UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

BETTY HALLETT,

Appellant,

v.

DEPARTMENT OF AGRICULTURE,

Agency.

DOCKET NUMBER

SF-0752-16-0233-I-1

DATE: June 9, 2022

THIS ORDER IS NONPRECEDENTIAL1

Betty Hallett, Bainbridge Island, Washington, pro se.

Joshua N. Rose, Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

REMAND ORDER

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

dismissed her constructive suspension appeal for lack of jurisdiction. For the 

reasons discussed below, we GRANT the appellant’s petition for review, 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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).
2

REVERSE the initial decision, and REMAND the case to the Western Regional 

Office for further adjudication in accordance with this Remand Order.

BACKGROUND

¶2 The appellant, a GS-12 Supervisory Public Health Veterinarian with the 

agency’s Food Safety and Inspection Service, filed this appeal in which she 

alleged that her absence from work from September 8, 2014, to March 30, 2015,

was a constructive suspension, arguing that the agency discriminated against her 

on the basis of her medical noise restrictions and failed to grant her repeated 

requests for a reasonable accommodation. Initial Appeal File (IAF), Tab 1 at 7. 

She alleged that the agency failed to provide her a safe workplace, asserting that 

the noise level at her first duty station in February 2010, was excessive, 

sometimes reaching 134 decibels (dB), and she attributed her hearing problems to 

the proximity of the splitting saws used at the meat processing plants where she 

performed her duties. Id. at 7-9. The appellant described conflicts that she had 

with the inspectors she worked with at the processing plants and contended that 

agency officials and employees engaged in a long and complicated series of 

retaliatory actions against her. Id. at 7-19. She also filed an equal employment 

opportunity (EEO) complaint in which she alleged that the agency constructively 

suspended her due to her sex, race, color, national origin, and physical disability, 

and engaged in reprisal for prior EEO activity. Id. at 176-207.2

¶3 As recounted by the administrative judge, primarily on the basis of the 

testimony before her, the agency transferred the appellant to less noisy work 

environments, but personnel shortages required the agency to occasionally 

reassign her to noisier environments. IAF, Tab 53, Initial Decision (ID) at 3-4. 

Additionally, complaints that the agency received about the appellant from one of 

 

2 Because some of the pleadings in this appeal are of substantial length and are 

unnumbered in the hard copy of the file, page number citations in those instances refer 

to the electronic record. 
3

her subordinates and from the management of one of the processing plants caused 

the agency to detail the appellant away from one of the less noisy work 

environments in accordance with agency policy regarding workplace violence. 

Id.; IAF, Tab 12 at 101, Tab 21 at 67. The appellant filed a June 2014 claim with 

the Office of Workers’ Compensation Programs (OWCP) and, after subsequently

experiencing increased symptoms of tinnitus, she provided the agency with 

updated medical restrictions, first limiting her noise exposure to 100 dB, then to 

60 dB, and ultimately limiting her to office work only with no noise exposure at 

all. IAF, Tab 12 at 102, 109, 118-23, 128-30; Tab 21 at 64, 68, 107-08; Tab 39 

at 5-6.

¶4 The appellant requested reasonable accommodation, but the agency 

determined that she was not disabled and consequently denied her request, in 

large part because her physician indicated that her hearing, despite some loss, was 

still within normal limits. IAF, Tab 12 at 42, 107, 117. Upon her September 8, 

2014 return from previously scheduled annual leave, the agency informed the 

appellant that it had no work available within her medical restrictions. Id.

at 104-06. As such, the appellant was absent from the workplace on leave 

without pay (LWOP) from September 8, 2014, to March 30, 2015. Id. at 102-06. 

In March 2015, OWCP denied the appellant’s injury claim and the agency 

subsequently ordered her to return to duty or submit new medical documentation. 

