Michelle Gooden v. Office of Personnel Management

United States Court of Appeals for the Federal Circuit
05-3254
MICHELLE GOODEN,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
John S. Evangelisti, of Denver, Colorado, argued for petitioner.
John S. Groat, Attorney, Commercial Litigation Branch, Civil Division, United
States Department of Justice, of Washington, DC, argued for respondent. With him on
the brief were Peter D. Keisler, Assistant Attorney General, David M. Cohen, Director,
and Brian M. Simkin, Assistant Director.
Appealed from: United States Merit Systems Protection Board

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United States Court of Appeals for the Federal Circuit
05-3254
MICHELLE GOODEN,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
__________________________
DECIDED: November 27, 2006
__________________________
Before MAYER, GAJARSA, and LINN, Circuit Judges.
LINN, Circuit Judge.
Michelle Gooden (“Gooden”) petitions for review of the initial decision of the
administrative judge (“AJ”) for the Merit Systems Protection Board (“Board”), Gooden v.
Office of Pers. Mgmt., No. DE-844E-03-0456-I-1 (M.S.P.B. Nov. 28, 2003) (“Initial
Decision”), which became the final decision of the Board after it denied Gooden’s
petition for review, Gooden v. Office of Pers. Mgmt., No. DE-844E-03-0456-I-1
(M.S.P.B. May 4, 2005) (“Final Decision”), affirming a denial of her application for
disability benefits by the Office of Personnel Management (“agency”). Because the
Board’s decision is contrary to the language of the governing statute and regulations
and results in an error going to the heart of the administrative process, we reverse and
remand.

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I. BACKGROUND
The facts of this case are largely undisputed. Gooden was a City Letter Carrier
with the U.S. Postal Service in Littleton, Colorado. Initial Order, slip op. at 7. Prior to
receiving a disabling injury, Gooden had attendance problems, and on November 27,
2001, the Postal Service proposed removal for unsatisfactory attendance. Id., slip op.
at 8. Gooden entered into a “last chance” settlement agreement to resolve the
proposed removal. Id.
Gooden suffers from degenerative disk disease, spinal stenosis, and posterior
facet anthropathy. Id., slip op. at 7. Due to a job-related injury on November 30, 2001,
she became disabled from performing the duties of a City Letter Carrier, which included
the ability to (1) sort mail into delivery sequence; (2) deliver mail along prescribed routes
either on foot or by vehicle, on a regular schedule; (3) deliver all mail parcels to
designated addresses; and (4) accept, collect, and deliver all classes of mail. Id., slip
op. at 7-8. Gooden filed a workers compensation claim, was referred to a doctor, and
returned to work in January 2002 with light duty restrictions that included intermittent
lifting of less than five pounds and intermittent standing, walking, and sitting of no more
than 2-3 hours. Id., slip op. at 9. Gooden was assigned sedentary duties such as filing
and answering telephones, and she requested no further accommodations. Id., slip op.
at 9-10.
On March 4, 2002, Gooden was informed that her workers compensation claim
had been denied and the light duty job was withdrawn. Id., slip op. at 10. The Postal
Service advised Gooden that if she was unable to assume the full duties of her position,
she had the following options: (1) apply for temporary light duty if the disability was
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temporary in nature; (2) apply for permanent light duty if the disability was permanent;
(3) apply for disability retirement; or (4) request accommodation through the Postal
Service Reasonable Accommodation Committee (the “accommodation committee”). Id.
Gooden filed a grievance with the Postal Service requesting a return to work with
appropriate restrictions. In June 2002, Gooden’s neurologist restricted Gooden to
working no more than four hours a day for four weeks with the following limitations: (1)
no lifting more than ten pounds; (2) no standing more than four hours a day, with hourly
breaks; (3) no walking more than two hours a day; (4) no operating a motor vehicle; and
(5) no stooping, reaching above the shoulders, or frequent bending. Id., slip op. at 11.
These restrictions, including the four-hour work day, were later extended. Id. On July
8, 2002, Gooden returned to work as a City Letter Carrier and “cased mail.” The official
physical requirements of “casing mail” exceeded Gooden’s restrictions.
