                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     THERESA G. KRISTEK,                             DOCKET NUMBER
                   Appellant,                        SF-0752-15-0574-I-1

                  v.

     DEPARTMENT OF VETERANS                          DATE: March 10, 2016
       AFFAIRS,
                 Agency.



                  THIS ORDER IS NONPRECEDENTIAL 1

           Sam L. Maze, Highland, California, for the appellant.

           La’Chelle M. Woodert, Esquire, Loma Linda, California, 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
     dismissed her appeal for lack of jurisdiction. For the reasons discussed below, we
     GRANT the petition for review and REMAND the case to the regional office for
     further adjudication in accordance with this Order.


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶2         The appellant, a preference-eligible veteran, was granted disability
     retirement from the GS-4 position of File Clerk on the basis of post-traumatic
     stress disorder (PTSD), chronic migraines, fibromyalgia, and other conditions.
     Initial Appeal File (IAF), Tab 7, Subtabs 4G, 4U. She appealed, alleging that her
     retirement was involuntary and that the agency discriminated against her on the
     bases of disability and age, and retaliated against her for prior equal employment
     opportunity activity. 2   IAF, Tabs 1, 3.    The administrative judge gave the
     appellant notice of the test to prove jurisdiction over an allegedly involuntary
     disability retirement and notice of the general jurisdictional test to prove
     jurisdiction over an allegedly involuntary retirement. IAF, Tab 2.
¶3         Based on the submissions of the parties, the administrative judge found that
     the appellant failed to make a nonfrivolous allegation of jurisdiction under the
     test to prove that her disability retirement was involuntary. He found that, once
     the appellant and her physician identified the need for accommodation, the
     agency complied by scheduling the appellant to work between 6 a.m. and
     2:30 p.m., and moving the appellant to an area of the office where she could have
     a cubicle with a door to reduce excessive contact with others, as recommended by
     her physician. IAF, Tab 10, Initial Decision (ID) at 11. He also found that the
     appellant failed to make a nonfrivolous allegation that the agency unjustifiably
     failed to afford the appellant her preferred accommodation of removing her
     supervisor from his office and then transferring her into that office, which was an
     accommodation beyond that recommended by her physician. ID at 12.



     2
       The appellant filed an equal employment opportunity complaint on December 18,
     2013, that included her claim that the agency coerced her disability retirement. The
     complaint was accepted as a claim of hostile work environment. IAF, Tab 7, Subtab 3.
     The agency completed the investigative report on April 28, 2014. Id. The record
     does not show that the agency has issued a final decision on the appellant’s equal
     employment opportunity complaint.
                                                                                           3

¶4         The administrative judge also found that, even if the Office of Personnel
     Management had not granted the appellant’s application for disability retirement,
     the appellant failed to make a nonfrivolous allegation of jurisdiction under the
     general test for involuntary retirement. He found that the appellant failed to make
     a nonfrivolous allegation that the agency misled her, deceived her, or created
     intolerable working conditions that forced her to retire.          He found that the
     appellant failed to show that the agency’s notice of proposed removal based on
     absence without leave (AWOL) could not be substantiated. ID at 13. He also
     found that the appellant had once cancelled her request for disability retirement,
     and she failed to show that the agency coerced her rescission of the cancellation
     because she was well aware that she could cancel the rescission. ID at 13.
¶5         Finally, the administrative judge found that, to the extent that the appellant
     alleged unlawful discrimination and retaliation in this appeal, because she has not
     raised an otherwise appealable action, the Board has no jurisdiction to address
     these allegations. ID at 14.
¶6         In her petition for review, 3 the appellant alleges that the administrative
     judge erred in finding that the agency had accommodated her disability, and
     failed to consider that the agency had accommodated the appellant for 12 years,
     but withdrew that accommodation.          Petition for Review File, Tab 1. 4        The

     3
       Attached to the appellant’s petition for review is a copy of the response to the
     acknowledgment order that she submitted into the record below. Evidence that is
     already part of the record is not new, and the Board will not consider the submission on
     that basis. See Meier v. Department of the Interior, 3 M.S.P.R. 247, 256 (1980). The
     Board will consider this evidence as part of its review of the record on petition
     for review.
     4
       The appellant asserts that the administrative judge was biased because the appellant’s
     representative had asked the administrative judge to recuse himself in a prior case. In
     making a claim of bias or prejudice against an administrative judge, a party must
     overcome the presumption of honesty and integrity that accompanies administrative
     adjudicators. Oliver v. Department of Transportation, 1 M.S.P.R. 382, 386 (1980). An
     administrative judge’s conduct during the course of a Board proceeding warrants a new
     adjudication only if the administrative judge’s comments or actions evidence “a
     deep-seated favoritism or antagonism that would make fair judgment impossible.”
                                                                                           4

