                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     BRENDA A. JAKES,                                DOCKET NUMBER
                   Appellant,                        AT-0752-14-0614-I-1

                  v.

     DEPARTMENT OF DEFENSE,                          DATE: April 1, 2015
                 Agency.



                  THIS ORDER IS NO NPRECEDENTIAL 1

           Brenda A. Jakes, Phenix City, Alabama, pro se.

           Cheryl Smith, Esquire, Peachtree City, Georgia, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                     REMAND ORDER

¶1        The appellant has filed a petition for review of the initial decision, which
     sustained her removal for physical inability to perform her Custodial Worker
     position, and dismissed for lack of jurisdiction her disability retirement claim.
     For the reasons discussed below, we GRANT the appellant’s petition for review.
     We AFFIRM the administrative judge’s finding that the Board lacks jurisdiction

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     over the appellant’s disability retirement claim.            We also AFFIRM the
     administrative judge’s finding that the agency proved the charge of inability to
     perform AS MODIFIED to apply the correct legal standard for analyzing the
     charge. We REMAND the appellant’s restoration claim, which the administrative
     judge failed to address below, to the regional office for further adjudication in
     accordance with this Order.

                                       BACKGROUND
¶2            The appellant was employed as a Custodial Worker with the Department of
     Defense Education Activity at Loyd Elementary School, Fort Benning, Georgia.
     Initial Appeal File (IAF), Tab 5 at 43, 139. At the beginning of the 2012-2013
     school year, the appellant provided the agency with documentation indicating that
     she suffered medical restrictions as the result of shoulder conditions. Id. at 49.
     The appellant later claimed the conditions were job-related.          IAF, Tab 6 at 8.
     After the appellant filed a reasonable accommodation request, the agency
     temporarily detailed her to an Educational Aide position, which offered a higher
     rate of pay than her Custodial Worker position. 2 IAF, Tab 5 at 60-66, 68, Tab 7
     at 34.
¶3            On January 25, 2013, approximately 5 months after the appellant was
     temporarily detailed to the Educational Aide position, the agency issued her a
     notice of proposed removal, charging her with physical inability to perform the
     Custodial Worker position. IAF, Tab 5 at 43. After the appellant responded, the
     deciding official sustained the removal. Id. at 39-40, 139, 151.
¶4            After the appellant received a final decision on an equal employment
     opportunity (EEO) complaint concerning the issues in this appeal, she appealed to
     the Board. IAF, Tab 1 at 1-8, Tab 5 at 31-38. She did not timely request a

     2
       The Educational Aide position only required a 7-hour workday. IAF, Tab 5 at 66. In
     order for the appellant to continue working 8 hours per day, the agency instructed her to
     work 1 hour per day on custodial duties that she was able to perform within her medical
     restrictions. Id.
                                                                                            3

     hearing. 3   See IAF, Tab 1 at 5, Tab 11, Initial Decision (ID) at 1.               The
     administrative judge issued an initial decision based on the written record finding
     that the Board lacked jurisdiction to adjudicate the appellant’s disability
     retirement claim; the agency had proven the charge of inability to perform by
     preponderant evidence; the appellant had failed to establish her race and
     disability discrimination claims; and the penalty of removal was reasonable and
     promoted the efficiency of the service. ID at 1-12.
¶5         The appellant has filed a petition for review, and the agency has filed a
     response. PFR File, Tabs 1, 3.

                      DISCUSSION OF ARGUMENTS ON REVIEW
     The Board lacks jurisdiction over the appellant’s claims regarding her disability
     retirement.
¶6         On review, as below, the appellant requests that the Board “reconsider the
     facts in determining [her] medical retirement.” PFR File, Tab 1 at 2; IAF, Tab 9
     at 1 (the appellant’s request below). We agree with the administrative judge that
     the Board lacks jurisdiction to review the appellant’s claims regarding her desire
     for a disability retirement. See ID at 3 n.1; IAF, Tab 10 at 1 n.1. If the Office of
     Personnel Management (OPM) has not issued a reconsideration decision on an


