810 F.2d 1133 (Fed. Cir. 1987), 86-1195, Schultz v. United States Navy

Docket Nº:Appeal No. 86-1195.
Citation:810 F.2d 1133
Party Name:Margaret J. SCHULTZ, Petitioner, v. UNITED STATES NAVY, Respondent.
Case Date:January 29, 1987
Court:United States Courts of Appeals, Court of Appeals for the Federal Circuit
 
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Page 1133

810 F.2d 1133 (Fed. Cir. 1987)

Margaret J. SCHULTZ, Petitioner,

v.

UNITED STATES NAVY, Respondent.

Appeal No. 86-1195.

United States Court of Appeals, Federal Circuit

January 29, 1987

Page 1134

Susan C. Rosen, of Rosen, Rosen & Hagood, Charleston, S.C., for petitioner.

Linda T. Maramba, of the Commercial Litigation Branch, Dept. of Justice, Washington, D.C., for respondent.

Before MARKEY, Chief Judge, and DAVIS and NIES, Circuit Judges.

NIES, Circuit Judge.

Petitioner Margaret J. Schultz appeals from the decision of the Merit Systems Protection Board, Case No. AT07528510366, 29 M.S.P.R. 186 (1985), dismissing her appeal from a termination of her employment on the grounds that the board lacked jurisdiction. Specifically, the board held that petitioner failed to establish that her resignation from her position was involuntary and, thus, that she was removed by an adverse action. We reverse.

Background

Petitioner Schultz accepted a transfer of position to the Department of the Navy, Naval Weapons Station, Charleston, South Carolina, on June 19, 1983, as the housing manager on the base. In connection with her transfer, she was advanced over $3,300 in moving expenses on the condition that she remain in the position for twelve months.

There is no assertion by the agency that Ms. Schultz performed less than satisfactorily in her position. Indeed, her difficulties arose from her strenuous efforts to reduce waste, inefficiency, and health hazards which she perceived in the maintenance of housing on the base. As a result of extreme frustration in her efforts to that end, Ms. Schultz felt it necessary to consult her

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physician in February, 1984. Following the advice of her physician, in late February she pursued the possibility of a transfer to a different position in the agency and, in early March, submitted a formal request for thirty days' leave from February 29 until March 30 for "rest for mental and health considerations." Ms. Schultz also, on or about that date, advised the agency that, if she were unable to transfer to a different position, she intended to resign on March 31, 1984, and to seek a disability retirement.

By notarized letter dated March 6, 1984, the physician whom Ms. Schultz consulted informed the agency that he had examined her on February 17, 1984. It was his opinion that, if she continued in her present position, the work would cause her harm mentally and emotionally and that he believed his patient to be "totally disabled for her present position."

On March 8, 1984, Ms. Schultz' supervisor notified her that her request for leave was denied because of lack of a medical certificate, that she was being carried since March 1 in an unauthorized absence status, and that her request for reassignment could not be granted. The supervisor enclosed a resignation form and advised that, if Schultz wished to resign earlier than March 31, the resignation should be returned as soon as possible. The supervisor stressed the importance of Schultz returning to work immediately or resigning immediately, since Schultz'...

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