                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     CLIFFORD SINGLETON,                             DOCKET NUMBERS
                   Appellant,                        SF-0752-13-0343-I-2
                                                     SF-0752-13-0399-I-2
                  v.

     UNITED STATES POSTAL SERVICE,
                   Agency.                           DATE: December 5, 2014



                THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Guillermo Mojarro, Upland, California, for the appellant.

           Natalie A. Bonanno, San Diego, California, for the agency.


                                           BEFORE

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


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     dismissed for lack of jurisdiction his appeals of an alleged constructive
     suspension and an allegedly involuntary retirement. Generally, we grant petitions
     such as this one only when: the initial decision contains erroneous findings of


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     material fact; the initial decision is based on an erroneous interpretation of statute
     or regulation or the erroneous application of the law to the facts of the case; the
     judge’s rulings during either the course of the appeal or the initial decision were
     not consistent with required procedures or involved an abuse of discretion, and
     the resulting error affected the outcome of the case; or new and material evidence
     or legal argument is available that, despite the petitioner’s due diligence, was not
     available when the record closed. See Title 5 of the Code of Federal Regulations,
     section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
     appeal, and based on the following points and authorities, we conclude that the
     petitioner has not established any basis under section 1201.115 for granting the
     petition for review.    Therefore, we JOIN the appeals for adjudication under
     5 C.F.R. § 1201.36, DENY the petition for review and AFFIRM the initial
     decision AS MODIFIED by this Final Order, which is now the Board’s final
     decision. 5 C.F.R. § 1201.113(b). The Final Order modifies the initial decision’s
     analysis of the constructive suspension issue to the extent it applies obsolete
     precedent and by substituting our own analysis using the current jurisdictional
     standard.
¶2         The appellant was formerly a city carrier who suffered a compensable
     injury to his right shoulder in 2009. MSPB Docket No. SF-0752-13-0343-I-1,
     Initial Appeal File (IAF), Tab 6 at 65.         His physician submitted monthly
     “Industrial Injury Status Reports” placing him off work from May 28, 2010,
     through September 30, 2010.       Id. at 50-52, 55.    On September 8, 2010, the
     appellant completed an Application for Immediate Retirement with an effective
     date of November 30, 2010. Id. at 39-43.
¶3         The appellant thereafter filed an appeal in which he alleged that his
     retirement was involuntary because it was based on misinformation about his
     annuity provided by the agency’s Human Resources Shared Service Center
     (HRSSC).    IAF, Tab 1.     When the appellant also raised a claim that he was
     constructively suspended when he was not permitted to return to work on June 28,
                                                                                        3

     2010, after a lengthy period of leave, the administrative judge docketed that claim
     as a separate appeal. See MSPB Docket No. SF-0752-13-0399-I-1, Initial Appeal
     File, Tab 1. Although the administrative judge did not formally join the appeals,
     we do so here under 5 C.F.R. § 1201.36.
¶4         After a hearing, the administrative judge dismissed the appeals for lack of
     jurisdiction. As to the constructive suspension claim, the administrative judge
     found that the appellant, not the agency, initiated his absence and the appellant
     did not request to return to work at any point in 2010, and therefore did not show
     that he was suspended. Initial Decision (ID) at 7-12. The administrative judge
     also found that the appellant failed to show that his retirement was involuntary
     because he failed to produce any credible evidence to establish that the agency
     provided him with incorrect or misleading information about his annuity and that
     his actions were otherwise consistent with those of someone who wanted to retire.
     ID at 12-19. In light of her disposition of the appeal, the administrative judge did
     not address the apparent untimeliness of the appeal. ID at 2 n.1.
     Constructive Suspension

¶5         In     analyzing   the   appellant’s   constructive   suspension   claim,   the
     administrative judge applied a jurisdictional standard that the Board has recently
     clarified.    In order to establish the Board’s jurisdiction over his appeal, the
     administrative judge required the appellant to prove that he was absent from work
     for medical reasons but was able to work within certain medical restrictions and
     requested to return to work and the agency was bound by policy, regulation, or
     contractual provision to offer him available work but failed to do so. See, e.g.,
     Tardio v. Department of Justice, 112 M.S.P.R. 371, ¶ 24 (2009). 2 Applying this
     analysis, the administrative judge found that the appellant initiated his absence
     and did not show that he suffered a constructive suspension because he did not


