                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD
                                      2014 MSPB 76

                             Docket No. SF-0752-13-0217-I-1

                                    Marco A. Romero,
                                        Appellant,
                                             v.
                              United States Postal Service,
                                          Agency.
                                    September 24, 2014

           Zepuor Parsanian, Tujunga, California, for the appellant.

           Kristen Walker, Long Beach, California, for the agency.

                                         BEFORE

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



                                 OPINION AND ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     dismissed his constructive suspension appeal for lack of jurisdiction and found
     that he did not prove his affirmative defense of retaliation for equal employment
     opportunity (EEO) activity.    For the reasons discussed below, we DENY the
     petition for review and AFFIRM the initial decision AS MODIFIED by this
     Opinion and Order.     We VACATE the administrative judge’s analysis of the
     appellant’s retaliation claim and conclude that the appellant’s evidence in this
     regard does not warrant a different outcome on the jurisdictional issue.
                                                                                           2

                                       BACKGROUND
¶2         Starting in October 2012, the appellant was absent from his position as an
     EAS-17 Supervisor, Customer Services due to chronic headaches. Initial Appeal
     File (IAF), Tab 5 at 17-18; see Hearing Compact Diskette (CD); see also IAF,
     Tab 5 at 21 (explaining that the appellant has a diagnosis of post-traumatic stress
     disorder and suffers from headaches and tinnitus).         On January 23, 2013, the
     appellant filed a Board appeal, claiming that he was released to return to work on
     December 24, 2012, but had not been returned to work. IAF, Tab 1; 1 see IAF,
     Tab 5 at 14-20 (request for accommodation and work capacity report).                The
     appellant raised an affirmative defense of disability discrimination. IAF, Tab 1.
     The administrative judge found that the appellant made a nonfrivolous allegation
     of jurisdiction.   IAF, Tab 10.    The appellant withdrew his claim of disability
     discrimination and, instead, raised a claim of retaliation for protected EEO
     activity. IAF, Tab 14. A hearing was held. See Hearing CD.
¶3         The administrative judge issued an initial decision dismissing the appeal
     for lack of jurisdiction. IAF, Tab 31, Initial Decision (ID). The administrative
     judge found that, at the time the appellant filed his appeal, he had not been
     cleared to work in his assigned duties, and the agency met its burden to show that
     no work was available within his restrictions. ID at 6. The administrative judge
     also found that, subsequent to the filing of the initial appeal: (1) the agency met
     its burden to show that it reasonably determined that there was no supervisory
     work available within the appellant’s restrictions and offered him other work that
     was consistent with his restrictions during a February 8, 2013 district reasonable
     accommodations committee (DRAC) meeting; (2) the appellant declined such

     1
       Although the appellant checked the box in his initial appeal paperwork for “Failure to
     restore/reemploy/reinstate or improper restoration/reemployment/reinstatement,” IAF,
     Tab 1, it does not appear that the appellant’s condition was a compensable injury.
     Thus, we do not analyze this matter as a restoration appeal. See Bean v. U.S. Postal
     Service, 120 M.S.P.R. 397, ¶ 13 n.7.
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     work; (3) the appellant delayed providing the agency with a February 11, 2013
     note, which stated that he only needed hearing protection and that his hours
     should not exceed 12 hours per day; and (4) when the agency finally received the
     documentation at the end of March 2013, it returned him to work “within a
     reasonable time.” ID at 7 & n.4. The administrative judge concluded that any
     delay involved in the appellant’s return to work in his Supervisor position on
     April 1, 2013, was justified because the medical documentation presented to the
     agency was insufficient to allow the agency to make a reasoned determination as
     to the nature of the appellant’s condition, whether he could perform the essential
     functions of his position with or without limitations, and whether it had work
     available that he could perform within those limitations.           ID at 7.    The
     administrative judge therefore determined that the appellant failed to meet his
     jurisdictional burden to establish that an appealable suspension occurred.       ID
     at 7-8. Finally, the administrative judge found that the appellant did not prove
     his affirmative defense of retaliation for protected activity. ID at 8.
¶4         The appellant filed a petition for review, and the agency filed a response.
     Petition for Review (PFR) File, Tabs 1, 3.

