                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     RONALD ZIMMERMAN,                               DOCKET NUMBER
                 Appellant,                          PH-0752-14-0464-I-1

                  v.

     DEPARTMENT OF DEFENSE,                          DATE: September 26, 2014
                 Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Ronald J. Hunziker, New Cumberland, Pennsylvania, for the appellant.

           Karen L. Saxton, New Cumberland, Pennsylvania, for the agency.


                                           BEFORE

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


                                       FINAL ORDER

¶1         The agency has filed a petition for review of the initial decision, which
     found that the agency had constructively suspended the appellant and reversed the
     agency action.    For the reasons discussed below, we GRANT the agency’s



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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     petition for review, REVERSE the initial decision, and DISMISS the appeal for
     lack of jurisdiction.

                                      BACKGROUND
¶2            The appellant is a Lead Supply Technician with the agency’s Defense
     Logistics Agency (DLA). Initial Appeal File (IAF), Tab 4 at 19. The duties of
     that position include frequent lifting and carrying of items weighing up to
     40 pounds, and standing on hard surfaces for extended periods of time. Id. at 24.
     In May 2013, the appellant submitted medical notes indicating that he was limited
     in various activities, including lifting, walking, and standing on concrete for
     extended periods of time. Id. at 26, 30. Based on this medical documentation,
     the agency assigned the appellant to light-duty for 90 days pursuant to the master
     labor agreement (MLA) between DLA and the appellant’s union.              See id.
     at 42-43, 59.    In September 2013, the agency granted the appellant a second
     90-day period of light-duty. Id. at 45.
¶3            By memorandum dated November 19, 2013, D.T., Chair of the agency’s
     Case Management Team, 2 informed the appellant that his light-duty assignment
     would end in 15 days and advised him of his leave options if he could not return
     to his position of record.    Id. at 54-55.   The appellant requested a second
     extension of his temporary light-duty assignment, which the agency denied. Id.
     at 57.    When the appellant’s light-duty assignment expired, he was sent home
     because his medical restrictions did not allow him to return to his position of
     record. See HT at 7 (testimony of appellant), 39 (testimony of D.T.).
¶4            The appellant filed an appeal with the Board and requested a hearing,
     alleging that the agency constructively suspended him when it discontinued his
     light-duty assignment on December 5, 2013. IAF, Tab 1. The appellant also



     2
      The DLA program governing light-duty assignments is called the Case Management
     Program. See Hearing Transcript (HT) at 17 (testimony of appellant).
                                                                                     3

     raised a harmful procedural error claim based on the agency’s alleged failure to
     comply with the MLA. Id. at 6.
¶5         After holding a hearing, the administrative judge issued an initial decision
     finding that the appellant demonstrated by preponderant evidence that the agency
     constructively suspended him beginning December 5, 2013, by denying his
     November 2013 request to extend his light-duty assignment. IAF, Tab 8, Initial
     Decision (ID) at 9.    The administrative judge further found that the appellant
     proved his affirmative defense of harmful procedural error. ID at 9.
¶6         The agency has filed a petition for review. Petition for Review (PFR) File,
     Tab 1. The appellant has not filed a response to the petition for review.

                                         ANALYSIS
     The appellant did not prove that the agency constructively suspended him by
     denying his request to extend his light-duty assignment.
¶7         Certain employee-initiated leaves of absence that appear to be voluntary but
     are not may be appealable under 5 U.S.C. chapter 75 as constructive suspensions.
     See Bean v. U.S. Postal Service, 120 M.S.P.R. 397, ¶¶ 7-8 (2013). Assuming that
     the jurisdictional requirements of chapter 75 are otherwise met, to establish
     jurisdiction under these circumstances, the appellant must prove by preponderant
     evidence that: (1) he lacked a meaningful choice in the matter; and (2) it was the
     agency’s wrongful actions that deprived him of that choice. Id., ¶ 8.
¶8         Here it is undisputed that the appellant lacked a meaningful choice. See
     PFR File, Tab 1 at 7.      Thus, the seminal issue in this appeal is whether the
     agency’s actions wrongfully deprived the appellant of that choice. To resolve this
     issue, we must determine whether the agency wrongfully denied the appellant’s
     November 2013 request to extend his light-duty assignment.
¶9         As noted above, the agency granted the appellant light-duty work pursuant
     to the MLA. The MLA provision governing temporary light-duty assignments,
     Article 29, Section 2.E., states as follows:
                                                                                       4

                  The Employer shall consider temporarily assigning an
                  employee who is temporarily disabled from performing
                  the full range of duties of his/her position to duties
                  which the employee is qualified and capable of
                  performing.      Placements of this nature will be
                  temporary, generally not exceeding 90 days. After this
                  period, action shall be taken to review or reassess the
                  employee’s condition. Dependent on the employee’s
                  condition and qualifications, the Employer may return
                  the employee to his/her official position of record,
                  extend the temporary assignment, assign the employee
                  to a position at the same or lower grade, or counsel the
                  employee on disability retirement if the employee is
                  eligible.   The Employer may initiate separation if
                  reassignment or change to lower grade is not possible
                  because of disabilities and absence of vacancies for
                  which the employee meets qualification requirements.
                  If such an employee submits a request for Disability
                  Retirement, the Employer will consider the option of
                  carrying the employee in a sick, annual, or leave without
                  pay status, as appropriate.

