Ruben Cano vs. MSPB

Appellant: Ruben Cano
Agency: United States Postal Service
Decision Number: 2007 MSPB 273
Docket Number: AT-0752-07-0528-I-1
Issuance Date: November 28, 2007
Appeal Type: Adverse Action by Agency
Action Type: Constructive Adverse Action

Jurisdiction - Resignation/Retirement

The appellant, a former preference-eligible City Carrier, filed an
appeal alleging that his immediate retirement was involuntary. In
August 2005, the agency’s Associate Medical Director, pursuant to the
result of a fitness-for-duty examination performed by another doctor,
determined that the appellant would not be allowed to operate a
motorized vehicle for 12 months and would need to be medically cleared
by the agency’s medical unit before he could resume driving. Later
that month, the appellant applied to retire, and did so effective
September 30, 2005. The appellant filed a discrimination complaint in
October 2005, and filed an appeal with the Board in March 2007,
following a determination by an EEOC judge that he had raised a mixed-
case complaint. Based on the parties’ written submissions, the AJ
determined that the appellant’s retirement was “clearly”
voluntary.

The Board vacated the initial decision and remanded the appeal for
further adjudication.

Holdings:
1. In determining whether a retirement was coerced, and thus a
constructive removal, the test is whether, under all the
circumstances, working conditions were made so difficult by agency
that a reasonable person in the appellant’s position
would have felt compelled to retire. When an appellant raises
allegations of discrimination in connection with an involuntariness
claim, evidence of discrimination may be considered only in terms of
the standard for voluntariness in a particular situation – not
whether such evidence meets the test for proof of discrimination or
reprisal under Title VII.

2. An initial decision must identify all material issues of fact and
law, summarize the evidence, resolve issues of credibility, including
the AJ’s conclusions of law and his legal reasoning. Here, the AJ
failed to address whether any of the appellant’s allegations
constituted a nonfrivolous allegation that his retirement was
involuntary and entitled him to a jurisdictional hearing. Under the
totality of the circumstances, the Board found that the appellant had
raised nonfrivolous allegations that his working conditions became so
difficult that a reasonable person would have felt compelled to
retire, and he was therefore entitled to a jurisdictional hearing.

a. The appellant alleged that he was harassed by agency officials and
treated disparately compared to other employees. He claimed that
agency managers repeatedly followed him on his route, incorrectly told
him his was wasting his time, and unreasonably denied his requests for
annual and sick leave.

b. The appellant asserted that other employees, who had more
debilitating medical conditions than him, were not required to undergo
fitness-for-duty examinations, and that he was restricted to indoor
duty for a full year even though his personal physician wrote several
letters stating that his medical condition was under control and that
he was able to return to work. He alleged that these letters were not
forwarded to the Associate Medical Director.

c. The appellant asserted that the agency did not provide him with
enough work, and that this led to a decrease in his pay that
ultimately contributed to his decision to retire. “Deliberate
idling” by an agency is a factor that may cause working conditions to
become so difficult that a reasonable person would feels compelled to
resign or retire.

3. On remand, the AJ must afford the parties an opportunity to address
whether the appellant posed a “direct threat” to the health or
safety of himself or others.

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