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MSPB and Disability Discrimination: Agency's failure to accommodate a federal employee can be sufficient to establish potential

MSPB and Disability Discrimination: Agency's failure to accommodate a federal employee can be sufficient to establish potential involuntary resignation

A recent decision of the Merit Systems Protection Board (MSPB) reinforced a 2009 ruling that a Federal employee’s allegations are adequate to justify a hearing when she alleges she was forced to resign because the agency refused to accommodate her disability by allowing her to telecommute.

Generally, a federal employee’s resignation is voluntary. However, a Federal employee appealing to the MSPB can allege that a resignation (or retirement) was involuntary. There are many basis for asserting involuntariness (misrepresentation, misinformation, coercion, discrimination, etc). To establish involuntariness on the basis of coercion, the appellant must establish: 1) that the agency imposed the terms of the resignation; 2) the appellant had no realistic alternative but to resign, and 3) the resignation was the result of improper actions by the agency.

In the recent MSPB decision, when a doctor sends a Federal employee back to work with a letter saying that if the employee is able to perform the essential functions of her job if she is allowed to telecommute, and if the Agency rejects that accommodation request without meeting the requirements of the law and attempts to terminate the employee for excessive leave, then that Federal employee has stated sufficient facts to entitle her to an MSPB hearing.

No post on this website is legal advice, is meant to be legal advice, and certainly does not serve as a substitute for legal advice. The law surrounding involuntary and/or coerced resignations and retirements is very complex, and requires a legal analysis on a case-by-case basis. Information is power, and we are providing this information to give you, the federal employee, with some power. This information is not widely or easily accessible to Federal Employees.

It is best to consult with a lawyer familiar with Merit Systems Protection Board (MSPB) appeals to discuss the facts and law of your particular case. If you think that your Agency may have constructively discharged you, or discriminated against you on the basis of a disability or failure to accommodate, contact the Law Office of Eric L. Pines, PLLC, to schedule a telephone consultation.