UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

2014 MSPB 76

Docket No. SF-0752-13-0217-I-1

Marco A. Romero,

Appellant,

v.

United States Postal Service,

Agency.

September 24, 2014

Zepuor Parsanian, Tujunga, California, for the appellant.

Kristen Walker, Long Beach, California, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Anne M. Wagner, Vice Chairman

Mark A. Robbins, Member

OPINION AND ORDER

¶1 The appellant has filed a petition for review of the initial decision, which 

dismissed his constructive suspension appeal for lack of jurisdiction and found 

that he did not prove his affirmative defense of retaliation for equal employment 

opportunity (EEO) activity. For the reasons discussed below, we DENY the 

petition for review and AFFIRM the initial decision AS MODIFIED by this 

Opinion and Order. We VACATE the administrative judge’s analysis of the 

appellant’s retaliation claim and conclude that the appellant’s evidence in this 

regard does not warrant a different outcome on the jurisdictional issue. 
2

BACKGROUND

¶2 Starting in October 2012, the appellant was absent from his position as an 

EAS-17 Supervisor, Customer Services due to chronic headaches. Initial Appeal 

File (IAF), Tab 5 at 17-18; see Hearing Compact Diskette (CD); see also IAF, 

Tab 5 at 21 (explaining that the appellant has a diagnosis of post-traumatic stress 

disorder and suffers from headaches and tinnitus). On January 23, 2013, the 

appellant filed a Board appeal, claiming that he was released to return to work on 

December 24, 2012, but had not been returned to work. IAF, Tab 1;

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see IAF, 

Tab 5 at 14-20 (request for accommodation and work capacity report). The 

appellant raised an affirmative defense of disability discrimination. IAF, Tab 1. 

The administrative judge found that the appellant made a nonfrivolous allegation 

of jurisdiction. IAF, Tab 10. The appellant withdrew his claim of disability 

discrimination and, instead, raised a claim of retaliation for protected EEO 

activity. IAF, Tab 14. A hearing was held. See Hearing CD. 

¶3 The administrative judge issued an initial decision dismissing the appeal 

for lack of jurisdiction. IAF, Tab 31, Initial Decision (ID). The administrative 

judge found that, at the time the appellant filed his appeal, he had not been 

cleared to work in his assigned duties, and the agency met its burden to show that

no work was available within his restrictions. ID at 6. The administrative judge 

also found that, subsequent to the filing of the initial appeal: (1) the agency met 

its burden to show that it reasonably determined that there was no supervisory 

work available within the appellant’s restrictions and offered him other work that 

was consistent with his restrictions during a February 8, 2013 district reasonable 

accommodations committee (DRAC) meeting; (2) the appellant declined such 

 

1 Although the appellant checked the box in his initial appeal paperwork for “Failure to 

restore/reemploy/reinstate or improper restoration/reemployment/reinstatement,” IAF, 

Tab 1, it does not appear that the appellant’s condition was a compensable injury. 

Thus, we do not analyze this matter as a restoration appeal. See Bean v. U.S. Postal 

Service, 120 M.S.P.R. 397, ¶ 13 n.7.
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work; (3) the appellant delayed providing the agency with a February 11, 2013 

note, which stated that he only needed hearing protection and that his hours 

should not exceed 12 hours per day; and (4) when the agency finally received the 

documentation at the end of March 2013, it returned him to work “within a 

reasonable time.” ID at 7 & n.4. The administrative judge concluded that any 

delay involved in the appellant’s return to work in his Supervisor position on 

April 1, 2013, was justified because the medical documentation presented to the 

agency was insufficient to allow the agency to make a reasoned determination as 

to the nature of the appellant’s condition, whether he could perform the essential 

functions of his position with or without limitations, and whether it had work 

available that he could perform within those limitations. ID at 7. The 

administrative judge therefore determined that the appellant failed to meet his 

jurisdictional burden to establish that an appealable suspension occurred. ID 

at 7-8. Finally, the administrative judge found that the appellant did not prove 

his affirmative defense of retaliation for protected activity. ID at 8. 

