UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

AKI SINGAM,

Appellant,

v.

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES,

Agency.

DOCKET NUMBER

DC-0752-20-0382-I-4

DATE: May 21, 2024

THIS FINAL ORDER IS NONPRECEDENTIAL1

Kumar Singam, Bethesda, Maryland, for the appellant.

Christy Te, Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Chairman Harris and Vice Chairman Limon issue 

separate, concurring opinions.

FINAL ORDER

The appellant has filed a petition for review of the initial decision that

dismissed her constructive suspension appeal for lack of jurisdiction. Generally,

we grant petitions such as this only in the following circumstances: the initial

decision contains erroneous findings of material fact; the initial decision is based

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 A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
on an erroneous interpretation of statute or regulation or the erroneous application

of the law to the facts of the case; the administrative judge’s rulings during either

the course of the appeal or the initial decision were not consistent with required

procedures or involved an abuse of discretion, and the resulting error affected the

outcome of the case; or new and material evidence or legal argument is available

that, despite the petitioner’s due diligence, was not available when the record

closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.

§ 1201.115). After fully considering the filings in this appeal, we conclude that

the petitioner has not established any basis under section 1201.115 for granting

the petition for review. Therefore, we DENY the petition for review and

AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.

§ 1201.113(b).

NOTICE OF APPEAL RIGHTS2

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By

statute, the nature of your claims determines the time limit for seeking such

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).

Although we offer the following summary of available appeal rights, the Merit

Systems Protection Board does not provide legal advice on which option is most

appropriate for your situation and the rights described below do not represent a

statement of how courts will rule regarding which cases fall within their

jurisdiction. If you wish to seek review of this final decision, you should

immediately review the law applicable to your claims and carefully follow all

filing time limits and requirements. Failure to file within the applicable time

limit may result in the dismissal of your case by your chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

2

 Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

2
about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information. 

(1) Judicial review in general. As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A). 

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case. 

(2) Judicial or EEOC review of cases involving a claim of

discrimination. This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

3
judicial review of this decision—including a disposition of your discrimination

claims—by filing a civil action with an appropriate U.S. district court (not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on

race, color, religion, sex, national origin, or a disabling condition, you may be

entitled to representation by a court-appointed lawyer and to waiver of any

requirement of prepayment of fees, costs, or other security. See 42 U.S.C.

§ 2000e-5(f) and 29 U.S.C. § 794a. 

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision. 

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

P.O. Box 77960 

Washington, D.C. 20013 

4
If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

131 M Street, N.E. 

Suite 5SW12G 

Washington, D.C. 20507 

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012. This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in

section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)

(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either

with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of

competent jurisdiction.3 The court of appeals must receive your petition for

review within 60 days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(B). 

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

3

 The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expired on

December 27, 2017. The All Circuit Review Act, signed into law by the President on

July 7, 2018, permanently allows appellants to file petitions for judicial review of

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,

132 Stat. 1510. 

5
Additional information about the U.S. Court of Appeals for the Federal

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case. 

Contact information for the courts of appeals can be found at their

respective websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

 

 

FOR THE BOARD: ______________________________

Gina K. Grippando

Clerk of the Board

Washington, D.C.

6
CONCURRING OPINION OF CATHY A. HARRIS

in

Aki Singam v. Department of Health and Human Services

MSPB Docket No. DC-0752-20-0382-I-4

I agree with the administrative judge that the appellant has not established

that the agency constructively suspended her. Therefore, I concur in the result in

this case. Nevertheless, as discussed below, I disagree with the administrative

judge’s determination that the agency was within its rights to request additional

information from the appellant before making a decision on her accommodation

request.

The appellant is a G-12 Pharmacist with the agency. In July 2019, the

appellant submitted documentation to the agency from her physician, which stated

that she had functional restrictions that prohibited her from working in the

Intravenous Admixture Unit (IVAU) room between July 1, 2019, and July 15,

2019. Singam v. Department of Health and Human Services, MSPB Docket

No. DC-0752-20-0382-I-1, Initial Appeal File (IAF), Tab 1 at 26. As a result, the

agency reassigned the appellant to other work locations. On October 23, 2019,

the Pharmacy Supervisor directed the appellant to return to the full range of her

duties in the IVAU room effective October 25, 2019. Id. The supervisor

informed the appellant that, if she had a medical condition preventing her from

performing her duties, she may submit a reasonable accommodation request to the

agency’s Office of Equity, Diversity, and Inclusion (EDI). Id. 

