MSPB Remands Disability Retirment Appeal

In Jackson v. OPM, 2012 MSPB 49 (April 6,2012), the Board remanded the Appellant’s petition for review of a decision affirming OPM’s reconsideration decision denying his application for disability retirement.

In early 2010 Mr. Jackson stopped going to work due to his medical conditions and in June 2010, he applied for disability retirement under the Federal Employees’ Retirement System (FERS). OPM denied Mr. Jackson’s application on the basis that he had failed to provide sufficient diagnostic and treatment evidence pertaining to these conditions or that his absence from the workplace was medically warranted. Mr. Jackson appealed OPM’s decision and the Administrative Judge issued a decision affirming OPM’s reconsideration decision.

The Administrative Judge stated that the “general rule” in disability retirement cases is that the medical evidence must show how the employee’s conditions affect his ability to perform specific job duties and requirements. While the Administrative Judge did find that one of Mr. Jackson’s treatment providers explained how his conditions affected his work requirements, the Administrative Judge found that the medical evidence did not unambiguously and without contradiction indicate that Mr. Jackson could not perform the particular duties of his position. The Board found that because the Administrative Judge did not have the benefit of the recent decision in Henderson v. OPM, 117 MSPR 313 (2012), the case should be remanded for further adjudication. In Henderson, the Board overruled cases that have provided an exception to the general rule, allowing the Board to connect the medical evidence to the job duties where such evidence unambiguously and without contradiction indicates that the appellant cannot perform the duties or meet the requirements of his position. In Henderson, the Board found specifically that to require medical evidence that is unambiguous and without contradiction would impose a higher burden of proof than the “preponderance of the evidence standard required. 5 CFR § 1201.56(a), (c)(2). The Board held that the ultimate question is whether the appellant’s medical impairments preclude him from rendering useful and efficient service in his position, and that this question must be answered in the affirmative if the totality of the evidence makes the conclusion more likely to be true than not.

For federal employees who apply for disability retirement, and indeed for OPM, this case stands as a reminder that the medical evidence provided need only meet the preponderance of the evidence standard. However, applicants for disability retirement are still best advised to gather the most thorough medical evidence possible as doing so makes the likelihood of being granted disability retirement higher, and may reduce the need to litigate their claims.

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 Lynette A. Whitfield, please call 301.869.8774, or click here to make your request for a consultation via my webpage.

MSPB Affirms Administrative Judge's Determination that Agency Failed to Prove Appellant's Performance Was Unacceptable

In a recent decision, Muff v. Dept. of Commerce, MSPB Docket No. DC-0432-11-0095-I-1, the Merit Systems Protection Board (MSPB) found that the agency failed to prove by substantial evidence that the appellant’s performance was unacceptable. The appellant was a GS-4 field representative for the Department of Commerce who was removed under 5 USC § 4303 (Chapter 43) for failure to perform in a critical element of her position. The appellant had successfully completed a Performance Improvement Plan (PIP) for a critical element from July to October of 2009. The agency later based its decision to remove the Appellant upon her performance of that same critical element in May 2010.

The appellant appealed her removal to the MSPB where the Administrative Judge found that while the agency did establish that the appellant’s performance of the critical element was unacceptable for May 2010, the appellant’s performance for only one month was an insufficient basis upon which to remove the appellant under Chapter 43. The Administrative Judge also found overwhelming evidence in the record showed that the appellant’s cumulative performance for the year prior to her removal was at the acceptable level.

