised this argument below, the administrative judge did not resolve
      it. ID at 5. We modify the initial decision to find that the appellant has failed to
      prove that his retirement was the product of the agency’s misinformation. When
      there is a claim that an involuntary action resulted from misinformation, an
      appellant must show that: (1) the agency made misleading statements; and (2) he
      reasonably relied on the misinformation to his detriment. Aldridge v. Department
      of Agriculture, 111 M.S.P.R. 670, ¶ 8 (2009). We find that the appellant did not
      reasonably rely on the advice of CPAC and he was aware that he had the option to
      contest his proposed removal because he submitted a written reply to it through
      his attorney. IAF, Tab 19 at 5-12.
¶25           Accordingly, we find that the administrative judge properly dismissed the
      appeal for lack of jurisdiction.
                                                                                   12

                  NOTICE TO THE APPELLANT REGARDING
                     YOUR FURTHER REVIEW RIGHTS
      The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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:
                          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
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
                                                                                 13

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:                            ______________________________
                                          Jennifer Everling
                                          Acting Clerk of the Board
Washington, D.C.
