UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION 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 of 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, are undisputed: the 

appellant held the position of EAS-17 Supervisor, Customer Services at the 

Denbigh Postal Station in Newport News, Virginia. Initial Appeal File (IAF), 
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Tab 43, Initial Decision (ID) at 2. The appellant submitted a request to work a 

light-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 proposed 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 agency 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 against 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 

constituted a constructive suspension. ID at 10. The 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. Merit 

Systems Protection Board, 931 F.2d 853, 855 (Fed. Cir. 1991). These appealable 

actions include suspensions for more than 14 days. 5 U.S.C. § 7512. A 

“suspension” is the temporary placement of an employee in a nonpay, nonduty 

status. 5 U.S.C. § 7501(2). This definition covers not just unpaid absences but 

also an agency’s placement of an employee on sick or annual leave against her
3

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 question is whether the employee’s 

placement in a leave status was voluntary or involuntary; only the 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 alleged that leave that appeared 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 conditions). 

¶8 In constructive adverse action appeals, nonfrivolous 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). The 

jurisdictional issue in such appeals is often dispositive. That is, if the appellant 

fails to meet her burden of establishing 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 employee in a nonpay, absence without leave status, even 

for longer than 14 days, was not an action appealable to the Board because the 
4

employee voluntarily absented himself, and it was his, not the agency’s choice, to 

remain away from work after his request for paid sick leave was denied). 

Because such constructive suspensions are often effected without notice, 

however, if the appellant establishes jurisdiction, the Board will reverse the 

agency’s action on due process grounds 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 appears to be voluntary actually is not. Rather, 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 an appealable suspension of more than 14 days.

∗

 Subsequently, 

however, the Board, in several 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, the Board has adjudicated 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 of 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 decisions adjudicated such 

appeals using the jurisdictional framework for constructive suspensions, those 

decisions are overruled. The suspensions under these circumstances are not 

“constructive,” and the case law concerning constructive suspensions is 

inapplicable. 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. 

Norrington, 83 M.S.P.R. 23, ¶ 8; see Pope v. U.S. Postal Service, 114 F.3d 1144, 

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 

adjudicating appeals of alleged constructive suspensions. ID at 10. Because 

there is no dispute that 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 decision on the proposed 
6

action. Therefore, we REMAND this appeal for adjudication on the merits. In 

addition, because we have determined that the Board has jurisdiction over the 

appeal, the administrative judge should adjudicate the appellant’s affirmative 

defenses of due process, harmful procedural error, disability discrimination, and 

disparate treatment. 

ORDER

¶12 We REMAND this appeal to the regional office for further adjudication in 

accordance with this Opinion and Order. 

FOR THE BOARD:

______________________________

William D. Spencer

Clerk of the Board

Washington, D.C.