In Aldridge v. U.S. Department of Agriculture, 2009 MSPB 146 (July 28, 2009), the Merit Systems Protection Board ordered the appellant reinstated to her position after she proved that her retirement from federal service was involuntary. The Board also remanded the case for consideration of the appellant’s disability discrimination claim.

The appellant was an employee of the Department of Agriculture. The agency had proposed the appellant’s removal for alleged performance deficiencies and attendance problems. The appellant alleged that in a meeting regarding the proposed removal notice, the deciding official and a human resources official told her she had three business days to submit retirement papers or else the removal would be instituted and she would lose all of her retirement benefits. Three business days later the appellant submitted her retirement papers. At the time of retirement, the appellant was a 28-year employee. The appellant later claimed that had not contemplated retiring when she did, but rather she retired because she believed she would lose her retirement benefits if she were removed.

The appellant filed an MSPB appeal alleging that her retirement was involuntary and that the agency had failed to provide her reasonable accommodation for her brain surgery and allergies. The administrative judge found that the appellant’s decision to retire was not the result of agency misinformation and, thus, as a voluntary act, was outside of the Board’s jurisdiction. In reaching this decision, the administrative judge found the testimony of the deciding official and human resources official credible with regard to the events leading to the appellant’s retirement. On appeal, the Board found that the administrative judge had erred in his credibility determinations because the agency witnesses did not refute the appellant’s testimony about having received and acted upon misinformation.

The Board found that the appellant had received misinformation from the agency regarding the impact removal would have on her eligibility for retirement benefits based on the appellant’s clear account of what she was told, the lack of any contradiction by the human resources official, the provision of only a vague response by the deciding official, coworker testimony corroborating appellant’s account of what she was told, and the lack of a reason to find the appellant not credible. In making its finding, the Board determined that the administrative judge had erred several times by making non-demeanor credibility determinations without sufficient evidence.

Also, the Board found that the appellant reasonably relied upon the misinformation to her disadvantage because the meeting with the deciding official and human resources official was the proximate cause of the appellant’s decision to retire and there was no evidence that appellant knew at the time of retirement that the information she received from the agency was wrong. Ultimately, the Board found that it had jurisdiction over the appellant’s separation and that the appellant was entitled to reinstatement because her retirement was involuntary. Additionally, the Board determined that the case had to be remanded for reconsideration of the appellant’s disability discrimination claim. When an appeal of an alleged involuntary retirement is raised, then the Board will adjudicate the adjoining discrimination claim on the merits only after it is determined that the Board has jurisdiction.

* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com .

 

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