NOTE: This disposition is nonprecedential. 

United States Court of Appeals 

for the Federal Circuit 

__________________________ 

DARLENE M. CROAL-MANUEL, 

Petitioner, 

v. 

MERIT SYSTEMS PROTECTION BOARD, 

Respondent. 

__________________________ 

2012-3070 

__________________________ 

Petition for review of the Merit Systems Protection 

Board in case no. AT0752110612-I-1. 

___________________________ 

Decided: July 12, 2012 

___________________________ 

DARLENE M. CROAL-MANUEL, of Pineville, Louisiana, 

pro se. 

MICHAEL A. CARNEY, General Attorney, Office of the 

General Counsel, Merit Systems Protection Board, of 

Washington, DC, for respondent. With him on the brief 

were JAMES M. EISENMANN, General Counsel and KEISHA 

DAWN BELL, Deputy General Counsel. 

__________________________ 
CROAL-MANUEL v. MSPB 2

Before RADER, Chief Judge, O’MALLEY, and REYNA, Circuit Judges. 

PER CURIAM. 

Darlene M. Croal-Manuel petitions for review of the 

final decision of the Merit Systems Protection Board (the 

“Board”) affirming the Administrative Judge’s (“AJ”) 

decision dismissing Ms. Croal-Manuel’s appeal alleging 

involuntary retirement for lack of jurisdiction. CroalManuel v. Dep’t of Transp., 117 M.S.P.R. 107 (2011) 

(“Final Order”); Croal-Manuel v. Dep’t of Transp., 2011 

MSPB LEXIS 3881 (June 20, 2011) (“Initial Decision”). 

For the reasons explained below, we affirm. 

BACKGROUND

Ms. Croal-Manuel began employment with the Federal Highway Administration’s (“FHWA”) Atlanta Administrative Services Team as a Human Resources Assistant 

on June 16, 2002. On August 30, 2005, she was placed on 

administrative leave pending a medical evaluation relating to erratic behavior she exhibited in her workplace four 

days earlier. The behavior included verbal and physical 

outbursts that resulted in emergency services being called 

to render assistance. Ms. Croal-Manuel refused medical 

treatment from the emergency personnel that responded 

but was later driven to, and left in the care of, a family 

member by two co-workers. In a letter to the FHWA 

dated September 19, 2005, Ms. Croal-Manuel’s treating 

physician, Dr. David Bedell, discussed the medical 

evaluation of Ms. Croal-Manuel requested by the FHWA 

and informed it of his diagnosis of generalized anxiety 

disorder. Dr. Bedell indicated that it was highly probable 

that Ms. Croal-Manuel would make a full recovery and be 

capable of returning to work on October 3, 2005. He also 

noted that he “brought up the possibility of a transfer” for 

Ms. Croal-Manuel during a conversation with the FHWA 
3 CROAL-MANUEL v. MSPB

and that he believed a transfer might “help her re-entry 

and accommodation to work if that can be done.” 

As a result of the evaluation, Ms. Croal-Manuel was 

directed to return to work on October 3, 2005. FHWA 

documentation indicates that accommodation efforts were 

made upon Ms. Croal-Manuel’s return, including reassignment of critical projects to other staff members, 

reduction in workload, and allowance for liberal leave. 

On October 31, 2005, Ms. Croal-Manuel failed to show up 

for work on time and, after being contacted by her supervisor, informed her supervisor that she was considering 

an application for disability retirement. The following 

day, Dr. Bedell signed a statement that Ms. Croal-Manuel 

would be unable to return to work “for an indefinite 

period of time.” On or about November 3, 2005, the 

petitioner filed an application for disability retirement. 

In that application, Ms. Croal-Manuel described her 

condition as “jerking, nervous, shaking, not aware of 

surroundings at times, memory comes and go [sic], memory of date and time, crying intervals.” She indicated that 

these problems would interfere with her performance, 

attendance and conduct, making her “unable to maintain 

daily working activities.” Ms. Croal-Manuel also stated 

that her “[m]edical physician requested transfer out from 

the agency.” In connection with the petitioner’s disability 

retirement application, the FHWA certified, via a checked 

box, that “Reassignment is not possible. There are no 

vacant positions at this agency, at the same grade or pay 

level and tenure within the same commuting area, for 

which the employee meets minimum qualification standards.” 