Gooden occasionally failed to complete a four-hour work day, leaving early at
times to do “other things” and at times because she was unwell. As a result, Gooden
received a notice of proposed removal for violating the last chance settlement
agreement, which allowed for no more than six unscheduled absences in a year. Id.,
slip op. at 12. Removal was effective November 15, 2002. Id., slip op. at 8.
On December 4, 2002, the accommodation committee sent Gooden a Notice to
Employees Seeking Disability Retirement (the “December 2002 letter”). The December
2002 letter informed Gooden that the Postal Service was obligated to provide
reasonable accommodation to permit her to perform the essential functions of her
position. It also informed Gooden that, should reasonable accommodation not be
possible, she had the right to request reassignment to a vacant position subject to the
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terms of applicable collective bargaining agreements. The December 2002 notice also
enclosed a form that could be returned, which is reproduced below:
If no request is received within 10 (ten) working days from receipt of this
notice, the Postal Service will assume you do not wish to be considered
for reasonable accommodation.
__ Yes, I would like to be considered for reasonable accommodation
under the Rehabilitation Act.
__ No, I am not requesting reasonable accommodation and wish to
proceed with my disability retirement application without delay.
__________________________ __________
Signature Date
Gooden did not respond. On January 6, 2003, the accommodation committee again
sent the same form to Gooden; Gooden then returned the form with the second option
selected. On January 9, 2003, Gooden filed an application for a disability retirement
annuity under the Federal Employees Retirement System (“FERS”). Id., slip op. at 6.
The agency denied Gooden’s application on July 29, 2003. Id.
Gooden appealed the agency’s denial to the Board. In an initial decision, the AJ
affirmed the agency’s decision. Id., slip op. at 15. The AJ noted that
To qualify for disability retirement benefits under FERS, [Gooden] must
establish that: (1) she has completed more than 18 months of creditable
civilian service; (2) while employed in a position subject to FERS, she has
become disabled because of a medical condition resulting in a deficiency
in performance, conduct, or attendance, or, if there is no such deficiency,
the disabling medical condition is incompatible with either useful and
efficient service or retention in the position; (3) the disabling medical
condition is expected to continue for at least one year from the date the
application for disability retirement is filed; (4) accommodation of the
disabling medical condition in the position is unreasonable; and (5) she
has not declined a reasonable offer of reassignment to a vacant position.
Id., slip op. at 6-7 (citing 5 U.S.C. § 8451; 5 C.F.R. § 844.103(a); Wilkey Marzin v. Office
of Pers. Mgmt., 82 M.S.P.R. 200 (1999); Smith v. Office of Pers. Mgmt., 88 M.S.P.R. 35
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(2001)). The AJ concluded that Gooden had successfully proven the first three
requirements. Id., slip op. at 14. The fourth and fifth requirements are at issue on
appeal and are termed, respectively, as the “accommodation” and “reassignment”
requirements. The AJ found that both the “accommodation” and “reassignment”
requirements were not met, reasoning that because Gooden had not requested
accommodation after being invited to do so, she could not prove that the Postal Service
was in fact unable to accommodate her. Id., slip op. at 15. The Board denied review
and the decision became final. Final Order, slip op. at 2. We have jurisdiction pursuant
to 28 U.S.C. § 1295(a)(9).
II. DISCUSSION
A. Standard of Review
This court is without authority to review the substantive merits of disability
determinations, or the factual underpinnings of such determinations. Lindahl v. Office of
Pers. Mgmt., 470 U.S. 768, 791 (1985). Rather, review is limited to determining
“whether there has been a substantial departure from important procedural rights, a
misconstruction of the governing legislation, or some like error ‘going to the heart of the
administrative process.’” Id. (quoting Scroggins v. United States, 397 F.2d 295, 297 (Ct.
Cl. 1968)).
