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.

If you would like to discuss your employment issue, please contact Ms. Whitfield for a consultation at 301.869.8774, or via the online consultation form.

This blog is not intended to provide legal advice or representation, but rather to provide very general information regarding a variety of subject areas. the viewing of the information contained in this blog does not create or establish an attorney-client relationship. Further, this information should not be relied upon without first consulting with an attorney regarding your specific situation.

MSPB Reverses Removal of Federal Employee for off-duty criminal misconduct

On June 17, 2011, the U.S. Merit Systems Protection Board (MSPB) issued a decision reversing the removal of Kevin Gray for off-duty criminal misconduct, finding that the Agency violated Mr. Gray's constitutional right to due process of law. Gray v. U.S. Dept. of Defense, 2011 MSPB 64.

Mr. Gray, an Internal Review Auditor with the Defense Finance and Accounting Service, was indicted and later convicted of two felony counts of receiving stolen property arising out of his alleged participation in a mortgage fraud scheme. The Agency proposed to remove Mr. Gray based upon his felony convictions. The deciding official issued a decision sustaining the charge and finding that a nexus existed between Mr. Gray's off-duty criminal conduct and his ability to perform his duties, and that the penalty of removal was appropriate.

Mr. Gray filed an appeal of the Agency's decision to terminate his employment on the basis that, among other things, the deciding official considered information concerning his eligibility as a convicted felon to hold a sensitive position, without first providing advanced notice of this matter. The Administrative Judge upheld Mr. Gray's removal and Mr. Gray appealed the Administrative Judge's decision to the Board.

Federal employees have a constitutional right to a minimum due process of law, which requires prior notice of the charges against him, an explanation of the Agency's evidence againt him, and an opportunity to respond. Cleveland Bd. of Education v. Loudermill, 470 U.S. 532, 546 (1985). If an employee is not provided with this minimum due process, the adverse action will be reversed.

The Board held that the Agency neither revoked Mr. Gray's eligibility to occupy a sensitive position nor removed him for ineligibility to hold a sensitive position. Further, the Board held that while the Agency considered information regarding Mr. Gray's ability to hold a sensitive position, the Agency failed to include this information in the proposal notice and as such violated Mr. Gray's due process guarantee to notice.

For Federal employees this decision reaffirms the constitutional right of all Federal employees to notice and an opportunity to respond to the charges against them.

If you would like to discuss your employment issue, please contact Ms. Whitfield for a consultation at 301.869.8774, or via the online consultation form.

This blog is not intended to provide legal advice or representation, but rather to provide very general information regarding a variety of subject areas. The viewing of the information contained in this blog does not create or establish an attorney-client relationship. Further, this information should not be relied upon without first consulting with an attorney regarding your specific situation.

MSPB Reverses Removal of Federal Employee

In September 2006, the Department of Homeland Security proposed Gilberto M. Rodriguez’s removal from his position as a senior criminal investigator for Immigration and Customs Enforcement on the charge that Mr. Rodriguez had falsified official government documents and made false statements. After a hearing at the Merit Systems Protection Board, the Administrative Judge sustained the Agency’s charges. Mr. Rodriguez requested reconsideration and on April 10, 2008, the Board found that the Agency did not prove its charges and did not sustain Mr. Rodriguez’s removal.

The Agency’s first charge alleged that while processing an undocumented alien in the Agency’s custody, Mr. Rodriguez falsified agency form I-213 by indicating a specific Assistant United States Attorney (AUSA) had declined the alien’s prosecution. Mr. Rodriguez testified that he used the duty roster to determine which AUSA he had spoken to about the prosecution of the alien. The Agency did not find Mr. Rodriguez’s response to the charges to be credible, and inferred that this lack of credibility coupled with the incorrect information, constituted circumstantial evidence that Mr. Rodriguez had knowingly supplied incorrect information.

A falsification charge contains an element of intent which must be proven by preponderance of the evidence and in consideration of the totality of the circumstances involved. To sustain a falsification charge, an agency must prove that the employee knowingly supplied incorrect information with the intent of defrauding the agency. Thus, establishing that the employee supplied incorrect information is not, by itself, enough to sustain the falsification charge.

