UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

STEVEN A. MILLER,

Appellant,

v.

UNITED STATES POSTAL SERVICE,

Agency.

DOCKET NUMBER

PH-0752-14-0592-I-1

DATE: February 24, 2015

THIS ORDER IS NONPRECEDENTIAL1

Dan Klein, Clinton, Mississippi, for the appellant.

Suzanne B. McCabe, Esquire, Philadelphia, Pennsylvania, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Anne M. Wagner, Vice Chairman

Mark A. Robbins, Member

REMAND ORDER

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

dismissed his involuntary disability retirement appeal for lack of jurisdiction. 

For the reasons discussed below, we GRANT the appellant’s petition for review 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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).
2

and REMAND the case to the regional office for further adjudication in 

accordance with this Order. 

DISCUSSION OF ARGUMENTS ON REVIEW

¶2 The appellant worked as a Supervisor, Customer Services at the agency’s 

Jeannette Post Office in Jeannette, Pennsylvania. Initial Appeal File (IAF), Tab 4 

at 53. On October 26, 2012, the appellant applied for disability retirement. Id. at 

59-60. Around the same time period, he applied for Social Security disability 

benefits. Id. at 61-62. He retired from the agency with a disability retirement on 

March 11, 2013. Id. at 53. On May 27, 2013, the appellant filed a discrimination 

complaint with the agency alleging discrimination based on disability and 

retaliation for engaging in protected activity. Id. at 54. The agency issued a final 

agency decision (FAD) that found no evidence of discrimination or that the 

agency forced him to retire. Id. at 34, 38.

¶3 The appellant initiated a Board appeal alleging that his disability retirement 

was involuntary and that the agency discriminated against him by refusing to 

grant him a reasonable accommodation. IAF, Tab 1 at 2-3. The appellant also 

marked on the appeal form that he had filed a whistleblowing complaint with the 

Office of Special Counsel and a complaint with the Department of Labor (DOL) 

regarding either the Uniformed Services Employment and Reemployment Rights 

Act of 1994 (USERRA) or the Veterans Employment Opportunities Act of 1998 

(VEOA). Id. at 4. The agency filed a motion to dismiss the appeal for lack of 

jurisdiction. IAF, Tab 4 at 12. The administrative judge issued a jurisdictional 

order directing the appellant to file evidence and/or argument that the Board has

jurisdiction over his involuntary retirement. IAF, Tab 6 at 3. The appellant 

requested additional time to respond, but never filed any additional response to 

the jurisdictional order. IAF, Tab 7.

¶4 The administrative judge issued an initial decision that dismissed the appeal 

for lack of jurisdiction. IAF, Tab 9, Initial Decision (ID) at 1. He found that the 
3

appellant failed to make a nonfrivolous allegation that (1) he informed the agency 

that he wished to continue working but required a reasonable accommodation, or 

(2) he was able to work with such an accommodation. ID at 5-6. He also found 

that the appellant failed to make a nonfrivolous allegation that the agency forced 

him to retire. ID at 6-7. The administrative judge also construed the appellant’s 

appeal form to allege that he was raising a USERRA discrimination claim. ID at 

7-8. He found that the appellant did not allege that his involuntary disability 

retirement was due to his prior military service, and that USERRA does not 

provide for a claim of discrimination based on a disability arising from his 

military service. ID at 8. The administrative judge granted the agency’s motion 

to dismiss because the appellant did not establish Board jurisdiction over his 

appeal. ID at 8.

¶5 The appellant has filed a timely petition for review. Petition for Review 

(PFR) File, Tab 1. The agency has responded to the petition for review. PFR 

File, Tab 3.

This appeal must be remanded for further adjudication of the appellant’s 

involuntary disability retirement claim.

¶6 The administrative judge found that the appellant failed to make a 

nonfrivolous allegation that his disability retirement was involuntary. ID at 4-6. 