On November 21, 2005, Ms. Croal-Manuel submitted 

an evaluation from Dr. Bedell in support of her application for disability retirement. The evaluation noted a 

history of depression and “escalating paranoia” dating 
CROAL-MANUEL v. MSPB 4

back to 2000, and stated, in the opinion of Dr. Bedell, that 

“she has not had a full recovery from Delusional Disorder 

for well over a year and has had a severe relapse . . . [i]t is 

not likely that she will recover within another year or 

even longer.” According to Dr. Bedell, Ms. Croal-Manuel’s 

condition may result in her becoming “static.” The Office 

of Personnel Management (OPM) notified Ms. CroalManuel on December 16, 2005, that it had approved her 

disability retirement application and her retirement 

became effective on January 6, 2006. 

On April 23, 2011, Ms. Croal-Manuel appealed her 

disability retirement to the Board alleging that her retirement in 2006 was involuntary and that she was the 

target of harassment. The AJ issued an Order to Show 

Cause on May 18, 2011, explaining that Ms. CroalManuel bears the burden of establishing timeliness of her 

filing and the Board’s jurisdiction over her appeal. In the 

order, the AJ directed Ms. Croal-Manuel to answer a 

series of questions designed to assist the Board in determining jurisdiction. Ms. Croal-Manuel responded on May 

31, 2011, stating that she has no limitations in performing her duties and that Dr. Bedell requested the accommodation of a “better working environment.” She also 

stated that no accommodation was provided, but acknowledged that there were no positions available at any time 

that she believed would have accommodated her medical 

limitations. 

The AJ issued the Initial Decision on June 20, 2011, 

dismissing Ms. Croal-Manuel’s appeal for lack of jurisdiction finding that Ms. Croal-Manuel had failed to make a 

non-frivolous allegation that her retirement was involuntary. Initial Decision at 9-10. Specifically, the AJ found 

that Ms. Croal-Manuel effectively rescinded any request 

to continue working by informing her manager that she 

wished to resign and seek disability retirement. Id. at 7. 
5 CROAL-MANUEL v. MSPB

According to the AJ, this finding, coupled with her physician’s determination that Ms. Croal-Manuel was unable 

to perform any work at all, relieved the FHWA of any 

obligation it may otherwise have had to provide reasonable accommodation. Id. The AJ also found that Ms. 

Croal-Manuel made no allegation that a reasonable 

accommodation was available during the period between 

her notifying the FHWA of any medical condition and her 

separation from the agency. Id. at 8. Finally, noting 

again that Ms. Croal-Manuel’s physician certified that she 

was unable to work at all, the AJ found that no nonfrivolous allegation had been made that the FHWA unjustifiably failed to offer an available accommodation. Id. 

Absent jurisdiction over Ms. Croal-Manuel’s separation, 

the AJ found no jurisdiction existed over her claims of 

harassment. Id. at 9. The AJ did not address the timeliness of her appeal. Id. at 10. 

On June 27, 2011, Ms. Croal-Manuel filed a petition 

for review alleging that the agency failed to provide 

written notice or explanation of any reasonable accommodation and coerced her into retiring. In its Final Order, 

dated December 1, 2011, the Board found no error in the 

AJ’s determination and concluded that there was no new, 

previously unavailable, evidence. Final Order at 2. The 

Board also declined to address her arguments regarding 

coercion, noting that “the Board will not consider argument[s] raised for the first time in a petition for review 

absent a showing that they are based on new and material evidence not previously available despite the party’s 

due diligence.” Id. 

Ms. Croal-Manuel timely appealed the Board’s final 

decision to this court. We have jurisdiction pursuant to 

28 U.S.C. § 1295(a)(9). 
CROAL-MANUEL v. MSPB 6

STANDARD OF REVIEW

Our review of the Board’s decisions is limited by statute. Hamel v. President’s Comm’n on Exec. Exch., 987 

F.2d 1561, 1564 (Fed. Cir. 1993) (“We review Board 

decisions under a very narrow standard.”). We must 

affirm a decision from the Board unless it is “(1) arbitrary, 

capricious, an abuse of discretion, or otherwise not in 

accordance with law; (2) obtained without procedures 

required by law, rule, or regulation having been followed; 

or (3) unsupported by substantial evidence.” 5 U.S.C. 

§ 7703(c). Whether the Board has jurisdiction over an 

appeal is a question of law, which we review de novo. 

Herman v. Dep’t of Justice, 193 F.3d 1375, 1378 (Fed. Cir. 

1999). The petitioner has the burden of establishing 

Board jurisdiction by a preponderance of the evidence. 

See 5 C.F.R. § 1201.56(a)(2). 

DISCUSSION

The Board generally lacks jurisdiction over facially 

voluntary acts such as resignations and retirements. 

