In Hosozawa v. Department of Veterans Affairs, 2010 MSPB 10 (January 12, 2010), the MSPB reversed an administrative judge’s (AJ’s) initial decision dismissing Hosozawa’s complaint, and found that she had presented a non-frivolous allegation that the Department of Veterans Affairs had forced her resignation.
Hosozawa had worked at the agency for 19 years when she began receiving treatment for several medical conditions in 2008. As a result of her treatment, Hosozawa was absent from work on a number of occasions. Following these absences, the agency gave Hosozawa a notice of proposed removal on the charge of AWOL. Despite Hosozawa’s response to the notice, the agency issued a decision removing her effective February 14, 2009. On February 13, 2009, Hosozawa resigned from her position, effective that day. The agency accepted and processed her resignation.
Hosozawa then filed an appeal of the agency’s decision to remove her and requested an MSPB hearing. The agency filed a motion to dismiss Hosozawa’s appeal on the grounds that the Board lacked jurisdiction over the case, since Hosozawa had resigned before the removal went into effect. In response, the AJ issued an order instructing Hosozawa to show that the Board did indeed have jurisdiction over her appeal. The order included instructions on how she could allege that her resignation had been involuntary and thus demonstrate the Board’s jurisdiction. In the main, Hosozawa’s response argued that the agency had failed to accommodate her medical condition. The AJ found that Hosozawa had failed to non-frivolously allege that she had resigned involuntarily, reasoning that the agency had not coerced her resignation by bringing unjustifiable charges against her or creating unreasonably difficult working conditions, and therefore dismissed her appeal. Hosozawa petitioned the Board for review of the dismissal.
Employee-initiated actions, such as resignations, are assumed to be voluntary, and voluntary actions are outside the Board’s jurisdiction. However, an involuntary resignation does lie within the jurisdiction of the Board. To show that her resignation was involuntary, an employee may show that she resigned as a result of coercion by the agency.
The Board found that the AJ’s initial decision had failed to consider Hosozawa’s claim that the agency denied her request to telecommute as an accommodation for her medical condition. Hosozawa had submitted letters to the agency from her doctor requesting that she be allowed to telecommute, which would have permitted her to continue to work full-time, in spite of her medical condition and ongoing treatment. Hosozawa’s supervisor had also encouraged her to apply for telecommuting privileges, intimating that he did not foresee a problem with such an arrangement. However, in spite of her request, including her doctor’s letters and her supervisor’s assurances to the contrary, the agency denied Hosozawa’s request to telecommute. Under these circumstances, the Board found that the denial of this accommodation could be sufficient to find that the agency had coerced Hosozawa’s resignation. The Board therefore ordered that the case go to hearing.
This decision lends support to those arguing that they have been forced to resign or retire after their employer refused to provide reasonable accommodations. Under this new decision, denial of reasonable accommodation alone may be enough to find that an employer has been coerced to retire or resign.
* 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.