     2
       Tardio has been superseded by Bean v. U.S. Postal Service, 120 M.S.P.R. 397 (2013),
     discussed infra.
                                                                                             4

     show that he requested to return to work or otherwise informed the agency that he
     was willing to return to work. ID at 7-12. Although the administrative judge did
     not apply the correct legal standard in this case, we find that this error does not
     affect the outcome of this case or require a remand. See Panter v. Department of
     the Air Force, 22 M.S.P.R. 281, 282 (1984) (an adjudicatory error that is not
     prejudicial to a party’s substantive rights provides no basis for reversal of an
     initial decision). The administrative judge held a hearing during which she took
     evidence concerning all of the events, conversations, and documents that relate to
     the appellant’s absence from work after June 28, 2010, so the record is fully
     developed on these matters.       After reviewing the record and for the reasons
     discussed below, we find that the appellant has not established jurisdiction under
     the applicable legal standard and his constructive suspension must still be
     dismissed for lack of jurisdiction.
¶6         To establish jurisdiction over a constructive adverse action, including a
     constructive suspension 3 such as is alleged here, the appellant must show that:
     (1) he lacked a meaningful choice in his facially voluntary decision; and (2) this
     was because of the agency’s improper actions. See Bean v. U.S. Postal Service,
     120 M.S.P.R. 397, ¶ 11. A decision based on misinformation may satisfy this
     standard. See Covington v. Department of Health & Human Services, 750 F.2d
     937, 943 (Fed. Cir. 1984).
¶7         Here, the appellant has not shown that he lacked a meaningful choice.
     Instead of remaining in a leave status indefinitely, he could have exercised his
     restoration rights if he were able to return to work with restrictions, or he could


     3
       Although the appellant in this case, and others in earlier Board decisions, have treated
     the terms “enforced leave” and “constructive suspension” as if they were synonymous,
     they actually are not. In Abbott v. U.S. Postal Service, 121 M.S.P.R. 294, ¶¶ 8-9
     (2014), the Board clarified the difference between enforced leave, which is an action
     that is involuntary on its face and is appealable under chapter 75 as a suspension if it
     lasts for longer than 14 days, and a constructive suspension, which often appears to be a
     voluntary action but actually is not.
                                                                                             5

     have returned to full duty if he were able to obtain a medical clearance from the
     agency’s medical unit. He could have requested reasonable accommodation. He
     could have bid for a job with less strenuous duties. Rather than exercising any of
     these options, the appellant submitted cursory medical documentation on a
     monthly basis stating that he was unable to work, see IAF, Tab 6 at 50-52, 55, as
     well as (as relevant here) additional documentation, dated May 28, 2010, stating
     that he was able to work with restrictions, that was in direct conflict with other
     documentation from the same doctor dated the same day indicating he was unable
     to work at all, compare IAF, Tab 6 at 57-58, with IAF, Tab 6 at 55.                  This
     conflicting medical documentation created an ambiguity in his medical status that
     he failed to clarify, and he never requested to return to work, 4 submitting instead
     a retirement application in September 2010.
¶8         Second, the appellant has not shown that his continued absence from work
     was caused by the agency’s bad actions. As noted above, the appellant created an
     ambiguous situation. The agency could not simply return him to work because he
     never requested to return to work, the vast majority of his medical documentation
     indicated that he was unable to work, and he indicated that he did not want to
     return to work when he filed his retirement application in September 2010.
     Therefore, even under the new jurisdictional standard set forth in Bean, the
     appellant has not shown that the Board has jurisdiction over his constructive
     suspension claim.
¶9         In his petition for review, the appellant asserts that the agency does not
     dispute that it placed him on enforced leave in June 2010. Petition for Review


     4
       The administrative judge correctly found that the appellant’s submissions of medical
     documentation finding him unable to work were not requests to return to work because
     they did not inform the agency that he was able to work and they did not inform the
     agency that he wished to return to work. ID at 8-11; cf. Bynum v. U.S. Postal Service,
     112 M.S.P.R. 403, ¶ 14 (2009) (submission of medical restrictions did not constitute
     requests for restoration because they did not indicate a desire to return to duty), aff’d,
     382 F. App’x 934 (Fed. Cir. 2010).
                                                                                       6