                                         ANALYSIS
¶5         As the Board recently discussed in Bean v. U.S. Postal Service,
     120 M.S.P.R. 397 (2013), and Abbott v. U.S. Postal Service, 121 M.S.P.R. 294
     (2014), certain leaves of absence may be appealable under chapter 75 as
     constructive suspensions. Abbott, 121 M.S.P.R. 294, ¶ 7; Bean, 120 M.S.P.R.
     397, ¶ 7. In Bean, the appellant began taking a large amount of sick leave, annual
     leave, and leave without pay in order to avoid having to work on his regular tour
     because it would have required him to work into the night, contrary to his
     doctor’s recommendations. Bean, 120 M.S.P.R. 397, ¶ 4. Although the appellant
     requested   reasonable   accommodations      and   submitted    supporting   medical
     documentation, it appears that the agency was never able to find an
                                                                                        4

     accommodation upon which the parties could agree.          Id.   The administrative
     judge construed the appellant’s subsequent Board appeal as a constructive
     suspension claim and dismissed it for lack of jurisdiction without conducting a
     jurisdictional hearing, finding that the appellant’s choice between working after
     dark and requesting leave was perhaps unpleasant but nevertheless voluntary. Id.
¶6           In Bean, the Board granted the appellant’s petition for review and
     remanded the appeal for further adjudication. Id., ¶ 1. It found that the essence
     of the appellant’s claim was that he was compelled to take leave because his only
     alternative was to work after dark, in violation of his doctor’s orders, and that the
     agency forced him into this untenable position by improperly taking him off of
     the tour 2-day shift and otherwise failing to accommodate his condition. Id.,
     ¶ 14.   The Board determined that the appellant’s allegations, if proven, could
     establish that he lacked a meaningful choice in the matter and that it was the
     agency’s improper actions that deprived him of that choice. Id. It disagreed with
     the reasoning in prior Board cases suggesting that an appellant’s “unpleasant”
     choice between taking leave and returning to work outside of his medical
     restrictions was voluntary, rejecting the premise that working outside of medical
     restrictions is somehow a viable option. Id., ¶ 13. The Board thus concluded that
     the appellant made a nonfrivolous allegation that he was subjected to an
     appealable constructive suspension and remanded the appeal for further
     development of the record and a jurisdictional hearing. Id., ¶ 14.
¶7           By contrast, in Abbott, the appellant never voluntarily absented herself
     from duty and her appeal did not concern a claim that leave that appeared to be
     voluntary actually was not. Rather, she submitted a request to work a light-duty
     assignment. Abbott, 121 M.S.P.R. 294, ¶ 2. The agency denied her request on
     the ground that there was no work available within her medical restrictions. Id.
     It thereafter proposed to place the appellant on enforced leave because there was
     no available work within her medical restrictions and, after granting her an
     opportunity to reply to the notice, issued a final decision effecting the enforced
                                                                                       5

     leave action.   Id., ¶ 3. The administrative judge adjudicated the appeal as an
     alleged constructive suspension and dismissed it for lack of jurisdiction. Id., ¶ 4.
     The Board reversed, noting that 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.        Id., ¶ 9.   The Board held that suspensions
     under these circumstances are not “constructive” and the case law concerning
     constructive suspensions is inapplicable.       Id., ¶ 10.   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. Id. Because there was no dispute that the
     agency placed the appellant in an enforced leave status for more than 14 days
     against her will, the Board held that the agency’s action constituted an appealable
     suspension within the Board’s jurisdiction.         Id., ¶ 11.   Because the agency
     provided the appellant a proposal notice and a final decision on the proposed
     action, the Board remanded the appeal for adjudication of the merits and the
     appellant’s affirmative defenses. Id.
¶8         Like Bean, the instant case is an appeal of a constructive suspension
     insofar as it concerns a claim that leave that appeared to be voluntary actually
     was not.   Specifically, although the appellant was initially voluntarily absent
     from his position due to chronic headaches, his absence arguably became
     involuntary once he expressed his intent to return to work on December 24, 2012,
     and the agency was unable to find him work within his restrictions. See Bean,
     120 M.S.P.R. 397, ¶¶ 13-14.         Thus, 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.
                                                                                           6

¶9          Here, once the appellant was medically released to return to work with
      medical restrictions, the agency’s decision not to return him to work deprived
      him of a meaningful choice in the matter. Thus, the appellant satisfied the first
      prong under Bean. 2 However, we have reviewed the documentary and testimonial
      evidence, and, for the reasons discussed below and in the initial decision, we
      conclude that the agency did not act improperly in refusing to allow the appellant
      to return to work. Thus, the second prong under Bean has not been satisfied, and
      the Board lacks jurisdiction over this constructive suspension appeal.
¶10         In pertinent part, the record reflects that the agency received a work
      capacity report which indicated that the appellant could return to work on
      December 24, 2012, that his condition “can be augmented with stress,” and that
      his work should be limited to 8 hours per day. IAF, Tab 5 at 18-19; see id. at 21
      (a separate December 19, 2012 note indicated that the agency should “not assign
      [the appellant] duties in a stressful environment”). The agency’s Occupational
      Health Nurse Administrator testified that the information contained in the work
      capacity report caused her to send clarification requests to the appellant’s primary
      care physician and neurologist in late December 2012, and both doctors checked
      “no” to a question about whether the appellant “was safe and medically cleared to
      return to the work environment.” See Hearing CD; see also IAF, Tab 5 at 12 (the
      appellant’s primary care physician 3 stated on December 27, 2012, that his
      “symptoms are exacerbated by stress and by loud noises” and he recommended “a


