UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

WANDA COLIN,

Appellant,

v.

DEPARTMENT OF VETERANS 

AFFAIRS,

Agency.

DOCKET NUMBER

DA-0752-17-0016-I-1

DATE: October 21, 2022

THIS FINAL ORDER IS NONPRECEDENTIAL1

Wanda Colin, Marrero, Louisiana, pro se.

Brandi M. Powell, New Orleans, Louisiana, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which

affirmed her removal. Generally, we grant petitions such as this one only in the 

following circumstances: the initial decision contains erroneous findings of 

material fact; the initial decision is based on an erroneous interpretation of statute 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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).
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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). 

¶2 After the appellant had been absent on approved leave without pay for more 

than 1 year, the agency removed her from her GS-8 Medical Records Technician 

position effective December 12, 2015. Initial Appeal File (IAF), Tab 7 at 11-18. 

On appeal, the administrative judge issued an initial decision finding that the 

agency proved its charge by preponderant evidence, the appellant failed to prove 

her affirmative defenses of disability discrimination and retaliation for filing a 

claim with the Office of Workers’ Compensation Programs (OWCP), and the 

penalty of removal was within the bounds of reasonableness. IAF, Tab 13, Initial 

Decision (ID). The appellant has filed an apparently untimely petition for review 

of the initial decision. Petition for Review (PFR) File, Tabs 1-2.

¶3 The appellant does not challenge the administrative judge’s findings 

concerning the merits of the case. As a general rule, an adverse action cannot be 

based on an employee’s use of approved leave. Gartner v. Department of the 

Army, 104 M.S.P.R. 463, ¶ 9 (2007). However, the Board has held that an agency 

may bring an adverse action against an employee for excessive approved absences 

if the following criteria are met: (1) the employee is absent for compelling 

reasons beyond her control so that the agency’s approval or disapproval was 

immaterial because she could not be on the job; (2) the absences continued 
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beyond a reasonable time, and the agency warned the employee that an adverse 

action could be taken unless she became available for duty on a regular basis; and

(3) the position needed to be filled by an employee available for duty on a regular 

basis. Id. Even if, as here, the employee is receiving workers’ compensation 

benefits, an agency need not carry the employee on its employment rolls 

indefinitely. Bair v. Department of Defense, 117 M.S.P.R. 374, ¶ 12 (2012), 

overruled on other grounds by Abbott v. U.S. Postal Service, 121 M.S.P.R. 294

(2014). After a year, when the employee’s right to unconditional restoration 

expires, the agency may remove the employee based on excessive absence. Id., 

¶ 13. The administrative judge correctly found that the agency met its burden of 

proof. ID at 4-5.

¶4 The administrative judge further found that the appellant did not prove 

disability discrimination based on a failure to accommodate because the appellant 

failed to identify any accommodation that would allow her to perform the 

essential functions of her position. ID at 8-9. In fact, the agency attempted to 

take measures to alleviate what it understood to be a disability related to 

environmental factors at her work location. However, environmental changes, 

such as relocating the appellant’s office and fumigating the space, had n o impact 

because the appellant’s disability is not simply a matter of an unhealthy working 

environment. In fact, the agency agreed, as part of the settlement of an equal 

employment opportunity complaint, to permanently relocate the appellant’s work 

station to a different building, but she still could not bring herself to come to 

work. The appellant did not request any nonenvironmental accommodations, and 

it is not apparent what other accommodation might make it possible for her to 

return to work, given the unique circumstances of her particular medical 

condition. Therefore, we see no error in the administrative judge’s finding that 

the appellant failed to prove reasonable accommodation disability discrimination.

¶5 The administrative judge also found that the appellant failed to prove 

disparate treatment disability discrimination because she did not show that her 
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disability was a motivating factor in the decision to remove her. Id. The 

administrative judge found that the appellant did not prove retaliation for filing 

an OWCP claim because the appellant failed to introduce any evidence that the 

proposing and deciding officials harbored any retaliatory intent. ID at 10-11. 

These findings are well supported by the record and we see no reason to disturb 

them.2

¶6 On review, the appellant reiterates allegations she made below about the 

agency’s handling of her disability retirement application. Based on the 

appellant’s allegations and the documentation she has submitted in support of 

them, there is reason to believe that the agency may have made fundamental 

errors in compiling the agency’s portion of the disability retirement application. 

The appellant speculates that the agency’s misfeasance constitutes both dis ability 

discrimination and retaliation for her OWCP activity. However, she identifies no 

evidence of discriminatory or retaliatory motive, and there is nothing in the 

record to suggest a causal link between the appellant’s status and the agency’s 

action.

¶7 Moreover, the Board generally has jurisdiction over Office of Personnel 

Management (OPM) determinations affecting an individual’s rights or interests 

under the retirement system only after OPM has issued a final or reconsideration 

decision. Coffey v. U.S. Postal Service, 77 M.S.P.R. 281, 286 (1998). When an 

appellant alleges that OPM’s adjudication of his annuity was incorrect because of 

errors on the part of his former employing agency, he still has to show that OPM 

has issued a reconsideration decision on the matter before he could appeal it to 

the Board. Id. Here, because there is no evidence that OPM has adjudicated the 

appellant’s disability retirement application and issued a reconsideration decision, 

 

2 Because we affirm the administrative judge’s finding that the appellant failed to show 

that any prohibited consideration was a motivating factor in the agency’s action, we 

need not resolve the issue of whether the appellant proved that discrimination or 

retaliation was a “but-for” cause of the agency’s decisions. See Pridgen v. Office of 

Management and Budget, 2022 MSPB 31, ¶¶ 20-22, 29-33.
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the appellant’s claim of discrimination and retaliation in the handling of her 

disability retirement application is not within the Board’s purview at this point. 

¶8 In light of our finding on the merits of this appeal, we need not address the 

apparent untimeliness of her petition for review.

NOTICE OF APPEAL RIGHTS3

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 

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). 

 

3

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.
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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 

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. ____ , 137 S. Ct. 1975 (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 
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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 

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 
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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. 4The 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 

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 

 

4

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. 
9

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:

Washington, D.C.

 /s/ for 

Jennifer Everling

Acting Clerk of the Board