B. The “Accommodation” Requirement
Gooden argues that the AJ erred in requiring Gooden to request accommodation
in order to prove that accommodation of her disability in the position of City Letter
Carrier was unreasonable. Gooden argues that the AJ’s findings themselves
demonstrate that accommodation was unreasonable by finding that the position
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required certain essential duties, that Gooden’s disability prevented her from performing
those essential duties, and that due to Gooden’s restrictions, there was no
accommodation that would allow her to perform the essential duties. Gooden therefore
argues that we should reverse the Board’s decision and hold that Gooden has proven
that accommodation of her disability in the position was unreasonable.1
The government does not directly respond to this issue. Indeed, the government
appears to concede that accommodation was not possible, stating that: “Given the
apparently undisputed fact that ‘medical problems prevented [Gooden] from performing
full-time (8 hours a day) the essential duties of a city letter carrier,’ it [sic] unclear how
the USPS could have made a satisfactory accommodation to permit her to continue to
perform the duties of her official position.” Rather, the government argues that Delceg
v. Office of Personnel Management, 100 M.S.P.R. 467 (2005), requires a factual
determination “of the availability of accommodation,” which the AJ did not make. The
government therefore argues that we should vacate the Board’s decision and remand
for such a determination.
As the government acknowledges, the basis for the AJ’s determination that
Gooden failed to prove the “accommodation” requirement is that Gooden never
requested accommodation. See Initial Order, slip op. at 15. With respect to
accommodation, the relevant regulations provide only that in order to receive a disability
annuity, an individual must show that “[a]ccommodation of the disabling medical
1 Gooden argues in the alternative that if requesting accommodation is a
prerequisite to applying for disability retirement, the Postal Service failed to notify her of
this requirement, but she nevertheless met the requirement by her submission of
medical restrictions. Because we conclude that requesting accommodation is not a
prerequisite to applying for disability retirement, we do not reach the merits of Gooden’s
alternative argument.
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condition in the position held must be unreasonable.” 5 C.F.R. § 844.103(a)(4). We
find no basis in the relevant statutes or regulations for requiring an applicant for
disability benefits to request accommodation. We also find no basis for such a
requirement in either the Board’s precedent or our own. See, e.g., Thomas v. Office of
Pers. Mgmt., 54 M.S.P.R. 686, 691 (1992) (finding accommodation unreasonable by
looking to the medical evidence and comparing it to the job requirements with no
indication that accommodation was requested). Indeed, Schwaier v. Office of
Personnel Management, 61 M.S.P.R. 49 (1994), the only authority cited by the AJ as
support for her conclusion, does not require an applicant for disability benefits to
request accommodation. Rather, the Board in Schwaier held that the fact that an
applicant was no longer an employee is not evidence establishing that an agency was
unable to accommodate the employee at the time of his removal. Id. at 53. We
therefore conclude that the AJ erred in requiring Gooden to request accommodation in
order to prove that accommodation was unreasonable.
We also conclude that the undisputed facts establish that Gooden has proven
that accommodation in her position as City Letter Carrier was unreasonable. The
statute governing entitlement to disability retirement under FERS provides that an
employee shall be considered disabled only if the employee is unable “to render useful
and efficient service in the employee’s position.” 5 U.S.C. § 8451(a)(1)(B). The
pertinent regulation provides that “[a]ccommodation of the disabling medical condition in
the position held must be unreasonable,” 5 C.F.R. § 844.103(a)(4), and accommodation
is defined as “a reasonable adjustment made to an employee’s job or work environment
that enables the employee to perform the duties of the position,” id. § 844.102
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(emphasis added). The statute and regulation make clear that accommodation requires
adjustments that allow an employee to continue to perform her official position. We
have held that a “light-duty” assignment which does not involve the critical or essential
elements of an employee’s official position cannot be considered an “accommodation”
according to the regulations. See Bracey v. Office of Pers. Mgmt., 236 F.3d 1356,
1360-61 (Fed Cir. 2001) (holding that accommodation under the Civil Service
Retirement System regulations requires an adjustment that enables an employee to
perform the duties of his official position, not “light-duty” assignments crafted in
response to medical restrictions); Marino v. Office of Pers. Mgmt., 243 F.3d 1375, 1377-
78 (Fed. Cir. 2001) (applying Bracey to FERS regulations). Here, the AJ found that it
was “undisputed that [Gooden’s] medical problems prevented her from performing full-
time (8 hours a day) the essential duties of a city letter carrier, her official position of
record.” Initial Order, slip op. at 14 (emphasis added). It is also undisputed that—even
with adjustment—performing the duties of her official position full-time would exceed the
restrictions provided by Gooden’s neurologist. See id., slip op. at 8, 11. Instead,
Gooden received a light duty assignment consistent with the neurologist’s restrictions.
