UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD 2014 MSPB 47

Docket No. DC

- 0752

- 12

- 0366

- I

- 1 

### Mary A. Abbott, Appellant,

v. United States Postal Service, Agency. June 23, 2014 Allison E. Eddy , Esquire, Virginia Beach, Virginia, for the appellant. Jasmin A. Dabney , Landover, Maryland, for the agency.

BEFORE Susan Tsui Grundmann, Chairman Anne M. Wagner, Vice Chairman Mark A. Robbins, Member

OPINION AND ORDER ¶1 The appellant has petitioned for review of the initial decision that dismissed her appeal o f her placement on enforced leave for lack of jurisdiction. For the reasons set forth below, we GRANT the appellant ’s petition and REMAND this appeal for adjudication on the merits.

BACKGROUND ¶2 The following facts, as set forth in the initial decision , a re undisputed: t he appellant held the position of EAS

- 17 Supervisor, Customer Services at the Denbigh Postal Station in Newport News, Virginia. Initial Appeal File (IAF),2

Tab 43, Initial Decision (ID) at 2. The appellant subm itted a request to work a li ght

- duty assignment on December 29, 2011. ID at 2. Subsequently the Officer

- In

- Charge denied the appellant’s request on the ground that there was no work available within the appellant’s medical restrictions. ID at 2. ¶3 On January 6, 2012, the agency pro posed to place the appellant on enforced leave because there was no available work within her medical restrictions. ID at 2 ; see IAF, Tab 8 at 61. After granting the appellant an opportunity to reply to the notice, by letter dated February 6, 2012, the a gency issued a final decision effecting the enforced leave action against her on February 8, 2012. ID at 2; IAF, Tab 8 at 17

- 18, 57. ¶4 On February 9, 2012, the appellant filed the instant appeal in which she challenged the agency’s enforced leave action aga inst her. IAF, Tab 1. After a jurisdictional hearing, the administrative judge dismissed the appeal for lack of jurisdiction, finding that the appellant failed to establish that the agency’s action constitute d a constructive suspension

. ID at 10. T he administrative judge also determined that , absent an otherwise appealable action, the Board lacked jurisdiction to consider the appellant’s affirmative defenses. Id. ¶5 The appellant has filed a petition for review of the initial decision , and the agency has submitted a response in opposition to the appellant’s petition. Petition for Review File, Tabs 1, 3.

ANALYSIS ¶6 The Board has jurisdiction over appeals only from the types of agency actions specifically enumerated by law, rule, or regulation. Perez v. M erit Systems Protection Board , 931 F.2d 853 , 855 (Fed. Cir. 1 991 ). These appealable actions include suspensions for more than 14 days. 5 U.S.C. § 7512

. A “suspension” is the temporary pl acement of an employee in a nonpay, non duty

status. 5 U.S.C. § 7501 (2). This def inition covers not just unpa id absences but also an agency’ s placement of an employee on sick or annual leave against her3

will. Yarnell v. Department of Transportation , 109 M.S.P.R. 416 , ¶ 10 (2008). For jurisdictional purposes, whether the employee was able to perform her regular duties is immaterial. Id. Rather, the only q uestion is whether the employee’ s placement in a leave status was voluntary or involuntary; only th e latter is appealable. Id. ¶7 As we recently explained in Bean v. U.S. Postal Service , 120 M.S.P.R. 397 (2013), the Board has long recognized that certain leaves of absence may also be appealable under chapter 75 as constructive suspensions. Specifically, in Bean , the appellant allege d that leave that appear ed to be voluntary actually was not. Id. , ¶ 8 n.3. Such appeals typically involve employee

- initiated absences in which the appellant alleges that: (1) she lacked a meaningful choice, and (2) the absence was caused by the agency’s improper actions. Id. , ¶¶ 9

- 11; see Boudousquie v. Department of the Air Force , 102 M.S.P.R. 397 , ¶ 10 (2006) (an agency’s misleading statements that the appellant must request leave without pay status may support a finding of constructive suspension); Peoples v. Department of the Navy , 83 M.S.P.R. 216 , ¶¶ 6

- 9 (1999) ( involving allegations of constructive suspension on the basis that the appellant ’s absences were the result of intolerable working c onditions ). ¶8 I n construct ive adverse action appeals, non frivolous allegations do not establish jurisdiction; rather, the appellant must prove by preponderant evidence that the action was involuntary to establish Board jurisdiction. Heath v. U.S. Postal Service , 107 M.S.P.R. 366 , ¶ 6 (2007); see Garcia v. Department of Homeland Security , 437 F.3d 1322 , 1325 (Fed. Cir. 2006) (en banc). T he jurisdictional issue in such appeals is often dispositive. That is, if the appellant fails t o meet her burden of establish ing by preponderant evidence that she was constructively suspended, the appeal will be dismissed because the Board lacks jurisdiction over appeals of employees’ voluntary actions. See Perez , 931 F.2d at 854 (placement of an e mployee in a nonpay, absence without leave status, even for longer than 14 days, was not an action appealable to the Board because the4

employee voluntarily absente d himself, and it was his , not the agency’s choice , to remain away from work after his reques t for paid sick leave was denied)