Garcia v. Dep’t of Homeland Sec., 437 F.3d 1322, 1327-28 

(Fed. Cir. 2006) (en banc). In order to establish a claim of 

involuntary disability retirement, rebutting the general 

presumption of voluntariness, the petitioner must prove 

that: (1) after the onset of her disability and prior to her 

retirement, she sought to continue working, despite her 

medical limitations, with an accommodation; (2) an accommodation was available on the date of her retirement 

at, or above, her position level; and (3) the agency refused 

to provide her with an accommodation. See Benavidez v. 

Dep’t of Navy, 241 F.3d 1370, 1375 (Fed. Cir. 2001) (affirming the Board’s decision using these criteria). When a 

petitioner makes non-frivolous claims that, if proven, 

would establish the Board's jurisdiction, the petitioner 

has a right to a hearing. Garcia, 437 F.3d at 1344. We 
7 CROAL-MANUEL v. MSPB

agree with the Board and the AJ that the petitioner has 

presented no such allegations here and, accordingly, that 

Ms. Croal-Manuel’s appeal was properly dismissed for 

lack of jurisdiction. 

As the AJ determined, the record does not support a 

non-frivolous allegation that Ms. Croal-Manuel sought to 

continue working, despite medical limitations, with an 

accommodation. Ms. Croal-Manuel points to the letter 

submitted by her treating physician as evidence of requesting transfer as an accommodation. But, the actual 

text of the letter is not consistent with Ms. Croal-Manuel’s 

claims. Dr. Bedell merely noted that he raised the “possibility of transfer” with Ms. Croal-Manuel’s supervisor and 

his belief that transfer would assist in her re-entry to 

work. In the next two paragraphs he stated that “ Ms. 

Croal-Manuel is not disabled for work” and that “on 

October 3, she will be fit to perform all her duties without 

restrictions or accommodations.” We agree with the AJ 

that this is insufficient to constitute a request for an 

accommodation as a predicate to continuation of work. 

Moreover, we agree with the AJ that Ms. CroalManuel’s submissions in connection with her request for 

disability retirement effectively rescinded any request for 

accommodation that may have been made. Ms. CroalManuel submitted letters from Dr. Bedell stating that she 

was “unable to return to work for an indefinite period of 

time” and that she was unlikely to recover in a year or 

more. She herself stated in applying for disability retirement that she was “unable to maintain daily working 

activities.” The petitioner was unable to render useful 

and efficient service, with or without accommodation, on 

the effective date of her disability retirement, and, therefore, her retirement cannot constitute a constructive 

removal over which we have jurisdiction. See, e.g., Nord-
CROAL-MANUEL v. MSPB 8

hoff v. Dep’t of Navy, 78 M.S.P.R. 88 (1998), aff'd, 185 

F.3d 886 (Fed. Cir. 1999). 

Similarly, Ms. Croal-Manuel has failed to make a nonfrivolous allegation that a reasonable accommodation was 

available at the time of her retirement. Ms. Croal-Manuel 

identified no available positions in any location that 

would have been a suitable accommodation, and, as 

described above, the record supports the AJ’s determination that no accommodation existed that would have 

allowed Ms. Croal-Manuel to return to work. Absent 

suitable accommodations, there can be no claim that the 

FHWA withheld or refused to provide Ms. Croal-Manuel 

with such an accommodation. 

On appeal, Ms. Croal-Manuel also requests that we 

address the question of why she received administrative 

leave as opposed to worker’s compensation. The respondent answers that this argument was not raised prior to 

Ms. Croal-Manuel’s appeal to this court and cannot be 

considered. We disagree. In her initial appeal to the 

Board, Ms. Croal-Manuel specifically identified the failure 

to receive worker’s compensation as part of the relief 

requested. Regardless, because an employee may receive 

only either worker’s compensation or disability retirement 

benefits, we interpret Ms. Croal-Manuel’s complaint as 

merely restating her allegation that her election to take 

disability retirement was involuntary. Benavidez, 241 

F.3d at 1373-74. For the reasons stated above, we find 

this claim to be without merit. 

Finally, Ms. Croal-Manuel asserts that the Board and 

the FHWA failed to contact various FHWA employees and 

other individuals. While it is unclear when Ms. CroalManuel expected the Board or FHWA to contact these 

persons, it is clear that this appeal is the first time that 

such allegations have been raised. Because this argu-
9 CROAL-MANUEL v. MSPB

ment was not presented to the Board, we decline to consider it. See Bosley v. Merit Sys. Prot. Bd., 162 F.3d 665, 

668 (Fed. Cir. 1998). 

CONCLUSION

For the reasons stated above, the final decision of the 

Board dismissing Ms. Croal-Manuel’s appeal for lack of 

jurisdiction is affirmed. 

AFFIRMED 

COSTS

Each party shall bear its own costs.