On November 7, 2019, the appellant sent the EDI a fax containing the

subject line “Reasonable Accommodation Forms” in which she included a

narrative stating that, on an unspecified date, she fell in the IVAU room. Singam

v. Department of Health and Human Services, MSPB Docket No. DC-0752-20-

0382-I-4, Appeal File (I-4 AF), Tab 68 at 33-37. The appellant also included a
letter from a medical provider, which stated that the appellant’s impairment was

“recurrent falls” and “retinal detachment” and that the appellant was limited in

her ability to walk. Id. at 36-37. He suggested that the appellant “should avoid

working in the IV Room for the next 2 months.” Id. at 37.

The next day, the agency’s Occupational Medical Services (OMS)

completed a document entitled “OMS Medical Evaluation of Functional

Activities.” IAF, Tab 1 at 30. It stated that the appellant’s medical provider had

recommended that she not work in the IVAU room through January 30, 2020. Id.

EDI sent an email to the appellant requesting that she sign an “Authorization for

Disclosure form” authorizing the agency to speak with her medical provider. I-4

AF, Tab 68 at 38. The appellant refused to sign the form; instead, she repeatedly

stated that the document issued by OMS was “binding” and that she should be

permitted to work outside the IVAU room on that basis. 

On November 15, 2019, the appellant wrote to EDI that “[a]t no time did

[she] reach out to process a request to no longer work in the IV room,” and “there

is no need for you to process a request that I did not make.” Id. at 55. On

November 26, 2019, the appellant wrote that “there is no accessibility request

from me to be closed or withdrawn.” Id. at 74. EDI then ceased any attempts to

process a reasonable accommodation request. The appellant used sick leave,

annual leave, and leave without pay from October 16, 2019, through at least

December 20, 2019, and on numerous dates in January 2020. On several

occasions in December 2019 and January 2020, the appellant’s supervisor

instructed that she must report to her assigned work area with clearance from

OMS or take leave. 

On December 23, 2019, the appellant sent an email to EDI stating the

following: “[ ] I am requesting a temporary reasonable accommodation pursuant

to the OMS Blue Slip that was sent via Dr. [S] from the OMS for the period

11/06/19 through 01/01/20 to work outside the IV Room.” I-4 AF, Tab 14 at 91.

On December 30, 2019, EDI informed the appellant that it did not have sufficient

2
medical information to process a reasonable accommodation request and it asked

that she authorize the agency to speak with her medical provider. Id. at 93-94.

The appellant responded that she would not provide the authorization and again

asserted that the agency must comply with the form issued by OMS. Id. at 93.

On January 3, 2020, the agency explained that it needed further clarification on

the extent of the appellant’s limitations in the IVAU room and the nature and

duration of the limitations. 

On January 14, 2020, the appellant asserted that she was on campus and

“will be completing mandatory work/special projects as a temporary

accommodation while I await hearing from you as to how you will comply with

my legally complete reasonable accommodation request.” I-4 AF, Tab 68 at 103.

Her supervisor responded that she had not been assigned any special projects or

temporary accommodations and that she must report to her assigned location in

the IVAU room or take leave until cleared by OMS. Id. On January 23, 2020, the

appellant sent an email stating, “[p]er my assignment to projects in the official

schedule, I have been working and documenting the mismanagement of the IV

Room by you and the consequent waste of [F]ederal funds.” IAF, Tab 1 at 38-39.

On January 30, 2020, the appellant returned to work in the IVAU room. I-4 AF,

Tab 68 at 20. 

The appellant filed a Board appeal on February 15, 2020, alleging that the

agency subjected her to a constructive suspension between October 2019 and

January 2020. IAF, Tab 1. The administrative judge found that the appellant

made a nonfrivolous allegation of Board jurisdiction over a constructive

suspension claim with an affirmative defense of failure to accommodate and

scheduled a jurisdictional hearing. I-4 AF, Tab 23. Thereafter, the appellant

withdrew her hearing request, and the administrative judge issued an initial

decision on the written record finding that the appellant did not establish

jurisdiction over her constructive suspension claim by preponderant evidence. I-4

AF, Tab 74, Initial Decision (ID). In relevant part, the administrative judge

3
found that the medical evidence in the record is insufficient to find that working

in the IVAU room was against the appellant’s medical restrictions, which would

have deprived her of a meaningful choice. The appellant subsequently filed a

petition for review.