¶4 The appellant filed a petition for review, and the agency filed a response. 

Petition for Review (PFR) File, Tabs 1, 3. 

ANALYSIS

¶5 As the Board recently discussed in Bean v. U.S. Postal Service, 

120 M.S.P.R. 397 (2013), and Abbott v. U.S. Postal Service, 121 M.S.P.R. 294

(2014), certain leaves of absence may be appealable under chapter 75 as 

constructive suspensions. Abbott, 121 M.S.P.R. 294, ¶ 7; Bean, 120 M.S.P.R. 

397, ¶ 7. In Bean, the appellant began taking a large amount of sick leave, annual 

leave, and leave without pay in order to avoid having to work on his regular tour 

because it would have required him to work into the night, contrary to his 

doctor’s recommendations. Bean, 120 M.S.P.R. 397, ¶ 4. Although the appellant 

requested reasonable accommodations and submitted supporting medical 

documentation, it appears that the agency was never able to find an 
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accommodation upon which the parties could agree. Id. The administrative 

judge construed the appellant’s subsequent Board appeal as a constructive 

suspension claim and dismissed it for lack of jurisdiction without conducting a 

jurisdictional hearing, finding that the appellant’s choice between working after 

dark and requesting leave was perhaps unpleasant but nevertheless voluntary. Id.

¶6 In Bean, the Board granted the appellant’s petition for review and 

remanded the appeal for further adjudication. Id., ¶ 1. It found that the essence 

of the appellant’s claim was that he was compelled to take leave because his only 

alternative was to work after dark, in violation of his doctor’s orders, and that the 

agency forced him into this untenable position by improperly taking him off of 

the tour 2-day shift and otherwise failing to accommodate his condition. Id.,

¶ 14. The Board determined that the appellant’s allegations, if proven, could 

establish that he lacked a meaningful choice in the matter and that it was the 

agency’s improper actions that deprived him of that choice. Id. It disagreed with 

the reasoning in prior Board cases suggesting that an appellant’s “unpleasant” 

choice between taking leave and returning to work outside of his medical 

restrictions was voluntary, rejecting the premise that working outside of medical 

restrictions is somehow a viable option. Id., ¶ 13. The Board thus concluded that 

the appellant made a nonfrivolous allegation that he was subjected to an 

appealable constructive suspension and remanded the appeal for further 

development of the record and a jurisdictional hearing. Id., ¶ 14.

¶7 By contrast, in Abbott, the appellant never voluntarily absented herself 

from duty and her appeal did not concern a claim that leave that appeared to be 

voluntary actually was not. Rather, she submitted a request to work a light-duty 

assignment. Abbott, 121 M.S.P.R. 294, ¶ 2. The agency denied her request on 

the ground that there was no work available within her medical restrictions. Id. 

It thereafter proposed to place the appellant on enforced leave because there was 

no available work within her medical restrictions and, after granting her an 

opportunity to reply to the notice, issued a final decision effecting the enforced 
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leave action. Id., ¶ 3. The administrative judge adjudicated the appeal as an 

alleged constructive suspension and dismissed it for lack of jurisdiction. Id., ¶ 4. 

The Board reversed, noting that in Pittman v. Merit Systems Protection Board,

832 F.2d 598, 599-600 (Fed. Cir. 1987), our reviewing court held that placement 

of an employee on enforced leave due to his medical condition, which prevented 

him from performing in any available position, constituted an appealable 

suspension of more than 14 days. Id., ¶ 9. The Board held that suspensions 

under these circumstances are not “constructive” and the case law concerning 

constructive suspensions is inapplicable. Id., ¶ 10. Rather, to sustain such 

suspensions, the agency must prove by preponderant evidence that the charged 

conduct occurred, that a nexus exists between the conduct and service efficiency, 

and that the penalty is reasonable. Id. Because there was no dispute that the 

agency placed the appellant in an enforced leave status for more than 14 days 

against her will, the Board held that the agency’s action constituted an appealable 

suspension within the Board’s jurisdiction. Id., ¶ 11. Because the agency 

provided the appellant a proposal notice and a final decision on the proposed 

action, the Board remanded the appeal for adjudication of the merits and the 

appellant’s affirmative defenses. Id. 