Id. at 118-23. The agency placed the appellant on administrative leave effective 

April 27, 2015, id. at 125, 128-30, and subsequently allowed her to return to 

work, but the record reflects some controversy as to the particular duty station, id.

at 131-35.

¶5 The agency issued a December 15, 2015 final agency decision on the 

appellant’s EEO complaint finding no discrimination, and the appellant timely 

filed the instant appeal. IAF, Tab 1 at 1-22, 176-207. The administrative judge 

found that the appellant had made nonfrivolous allegations sufficient to warrant a 

jurisdictional hearing on her constructive suspension claim. IAF, Tab 14 at 1-2. 
4

After holding the hearing, the administrative judge dismissed the appeal for lack 

of jurisdiction, finding that even though the appellant lacked a meaningful choice 

concerning her absence from work, she failed to demonstrate that any improper or 

wrongful actions by the agency led to her lack of choice. ID at 8-14 (citing Bean 

v. U.S. Postal Service, 120 M.S.P.R. 397, ¶ 7 (2013)).

¶6 In her petition for review, the appellant argues that the agency suspended 

her in retaliation for protected whistleblowing disclosures, reiterates her argument 

that the agency failed to provide her with reasonable accommodation, claims that 

she was denied due process, and generally contends that the administrative judge 

erred in assessing the facts. Petition for Review (PFR) File, Tab 3. The agency 

has filed a response in opposition to the petition for review and the appellant has 

filed a reply to the agency’s response. PFR File, Tabs 5-6.

DISCUSSION OF ARGUMENTS ON REVIEW

¶7 The Board’s jurisdiction is limited to those matters over which it has been 

given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems 

Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). The appellant has the burden 

of proving the Board’s jurisdiction by a preponderance of the evidence. 5 C.F.R. 

§ 1201.56(b)(2)(i)(A). A constructive suspension appeal concerns leave that 

appears to be voluntary, but actually was not. Bean, 120 M.S.P.R. 397, ¶ 7. An 

employee may establish jurisdiction if she can prove that she lacked a meaningful 

choice in the matter and it was the agency’s wrongful actions that deprived her of 

that choice. Id., ¶ 8. In contrast, an agency’s placing an employee on enforced 

leave for more than 14 days constitutes an appealable suspension within the 

Board’s jurisdiction, not a constructive suspension. Abbott v. U.S. Postal Service, 

121 M.S.P.R. 294, ¶ 10 (2014).

¶8 In her petition for review, the appellant reasserts her argument below that

the Board has jurisdiction over her appeal because the agency placed her on 

enforced leave for more than 14 days. PFR File, Tab 3 at 5. For the following 
5

reasons, we find that the administrative judge erroneously construed and analyzed 

the appellant’s claim as a constructive suspension instead of an appealable 

suspension. As noted above, the record reflects that after the appellant returned 

to work from previously scheduled annual leave, the agency told her to leave 

work because it could find no work within her medical restrictions. IAF, Tab 12 

at 104-06. Under such circumstances, the appellant’s absence does not appear 

voluntary, but instead constitutes an appealable suspension within the Board’s 

jurisdiction because the agency placed her in an enforced leave status for more 

than 14 days against her will. See, e.g., Abbott, 121 M.S.P.R. 294, ¶ 11.

¶9 Because a tenured Federal employee has a property interest in continued 

employment, an agency is prohibited from placing an appellant on enforced leave 

for more than 14 days without providing the due process required under the Fifth 

Amendment. Cleveland Board of Education v. Loudermill, 470 U.S. 532, 546 

(1985); see Martin v. U.S. Postal Service, 123 M.S.P.R. 189, ¶ 11 (2016). An 

agency’s failure to provide a tenured public employee with proper notice and an 

opportunity to present a response, either in person or in writing, to an appealable 

agency action that deprives her of her property right in her employment 

constitutes an abridgement of her constitutional right to minimum due process of 

law, i.e., prior notice and an opportunity to respond. Id. Here, the agency did not 

provide the appellant with notice of any proposed enforced leave or an 

opportunity to be heard, either before or after it imposed the enforced leave , and 

the record reflects that she was in an LWOP status for at least 400 hours. IAF, 

Tab 12 at 128. Consequently, we reverse the agency’s enforced leave action. 