As an initial matter, I agree with the administrative judge that the

framework set forth in Bean v. U.S. Postal Service, 120 M.S.P.R. 397, ¶ 11

(2013) is applicable here. ID at 8. Like Bean, the instant case involves an

involuntary leave-type constructive suspension appeal because it concerns a claim

that leave that appeared to be voluntary actually was not. Thus, to establish

jurisdiction in her constructive suspension appeal, the appellant must show that:

(1) she lacked a meaningful choice regarding her absence; and (2) this was

because of the agency’s improper actions. See Bean, 120 M.S.P.R. 397, ¶ 11. 

Regarding the first prong under this test, the appellant established that she

lacked a meaningful choice in her absence. “[T]he Americans With Disabilities

Act, which applies to Federal employees pursuant to the Rehabilitation Act

Amendment of 1992, prohibits disability-related inquiries, including inquiries as

to the nature and severity of a disability, unless such inquiry is shown to be

job-related and consistent with business necessity.” Hartless v. U.S. Postal

Service, EEOC Appeal No. 0120101017, 2010 WL 2345516, *1 (June 4, 2010).

In response to a request for reasonable accommodation, an agency “cannot ask for

documentation in response to a request for reasonable accommodation . . . when:

(1) both the disability and the need for reasonable accommodation are obvious, or

(2) the individual has already provided the agency with sufficient information to

substantiate that s/he has . . . a disability [under the Rehabilitation Act] and needs

the reasonable accommodation requested.” See EEOC Enforcement Guidance:

Reasonable Accommodation and Undue Hardship Under the Americans with

Disabilities Act, Notice 915.002 (Oct. 17, 2002),

https://www.eeoc.gov/laws/guidance/enforcement-guidance-reasonableaccommodation-and-undue-hardship-under-ada (last visited May 21, 2024). An

4
agency may request “relevant supplemental medical information if the

information submitted by the requester is insufficient” for the purposes of

explaining “the nature of the individual’s disability, his or her need for

reasonable accommodation, and how the requested accommodation, if any, will

assist the individual to apply for a job, perform the essential functions of a job, or

enjoy the benefits and privileges of the workplace.” See 29 C.F.R. 1614.203(d)

(3). In addition, the Equal Employment Opportunity Commission has found that,

when there is a bona fide dispute regarding the application of an employee’s

restrictions to certain duties, an agency is permitted to obtain further medical

information to determine the need for reasonable accommodation. See Ross v.

Department of the Treasury, EEOC Appeal No. 01982708, 2001 WL 1103786, *8

(August 2, 2001). 

Here, as stated above, the medical documentation submitted by the

appellant stated that her impairment was “recurrent falls” and “retinal

detachment” and that she was limited in her ability to walk. The appellant’s

medical provider stated the appellant “should avoid working in the IV Room for

the next 2 months.” This medical information sufficiently explained the nature of

the appellant’s disability and the need for an accommodation under the

Rehabilitation Act. The record does not reflect that there was a bona fide dispute

as to whether the appellant could work in the IVAU room, and the appellant’s

medical documentation was sufficient to substantiate that she needed the

reasonable accommodation requested. 

However, the appellant has ultimately not established by preponderant

absence that it was the agency’s wrongful actions that deprived her of a

meaningful choice in the matter. The appellant sent confusing and conflicting

correspondence to the agency, and, most significantly, unequivocally instructed

the agency to stop processing a request for accommodations. She also refused to

meet with her supervisor to discuss her request. Thus, under these circumstances,

the appellant did not meet her burden of establishing by preponderant evidence

5
that the agency acted wrongfully in not processing her reasonable accommodation

request. I therefore concur with the Board’s determination that the appellant did

not establish by preponderant evidence that the agency constructively suspended

her.

/s/

Cathy A. Harris

Chairman

6
CONCURRING OPINION OF RAYMOND A. LIMON

in

Aki Singam v. Department of Health and Human Services

MSPB Docket No. DC-0752-20-0382-I-4

As both the administrative judge in the initial decision and the Chairman in

her Concurring Opinion state, to establish jurisdiction over this constructive

suspension appeal, the appellant must show that: (1) she lacked a meaningful

choice regarding her absence; and (2) this was because of the agency’s improper

actions. Bean v. U.S. Postal Service, 120 M.S.P.R. 397, ¶ 11 (2013). I believe

the record tends to support the administrative judge’s findings with respect to the

first prong of this test, but a detailed review is not necessary as I concur with the

Chairman’s and the administrative judge’s findings that the appellant has not met

her burden on the second prong of this test. 

/s/

Raymond A. Limon

Vice Chairman