                      NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit
                                      2009-3178


                                  KEENAN V. ROSS,

                                                            Petitioner,

                                           v.

                        UNITED STATES POSTAL SERVICE,

                                                            Respondent.


      Keenan V. Ross, of Vallejo, California, pro se.

       Michael D. Snyder, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With him on
the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director,
and Kenneth M. Dintzer, Assistant Director. Of counsel was Sean M. Dunn, Trial
Attorney.

Appealed from: Merit Systems Protection Board
                        NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit

                                         2009-3178

                                     KEENAN V. ROSS,

                                                             Petitioner,

                                            v.

                          UNITED STATES POSTAL SERVICE,

                                                             Respondent.

Petition for review of the Merit Systems Protection Board in SF-0752-07-0805-I-3.
                            ___________________________

                                 DECIDED: November 24, 2009
                                ___________________________


Before NEWMAN, RADER, and BRYSON, Circuit Judges.

PER CURIAM.

       The Merit Systems Protection Board (“Board”) dismissed Mr. Keenan V. Ross’s

claim for lack of jurisdiction. Mr. Ross alleges that he was constructively suspended

from his limited duty position as a mail handler for the United States Postal Service

(“USPS”).    The Board determined that Mr. Ross was voluntarily absent from work.

Therefore, the Board detected no constructive suspension and no basis for jurisdiction

to pursue the matter further. Because substantial evidence supports the Board’s final

decision, this court affirms.
                                            I.

       Mr. Ross was employed by the USPS as a level four mail handler for the bulk

mail center located in Richmond, California. On June 3, 1994, Mr. Ross suffered a

work-related injury to his right shoulder and underwent arthroscopic surgery on

September 13, 1995.      Thereafter, the Office of Workers Compensation Programs

(“OWCP”) approved a compensation claim for Mr. Ross. On August 20, 1996, Mr. Ross

accepted a “limited duty” job offer. “Limited duty” is a form of modified work provided to

USPS employees that have medical restrictions due to work-related injuries.

       Mr. Ross then submitted a Certification For Return to Work, dated September 23,

1996, from Michael Charles, M.D., who was his orthopedic surgeon. The certification

stated that Mr. Ross was permanently restricted from lifting, pushing, or pulling greater

than fifteen pounds above his right shoulder level. For several years thereafter, Mr.

Ross performed limited duty assignments and occupied a limited duty mail handler

position. Mr. Ross accepted a renewed limited duty position in April 2000.

       On September 24, 2003, a Department of Labor claims examiner requested that

Mr. Ross provide updated medical documentation within sixty days to establish his

entitlement to continuing compensation benefits. The record does not show that Mr.

Ross ever submitted the updated medical documentation. In April 2007, David Bernard,

a USPS supervisor of distribution operations, advised management that Mr. Ross did

not have an open injury compensation case. As a result, Mr. Ross should have been

working at full duty capacity unless he provided updated medical documentation for any

work restrictions.




2009-3178                                   2
      Approximately three months later, a human resources specialist notified Mr. Ross

that he was an unassigned full-time mail handler. His supervisors asked Mr. Ross to

indicate his preference for a residual mail handler vacancy; otherwise, he would be

assigned to a position based upon his seniority. When Mr. Ross did not indicate a

preference, the USPS notified Mr. Ross that he was assigned, effective September 1,

2007, to a residual vacancy.

      In a letter dated July 27, 2007, the Department of Veterans Affairs (“DVA”)

granted Mr. Ross’s claim for military service-connected compensation and determined

that he had several physical conditions that were related to his military service. Shortly

thereafter, Mr. Ross filed a grievance regarding the USPS’s residual assignment and

requested a return to his prior limited duty position, partially relying on the DVA’s

findings. On September 19, 2007, the USPS denied Mr. Ross’s grievance because he

was “off work due to a medical condition and not due to any management action,”

effective August 13, 2007.

      On August 13, 2007, Mr. Ross provided Ivan O’Quinn, Mr. Ross’s supervisor, an

August 8, 2007, Family and Medical Leave Act (“FMLA”) form, completed by Richard

Karp, M.D., that related to his DVA claim for injuries. Using this documentation, Mr.