See, e.g., Martin, 123 M.S.P.R. 189, ¶ 11 (reversing the agency’s suspension 

action because it violated the appellant’s constitutional due process rights).

¶10 Given our finding that the appellant’s suspension is an appealable action, 

she is entitled to a decision on her claim that the agency’s action constituted 

reprisal for her prior EEO activity and on her discrimination claims. See 5 U.S.C.

§ 7702(a)(1). The case therefore must be remanded to the regional office to 
6

adjudicate these claims. See Aldridge v. Department of Agriculture,

111 M.S.P.R. 670, ¶ 23 (2009); Totten v. U.S. Postal Service, 68 M.S.P.R. 255, 

257 (1995). On remand, the administrative judge should, if necessary, hold a 

hearing on the appellant’s affirmative defenses of discrimina tion based on sex, 

race, color, physical disability, and national origin, and retaliation for protected 

EEO activity.

3

IAF, Tab 1 at 5; see Hess v. U.S. Postal Service, 123 M.S.P.R. 

183, ¶¶ 9-10 (2016) (remanding the appellant’s discrimination claims for a 

hearing because she raised a cognizable claim of discrimination in connection 

with an otherwise appealable action and sought compensatory damages).

¶11 The administrative judge also should allow the appellant to proceed with

her whistleblower reprisal claims to the extent they relate to her suspension. PFR

File, Tab 3 at 29; IAF, Tab 52 at 4. The appellant alleges other “retaliatory 

actions,” such as unfavorable work assignments, based on her protected 

disclosures. Thus, the administrative judge should provide her with notice 

regarding her burden of proving these possible whistleblowing allegations as an 

affirmative defense to an otherwise appealable action (i.e., this appealable 

suspension) or, alternatively, how to establish jurisdiction over such claims in 

connection with any personnel actions that are not otherwise appealable in an 

 

3

In the initial decision, the administrative judge indicated that in the appellant’s EEO 

complaint filed with the agency, she raised claims not only based on these protected 

purviews, but also based on age discrimination. ID at 6 (citing IAF, Tab 1 at 176 -207). 

The materials cited by the administrative judge do not support this conclusion. IAF, 

Tab 1 at 176-207. Further, the administrative judge did not list an age discrimination 

claim in her prehearing conference summary and order among the issues to be resolved 

at hearing. IAF, Tab 47 at 2. The parties did not object to this summary and order 

although the administrative judge invited them to do so, and the appellant did not raise 

a claim of age discrimination in her written closing statement followin g the hearing. 

IAF, Tab 47 at 7, Tab 52. In fact, in an affidavit in the record below, completed during 

the agency’s investigation into her EEO complaint, the appellant stated that she was 

“not claiming age discrimination, although it probably exists as well.” IAF, Tab 16 

at 20, 86. In light of our remand, we find it unnecessary to resolve on review whether 

the appellant raised a claim of age discrimination below. The administrative judge 

should affirmatively indicate in the remand initial decision whether the appellant raised 

such a claim and, if she did, adjudicate it.
7

individual right of action (IRA) appeal. See, e.g., Corthell v. Department of 

Homeland Security, 123 M.S.P.R. 417, ¶¶ 13-14 (2016) (remanding an appeal for 

the appellant to receive notice of the requirements for establishing jurisdiction 

over his IRA appeal); PFR File, Tab 3 at 21.

ORDER

¶12 The initial decision is reversed, and the case is remanded to the Western 

Regional Office for further adjudication.

FOR THE BOARD:

Washington, D.C.

 /s/ for 

Jennifer Everling

Acting Clerk of the Board