Charges such as “improper conduct” or “failure to obey orders,” do not contain a specific intent element and the Board’s decision indicated that Mr. Rodriguez’s actions might support a charge for this type of conduct. However, the Board is unable to substitute the charge that it deems more appropriate, but is instead limited to a review of the Agency’s decision and the charges put forth by the Agency. Therefore, the Board held that the Agency had not proven the “intent” element of the charge and therefore the falsification charge could not be sustained. The Agency was ordered to cancel the removal action and to retroactively restore Mr. Rodriguez’s employment.

Federal employees who are subjected to an adverse action based upon a charge that requires intent should be aware that the agency bringing these charges against the employee will need to establish that the employee actions were intentional, not simply negligent or unintentional.

Case discussed: Rodriguez v. Dept. of Homeland Security, Docket No. DA-0752-07-0177-I-1, 2008 MSPB 85 (April 10, 2008).

If you would like to discuss your federal employment issue, please contact Ms. Whitfield for a consultation at 301.869.8774, or via the online consultation form.

This blog is not intended to provide legal advice or representation, but rather to provide very general information regarding a variety of subject areas. The viewing of the information contained on this blog does not create or establish an attorney-client relationship. Further, this information should not be relied upon without first consulting with an attorney regarding your specific situation.

MSPB Waives Deadline for Mentally Incompetent Employee’s Disability Retirement Application

In a recent decision, Creasy v. Office of Personnel Management, MSPB Docket No. DC-831-07-0074-I-1 (September 21, 2007), the Merit Systems Protection Board (MSPB) found that Mr. Creasy was mentally incompetent and therefore waived the deadline for filing and remanded the case to the Office of Personnel Management (OPM).

Mr. Creasy was a Crane Operator Supervisor with the Department of the Navy who resigned in January 2002. In October 2004, Mr. Creasy was admitted to a hospital after an episode of strange behavior, and in April 2005, was readmitted when he stopped taking medication and began to show signs of paranoia, lethargy, auditory hallucinations and erratic behavior. In August 2005, Mr. Creasy, with the assistance of his sister, filed an application for disability retirement benefits under the Civil Service Retirement System (CSRS), citing medical, as well as mental health problems. Mr. Creasy’s application was denied on the grounds that he did not apply within a year of his separation from service.

Federal employees who wish to apply for disability retirement must do so within one year after the date of the employee’s separation from federal service. The deadline for applying for disability retirement is waived only if the employee was mentally incompetent to file within the time frame for filing.

In French v. Office of Personnel Management, 810 F2d 1118 (Fed. Cir. 1987), the MSPB explained to meet the standard for mental incompetence an employee must show that s/he was unable to handle her/his personal affairs because of mental disease or injury. While it is not necessary that the employee is committed to a mental institution to meet the mental incompetence standard, this standard is still not easily met. To determine whether an employee met the standard for mental incompetence, the Board requires the submission of medical evidence to support the employee's assertion that s/he is mentally incompetent.

In support of his case, Mr. Creasy presented not only medical evidence of his mental health condition, but also statements by family members and friends who had witnessed his mental and physical decline. The Board found that the Administrative Judge (AJ) had not give sufficient weight to the testimony of Mr. Creasy’s doctor, and discounted the doctor’s conclusions based upon the AJ’s own reading of the DSM-IV-TR. The Board determined that the AJ, not being a medical doctor, could not override the doctor’s professional conclusion with her own interpretation of the DSM-IV-TR. The Board remanded Mr. Creasy’s case to OPM for a determination on the merits of Mr. Creasy’s application for disability retirement.

For Federal employees who are interested in more information regarding disability retirement, the Office of Personnel Management is a very good place to start. Employees who are qualified under CSRS can find information on this website, and employees who are qualified under FERS can find information on this website. The regulations regarding the application deadline for disability retirement can be found at 5 U.S.C. 8337(b) for employees under the Civil Service Retirement System (CSRS) and 5 U.S.C. 8453 for employees under the Federal Employees’ Retirement System (FERS). To schedule a consultation to discuss disability retirement issues, please contact Ms. Whitfield at 301-869-8774, or use the online consultation request.

This blog is not intended to provide legal advice or representation, but rather to provide very general information regarding a variety of subject areas. The viewing of the information contained on this blog does not create or establish an attorney-client relationship. Further, this information should not be relied upon without first consulting with an attorney regarding your specific situation. To arrange a consultation with the Law Offices of Lynette A. Whitfield, LLC, please call 301.869.8774, or click here to make your request for a consultation via my webpage.