     3
       On her appeal form, the appellant indicated that she did not request a hearin g. IAF,
     Tab 1 at 5. During a close of the record conference, the appellant represented that a
     May 27, 2014 letter that she submitted to the administrative judge 2 weeks prior
     constituted a request for a hearing. IAF, Tab 10 at 1 n.1. The appellant d id not raise
     this issue on review. Petition for Review (PFR) File, Tab 1. We agree with the
     administrative judge that the letter did not contain a hearing request. IAF, Tab 9 at 1
     (the appellant’s letter). In addition, the admin istrative judge issued an April 21, 2014
     acknowledgment order, which stated that if the appellant failed to request a hearing
     with in 10 days of the order (i.e., by May 1, 2014), she would waive her right to a
     hearing. IAF, Tab 2 at 1. The appellant did not request a hearing with in 10 days of the
     order, and therefore, her right to a hearing was waived. See 5 C.F.R. § 1201.24(e) (if
     an appellant does not make a timely request for a hearing the right is waived); see a lso
     Nugent v. U.S. Postal Service, 59 M.S.P.R. 444, 446-47 (1993) (finding that an
     appellant waived his right to a hearing when he failed to request one either on his
     appeal form or within the time frame estab lished by the administrative judge’s order).
                                                                                        4

     appellant’s entitlement to a retirement benefit, the Board generally lacks
     jurisdiction over an appeal of that matter.       Fagone v. Office of Personnel
     Management, 85 M.S.P.R. 49, ¶ 9 (2000). The Board may take jurisdiction over a
     retirement appeal in the absence of an OPM reconsideration decision if the
     appellant has made “repeated requests” for such a decision and the evidence
     indicates that OPM does not intend to issue a final decision. Fletcher v. Office of
     Personnel Management, 118 M.S.P.R. 632, ¶ 5 (2012). Here, the administrative
     judge found that the appellant admitted during a June 12, 2014 status conference
     that she had not applied for disability retirement with OPM. ID at 3 n.1; IAF,
     Tab 10 at 1 n.1. The appellant has not challenged that finding on review and has
     not submitted any evidence indicating that she either subsequently applied for
     disability retirement with OPM, or that OPM issued a reconsideration decision on
     such an application. See PFR File, Tab 1. Accordingly, we find that the Board
     lacks jurisdiction to adjudicate the appellant’s claims regarding her desire for a
     disability retirement.

     The agency proved the charge of physical inability to perform the Custodial
     Worker position.
¶7         On review, the appellant does not challenge the administrative judge’s
     finding that the agency proved the charge of physical inability to perform the
     Custodial Worker position. 4 See PFR File, Tab 1. However, in his analysis of the
     charge, the administrative judge cited Slater v. Department of Homeland
     Security, 108 M.S.P.R. 419, ¶ 11 (2008), for the proposition that, in order to
     remove an employee for physical inability to perform, the agency must show that
     the disabling condition itself is disqualifying, its recurrence cannot be ruled out,
     and the duties of the position are such that a recurrence would pose a reasonable
     probability of substantial harm. ID at 4. The appellant did not hold a position

     4
        The appellant also does not challenge the adm inistrative judge’s finding that her
     removal promoted the efficiency of the service. PFR File, Tab 1 at 2; ID at 5-6. We
     discern no reason to disturb this finding on review.
                                                                                       5

     with medical standards or physical requirements subject to medical evaluation
     programs, and therefore, Slater does not govern this appeal. See IAF, Tab 6 at
     13-17 (the position description); see also Clemens v. Department of the
     Army, 120 M.S.P.R. 616, ¶ 4 (2014) (Slater does not apply where an appellant
     does not occupy a position with medical standards or physical requirements
     subject to medical evaluation programs); Fox v. Department of the Army, 120
     M.S.P.R. 529, ¶ 24 (2014) (same).
¶8        Instead, to establish a charge of physical inability to perform in this matter,
     the agency must prove a nexus between the appellant’s medical condition and
     observed deficiencies in her performance or conduct, or a high probability, given
     the nature of the work involved, that her condition may result in injury to herself
     or others. Fox, 120 M.S.P.R. 529, ¶ 25 (citing Marshall-Carter v. Department of
     Veterans Affairs, 94 M.S.P.R. 518, ¶ 10 (2003), aff’d, 122 F. App’x 513 (Fed.
     Cir. 2005)).   In other words, the agency must establish that the appellant’s
     medical condition prevents her from being able to safely and efficiently perform
     the core duties of her position. Fox, 120 M.S.P.R. 529, ¶ 25. The core duties of a
     position are synonymous with its essential functions, i.e., the fundamental job
     duties of the position,     not   including marginal     functions.     Id.,   ¶ 26
     (citing 29 C.F.R. § 1630.2(n)(1)). Evidence of whether a particular function is
     essential includes, inter alia, the employer’s judgment as to which functions are
     essential, written position descriptions, the amount of time spent performing the
     function, and the consequences of not requiring the incumbent to perform the
     function. Fox, 120 M.S.P.R. 529, ¶ 26 (citing 29 C.F.R. § 1630.2(n)(1)).
¶9        In determining if the agency has met its burden, the Board will consider
     whether a reasonable accommodation exists that would enable the appellant to
     safely and efficiently perform those core duties. Fox, 120 M.S.P.R. 529, ¶ 26.
     However, for the limited purposes of proving the charge, the agency is not
     required to show that it was unable to reasonably accommodate the appellant by
     assigning her to a vacant position for which she was qualified; whether it could
                                                                                       6

