MSPB Modifies Legal Standard Governing Involuntary Disability Retirement

In Vaughn v. Dept. of Agriculture, 2011 MSPB 61 (June 13, 2011), the U.S. Merit Systems Protection Board modified the standard governing involuntary disability retirement. Danny Vaughn originally filed an appeal alleging that the Agency had discriminated against him on the basis of disability and in retaliation for prior EEO activity, creating a hostile work environment that resulted in the deterioration of his medical condition and resulting in his involuntary disability retirement.

Because retirements are presumed to be voluntary, an appellant with a claim of involuntary retirement has the burden of proving that the retirement was not voluntary. In general involuntary retirement claims, an appellant can overcome the presumption of voluntariness by showing that the retirement resulted from misinformation or deception by the agency or was the product of coercion by the agency. The MSPB has taken a "totality of the circumstances," approach to these cases in determining whether factors operated on the employee's decision-making process that effectively deprived the employee of freedom of choice. The Board has also found retirement to be involuntary using the principles of constructive discharge, where the agency engaged in a course of action that made working conditions so difficult or unpleasant that a reasonable person would have felt compelled to retire.

The MSPB's standard for determining whether a disability retirement is involuntary is different than the general standard used to determine whether a non-disability retirement is involuntary. Under the MSPB's standard for establishing involuntary disability retirement claims, the appellant needs to establish that an accommodation was available prior to the date of separation, that the accommodation would have enabled the appellant to continue working, that the appellant communicated a desire to continue working, but that his medical limitations required a modification of the appellant's work conditions and the Agency failed to provide that accommodation.

In unusual cases, the Board has applied the general standard for establishing involuntary (non-disability) retirements to assess the voluntariness of a disability retirement. One example is the Hosford v. Office of Personnel Management case where the Board found the appellant's disability retirement was involuntary on the basis of misinformation given to the appellant.

In the instant case, the Board carved out yet another exception to the standard for establishing involuntary disability retirement claims. In this case, Mr. Vaughn alleged that the Agency created a discriminatory, hostile work environment, which not only led to intolerable working conditions but also exacerbated his medical conditions causing him to become disabled. It was under these limited circumstances that the Board held that the appellant was entitled to use the general principles for finding a constructive discharge to establish that his disability retirement was involuntary.

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