Id., slip op. at 11. Because Gooden was incapable of performing the “essential duties”
of her official position at the time of her removal, and because light duty assignment
does not involve the “critical or essential elements” of a City Letter Carrier and thus
cannot qualify as an accommodation according to the regulations, the undisputed facts
demonstrate that Gooden has proven that accommodation was unreasonable.
The Board’s decision in Delceg does not require any further factual inquiry. In
Delceg, the Board correctly noted that in order to qualify for disability benefits under
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FERS, an employee must establish that five requirements have been met, citing 5
U.S.C. § 8451 and 5 C.F.R. § 844.103(a). 100 M.S.P.R. at 471. The Board determined
that the “reassignment” requirement was satisfied. Id. at 472 (“[T]here is no evidence in
the record that the appellant declined a reasonable offer of reassignment to a vacant
position.”). However, in the context of examining the “accommodation” requirement, the
Board evaluated “whether the appellant was qualified for reassignment to a vacant
position.” Id. at 475 (emphasis added). The Board apparently found such an inquiry
was required by its precedent. See id. at 473 (citing Dunn v. Office of Pers. Mgmt., 60
M.S.P.R. 426, 432 (1994)). That inquiry, however, is required by the Civil Service
Retirement System (“CSRS”), not FERS. Compare 5 U.S.C. § 8337(a) (with respect to
CSRS: “Any employee shall be considered to be disabled only if the employee is found
by the Office of Personnel Management to be unable, because of disease or injury, to
render useful and efficient service in the employee’s position and is not qualified for
reassignment . . . .” (emphasis added)) with 5 U.S.C. § 8451(a)(1)(B) (with respect to
FERS: “For purposes of this subsection, an employee shall be considered disabled only
if the employee is found by the Office to be unable, because of disease or injury, to
render useful and efficient service in the employee’s position.”); see also Dunn, 60
M.S.P.R. at 431-32 (citing 5 U.S.C. § 8337(a) as support for the requirement that an
employee must show “he was not qualified for reassignment”). There is simply no
statutory or regulatory support for such a requirement in FERS. See 5 U.S.C. § 8451; 5
C.F.R. § 844.103. Although similarities between the two retirement systems often
dictate similar constructions of similar terms, there is no basis in this case for importing
such a requirement from CSRS into FERS where FERS is silent. Thus, the Board’s
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inquiry in Delceg into whether the appellant was qualified for reassignment to a vacant
position in the context of analyzing whether the appellant had proven that
accommodation was unreasonable under 5 C.F.R. § 844.103(a)(4) was an improper
inquiry. See Bracey, 236 F.3d at 1360-61 (defining “accommodation” under CSRS
regulations as an adjustment enabling employee to perform the duties of his official
position, not reassignment to an accommodated position); Marino, 243 F.3d at 1377-78
(applying Bracey to FERS regulations).
Because the AJ improperly required Gooden to request accommodation in order
to prove that accommodation was unreasonable, and because the undisputed facts
otherwise demonstrate that Gooden has proven that accommodation was
unreasonable, the Board’s decision is contrary to the language of the governing statute
and regulations and results in an error going to the heart of the administrative process.
Accordingly, we reverse the AJ’s finding that Gooden failed to prove that the
“accommodation” requirement was met.
B. The “Reassignment” Requirement
Gooden argues that the AJ erred in concluding that she did not prove that she
“has not declined a reasonable offer of reassignment to a vacant position” as required
by 5 C.F.R. § 844.103(a)(5). Gooden argues that the Postal Service made no offer of
reassignment and, as a result, there was no offer for her to decline. Gooden requests
that we reverse the Board’s decision and hold that Gooden has proven that she did not
decline a reasonable offer of reassignment.