The Board has recognized that involuntary disability retirement appeals are 

somewhat different from ordinary involuntary retirement appeals. Mims v. Social 

Security Administration, 120 M.S.P.R. 213, ¶ 17 (2013). In most cases, an 

appellant who alleges that his disability retirement was involuntary must show

that: (1) he indicated to the agency that he wished to continue working, but that 

his medical limitations required a modification of his work conditions or duties, 

i.e., accommodation; (2) a reasonable accommodation was available during the 

period between the date on which he indicated to the agency that he had medical 

limitations but desired to continue working and the date that he was separated 

that would have allowed him to continue working; and (3) the agency 
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unjustifiably failed to offer that accommodation. Id. To invoke Board 

jurisdiction, the appellant must raise nonfrivolous allegations that, if true, would 

meet the elements of this test. 2

 See Brown v. Department of 

Defense, 109 M.S.P.R. 493, ¶ 15 (2008).

¶7 The administrative judge found no evidence that the appellant notified the 

agency that he wished to continue working. ID at 5. The appellant provided no 

such evidence below and the agency provided the appellant’s sworn affidavit 

from his equal employment opportunity (EEO) complaint in which he admitted 

that he retired due to his inability to perform the duties of his job. IAF, Tab 4 at 

46. The affidavit also contained statements that the appellant requested 

reasonable accommodation to the district manager and the human resources 

manager, but the request was not acted upon. Id. at 42, 46. Affidavits that are 

not rebutted constitute evidence of matters asserted therein. Schaefer v. U.S. 

Postal Service, 42 M.S.P.R. 592, 595 (1989). At the jurisdiction stage, the 

administrative judge may not weigh evidence and resolve conflicting assertions of 

the parties. Ferdon v. U.S. Postal Service, 60 M.S.P.R. 325, 329 (1994). We find 

that the appellant’s sworn statement that he requested accommodation from the 

agency is evidence that he made a nonfrivolous allegation that he wished to 

continue working. 

¶8 The administrative judge also found that the appellant failed to 

nonfrivolously allege that there was a reasonable accommodation available that 

would have allowed him to continue working. ID at 5-6. The appellant provided 

no evidence of his medical restrictions. The appellant admitted in his EEO 

 2 The documentation submitted by the appellant with his petition for review includes a 

request to continue working with potential work restrictions, his application for 

workers’ compensation benefits and initial denial of his claim, information regarding 

settlement of an equal employment opportunity (EEO) complaint in 2001 and a 2010 

Family and Medical Leave Act absence, and the first page of his 2013 EEO complaint. 

PFR File, Tab 1 at 2-12. The evidence submitted goes only to the first jurisdictional 

element that he wished to continue working. It does not show that a reasonable 

accommodation was available or that the agency failed to offer such an accommodation.
5

affidavit that he never provided any medical documentation to the agency 

regarding any work restrictions. IAF, Tab 4 at 42. He also never identified any 

position that was available that could function as a reasonable accommodation. 

IAF, Tab 1, Tab 4 at 41-48; see SanSoucie v. Department of 

Agriculture, 116 M.S.P.R. 149, ¶ 21 (2011) (second jurisdictional element met 

when the appellant alleged that an open position was available between the date 

on which he indicated he had medical limitations and the date he was separated). 

Because the record contains no evidence of the appellant’s need for 

accommodation or any identification of a position that could accommodate him, 

we agree with the administrative judge that the appellant has not made a 

nonfrivolous allegation that a reasonable accommodation was available that 

would have allowed him to continue working. Because we find that the appellant 

did not make a nonfrivolous allegation that a reasonable accommodation was 

available, he also has not made a nonfrivolous allegation that the agency 

unjustifiably failed to offer the accommodation.

¶9 In his petition for review, however, the appellant appears to be claiming, 

inter alia, that his involuntary disability retirement was actually a constructive 

removal that was a result of whistleblower retaliation. In Vaughan v. Department 

of Agriculture, 116 M.S.P.R. 493, ¶ 13 (2011), we held that in some involuntary 

disability retirement appeals, it is appropriate to apply the elements generally 

applicable to involuntary adverse actions. Further, in Burke v. Department of the 

Treasury, 53 M.S.P.R. 434, 439 (1992), the Board ruled that allegations that an 

appellant’s retirement resulted from retaliation for his whistleblowing should be 

considered in the same manner as allegations that the coercion was based on 

discrimination, i.e., such allegations should be considered in the first instance for 

the purpose of determining whether they support a finding of coercion. See Shoaf 

v. Department of Agriculture, 260 F.3d 1336, 1340, 1342-43 (Fed. Cir. 2001) 

(remanding for further adjudication of an allegation that a retirement was 

compelled by reprisal for whistleblowing). Moreover, in Shelly v. Department of 
6

the Treasury, 75 M.S.P.R. 411, 414-15 (1994), the Board stated that, because 

jurisdiction in constructive adverse action appeals is tied to proof that the action 

is truly adverse, it has jurisdiction over appeals under the Whistleblower 

Protection Act upon proof that the constructive action was caused by 

whistleblower reprisal. 