Under Chapter 43, an agency may remove an employee for unacceptable performance after a successful completion of a PIP if the instances of unacceptable performance are in the same critical element(s) as those involved in the PIP and the agency’s reliance for its action is limited to those instances of performance that occur within 1 year of the advance notice of the PIP. In Brown v. Veterans Administration, 44 MSPR 635, (1990), the MSPB held that if the Administrative Judge determines that the appellant performance the critical element acceptably during the PIP, s/he should then determine whether the appellant continued to acceptably perform. If the Administrative Judge finds that the appellant had performance failures, s/he is then to determine whether those failures, in light of the appellant’s performance during the year prior to the notice of proposed removal, amounted to unacceptable performance. Id., at 644. The Board reiterated its previous statement in Sullivan v. Dept. of the Navy, 44 MSPR 646, 656 (1990), that rather than imposing a blanket rule, the MSPB will have to determine on a case-by-case basis whether an agency’s evidence of post-PIP performance constitutes substantial evidence of truly unacceptable performance.

For federal employees who have successfully completed a PIP, this decision provides a good reminder that subsequent poor performance can be considered by the agency in a later decision to remove the employee. However, this decision also provides guidance to agencies regarding the very careful consideration necessary when proposing the termination of a federal employee under Chapter 43.

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.

EEOC Finds OPM Not Required to Reasonably Accommodate Applicant After Vacancy Announcement Closing Date

In Toland v. Office of Personnel Management, Appeal No. 0120081214 (June 9, 2011), the U.S. Equal Employment Opportunity Commission, Office of Federal Operations, held that an Agency is not required to reasonably accommodate an applicant when the applicant requests a reasonable accommodation after the vacancy announcement closing date.

The Appellant was an applicant for an administrative law judge position with the U.S. Office of Personnel Management. The vacancy announcement, posted on USAJOBS, closed on May 9, 2007. On May 10, 2007, the Appellant emailed the Agency stating that she was a "Schedule A handicapped applicant" and requesting a reasonable accommodation. On June 1, 2007, the Appellant received a response advising her that the vacancy announcement had closed prior to her request for reasonable accommodation and that any such request had to be made while the announcement was open. The Appellant then filed a complaint that the Agency had discriminated against her on the basis of her disability when it denied her request for reasonable accommodation in the application process.

The Rehabilitation Act of 1973 prohibits discrimination against qualified individuals with disabilities. Under the EEOC's regulations, an agency is required to make reasonable accommodation to the known physical and mental limitations of qualified individuals with a disability unless the Agency can show that accommodation would impose an undue hardship. For applicants for employment, the Commission's policy states that an employer must provide a reasonable accommodation to a qualified individual with a disability that will enable that individual to equally participate in the application process.

In the Toland case, the announcement provided instructions for requesting a reasonable accommodation while the announcement was open. The Commission held that the application process and the Agency's obligation to accommodate the applicant during that process, terminated on May 9, 2007, the date the announcement was closed.

For qualified individuals who are applying to federal sector employment, this decision presents a good reminder to carefully examine the language in the vacancy announcement regarding requesting a reasonable accommodation.

Ms. Whitfield represents federal sector employees nationwide. 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 this information 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 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.

EEOC Releases Annual Report on the Federal Work Force

The U.S. Equal Employment Opportunity Commission (EEOC) has released Part 1 of its Annual Report on the Federal Work Force. One interesting statistic contained in this report is the top 3 bases in complaint allegations. According to this report, in the 17,583 complaints filed in FY 2010, the top alleged basis was reprisal/retaliation.


Current Federal sector employees and those seeking employment with the Federal Government will find the government-wide profile, and the individual profiles for selected Federal Agencies interesting.


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.

No Fear: A Whistleblower's Triumph Over Corruption and Retaliation at the EPA

I don't usually recommend books to my clients but for this I will make an exception. Written by Dr. Marsha Coleman-Adebayo, the founder of the No FEAR coalition. Under Dr. Coleman-Adebayo's leadership, the No Fear Coalition organized a grass-roots campaign that resulted in the passage of the Notification of Federal Employees Anti-discrimination and Retaliation Act of 2002 (No FEAR Act) - the first Civil Rights Law of the 21st Century.

This book recounts Dr. Coleman-Adebayo's experience as a whistleblower working for the U.S. Environmental Protection Agency (EPA). This book can be pre-ordered on Amazon.com or Barnes & Noble.