Lisa Price v. Department of Veterans Affairs

UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD LISA MARIE PRICE, DOCKET NUMBER Appellant, AT-0752-24-0513-I-1 v. DEPARTMENT OF VETERANS DATE: January 28, 2026 AFFAIRS, Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1 Lisa Marie Price , Deltona, Florida, pro se.

Teri Walker , Esquire, Decatur, Georgia, for the agency.

BEFORE Henry J. Kerner, Vice Chairman James J. Woodruff II, Member

FINAL ORDER The appellant has filed a petition for review of the initial decision, which dismissed her involuntary resignation appeal for lack of jurisdiction. On petition for review, the appellant reiterates that the agency disregarded her medical limitations and that the agency’s action, particularly her reassignment to a facility

A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). located more than 50 miles from her home, forced her to resign. 2 Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 3 5 C.F.R. § 1201.113(b).

On February 3, 2023, the appellant sent an email rescinding her request for a reasonable accommodation and stating that she would be leaving the agency on February 17, 2023, for “a position which [would] accommodate [her] current hardship better” and that she “[felt] that according to [her] condition, [she] ha[d]

The appellant has submitted medical documentation with her petition for review.

Petition for Review File, Tab 1 at 7-8. Under 5 C.F.R. § 1201.115, the Board generally will not consider evidence or argument submitted for the first time with a petition for review absent a showing that it was unavailable before the record was closed before the administrative judge despite the party’s due diligence. See Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 213-14 (1980). The appellant has not explained why she could not have submitted this documentation below. Regardless, the medical evidence does not show that the appellant’s resignation was involuntary. The Board will not grant a petition for review based on new evidence absent a showing that it is of sufficient weight to warrant an outcome different from that of the initial decision. Russo v. Veterans Administration, 3 M.S.P.R. 345, 349 (1980). no choice.” Initial Appeal File (IAF), Tab 4 at 8. The appellant filed a Board appeal in April 2024. 4 IAF, Tab 1.

The administrative judge properly considered the appellant’s allegation that the agency’s delay in granting her reasonable accommodation request for a reassignment to a duty station near her home led to her involuntary resignation.

See, e.g., Hosozawa v. Department of Veterans Affairs, 113 M.S.P.R. 110, ¶¶ 2, 6-7 (2010) (holding that a denial of a reasonable accommodation that would have permitted an employee to continue working despite his medical conditions, and that leads to the employee’s retirement, is a wrongful action that can be the basis of an alleged involuntary retirement claim). The appellant does not allege that she continued to engage in the interactive process or challenged the agency’s delay in responding to her request by, for example, filing an Equal Employment Opportunity complaint before she resigned. See Axsom v. Department of Veterans Affairs, 110 M.S.P.R. 605, ¶ 17 (2009) (finding that the appellant failed to prove that a reasonable person in his position would have felt compelled to resign when he had the option to stand and fight the alleged discrimination, The appellant indicated that she did not want a hearing on her appeal form. Initial Appeal File (IAF), Tab 1 at 1. When an appellant has not requested a hearing in an involuntary resignation appeal, the relevant question is not whether she has raised a nonfrivolous allegation of jurisdiction but whether she has established by preponderant evidence that the Board has jurisdiction over her appeal. Vitale v. Department of Veterans Affairs, 107 M.S.P.R. 501, ¶ 18 (2007). The administrative judge, however, ordered the appellant to file evidence or argument amounting to a nonfrivolous allegation that her resignation was involuntary and dismissed the appeal based on her determination that the appellant failed to do so. IAF, Tab 7, Initial Decision at 2, 4.

The administrative judge’s error did not prejudice the appellant so as to warrant disturbing the initial decision because the finding that the appellant failed to satisfy even the nonfrivolous allegation standard was correct; it follows that the appellant could not have satisfied the higher, appropriate burden. Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984) (finding that an adjudicatory error that is not prejudicial to a party’s substantive rights provides no basis for reversal of an initial decision).

The appellant resigned in February 2023, but the instant appeal was not filed until April 2024. In light of our agreement with the administrative judge’s jurisdictional finding, we need not address the timeliness of the appeal. harassment, and retaliation rather than resign); see also Lawson v. U.S. Postal Service, 68 M.S.P.R. 345, 350 (1995) (finding that the fact that an employee is faced with an inherently unpleasant situation or that his choices are limited to unpleasant alternatives does not make his decision involuntary).

Instead, the record reflects that the appellant and the agency engaged in the interactive process starting around May 2022. IAF, Tab 1 at 8. The appellant does not allege that the agency denied her reasonable accommodation request or that it ceased its efforts to explore potential accommodations. Id. In fact, the appellant’s own submissions indicate that she and the agency discussed a reassignment to a facility near her home—where she was willing to work—and that she remained in contact with human resources and supervisory officials. Id. The appellant chose to terminate the interactive process and resign before a final accommodation decision was made. Id.; IAF, Tab 4 at 8. Accordingly, we affirm the initial decision.

NOTICE OF APPEAL RIGHTS 5 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).

Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum.

Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.

Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information.

(1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.

If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision—including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board, 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction. 6 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B).

The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510.

If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.

If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case.

Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.