¶8 Like Bean, the instant case is an appeal of a constructive suspension 

insofar as it concerns a claim that leave that appeared to be voluntary actually 

was not. Specifically, although the appellant was initially voluntarily absent 

from his position due to chronic headaches, his absence arguably became 

involuntary once he expressed his intent to return to work on December 24, 2012, 

and the agency was unable to find him work within his restrictions. See Bean, 

120 M.S.P.R. 397, ¶¶ 13-14. Thus, to establish jurisdiction under these 

circumstances, the appellant must prove by preponderant evidence that: (1) he 

lacked a meaningful choice in the matter; and (2) it was the agency’s wrongful 

actions that deprived him of that choice. Id., ¶ 8. 
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¶9 Here, once the appellant was medically released to return to work with 

medical restrictions, the agency’s decision not to return him to work deprived 

him of a meaningful choice in the matter. Thus, the appellant satisfied the first 

prong under Bean.

2

 However, we have reviewed the documentary and testimonial 

evidence, and, for the reasons discussed below and in the initial decision, we 

conclude that the agency did not act improperly in refusing to allow the appellant 

to return to work. Thus, the second prong under Bean has not been satisfied, and 

the Board lacks jurisdiction over this constructive suspension appeal. 

¶10 In pertinent part, the record reflects that the agency received a work 

capacity report which indicated that the appellant could return to work on 

December 24, 2012, that his condition “can be augmented with stress,” and that 

his work should be limited to 8 hours per day. IAF, Tab 5 at 18-19; see id. at 21 

(a separate December 19, 2012 note indicated that the agency should “not assign 

[the appellant] duties in a stressful environment”). The agency’s Occupational 

Health Nurse Administrator testified that the information contained in the work 

capacity report caused her to send clarification requests to the appellant’s primary 

care physician and neurologist in late December 2012, and both doctors checked 

“no” to a question about whether the appellant “was safe and medically cleared to 

return to the work environment.” See Hearing CD; see also IAF, Tab 5 at 12 (the 

appellant’s primary care physician3 stated on December 27, 2012, that his 

“symptoms are exacerbated by stress and by loud noises” and he recommended “a 

 

2 It could be argued that once the appellant sought to return to work and was prevented 

from doing so for more than 14 days, the action became an appealable suspension under 

Abbott rather than a constructive suspension under Bean. However, while the agency’s 

refusal to allow the appellant to return to work is the immediate cause of his absence, 

the proximate cause is arguably his failure to meet the conditions of the agency’s 

“clearance to return to work” policy. The analytical framework in Bean contemplates 

the development of the record on both of these issues. 

3 Arthur Gomez, M.D., appears to be the appellant’s primary care physician, but Galyn 

Rees, M.D., signed the clarification request. See IAF, Tab 5 at 12.
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more stable work hour schedule, less stress and less noise in [a] working 

environment”); id. at 13 (the appellant’s neurologist stated on December 26, 

2012, that when the appellant’s headaches are severe, “they will impair his 

attention and concentration,” and the neurologist recommended “either a change 

in his job duties to more stable hours or an environment where he is not exposed 

to noises”). 