      do so goes to the affirmative defense of disability discrimination and/or the
      reasonableness of the penalty. Id.
¶10         We find that the agency proved the charge of physical inability to perform
      by preponderant evidence.       In the notice of proposed removal, the agency
      indicated that the essential duties of the appellant’s position included:
      (1) sweeping, mopping, stripping, waxing and polishing floors using brooms,
      mops, industrial-type floor scrubbers, and other heavy-powered cleaning
      equipment; (2) dusting, waxing, and polishing office furniture and equipment; and
      (3) cleaning ceiling surfaces and making minor repairs such as replacing light
      bulbs and air filters.     IAF, Tab 5 at 43.      The Custodial Worker position
      description confirms that these duties were among “Typical Work Performed” in
      the position, and the appellant has not challenged the agency’s description of her
      core duties. IAF, Tab 6 at 15; see IAF Tabs 1, 9; PFR File, Tab 1. Therefore, we
      consider those duties to be the core duties of her position.
¶11         The medical documentation that the appellant submitted to the agency
      indicated that, as the result of her shoulder injuries, she was unable to engage in
      heavy lifting, pushing, pulling, or overhead activities with either arm for an
      undetermined period of time.         IAF, Tab 5 at 49, 72.      In her reasonable
      accommodation request, the appellant indicated that her medical condition caused
      difficulties in performing the essential duties of her position, and that her
      disability was expected to be permanent. Id. at 62-64. Further at the time that
      the agency proposed her removal, the appellant had been unable to perform the
      duties of the Custodial Worker position for approximately 5 months. Id. at 43,
      66. The record contains no evidence suggesting that there was a foreseeable end
      in sight to the appellant’s incapacity.
¶12         Moreover, both before and after she received the notice of proposed
      removal, the appellant admitted that she was physically unable to perform the
      duties of the Custodial Worker position. The agency presented evidence that on
      January 9, 2013, approximately 2 weeks before the agency issued the notice of
                                                                                              7

      proposed removal, the appellant’s supervisor met with her to discuss whether
      there was anything that the agency could do to assist her in performing the duties
      of the Custodial Worker position. IAF, Tab 5 at 43, 97, 143. According to the
      agency, the appellant responded that she was unable to perform the position
      duties, even with accommodation.          Id.   The appellant did not dispute these
      assertions. IAF, Tabs 1, 9. In addition, in her February 11, 2013 response to the
      notice of proposed removal, the appellant stated that she “[did] not contest” her
      removal from the Custodial Worker position, and that it had been “medically
      documented” that she was “physically unable to perform” the duties of the
      position. IAF, Tab 5 at 41. Based upon this evidence, we find that the agency
      met its burden of proving the charge of inability to perform.

      The appellant did not establish that the agency discriminated against her by
      failing to accommodate her disability.
¶13           On review, the appellant argues that, because her injuries were work-related
      and permanent, the agency should have done more to assist her. 5 PFR File, Tab 1
      at 2. This argument may be construed as a challenge to the administrative judge’s
      finding that the appellant failed to establish that the agency engaged in disability
      discrimination based upon a denial of a reasonable accommodation. See ID at
      7-10.
¶14           The Rehabilitation Act requires an agency to provide a reasonable
      accommodation to the known physical or mental limitations of an otherwise
      qualified individual with a disability unless the agency can show that the
      accommodation would cause an undue hardship on its business operations.
      Clemens, 120 M.S.P.R. 616, ¶ 10. With exceptions not applicable here, the term
      “qualified” means that the individual satisfies the requisite skill, experience,

      5
        The appellant does not challenge the admin istrative judge’s findings that she failed to
      establish her affirmative defenses of disability discrim ination based on disparate
      treatment and discrimination based on race. See ID at 10-12; PFR File, Tab 1. We
      discern no basis to disturb these well-reasoned findings.
                                                                                          8

