Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Harris v. Department of Veterans Affairs

May 07, 1998

WAYNE B. HARRIS, PETITIONER,
v.
DEPARTMENT OF VETERANS AFFAIRS, RESPONDENT.



Before Clevenger, Bryson, and Gajarsa, Circuit Judges.

The opinion of the court was delivered by: Clevenger, Circuit Judge.

Appealed from: Merit Systems Protection Board

Wayne B. Harris, pro se, petitioner, of Phoenix Arizona. Elizabeth M. Hosford, Attorney, Commercial Litigation Branch, Civil Division, U.s. Department of Justice, of Washington, Dc, for respondent. With her on the brief were Frank W. Hunger, Assistant Attorney General, David M. Cohen, Director, and Anthony H. Anikeeff, Assistant Director.

Before Clevenger, Bryson, and Gajarsa, Circuit Judges.

The opinion of the court was delivered by: Clevenger, Circuit Judge.

Wayne B. Harris appeals the final decision of the Merit Systems Protection Board (Board), Docket No. DE0752970009-C-1, which denied review of an initial decision denying his petition for enforcement of a settlement agreement between him and his former employing agency, the Department of Veterans Affairs (DVA). The settlement agreement resolves Mr. Harris's appeal of his removal by the DVA. In the initial decision, the administrative Judge correctly held that, by withdrawing his application for a disability retirement from the Office of Personnel Management (OPM), Mr. Harris failed to comply with the settlement agreement. Consequently, Mr. Harris waived his right to appeal his removal to the Board. The question remains, however, whether under the settlement agreement and the applicable regulation, 5 C.F.R. § 844.202, the DVA fulfilled its obligation to assist Mr. Harris in securing a disability retirement. We therefore vacate the Board's decision and remand the case for further proceedings.

I.

Mr. Harris was employed as a Housekeeping Aid by the DVA. On February 12, 1996, a supervisor of Mr. Harris, Michael E. Peck, requested that Mr. Harris undergo a fitness for duty examination. In that request, Mr. Peck indicated that Mr. Harris had "demonstrated abnormal behavior" and that he believed that Mr. Harris "may have psychiatric problems." Mr. Peck concluded, "[w]hile it may have been a laudable goal for our medical staff to try and assist this individual with his health problems and then return him to duty," he thought Mr. Harris too dangerous for continued employment.

The record contains two contact reports submitted by fellow employees of Mr. Harris that concur with this assessment. In one, Roberto A. Peart remarked that Mr. Harris "appear[ed] to be struggling with strong paranoid ideation and delusional thoughts." In another report, a physician at the DVA, Robert L. Baird, reported that Mr. Harris had been brought to him in "crises" and that Mr. Harris had received medication from a "Dr. Gilman."

On July 19, 1996, the DVA informed Mr. Harris that it had proposed his removal. The diagnosis from Mr. Harris's fitness for duty examination was "[d]elusional disorder, persecutory type." To qualify for his position, an employee "[m]ust possess emotional and mental stability." The communication also indicated that Mr. Harris had been suspended in 1995 for a confrontation with a co-worker involving abusive language and threats of physical violence. Because Mr. Harris did not meet the qualifications of his position and because of his disciplinary record, the DVA concluded that removal was appropriate.

On August 15, 1996, the DVA indicated that it would remove Mr. Harris, and on August 30, 1996, the DVA removed him. The DVA informed Mr. Harris that he could apply for a disability retirement under the Federal Employee Retirement System (FERS), because his removal was based on his inability to satisfy the requirements of his position and he had completed at least 18 months of Federal civilian service.

II.

Mr. Harris, acting pro se, appealed his removal on September 21, 1996. Before the administrative Judge ruled on his case, Mr. Harris submitted, with the DVA's assistance, an application for a disability retirement under FERS. The application had two parts, an "Applicant's Statement of Disability" and a "Supervisor's Statement." In the former, Mr. Harris answered "unknown" to all three queries on the form concerning his medical disability and how it affected his job performance. Indeed, Mr. Harris did not indicate on what basis he was applying for a disability retirement. The only significant information provided on the form was that Mr. Harris intended to call on three physicians from the DVA to support his application for a disability retirement.

In the Supervisor's Statement, Mr. Harris's supervisor of almost six years, John A. Flowers, indicated that Mr. Harris's conduct was unsatisfactory and that it was impossible for the DVA to accommodate his disability. Mr. Flowers explained:

Mr. Harris suffers from "delusional disorder, persecutory type" which affects his temper, attitude, memory and his performance on the job in general. He is unable to take constructive criticism from anyone . . . . He is paranoid, irritable and angry and he has frequently had verbal confrontations [with others] over minor problems. When he feels he is being spied on and that everyone is watching him, he ceases all his work activity.

Frequently, Mr. Harris is delusional and insists that people are out to get him and leaves his assigned work area to discuss his problems with [others], without the permission of his supervisor. Mr. Harris exhibits extreme paranoia and hostility and has even presented himself at his supervisor's home because he felt the need to pursue a confrontation. Mr. Harris had threatened to assault his co-workers because he feels that they are persecuting him . . . . Mr. Harris believes that the CIA, the hospital director and others are involved in a conspiracy against him.

In a letter dated October 18, 1996, OPM responded to Mr. Harris's application for a disability retirement. Using a form entitled "Additional Information for Psychiatric Disorders," OPM requested that Mr. Harris provide extensive medical information documenting his disability. Mr. Harris alleges that he did not receive this letter from OPM until after November 13, 1996.

On October 21, 1996, before Mr. Harris had received OPM's request, the administrative Judge convened a preliminary status conference by telephone. During that conference, the administrative Judge entered a settlement agreement (the Agreement) into the record, and he accordingly dismissed the appeal in an initial decision. The administrative Judge tape-recorded the terms of the Agreement and the parties' acceptances. The following terms of the Agreement, in which Mr. Harris is the "appellant" and the DVA is the "agency," are relevant here:

1) the appellant voluntarily withdraws his appeal; 2) the agency agrees to assist him with his disability application which is currently pending before [OPM]; 3) the appellant my [sic] refile this appeal within 30 days of his receipt of any final decision by OPM which denies his disability application, provided he also appeals OPM's final decision to the Board and asks that it be joined with his refiled appeal (alternatively, he may refile this appeal on March 21, 1997, if he has not received a final decision from OPM); . . . 7) the parties request that the Board retain jurisdiction to enforce the terms of this agreement.

We presume that the mutual interest in a disability retirement for Mr. Harris, as evidenced by provision two of the Agreement, was to provide him with some financial support. Were OPM to approve a disability retirement for Mr. Harris, he would receive, during the first year of disability, up to 60 percent of his average pay, minus any adjusted social security disability benefits to which he would be entitled. After the first year, he would receive up to 40 percent of his average pay, minus 60 percent of adjusted social security disability benefits, if any. See 5 C.F.R. ยง 844.302; Federal ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.