¶10 Thus, this appeal must be remanded for consideration of the appellant’s 

allegations of whistleblower reprisal for the purpose of determining whether they 

support a finding of coercion. The administrative judge did not address the 

appellant’s whistleblowing allegations or provide the appellant with any 

jurisdictional notice regarding how he could meet his jurisdictional burden for 

this claim. Because the Board would have jurisdiction to consider the appellant’s

whistleblower claims as an affirmative defense upon proof of jurisdiction over 

the constructive action, the appellant also must receive jurisdictional notice on 

these claims. 5 U.S.C. § 2302(a)(2)(C); Burgess v. Merit Systems Protection 

Board, 758 F.2d 641, 643-44 (Fed. Cir. 1985); Mack v. U.S. Postal 

Service, 48 M.S.P.R. 617, 620-21 (1991). 

The appeal also must be remanded for the appellant to receive jurisdictional 

notice for his VEOA claim.

¶11 The appellant indicated on his initial appeal that he filed a complaint with 

DOL and received a response on October 18, 2011. IAF, Tab 1 at 4. The 

appellant did not specify whether he was alleging a violation of USERRA or 

VEOA. The administrative judge did not provide any notice to the appellant 

regarding how he could establish jurisdiction over a VEOA claim; however, he 

did provide notice of how to establish jurisdiction over a USERRA discrimination 

appeal in the initial decision. ID at 7.

¶12 An appellant must receive explicit information on what is required to 

establish an appealable jurisdictional issue. Burgess, 758 F.2d at 643-44. 

However, the failure to provide an appellant with proper Burgess notice in an 

acknowledgment order or show cause order can be cured if the initial decision 
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itself puts the appellant on notice of what he must do to establish jurisdiction so 

as to afford him the opportunity to meet his jurisdictional burden for the first time 

on review. Caracciolo v. Department of the Treasury, 105 M.S.P.R. 663, ¶ 11 

(2007). Because the administrative judge addressed the jurisdictional 

requirements for a USERRA discrimination appeal in the initial decision, the 

appellant was on notice that he must make a nonfrivolous allegation that he was 

discriminated against based on his prior military service. Therefore, the 

appellant’s substantive rights were not prejudiced as they relate to any USERRA

claim. See Caracciolo, 105 M.S.P.R. 663, ¶ 12. However, the administrative 

judge’s failure to provide Burgess notice regarding the potential VEOA claim did 

prejudice the appellant’s substantive rights. Therefore, we also must remand the 

appeal for the appellant to receive proper notice of how to establish Board 

jurisdiction over a VEOA claim. 3

 3 The appellant indicated in his appeal that DOL issued a decision regarding his 

complaint on October 18, 2011. IAF, Tab 1 at 4. Normally, an appellant must file a 

VEOA appeal with the Board within 15 days of receiving DOL’s notice closing the 

complaint. 5 C.F.R. § 1208.22(b). Equitable tolling may be available where the 

appellant, despite having diligently pursued his rights, was unable to make a timely 

filing. 5 C.F.R. § 1208.22(c). Here, the appellant filed his appeal on March 10, 2014, 

over 16 months after DOL issued its decision. IAF, Tab 1 at 4, envelope. Therefore, 

the appellant will need to demonstrate his diligence in pursuing his rights or have his 

claim dismissed for failure to timely file a VEOA appeal. See Kirkendall v. Department 

of the Army, 479 F.3d 830, 837-44 (Fed. Cir. 2007).
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ORDER

For the reasons discussed above, we REMAND this case to the regional 

office for further adjudication in accordance with this Remand Order.

FOR THE BOARD:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board