      education and other job-related requirements of the employment position the
      individual holds or desires and, with or without a reasonable accommodation, can
      perform the essential functions of such position.       Id.; 29 C.F.R. § 1630.2(m).
      Reasonable accommodation includes modifications to the manner in which a
      position is customarily performed in order to enable a qualified individual with a
      disability to perform the essential job functions, or reassigning the employee to a
      vacant position whose duties the employee can perform. Clemens, 120 M.S.P.R.
      616, ¶ 10.
¶15        We agree with the administrative judge that, although the appellant
      demonstrated that she is an individual with a disability, she failed to establish that
      she is a qualified individual with a disability. See ID at 8-9; see also Henson v.
      U.S. Postal Service, 110 M.S.P.R. 624, ¶ 7 (2009) (the appellant has the burden to
      show that she is a qualified individual with a disability). As discussed above, the
      record below establishes, and the appellant does not dispute, that she is unable to
      perform the essential functions of the Custodial Worker position, even with a
      reasonable accommodation. See IAF, Tab 5 at 41, 43, 97, 143; PFR File, Tab 1.
¶16        The appellant was entitled to be considered for reassignment to a vacant
      position for which she was otherwise qualified as a form of reasonable
      accommodation.         See    Gonzalez-Acosta      v.   Department     of   Veterans
      Affairs, 113 M.S.P.R. 277, ¶ 14 (2010); 29 C.F.R. § 1630.2(o)(2)(ii). However,
      the agency’s obligation to accommodate an employee with a disability includes
      reassignment only to a vacant position at or below the employee’s current grade
      or level. Gonzalez-Acosta, 113 M.S.P.R. 277, ¶ 14; Narcum v. Department of the
      Interior, 98 M.S.P.R. 645, ¶ 8 (2005).      The agency provided statements from
      three managers that there were no vacant positions to which the appellant could
      have been assigned at or below the grade level of her Custodial Worker position.
      IAF, Tab 5 at 176, 179, Tab 6 at 19. These statements were conclusory, and did
                                                                                            9

      not explain the extent or nature of the agency’s search for vacant positions. 6 IAF,
      Tab 5 at 176, 179, Tab 6 at 19. However, the appellant has not disputed the
      agency’s assertions, and has not identified any vacant positions at the same or
      lower grade level to which she could have been reassigned. See IAF, Tabs 1, 9;
      PFR File, Tab 1.     Therefore, the administrative judge correctly found that the
      appellant failed to establish her claim of disability discrimination based upon
      denial of reasonable accommodation. ID at 7-10; see also Massey v. Department
      of the Army, 120 M.S.P.R. 226, ¶ 12 (2013) (the agency’s failure to fulfill its
      obligation to search for a position as a reasonable accommodation does not
      relieve the appellant of her burden of ultimately showing that such positions
      existed and were available); Jackson v. U.S. Postal Service, 79 M.S.P.R. 46,
      53-54 (1998) (same).
¶17         On review, as she did below, the appellant asserts that the agency originally
      led her to believe that she would be permanently placed in the Educational Aide
      position. 7   PFR File, Tab 1 at 2; IAF, Tab 1 at 8.             We agree with the

      6
        The agency’s obligation to reassign the appellant to a vacant position for which she
      was otherwise qualified as a form of reasonable accommodation was not lim ited to
      positions in the particular office, branch of the agency, or commuting area to which she
      was assigned when her need for an accommodation arose. See Sanchez v. Department
      of Energy, 117 M.S.P.R. 155, ¶ 18 (2011). “Rather, the extent to which an employer
      must search for a vacant position will be an issue of undue hardship.” I d. (quoting
      Equal Employment Opportunity Commission Enforcement Guidance: Reasonable
      Accommodation and Undue Hardship Under the Americans with Disabilities Act,
      Reassignment at Question 27 (Oct. 17, 2002), available at http://www.eeoc.gov/
      policy/docs/accommodation.html#reassignment).
      7
        The appellant alleges that she “provided witnesses,” but they “were never contacted.”
      PFR File, Tab 1 at 2. She contends that these witnesses could have provided proof that
      the agency offered and then rescinded a position as an Educational Aide. I d. However,
      the administrative judge was not obligated to contact witnesses on her behalf. By order
      dated June 12, 2014, the administrative judge advised the appellant of the burden and
      elements of proof of her claim and affirmative defenses, and informed her that the
      record would close on June 30, 2014. IAF, Tab 10. The administrative judge further
      informed the appellant that she could submit witness statements. Id. at 12. After
      receiving this information, the appellant elected not to submit any such statements.
                                                                                           10

      administrative judge that, even assuming that the appellant was initially
      misinformed, the agency was not obligated to permanently reassign her to the
      Educational Aide position, because the reassignment would have constituted a
      promotion.    See ID at 9 n.2; IAF, Tab 7 at 34 (containing the agency’s
      explanation that the appellant could not be reassigned to the Educational Aide
      position without using competitive promotion procedures).           An agency is not
      required to promote an employee with a disability in order to provide a
      reasonable   accommodation.         See    Taylor   v.   Department     of   Homeland
      Security, 107 M.S.P.R. 306, ¶ 8 (2007) (an agency’s obligation to provide a
      reasonable accommodation does not entitle the employee to a position at a higher
      grade level); Sheehan v. Department of the Navy, 66 M.S.P.R. 490, 494 (1995)
      (same).