     appellant’s assertion that the administrative judge failed to consider the agency’s
     prior accommodation of the appellant’s disability is correct, and, as explained
     below, his failure is error that necessitates remand of the appeal.
¶7         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 chapter 75. Garcia v. Department
     of Homeland Security, 437 F.3d 1322, 1328 (Fed. Cir. 2006) (en banc). If an
     appellant makes nonfrivolous allegations of jurisdiction, i.e., allegations that, if
     proven, would establish the Board’s jurisdiction, she is entitled to a hearing at
     which she must prove jurisdiction by a preponderance of the evidence.                Id.
     at 1344; Goodwin v. Department of Transportation, 106 M.S.P.R. 520, ¶ 12
     (2007). In determining whether the appellant has made a nonfrivolous allegation,
     the Board may consider the agency’s documentary submissions; however, to the
     extent that the agency’s evidence constitutes mere factual contradiction of the
     appellant’s otherwise adequate prima facie showing of jurisdiction, the
     administrative judge may not weigh evidence and resolve conflicting assertions of
     the parties, and the agency’s evidence may not be dispositive. Ferdon v. U.S.
     Postal Service, 60 M.S.P.R. 325, 329 (1994).
¶8         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).


     Bieber v. Department of the Army, 287 F.3d 1358, 1362–63 (Fed. Cir. 2002) (quoting
     Liteky v. United States, 510 U.S. 540, 555 (1994)). We find that the appellant’s
     allegations of bias do not meet this standard. The appellant has identified no statement
     or action by the administrative judge to suggest that he was biased against the
     appellant’s representative because of the representative’s actions during another case
     before the administrative judge.
                                                                                             5

     However, the Board has recognized that involuntary disability retirement cases
     are somewhat different from ordinary involuntary retirement appeals. In most
     cases, an appellant who alleges that her disability retirement was involuntary
     must show: (1) she indicated to the agency that she wished to continue working,
     but that her medical limitations required a modification of her work conditions or
     duties, 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. Id., ¶ 15. 5
¶9         Contrary to the initial decision, we find the appellant has made nonfrivolous
     allegations under the SanSoucie test sufficient to entitle her to a hearing on the
     question of whether her disability retirement was voluntary.              The appellant
     alleged that the agency had accommodated her disability for 12 years by allowing
     her to work in a quiet area, “away from other staff, as requested by her medical
     provider.” IAF, Tab 3 at 10. That the appellant was afforded the accommodation
     that she references is corroborated by her third-line supervisor during the
     investigation into the appellant’s equal employment opportunity complaint when
     he stated that “previous reasonable accommodation was provided. . . . A cubicle
     in the very back part of the building, in a very quiet section of the file room.”
     IAF, Tab 7, Subtab 4E at 4. The third-level supervisor stated that the appellant
     “accepted that cubicle with no problem.” Id. It appears that this accommodation
     was afforded the appellant in 2001 pursuant to a statement from her physician


     5
       In unusual cases, the Board has applied the general jurisdictional tests for involuntary
     retirement in the disability retirement context. See, e.g., Vaughan v. Department of
     Agriculture, 116 M.S.P.R. 493, ¶¶ 13–14 (2011) (finding that the appellant
     nonfrivolously alleged that he was coerced into retirement because the agency’s
     conduct in creating a discriminatory, hostile work environment caused him to be
     disabled). This exception is not relevant here. There is no evidence that the agency
     caused the disabilities that led to the appellant’s disability retirement.
                                                                                       6

      that “high levels of direct contact with people has brought the crowding, noise,
      and other factors that currently are detrimental [to the appellant].” IAF, Tab 4,
      Subtab B.    The accommodation afforded the appellant in 2001 was consistent
      with the work restriction request from her mental health providers in 2013 that, as
      an accommodation to her chronic PTSD, she work “by herself with objects and
      data and with minimal contacts with people.” Id., Subtab C. In fact, the 2013
      request for accommodation by the appellant’s health care providers references the
      language in the 2001 request for accommodation and repeats some of it verbatim.
      Id., Subtab F.
¶10         For unexplained reasons, in April 2013, the appellant’s third-line supervisor
      stopped the accommodation that had been effective for the appellant for 12 years,
      and the appellant filed a formal request for disability accommodation.        IAF,
      Tab 4, Subtab D. The agency approved the 2013 accommodation request. Id. As
      the administrative judge found, the agency attempted to comply with the request
      for accommodation by scheduling the appellant to work between 6 a.m. and
      2:30 p.m., and moving the appellant to an area of the office where she could have
      a cubicle with a door to reduce excessive contact with others. However, this
      accommodation proved ineffective as reflected in the appellant’s treating
      physicians’ off-work orders that covered the period from October 15, 2013,
      through August 11, 2014. IAF, Tab 7, Subtabs 4D, 4I, 4K-4L, 4N-4Q, 4S.
¶11         In April 2014, the appellant applied for disability retirement.          Id.,
      Subtab 4I.   However, on June 25, 2014, she rescinded her application.         Id.,
      Subtab 4R. The agency was aware that the appellant cancelled her application, as
      proven by the fact that, upon her cancellation, the agency changed her leave
      status from leave without pay (LWOP) to AWOL. 6 IAF, Tab 4, Subtab K. In her


