                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     ROSEMARY JENKINS,                               DOCKET NUMBER
                 Appellant,                          DC-0752-11-0867-I-2

                  v.

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



                       THIS ORDER IS NONPRECEDENTIAL 1

           Neil C. Bonney, Esquire, Virginia Beach, Virginia, for the appellant.

           Stephen W. Furgeson, Landover, Maryland, for the agency.


                                           BEFORE

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


                                     REMAND ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     dismissed the appeal for lack of jurisdiction. For the reasons discussed below, we
     GRANT the appellant’s petition for review and REMAND the case to the regional
     office for further adjudication in accordance with this Order.


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶2         Following an extended absence, the appellant submitted a CA-17 Duty
     Status Report indicating significant medical restrictions, and the agency issued
     the appellant a Notice of Proposed Placement on Enforced Leave, in which it
     cited the appellant’s CA-17 report, informed the appellant that it had no available
     work that met her medical restrictions, and afforded her an opportunity to
     respond, Jenkins v. U.S. Postal Service, MSPB Docket No. DC-0752-11-0867-I-1
     (I-1), Initial Appeal File (IAF), Tab 6, Subtab 4e.        The agency subsequently
     issued a decision upholding its proposal and placing the appellant on enforced
     leave for a period exceeding 14 days. Id., Subtab 4c.
¶3         As with the more typical enforced leave situations where an agency places
     an employee on enforced leave pending an inquiry into her ability to perform, or
     where an employee who is absent from work for medical reasons asks to return to
     work with altered duties and the agency denies the request, which are
     circumstances we analyze as a potential constructive suspension, e.g., Sage v.
     Department of the Army, 108 M.S.P.R. 398, ¶ 5 (2008), the administrative judge
     adjudicated this appeal as a constructive suspension and dismissed it for lack of
     jurisdiction, Jenkins v. U.S. Postal Service, MSPB Docket No. DC-0752-11-0867-
     I-2 (I-2), IAF, Tab 15, Initial Decision (ID). However, we find that this is not a
     constructive action, but is instead an adverse action taken under 5 U.S.C. chapter
     75,   over   which    the   Board    has   jurisdiction   pursuant   to   39    U.S.C.
     § 1005(a)(4)(A)(ii), 5 U.S.C. §§ 7512(2), 7513(d), and 7701(a). Thus, we must
     remand the appeal for adjudication on the merits.         See Abbott v. U.S. Postal
     Service, 2014 MSPB 47. 2


     2
       Although the Board generally does not accept additional pleadings on review after the
     close of the record, see 5 C.F.R. § 1201.114, we have considered the appellant’s June
     24, 2014 pleading, Petition for Review File, Tab 4, which requested that the Board
     apply the rationale set forth in the Board’s June 23, 2014 Opinion and Order in Abbott,
     2014 MSPB 47, to the facts of this particular matter.
                                                                                         3

¶4         Upon remand, because we have determined that the Board has jurisdiction
     over the appeal, the administrative judge should address the appellant’s claim of
     harmful error. Although the appellant argues in her petition for review that the
     agency’s error in not providing the materials it relied on in support of its action
     pursuant to her attorney’s written request is a due process issue requiring reversal
     of the agency’s action, Petition for Review (PFR) File, Tab 1, for the following
     reasons, we agree with the administrative judge’s determination that the agency’s
     error is instead subject to a harmful error analysis, see ID at 8 n.3; I-2, IAF, Tab
     11 at 5; I-1, IAF, Tab 25.
¶5         In her petition for review, the appellant argues that the agency’s failure to
     provide the documents evidencing its search for work meeting her medical
     conditions “deprived her of her constitutional right to notice and to respond.”
     PFR File, Tab 1 at 6. However, in a situation like this one, “fundamental due
     process requires that the tenured public employee have ‘oral or written notice of
     the charges against him, an explanation of the employer's evidence, and an
     opportunity to present his side of the story.’” Barresi v. U.S. Postal Service,
     65 M.S.P.R. 656, 666 (1994) (quoting Cleveland Board of Education v.
     Loudermill, 470 U.S. 532, 546 (1985)). In this regard, an agency’s proposal letter
     must be sufficiently detailed to give an appellant notice of the charges against her
     in order to afford the appellant a meaningful opportunity to be heard. Barresi,
     66 M.S.P.R. at 666 (citing Goldberg v. Kelly, 397 U.S. 254, 267-68 (1970)).
     Here, the agency’s explanation of its action, specifically that “no work is
     available to meet the restrictions established by [the appellant’s] physician[,]” as
     those restrictions are set forth in the appellant’s CA-17, is sufficiently detailed to
     give the appellant a meaningful opportunity to be heard. See I-1, IAF Tab 4,
     Subtab 4e at 1; see also Lee v. Department of Labor, 110 M.S.P.R. 355, ¶ 11
     (2008) (notice of a proposed adverse action providing advance notice of the
     underlying reasons for the action and an opportunity to respond satisfied
     minimum due process requirements) (citing Barresi, 65 M.S.P.R. at 666));
                                                                                       4

     Pollak v. Department of the Treasury, 99 M.S.P.R. 187, ¶ 9 (2005) (minimum due
     process requires notice of the action, an explanation of the reasons for the action,
     and an opportunity to respond); Rawls v. U.S. Postal Service, 94 M.S.P.R. 614,
     ¶ 21 (2003) (advance notice providing an explanation of the agency’s evidence
     and the opportunity to respond satisfies the due process requirements of
     Loudermill), aff'd, 129 F. App’x. 628 (Fed. Cir. 2005).
¶6        Thus, the administrative judge correctly identified the source of the rights
     implicated in this matter, as the right to an attorney during the adverse action
     process arises under statute and the appellant’s right to review the materials
     which the agency relied upon in support of the proposed action derives from
     regulation. ID at 8 n.3; see 5 U.S.C. § 7513(b)(3); 5 C.F.R. § 752.404(b)(1), (c).
     An agency’s failure to comply with a statutory procedure provided in 5 U.S.C.
     § 7513 is not reversible error per se, but is instead considered under the harmful
     error standard, 5 C.F.R. § 1201.56(c)(3), under which the appellant must establish
     that the error is likely to have caused the agency to have reached a conclusion
     different from the one it would have reached in the absence or cure of the error.
     E.g. Baracco v. Department of Transportation, 15 M.S.P.R. 112, 119 (1983),
     aff’d sub nom, Adams v. Department of Transportation, 735 F.2d 488 (Fed. Cir.
     1984).
¶7        Accordingly, we must remand the appeal for adjudication on the merits,
     including the appellant’s harmful error claim as set forth above and the possible
     effect of the acceptance by the Office of Workers’ Compensation Programs of a
     recurrence of the appellant’s September 10, 2009 work-related injury. See I-1,
     IAF, Tab 10 at 4-6.
                                                                               5

                                         ORDER
¶8        For the reasons discussed above, we REMAND this case to the regional
     office for further adjudication in accordance with this Remand Order.




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