The government concedes that the AJ did not find that Gooden declined an offer
of reassignment, but rather rested its decision on Gooden’s failure to request
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accommodation. The government, however, argues that Gooden’s failure to respond to
the accommodation committee’s December 2002 letter could be construed as declining
a reasonable offer of reassignment. Thus, the government argues that we should
vacate the Board’s decision and remand for such a determination.
The AJ held that Gooden failed to prove the “reassignment” requirement without
any substantive explanation. See Initial Order, slip op. at 15. In conclusion, the AJ
stated only that “the appellant has not proven . . . that a reasonable offer of
reassignment could not have been made in which she would have been able to render
useful and efficient service.” Id. (emphasis added) The relevant statute, however,
provides that “an employee shall not be eligible for disability retirement under this
section if the employee has declined a reasonable offer of reassignment to a vacant
position.” 5 U.S.C. § 8451(a)(2)(A) (emphasis added). This is mirrored in the relevant
regulation, which provides that in order to receive a disability annuity, an individual must
show that “[t]he individual must not have declined an offer of reassignment to a vacant
position.” 5 C.F.R. § 844.103(a)(5) (emphasis added). Thus, with respect to
reassignment, the relevant statute and regulation only require an applicant for disability
benefits to demonstrate that she did not decline a reasonable offer of reassignment; the
statute and regulations do not require an applicant to demonstrate that a reasonable
offer of reassignment could not have been made. We therefore conclude that, to the
extent the AJ required Gooden to prove that a reasonable offer of reassignment could
not have been made, the AJ was in error.
We also conclude that the undisputed facts establish that Gooden has proven
that she did not decline a reasonable offer of reassignment. It is undisputed that
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Gooden did not receive any actual offers of reassignment, and therefore did not decline
such offers of reassignment. Instead, the government argues that the December 2002
letter asking whether Gooden would like to request accommodation, coupled with
Gooden’s failure to respond, can be considered a denial of an offer for reassignment.
The problem with the government’s argument is that it apparently requires Gooden to
request accommodation (or presumably reassignment) in order to prove that she met
the “reassignment” requirement of 5 U.S.C. § 844.103(a)(5); as discussed above, the
statute and regulation only require that Gooden demonstrate that she did not decline an
offer of reassignment. See 5 U.S.C. § 8451; 5 C.F.R. § 844.103. Indeed, it would
appear that the burden in this case was on the Postal Service to consider whether
Gooden qualified for reassignment, and if so, to make an offer. See 5 U.S.C.
§ 8451(a)(2)(B) (“An employee who is applying for disability retirement under this
subchapter shall be considered for reassignment by the employee’s agency to a vacant
position . . . .”); 5 C.F.R. § 844.103(b) (“The agency must certify to the Office of
Personnel Management (OPM) either that there is no vacant position or that, although it
made no offer of reassignment, it considered the individual for a vacant position.”). The
fact that Gooden did not request that the Postal Service make an offer of reassignment
does not negate the fact that no offer of reassignment was made or declined.
Because the AJ improperly required Gooden to demonstrate that a reasonable
offer of reassignment could not be made, and because the undisputed facts otherwise
demonstrate that no offer of reassignment was declined, the Board’s decision is
contrary to the language of the governing statute and regulations and results in an error
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going to the heart of the administrative process. Accordingly, we reverse the AJ’s
finding that Gooden failed to prove that the “reassignment” requirement was met.
III. CONCLUSION
Based on our analysis of the FERS disability retirement scheme, we are satisfied
that Gooden has proven that she is qualified for disability benefits. We therefore
reverse the Board’s decision and remand the case with instructions to grant Gooden the
appropriate disability retirement benefit. In closing, we observe that some of the
confusion in the processing of Gooden’s request for disability retirement benefits may
be attributed to the fact that the December 2002 letter and the attached form do not
clearly distinguish between accommodation as it pertains to current employees, and the
accommodation and reassignment factors that pertain to employees who may have
been dismissed from government service for reasons unrelated to any disability. The
government may wish to review and revise those documents to avoid further confusion.
REVERSED AND REMANDED.
COSTS
Costs to Gooden.
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