      6
        During the period of time from August 2013, when the appellant claimed that the
      agency’s attempted accommodation was ineffective, to April 2014, when she applied
      for disability retirement, the appellant was absent from work on approved and
      donated leave.
                                                                                          7

      rescission letter, the appellant stated that she did not want to retire and that her
      facility was discriminating against        her by not      providing a    reasonable
      accommodation for her disability. IAF, Tab 7, Subtab 4R. Further, the medical
      evidence in the record indicates that the appellant was capable of working full
      time if the agency provided the accommodation that had been previously
      provided. IAF, Tab 4, Subtabs F, H. We find that, under these circumstances, the
      appellant made a nonfrivolous allegation that if proven would satisfy the first
      prong of the test to establish that a disability retirement is involuntary, i.e., that
      she indicated to the agency that she wished to continue working, but that her
      medical limitations required a modification of her work conditions or duties, i.e.,
      accommodation. See SanSoucie, 116 M.S.P.R. 149, ¶ 15.
¶12         Further, as noted, there had been an effective accommodation for the
      appellant for 12 years, and the agency failed to explain why that accommodation
      was unavailable.       There appears therefore to have been a reasonable
      accommodation available during the period between the date on which the
      appellant reiterated 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.        Thus, we find that the appellant made a
      nonfrivolous allegation that satisfied the second prong of the test to prove that her
      disability retirement was involuntary. Id.
¶13         As the agency has offered no explanation for ending the accommodation
      that had been successful for the appellant for 12 years, we find that the appellant
      nonfrivolously alleged that the agency unjustifiably failed to offer that
      accommodation.     See De John v. U.S. Postal Service, EEOC DOC 07A20030,
      2004 WL 1084818, at *5 (May 10, 2004) (holding that the agency committed
      disability discrimination when it withdrew the reasonable accommodation that
      allowed the appellant to perform the essential functions of his position). Thus,
      the appellant made a nonfrivolous allegation that satisfied the third prong of the
      test for involuntary retirement. See SanSoucie, 116 M.S.P.R. 149, ¶ 15. Because
                                                                                      8

the appellant’s allegations, taken as true, could support a finding that her
disability retirement was involuntary, she is entitled to a jurisdictional hearing. 7
Cf. Atkins v. Department of Commerce, 81 M.S.P.R. 246, ¶¶ 9–11 (1999)
(remanding the appeal to give the appellant an additional opportunity to establish
that his disability retirement was involuntary based on allegations that he applied
for retirement, not because he wanted to retire, but to force the agency to reassign
him to a less stressful and physically-demanding position that would not
aggravate his underlying condition).




7
  The record shows that, in April 2014 when the appellant applied for disability
retirement, she had exhausted her leave, and the agency carried her in LWOP status
while her application was pending. However, when the appellant withdrew her
application, the agency placed the appellant in AWOL status, notwithstanding that her
physicians had certified that she was incapacitated for duty during that period of time,
IAF, Tab 4, Subtab H, and proposed her removal on that basis, id., Subtab K. As noted,
the administrative judge found that the appellant failed to make a nonfrivolous
allegation of jurisdiction under the general test for involuntary retirement, finding in
part that the appellant failed to show that the agency’s notice of proposed removal
based on AWOL could not be substantiated. ID at 13. We do not reach the issue of
whether the appellant made a nonfrivolous allegation of involuntary retirement under
the general test, and thus do not make any determination whether the agency’s placing
the appellant in AWOL status after she rescinded her application for disability
retirement could be substantiated. See Wesley v. U.S. Postal Service, 94 M.S.P.R. 277,
¶ 18 (2003) (“A charge of AWOL will not be sustained if the appellant presents
evidence to the Board showing that he was incapacitated for duty during the relevant
time period.”); Murray v. Department of the Navy, 41 M.S.P.R. 260, 263 (1989)
(discussing that, in cases involving medical excuses, the Board will examine the record
as a whole to determine whether the agency’s denial of LWOP was reasonable under
the circumstances).
                                                                                    9

                                          ORDER
¶14        For the reasons discussed above, we remand this case 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.
