MSPB Overrules Enforced Leave Cases
On December 29, 2011, a United States Postal Service (“USPS”) Supervisor for Customer Services submitted a request to work on light-duty assignment. The employee’s Officer-In-Charge denied her request on the ground that, within the employee’s medical restrictions, there was no work available. On January 6, 2012, the United States Postal Service proposed to place an employee on enforced leave because there was no available work within the employee’s medical restrictions, and issued a final decision effecting the proposed enforced leave action on February 8, 2012. The employee appealed the decision to the MSPB, but an MSPB administrative judge dismissed the appeal after a jurisdictional hearing, finding that the employee failed to establish that the agency placing the employee on enforced leave for more than 14 days constituted a constructive suspension. The employee filed a petition for full Board review of the initial decision to dismiss the appeal, and on June 23, 2014, the Merit Systems Protection Board granted the employee’s petition, reversed the dismissal, and remanded the appeal to the administrative judge for adjudication on the merits.
The Board began its analysis by defining a “suspension” under 5 U.S.C. § 7501(2) as the temporary placement of an employee in a nonpay, nonduty status. Citing Yarnell v. Department of Transportation, 109 M.S.P.R. 416 (2008), the Board explained that this definition covers not just unpaid absences but also an agency’s placement of an employee on sick or annual leave against her will. “For jurisdictional purposes,” the Board stated, “whether the employee was able to perform her duties is immaterial. Rather, the only question is whether the employee’s placement in a leave status was voluntary or involuntary…” As the Board went on to note, only involuntary placements in leave status are appealable.
Recalling its decision in Bean v. U.S. Postal Service, 120 M.S.P.R. 397 (2013), the Board recognized that certain leaves of absence may also be appealable under chapter 75 as “constructive” suspensions. In Bean, the employee asserted that leave that appeared to be voluntary was involuntary in reality. The Board stated that these constructive suspension appeals usually 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.
The Board explored the nature of constructive adverse action appeals further, stating that, for jurisdictional purposes, the employee must prove by preponderant evidence that the action was involuntary to establish Board jurisdiction, and that if the employee cannot prove such, the appeal will be dismissed. However, because these constructive suspensions defined by the Board often come without the benefit of notice, if the employee can establish jurisdiction, the Board will reverse the adverse action because of a violation of due process rights.
After a full explanation of the concept of constructive suspension, the Board turned to the case at hand, and stated succinctly that it “is not a case in which an appellant alleges that leave that appears to be voluntary is not. Rather, it concerns the agency’s placing the appellant on enforced leave.” The Board noted the conflict in precedent between Pittman v. Merit Systems Protection Board, 832 F.2d 598 (Fed. Cir. 1987), which 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 (rather than a constructive suspension) of more than 14 days, and subsequent cases like Childers v. Department of the Air Force, 36 M.S.P.R. 486 (1998) which “mischaracterized Pittman” as holding that such a placement constituted a “constructive” suspension.
In a footnote, the Board explained that although appealable suspensions of more than 14 days must be “disciplinary” in nature, the Federal Circuit in Pittman had held that when the agency believes retention of an employee in active duty can result in damage to federal property, or be detrimental to governmental interests, herself, or others, any suspensions issued are “disciplinary in the broader sense of maintaining the orderly working of the Government against possible disruption by the suspended employee.
As a result of the confusion resulting from the mischaracterization of Pittman in Childers, the Board stated that, in the past, it has adjudicated multiple claims involving agency placement of an employee on enforced leave as an alleged “constructive” suspension, rather than adjudicating it properly as a suspension. To clarify, the Board held 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.” Looking to the aforementioned improperly adjudicated decisions, the Board also held that to the extent it used a constructive suspension framework for enforced leave cases, those cases were overruled, and that the agency decision must be sustained through normal adverse action standards: preponderant proof by the agency “that the charged conduct occurred, that a nexus exists between the conduct and service efficiency, and that the penalty is reasonable.”
For the aforementioned reasons, and specifically because the administrative judge improperly dismissed the employee’s appeal due to the use of the constructive suspension framework, the Merit Systems Protection Board determined that the Board indeed had jurisdiction, and remanded the appeal for adjudication on the merits.
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Posted in Case Law Update