Ross asserted that he was physically unable to perform his duties due to the injuries he

received while in the military. Mr. O’Quinn informed Mr. Ross that “he would have to

submit a request for light duty to the plant manager because his injuries as indicated in

the documentation were not job related.”        Id.   Mr. Ross asserts, and Mr. O’Quinn

disputes, that in addition to the FMLA form, he provided Mr. O’Quinn copies of his

limited duty job offer and OWCP restrictions from Dr. Charles. Mr. O’Quinn allegedly




2009-3178                                   3
refused these documents because they did not include any updated medical

documentation related to a USPS work-related injury. After Mr. Ross refused to submit

a light duty request form, Mr. O’Quinn advised him that he had one week to provide

updated medical documentation showing a USPS work-related injury.               Mr. Ross

asserted, however, that Mr. O’Quinn only gave him three days to provide this

documentation.

       That same day, on August 13, 2007, Mr. Ross met with David Bernard, a USPS

supervisor of distribution operations at the Richmond bulk mail center. At the meeting,

“Mr. Bernard opened up a file and said Mr. Ross’s limited duty (on the job injury) case

was closed because there had been no activity in the last years [and that there was] no

record of medical updates or any treatment for Mr. Ross’s injury.”           Mr. Bernard

explained that Mr. Ross must complete a light duty request form to remain in the

building. Id. When Mr. Ross refused to complete the form, he was sent home.

       Two days later, on August 15, 2007, Dr. Karp examined Mr. Ross and indicated

that Mr. Ross’s physical concerns were increasing left shoulder pain that significantly

affected his ability to work. The left shoulder issue was different from the right shoulder

injury that had previously been his work-related injury. Dr. Karp noted that Mr. Ross

had not worked for a number of weeks because he was unable to perform the work

assigned to him; he also noted that Mr. Ross felt he could not fulfill the requirements of

light duty. Id. On August 28, 2007, Dr. Karp signed a release allowing Mr. Ross’s

return to work on September 4, 2007, with restrictions of “no lifting above 15 lbs. at or

above shoulder indefinitely.”




2009-3178                                   4
      Several weeks later, on October 24, 2007, Richard Nolan, M.D., completed a

Work Capacity Evaluation indicating that Mr. Ross could not perform his usual job but

could perform some work with restrictions. These restrictions included reaching above

shoulder height, twisting, pushing, pulling, lifting, climbing, and working in cold, damp

environments. On November 1, 2007, the USPS extended to Mr. Ross a limited duty

job offer. Mr. Ross reviewed the job offer, did not decline the offer, but stated he

needed his doctor to review it.

      Thereafter, Dr. Nolan provided Mr. Ross a work status notice on November 21,

2007, stating that he was temporarily disabled until December 15, 2007. In a letter

dated December 19, 2007, Dr. Nolan further indicated that, as a result of a diagnostic

work-up, Mr. Ross was not even capable of returning to a modified work status with the

USPS. In subsequent periodic work status notices that extended into 2008, Dr. Nolan

indicated that Mr. Ross was “totally temporarily disabled” and that Mr. Ross stated he

was unable to return to work.

      On September 7, 2007, Mr. Ross filed an appeal with the Board, alleging that on

August 13, 2007, he was constructively suspended for greater than fourteen days from

his limited duty position as a mail handler for the USPS. On November 4, 2008, the

Board dismissed the appeal in an initial decision.     It held that it lacked jurisdiction

because the USPS had not constructively suspended Mr. Ross; Mr. Ross’s absence

from work was the result of his own voluntary conduct when he refused to supply the

USPS with updated medical documentation showing a work-related injury. Mr. Ross

filed a petition for review with the full Board on December 6, 2008. The full Board

denied the petition on March 11, 2009, at which time the Board’s initial decision became




2009-3178                                  5
final. Mr. Ross timely appeals the full Board’s final decision to this court. This court has

jurisdiction over this appeal under 28 U.S.C. 1295(a)(9).

                                             II.