      (PFR) File, Tab 3 at 9. Because the question of jurisdiction is a legal conclusion
      to which the parties cannot stipulate, a statement of the agency’s general position
      on the matter, without any facts on which a finding of jurisdiction could be based,
      is not relevant.      See, e.g., McCarty v. Environmental Protection Agency,
      108 M.S.P.R. 45, ¶ 10 (2008).
      Involuntary Retirement

¶10           An employee-initiated action, such as a retirement, is presumed to be
      voluntary unless the appellant presents sufficient evidence to establish that the
      action was obtained through duress or coercion or shows that a reasonable person
      would have been misled by the agency.         Miller v. Department of Homeland
      Security, 111 M.S.P.R. 325, ¶ 8 (2009), aff’d, 361 F. App’x 134 (Fed. Cir. 2010).
      A retirement is involuntary if an agency made misleading statements upon which
      the appellant reasonably relied to his detriment. Petric v. Office of Personnel
      Management, 108 M.S.P.R. 342, ¶ 9 (2008). Moreover, an agency is required to
      provide information that is not only correct in nature, but adequate in scope to
      allow an employee to make an informed decision. Miller, 111 M.S.P.R. 325, ¶ 8.
¶11           The crux of the appellant’s involuntary retirement claim is that an unnamed
      person or persons at HRSSC told him during various conversations on
      unidentified dates in the June through September 2010 time period that he would
      receive an annuity supplement when he retired and that he retired based on his
      expectation that he would receive the annuity supplement. IAF, Tab 18, Tab 19
      at 5.    As the administrative judge correctly found, the agency’s records of
      telephone calls between the appellant and HRSSC do not support his assertion.
      ID at 14-17; IAF, Tab 20 at 8-10, Tab 27 at 7. The appellant claims that the
      records exist but that the agency is improperly withholding them.        PFR File,
      Tab 3 at 1.     The appellant has proffered no factual basis to substantiate his
      assertion that the agency has concealed evidence, and the administrative judge
                                                                                        7

      was quite thorough in making sure that the agency properly searched,
      authenticated, and produced its records. IAF, Tab 18 at 2, Tab 26, Tab 31.
¶12        Finally, the appellant on review reiterates his argument below that his
      retirement was involuntary because the postmaster told him in July 2009, that he
      could not return to work if he could not perform his duties. PFR File, Tab 3 at 5.
      He alleges that this statement shows that the agency had already decided not to
      return him to work as early as July 2009. Id. On the contrary, if the statement
      shows anything, it shows that whether the appellant returned to work was entirely
      dependent on his ability to work, a statement that is neither false, misleading, nor
      coercive.   In any event, the administrative judge correctly found that a single
      ambiguous statement made over a year before the appellant decided to retire by a
      postmaster who was no longer working at the appellant’s duty station at the time
      of the appellant’s retirement does not render the appellant’s retirement
      involuntary. ID at 8 n.6, 17-18.

                      NOTICE TO THE APPELLANT REGARDING
                         YOUR FURTHER REVIEW RIGHTS
           You have the right to request review of this final decision by the United
      States Court of Appeals for the Federal Circuit. You must submit your request to
      the court at the following address:
                                United States Court of Appeals
                                    for the Federal Circuit
                                  717 Madison Place, N.W.
                                   Washington, DC 20439

           The court must receive your request for review no later than 60 calendar
      days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
      27, 2012). If you choose to file, be very careful to file on time. The court has
      held that normally it does not have the authority to waive this statutory deadline
      and that filings that do not comply with the deadline must be dismissed. See
      Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
                                                                                  8

     If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States   Code,    at   our   website,   http://www.mspb.gov/appeals/uscode.htm.
Additional information is available at the court's website, www.cafc.uscourts.gov.
Of particular relevance is the court's "Guide for Pro Se Petitioners and
Appellants," which is contained within the court's Rules of Practice, and Forms 5,
6, and 11.
     If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.




FOR THE BOARD:                            ______________________________
                                          William D. Spencer
                                          Clerk of the Board
Washington, D.C.