      2
        It could be argued that once the appellant sought to return to work and was prevented
      from doing so for more than 14 days, the action became an appealable suspension under
      Abbott rather than a constructive suspension under Bean. However, while the agency’s
      refusal to allow the appellant to return to work is the immediate cause of his absence,
      the proximate cause is arguably his failure to meet the conditions of the agency’s
      “clearance to return to work” policy. The analytical framework in Bean contemplates
      the development of the record on both of these issues.
      3
       Arthur Gomez, M.D., appears to be the appellant’s primary care physician, but Galyn
      Rees, M.D., signed the clarification request. See IAF, Tab 5 at 12.
                                                                                            7

      more stable work hour schedule, less stress and less noise in [a] working
      environment”); id. at 13 (the appellant’s neurologist stated on December 26,
      2012, that when the appellant’s headaches are severe, “they will impair his
      attention and concentration,” and the neurologist recommended “either a change
      in his job duties to more stable hours or an environment where he is not exposed
      to noises”).
¶11         Given the significant restrictions of less stress, less noise, and less hours,
      we find that there was not any improper or wrongful agency action.              To the
      contrary, the record reflects that the agency worked diligently to find the
      appellant a position that met these restrictions, it held two DRAC meetings, it
      reasonably determined that a supervisory position did not meet these restrictions,
      and it offered the appellant three nonsupervisory positions. Moreover, when the
      agency finally learned at the end of March 2013, that the appellant could return to
      work with only hearing protection and hours not to exceed 12 hours a day, see
      IAF, Tab 9 at 9 (February 11, 2013 note); IAF, Tab 28, Exhibit 1 (March 28,
      2013 note), the agency promptly returned him to work in his Supervisor position
      on April 1, 2013. See Hearing CD. 4
¶12         On review, the appellant appears to contend that there were other, vacant,
      supervisory EAS-17 positions available that were within his medical restrictions.
      See PFR File, Tab 1 at 2-3 (discussing the EAS-17 Business Development
      Specialist and EAS-17 Supervisor of Statistical Programs vacancies). The record
      does not support this assertion. Indeed, the agency witnesses credibly testified
      that the only positions available within the appellant’s multiple restrictions were

      4
        There was testimony that the appellant did not return to work after April 6, 2013, and
      was placed on enforced leave on this date. See Hearing CD. During the hearing, the
      administrative judge stated that the agency’s proposed action in this regard was not the
      subject of the instant appeal. See id. If the appellant wishes to pursue an appeal
      regarding the agency’s action starting on April 6, 2013, he should file a separate Board
      appeal with the Western Regional Office. The Board takes no position on whether it
      would have jurisdiction over such an appeal.
                                                                                        8

      nonsupervisory positions.       See Hearing CD.    The appellant’s “belief [that] he
      could perform supervisory duties,” PFR File, Tab 1 at 2, does not change our
      disposition.   Even if the vacancies in question were not limited to “impacted
      employees,” IAF, Tab 9, Exhibits 3-4, we are not persuaded that a supervisory
      position—an inherently stressful position—could have satisfied the appellant’s
      documented restrictions. For these reasons, we modify the administrative judge’s
      analysis of the jurisdictional issue, and we conclude that the Board lacks
      jurisdiction over the appeal.
¶13         Regarding the appellant’s “affirmative defense” of retaliation for protected
      EEO activity, the administrative judge found that the appellant did not meet his
      burden of proof because he “did not testify, or present any [evidence] whatsoever,
      in support of this claim.”      ID at 8.   Having concluded that the Board lacked
      jurisdiction over the constructive suspension appeal, however, it was improper for
      him to separately adjudicate this “affirmative defense,” and we vacate the initial
      decision in this regard. We have considered the appellant’s retaliation claim as
      part of our analysis of whether the agency acted improperly, but we are not
      persuaded that a different outcome is warranted.

                                             ORDER
¶14         The initial decision is AFFIRMED as MODIFIED by this Opinion and
      Order. This is the final decision of the Merit Systems Protection Board in this
      appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R.
      § 1201.113(c)).

                        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:
                                                                                  9

                               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
                                                                         10

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.