      The administrative judge failed to provide jurisdictional notice regarding the
      appellant’s restoration claim.
¶18         We find that the appellant’s allegation that the agency should have done
      more to assist her because her injuries were work-related could alternatively be
      construed as a claim that the agency denied her restoration rights as a physically
      disqualified individual under 5 C.F.R. § 353.301(c). 8 See IAF, Tab 9 at 1; PFR
      File, Tab 1 at 2.     To be entitled to a hearing on Board jurisdiction over a
      restoration claim, the appellant must make nonfrivolous allegations that, inter
      alia, she suffered a compensable injury and that her separation was substantially
      related to the compensable injury. Norwood v. U.S. Postal Service, 100 M.S.P.R.
      494, ¶ 4 (2005); see Bledsoe v. Merit Systems Protection Board, 659 F.3d 1097,
      1102 (Fed. Cir. 2011) (discussing the two-step process for establishing Board
      jurisdiction over restoration appeals). A compensable injury is defined as one


      8
       A physically disqualified individual includes an employee who, for medical reasons, is
      unable to perform the duties of the position formerly held or an equivalent one, and the
      condition is considered permanent with little likelihood for improvement or recovery.
      5 C.F.R. § 353.102.
                                                                                         11

      that is accepted by the Office of Workers’ Compensation Programs (OWCP) as
      job-related, for which medical monetary benefits are payable from the
      Employees’ Compensation Fund. King v. Department of the Navy, 90 M.S.P.R.
      341, ¶ 6 (2001).
¶19          Here, the appellant argued below that her injuries were work-related. IAF,
      Tab 9 at 1 (the appellant’s argument below). In addition, the agency submitted
      evidence that on February 7, 2013, approximately 2 weeks after it issued the
      notice of proposed removal, OWCP accepted the appellant’s claim that her
      shoulder injuries were work-related. IAF, Tab 6 at 35. Four days after OWCP
      accepted her claim, the appellant responded to the notice of proposed removal,
      requesting reassignment to “a comparable position at [her] current pay.” IAF,
      Tab 5 at 151. We find that, in light of the liberal pleading standard for pro se
      appellants, and the evidence submitted by the agency below, the appellant’s
      allegations should have put the administrative judge on notice that the appellant
      was alleging that the agency had violated her restoration rights. See Roche v.
      U.S. Postal Service, 828 F.2d 1555, 1558 (Fed. Cir. 1987) (pro se petitioners are
      not expected to frame issues with the precision of a common law pleading);
      Deloach v. Department of the Treasury, 58 M.S.P.R. 574, 578 (1993) (finding
      that a pro se appellant’s citation to the law regarding restoration rights, evidence
      that he was absent for a compensable injury, and his allegation that he could
      perform light-duty work should have put the administrative judge on notice that
      he intended to allege a violation of his restoration rights).
¶20          Therefore, we find that the appellant was entitled to receive explicit
      information on the burden and elements of proof required to establish jurisdiction
      over   a   restoration   appeal.    See   Burgess    v.   Merit   Systems   Protection
      Board, 758 F.2d 641 (Fed. Cir. 1985) (an appellant must receive explicit
      information on what is required to establish an appealable jurisdictional issue);
      Ballesteros v. U.S. Postal Service, 88 M.S.P.R. 428, ¶ 6 (2001).                  The
      administrative judge failed to provide the appellant with such notice, and the
                                                                               12

agency’s submissions below did not place the appellant on notice of what was
required to establish jurisdiction. See IAF, Tabs 2, 5-11. Accordingly, we find it
necessary to remand this appeal so that the administrative judge can apprise the
appellant of how to establish jurisdiction over her restoration claim and provide
her with an opportunity to file evidence and argument on this issue. See Colleran
v. U.S. Postal Service, 112 M.S.P.R. 650, ¶¶ 9-10 (2009) (remanding a restoration
claim where the administrative judge failed to provide the appellant with Burgess
notice).

                                    ORDER
      For the reasons discussed above, we AFFIRM the initial decision in part,
and REMAND the appellant’s restoration claim to the regional office for further
adjudication in accordance with this Remand Order.




FOR THE BOARD:                           ______________________________
                                         William D. Spencer
                                         Clerk of the Board
Washington, D.C.