¶11 Given the significant restrictions of less stress, less noise, and less hours, 

we find that there was not any improper or wrongful agency action. To the 

contrary, the record reflects that the agency worked diligently to find the 

appellant a position that met these restrictions, it held two DRAC meetings, it 

reasonably determined that a supervisory position did not meet these restrictions, 

and it offered the appellant three nonsupervisory positions. Moreover, when the 

agency finally learned at the end of March 2013, that the appellant could return to 

work with only hearing protection and hours not to exceed 12 hours a day, see 

IAF, Tab 9 at 9 (February 11, 2013 note); IAF, Tab 28, Exhibit 1 (March 28, 

2013 note), the agency promptly returned him to work in his Supervisor position

on April 1, 2013. See Hearing CD.4

¶12 On review, the appellant appears to contend that there were other, vacant, 

supervisory EAS-17 positions available that were within his medical restrictions. 

See PFR File, Tab 1 at 2-3 (discussing the EAS-17 Business Development 

Specialist and EAS-17 Supervisor of Statistical Programs vacancies). The record 

does not support this assertion. Indeed, the agency witnesses credibly testified 

that the only positions available within the appellant’s multiple restrictions were 

 

4 There was testimony that the appellant did not return to work after April 6, 2013, and 

was placed on enforced leave on this date. See Hearing CD. During the hearing, the 

administrative judge stated that the agency’s proposed action in this regard was not the 

subject of the instant appeal. See id. If the appellant wishes to pursue an appeal 

regarding the agency’s action starting on April 6, 2013, he should file a separate Board 

appeal with the Western Regional Office. The Board takes no position on whether it 

would have jurisdiction over such an appeal.
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nonsupervisory positions. See Hearing CD. The appellant’s “belief [that] he 

could perform supervisory duties,” PFR File, Tab 1 at 2, does not change our 

disposition. Even if the vacancies in question were not limited to “impacted 

employees,” IAF, Tab 9, Exhibits 3-4, we are not persuaded that a supervisory 

position—an inherently stressful position—could have satisfied the appellant’s 

documented restrictions. For these reasons, we modify the administrative judge’s 

analysis of the jurisdictional issue, and we conclude that the Board lacks 

jurisdiction over the appeal.

¶13 Regarding the appellant’s “affirmative defense” of retaliation for protected 

EEO activity, the administrative judge found that the appellant did not meet his 

burden of proof because he “did not testify, or present any [evidence] whatsoever, 

in support of this claim.” ID at 8. Having concluded that the Board lacked 

jurisdiction over the constructive suspension appeal, however, it was improper for 

him to separately adjudicate this “affirmative defense,” and we vacate the initial 

decision in this regard. We have considered the appellant’s retaliation claim as 

part of our analysis of whether the agency acted improperly, but we are not 

persuaded that a different outcome is warranted. 

ORDER

¶14 The initial decision is AFFIRMED as MODIFIED by this Opinion and 

Order. This is the final decision of the Merit Systems Protection Board in this 

appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R. 

§ 1201.113(c)).

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision by the United 

States Court of Appeals for the Federal Circuit. You must submit your request to 

the court at the following address:
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United States Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, DC 20439

The court must receive your request for review no later than 60 calendar 

days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 

27, 2012). If you choose to file, be very careful to file on time. The court has 

held that normally it does not have the authority to waive this statutory deadline 

and that filings that do not comply with the deadline must be dismissed. See 

Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).

If you need further information about your right to appeal this decision to 

court, you should refer to the federal law that gives you this right. It is found in 

Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. 

Dec. 27, 2012). You may read this law as well as other sections of the United 

States Code, at our website, http://www.mspb.gov/appeals/uscode/htm. 

Additional information 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, and 11. 

If you are interested in securing pro bono representation for your court 

appeal, you may visit our website at http://www.mspb.gov/probono for a list of 

attorneys who have expressed interest in providing pro bono representation for 

Merit Systems Protection Board appellants before the court. The Merit Systems
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Protection Board neither endorses the services provided by any attorney nor 

warrants that any attorney will accept representation in a given case. 

FOR THE BOARD:

______________________________

William D. Spencer

Clerk of the Board

Washington, D.C.