Number 136                    July 2000

COURT DECISIONS  |   FLRA   |   MSPB

James Rule v. Department of Veterans Affairs, 85 MSPR 388 (March 7, 2000)

To establish that a disability retirement application was involuntary, and therefore to establish Board jurisdiction, an appellant must prove that the agency failed to reasonably accommodate his or her disabling condition. With regard to reassignment as an accommodation, there must be evidence that vacant positions existed and that the appellant indicated to the agency that he or she wanted to continue working, rather than retire.

The agency proposed the appellant's removal based on medical inability to perform the duties of his position. Prior to a decision on that action, the appellant filed for, and was granted, a disability retirement annuity through OPM. The agency notified the appellant that no decision would be issued on the proposed removal because his retirement application had been accepted. However, the appellant requested that the agency issue a final decision so that he could challenge it. Once the decision was issued, the appellant filed a formal discrimination complaint. Following a final agency decision of no discrimination, the appellant filed an appeal with the Merit Systems Protection Board (MSPB). The administrative judge hearing the case found no jurisdiction because of the voluntary nature of the retirement. The appellant challenged that decision to the full Board, arguing that the Board had jurisdiction over his disability retirement because it was an involuntary retirement based on the agency's failure to reasonably accommodate him. In the appeal, he argued that the administrative judge had used the wrong legal standard when considering evidence of potential positions to which the appellant could have been assigned.

The Board took this opportunity to distinguish between the way "reasonable accommodation" is applied in the context of eligibility for disability retirement under the Civil Service Retirement System (CSRS) and the Federal Employees Retirement System (FERS) and the way it is applied under the Rehabilitation Act of 1973, as amended. Under the Office of Personnel Management's disability retirement eligibility rules, an employee who cannot perform current duties due to a medical condition but who can be accommodated in his or her position (or in a position at the same grade and pay) is NOT eligible for disability retirement. However, any offer of a position at a lower grade would not constitute reasonable accommodation and the employee would be eligible to apply for disability retirement.

In contrast, under the Rehabilitation Act, an employee may be reasonably accommodated with an offer of a position at a lower grade, once it has been determined that no position is available at the employee's current grade. Having noted the distinction between the two systems, the Board made clear that an agency is required to investigate the possible placement of an employee at a lower graded position in order to comply with the anti-discrimination laws. If a position at a lower grade is available, the agency must inform the employee of the position.

The issue in this case was whether or not the appellant's application for disability retirement had been made involuntarily. The Board held that if an agency does not provide an employee with information regarding possible placement in a position at a lower grade, as an alternative to disability retirement, then the agency has "deprived him of free choice with respect to disability retirement." Such a failure on the agency's part could render a disability retirement involuntary.

The Board went on to say that in order for an appellant to prove that a disability retirement was involuntary, two conditions must be proven. The appellant must demonstrate not only that a vacant position existed at an equivalent or lower grade, but also that the appellant told the agency he or she was willing to continue working in any position, including a lower graded position. In this case, the Board found that the appellant had never indicated any willingness to continue working, despite his medical restrictions. Therefore, the Board found that his disability retirement was voluntary, since the appellant did not meet the second condition necessary to establish jurisdiction.

Although it takes some patience to read through this decision, it is a useful reminder to an agency of its obligations when an employee is no longer medically able to carry out the requirements of a job and the employee is eligible to apply for disability retirement. When no accommodation, including reassignment at the employee's current grade, is available, an otherwise eligible employee may file for disability retirement. However, the Board has made clear in recent years that filing for disability retirement does not take away an employee's right to challenge the agency's failure to accommodate under the Rehabilitation Act. An agency's search for vacant positions as a possible accommodation must include lower graded positions. However, in order to make these searches as efficient as possible, an agency is well advised to ask the employee what grade level he or she would accept as an accommodation. The employee's willingness to accept positions as lower grade levels will define the extent of the agency's obligation to search.

Agencies having general questions concerning this publication, including suggestions for improvement, are encouraged to call Hal Fibish on (202) 606-2930.

Other questions or comments may be mailed to the U.S. Office of Personnel Management, Room 7H28, Theodore Roosevelt Building, 1900 E Street, NW., Washington, DC 20415-2000. You may call us at (202) 606-2930; fax (202) 606-2613; or email lmr@opm.gov.