       This court reviews Board decisions, including jurisdictional dismissals, “pursuant

to the strictures of 5 U.S.C. § 7703(c).” Maddox v. Merit Sys. Prot. Bd., 759 F.2d 9, 10

(Fed. Cir. 1985). As such, this court affirms the Board’s decision if it is supported by

substantial evidence in accordance with the law, and is not procedurally defective,

arbitrary, or capricious.   See generally 5 U.S.C. § 7703(c).      “Under the substantial

evidence standard of review, a court will not overturn an agency decision if it is

supported by ‘such relevant evidence as a reasonable mind might accept as adequate

to support a conclusion.’” Haebe v. Dep’t of Justice, 288 F.3d 1288, 1298 (Fed. Cir.

2002); Jacobs v. Dep’t of Justice, 35 F.3d 1543, 1546 (Fed. Cir. 1994).

       Placing an employee on enforced leave without pay for greater than fourteen

days, even if not termed a “suspension,” may constitute a constructive suspension that

allows the employee to appeal to the MSPB under 5 U.S.C. §§ 7512(2) and 7513(d).

Perez v. Merit Sys. Prot. Bd., 931 F.2d 853 (Fed. Cir. 1991). “Suspension” is defined as

“the placing of an employee, for disciplinary reasons, in a temporary status without

duties and pay.” 5 U.S.C. § 7501(2). An employee who voluntarily absents himself

from the workplace, however, even due to a valid medical consideration, is not

constructively suspended because the leave is not enforced. Id. at 855. In short, for a

constructive suspension, an employee must show by a preponderance of the evidence

that he or she was “ready, willing, and able to work” but was not permitted to do so.




2009-3178                                    6
Adams v. Dep’t of Transp., 735 F.2d 488, 492 (Fed. Cir. 1984); 5 C.F.R. §

1201.56(a)(2).

                                           A.

       Mr. Ross asserts that the Board’s ruling is not supported by substantial evidence

because “[t]he record contains post-suspension medical evidence from my current

treating physician, reaffirming a prior medical opinion that I was medically able to

perform my limited duty assignment.” Petitioner’s Informal Brief (“Inf. Br.”) at 1-F. The

record indeed reflects that, on October 24, 2007, Dr. Nolan indicated that Mr. Ross

could perform work with restrictions. The record also shows that just a week later, on

November 1, 2007, the USPS extended to Mr. Ross a limited duty job offer that he did

not accept. Further, in December 2007, Dr. Nolan determined that Mr. Ross was not

even capable of returning to a modified work status; he indicated for several months

thereafter that Mr. Ross was “totally temporarily disabled,” while also noting that Mr.

Ross stated he was unable to return to work. In sum, Mr. Ross was offered a limited

duty job assignment, but did not accept the assignment.

       Mr. Ross also asserts that, after the August 13, 2007, meeting with Mr. O’Quinn,

he was not given a “reasonable time to obtain” the medical documentation for his

alleged work-related injury. First, the record demonstrates that the USPS ultimately

gave Mr. Ross greater than two months to provide medical documentation supporting

limited duty work assignments. Indeed, the USPS offered Mr. Ross a limited duty work

assignment that he refused. Moreover, in the interim, the USPS also offered Mr. Ross

light duty work that he also declined.




2009-3178                                  7
       The facts show that Mr. Ross was given reasonable opportunities to show that he

was entitled to a limited duty job offer.     Indeed, he received such an offer, but he

refused it allegedly due to his inability to perform. In sum, Mr. Ross voluntarily declined

to work.    Accordingly, the Board correctly found no constructive suspension.        See

Adams, 735 F.2d at 492 (Constructive suspension requires that the employee show by

a preponderance of the evidence that he was “ready, willing, and able to work.”).

                                              B.

       Because the USPS did not constructively suspend Mr. Ross, the Board did not

have jurisdiction to entertain his appeal. This court has found on other occasions that

no constructive suspension exists when an absentee employee is placed in a non-pay

status by an agency, pending receipt of satisfactory medical documentation regarding

his or her ability to work. Holloway v. U.S. Postal Serv., 993 F.2d 219, 221-22 (Fed. Cir.

1993); Perez, 931 F.2d at 854-55.

       For these reasons, this court finds that the Board did not abuse its discretion, its

findings were not arbitrary, capricious, contrary to law, or otherwise reversible, and

affirms its final decision in this case.

                                           AFFIRMED

       No costs.




2009-3178                                     8