      IAF, Tab 4 at 59.
¶10        By letter dated July 1, 2013, the agency informed the appellant’s union that
      there had been a decline in the number of possible light-duty assignments due to a
      reduction in the agency’s workload at various locations. IAF, Tab 6 at 13. The
      agency stated that, for those employees who had been on light-duty for more than
      the 90-day period specified in the MLA, their specific circumstances would be
      reviewed to determine if the current light-duty assignment was still viable and in
      the best interests of both the employee and the agency. Id.
¶11        The administrative judge found that the agency was bound by contractual
      provision to explore whether light-duty work was available and that this
      requirement did not end merely because 90 days had elapsed. ID at 7. Rather,
      the administrative judge found, the agency was then obligated to review the
      specific circumstances of the appellant’s situation and determine if his light-duty
      assignment was still viable and in the best interests of both the appellant and the
                                                                                        5

      agency. ID at 7. The administrative judged noted that both the appellant and the
      agency’s only witness testified that light-duty work was available for the
      appellant after his second 90-day temporary light-duty assignment expired. ID
      at 6. Based on this testimony, the administrative judge found that the appellant’s
      light-duty assignment was still viable and in the best interests of both parties. ID
      at 7.
¶12           The administrative judge found that the appellant proved not only that he
      lacked a meaningful choice in the matter but also that DLA offered no valid
      reason for not extending his temporary light-duty assignment. ID at 9. In that
      regard, the administrative judge noted that DLA admitted that there was work
      available for the appellant at the time it decided not to extend his light-duty
      assignment. ID at 9. Therefore, the administrative judge found, the appellant
      demonstrated by preponderant evidence that the agency constructively suspended
      him beginning December 5, 2013. ID at 9.
¶13           We disagree.   Under Article 29, Section 2.E. of the MLA, the agency’s
      obligations regarding light-duty assignments are twofold:        (1) the agency is
      required to consider temporarily assigning an employee who is temporarily
      disabled from performing the full range of duties of his/her position to duties for
      which the employee is qualified and capable of performing; and (2) following the
      expiration of such an assignment, which is temporary and generally for a period
      not exceeding 90 days, the agency is required to review or reassess the
      employee’s condition.      IAF, Tab 4 at 59.          Depending on the appellant’s
      qualifications and his condition, the agency may then take one of several actions,
      including    the   extension of   the   appellant’s   light-duty assignment.     Id.
      Significantly, however, the MLA does not require the agency to extend an
      employee’s light-duty assignment upon his request merely because light-duty
      work is available when the employee’s temporary assignment ends.
¶14           The record evidence demonstrates that the agency satisfied its obligations
      under Article 29, Section 2.E. First, it is undisputed that the agency not only
                                                                                       6

      considered temporarily assigning the appellant to light-duty work but actually did
      so.   Second, D.T.’s hearing testimony established that he reassessed the
      appellant’s condition at the end of his temporary light-duty assignment but
      determined that an extension of his light-duty assignment was inappropriate, in
      part, because the agency wanted to give all employees who had sustained
      work-related injuries an opportunity to participate in the program. See HT at 36
      (testimony of D.T.).     Put differently, D.T. determined that extending the
      assignment was not in the best interests of the agency and the appellant has
      proffered no evidence to question that assessment. Therefore, we find that the
      agency did not act improperly in denying the appellant’s request to extend his
      light-duty assignment a second time.
¶15         In sum, we find that, while the appellant lacked a meaningful choice when
      the agency terminated his light-duty assignment, he failed to prove that the
      agency acted improperly in doing so.       As noted above, the MLA calls for
      reassignments that are “temporary, generally not exceeding 90 days.”           The
      appellant’s light-duty assignment lasted from May 2013, to December 2013, a
      period of more than 180 days.     Accordingly, we find that the agency did not
      constructively suspend the appellant. Therefore, the Board lacks jurisdiction over
      this appeal.
¶16         Further, because the Board lacks jurisdiction over this appeal, it cannot
      consider the appellant’s harmful error claim. See Daneshpayeh v. Department of
      the Air Force, 57 M.S.P.R. 672, 682 n.9 (1993) (the Board lacks jurisdiction over
      allegations of harmful error absent an otherwise appealable action), aff’d, 17 F.3d
      1444 (Fed. Cir. 1994) (Table).

                      NOTICE TO THE APPELLANT REGARDING
                         YOUR FURTHER REVIEW RIGHTS
            You have the right to request the United States Court of Appeals for the
      Federal Circuit to review this final decision. You must submit your request to the
      court at the following address:
                                                                                  7

                          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).
     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
                                                                           8

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.