. Because such constructive suspensions are often effected without notice, however, if the appellant establis hes jurisdiction , t he Board will reverse the agency’s action on due process ground s without proceeding to the merits

. E.g. , Crutch v. U.S. Postal Service , 119 M.S.P.R. 460 , ¶ 12 (2013) ; Bannister v. General Services Administration , 42 M.S.P.R. 362 (1989)

. ¶9 The instant appeal, however, is not a case in which an appellant alleges that leave that appear s to be voluntary actually is not . R ather, it concerns the agency ’s placing the appellant on enforced leave. 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 a n appealable suspension of more than 14 days

. ∗ Subsequently, however, the Board , in severa l cases beginning with Childers v. Department of the Air Force , 36 M.S.P.R. 486 , 488

- 89 (1988) , mischaracterized Pittman as holding that “ placement in enforced leave status for more than fourteen days, based on alleged physical or mental disability, constitutes a constructive suspension appealable to the Board. ” (Emphasis added). See also, e.g. ,

∗ Although appealable suspensions of more than 14 days must be “disciplinary,” our reviewing court has held that suspensions that are ordered because the agency believes that the employee’s retention on active duty could result in damage to federal property, or be detrimental to governmental interests, or be injurious to the employee, his fellow workers, or the public [] are “disciplinary” in the broader sense of maintaining the orderly working of the Government against possible disruption by the suspended employee

. . . . Pittman , 832 F.2d at 599 (quoting Thomas v. General Services Administration , 772 F.2d 86 , 89 (Fed. Cir. 1985)).5

Rutherford v. U.S. Postal Service , 112 M.S.P.R. 570 , ¶ 9 (2009) ; White v. U.S. Postal Service , 45 M.S.P.R. 219 , 221 (1990); Green v. Department of the Navy , 37 M.S.P.R. 582 , 585 (1988)

. As a result, t he Board has adjudicat ed many claims involving an agency ’s placement of an employee on enforced leave as alleged constructive suspensions. See , e.g. , Crutch , 119 M.S.P.R. 460 , ¶ 6 (an employee’s involuntary absence for more than 14 days that results in a loss o f pay or forces her to take leave that she did not intend to use is a constructive suspension within the Board’s jurisdiction under 5 U.S.C. §§ 7512 (2) and 7513(d))

. ¶10 We now clarify that an agency’s placement of an employee on enforced leave for more than 14 days constitutes an appealable suspension within the Board’s jurisdiction. Pittman , 832 F.2d at 599

– 600 ; Norrington v. Department of the Air Force , 83 M.S.P.R. 23 , ¶ 8 (1999); see 5 U.S.C. §§ 7512 (2), 7513(d), 7701(a). To the extent that the Board has in past de cisions adjudicated such appeals using the jurisdictional framework for constructive suspensions , those decisions are overruled. T he suspension s under these circumstances are not “constructive , ” and the case law concerning constructive suspensions is inap plicable. Rather, t o sustain such suspension s , 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. Norrington , 83 M.S.P.R. 23 , ¶ 8 ; see Pope v. U.S. Postal Service , 114 F.3d 11 44 , 1147 (Fed. Cir. 1997). ¶11 Here, as stated above, the administrative judge adjudicated the appellant’s claim that she was placed on enforced leave using the Board’s framework for

a djudicating appeals of alleged constructive suspensions. ID at 10. Becau se there is no dispute tha t the agency placed the appellant in an enforced leave status for more than 14 days against her will, the agency’s action constitutes an appealable suspension within the Board’s jurisdiction. Moreover, the agency has provided the appellant a proposal notice and a final d ecision on the proposed6

action

. Therefore, we REMAND this appeal for adjudication on the merits. In addition, b ecause we have determined that the Board has jurisdiction over the appeal, the administrative judge s hould adjudicate the appellant’s affirmative defenses of due process, harmful procedural error, disability discrimination, and disparate treatment.

ORDER ¶12 W e REMAND this appeal to the regional office for further adjudication in

a ccordance with this Opinio n and Order

.

FOR THE BOARD:

______________________________ William D. Spencer Clerk of the Board Washington, D.C.