                   NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
                     is not citable as precedent. It is a public record.

 United States Court of Appeals for the Federal Circuit

                                        06-3017


                                  MICHAEL D. REED,

                                                                       Petitioner,

                                            v.

                        UNITED STATES POSTAL SERVICE,

                                                                       Respondent.

                           __________________________

                           DECIDED: October 6, 2006
                           __________________________


Before BRYSON, Circuit Judge, CLEVENGER, Senior Circuit Judge, and GAJARSA,
Circuit Judge.

PER CURIAM.


      Michael D. Reed seeks review of the final decision of the Merit Systems

Protection Board (“Board”) dismissing his appeal for lack of jurisdiction. Reed v. U.S.

Postal Serv., No. CH3443040272-I-1 (August 24, 2005). We affirm.

                                             I

      Mr. Reed filed an appeal with the Board on February 7, 2004, alleging that the

U.S. Postal Service (“agency”) improperly failed to hire him for a position in May 1985,

constructively suspended him from February 2002 until September 2003, and

involuntarily demoted him from the position of PS-06 Letter Carrier to PS-05 Mail
Processing Clerk in September 2003.          He also raised claims of age and disability

discrimination.

       Following a hearing, the Administrative Judge assigned to Mr. Reed’s appeal

dismissed the failure-to-hire claim for want of jurisdiction and declined to sustain the

discrimination claims. However, the Administrative Judge sustained Mr. Reed’s claims

of constructive suspension and involuntary demotion. The agency petitioned for review

by the Board, and Mr. Reed cross-petitioned for review of the Administrative Judge’s

ruling dismissing the discrimination claims.

                                               II

       When Mr. Reed began working as a letter carrier in 1986, he was capable of

performing all the duties of the position, including the requirements of lifting and casing

mail. He developed carpal tunnel syndrome in 1997, and he thereafter worked as a

limited-duty status carrier from 1997 until 2001.     In June 2001, he had surgery for

shoulder tendonitis and returned to work as a carrier in limited-duty status in September

2001. In that status, he delivered express mail and performed clerk craft duties. In

December 2001, the agency offered Mr. Reed, then a PS-06 carrier, a PS-05 clerk

position.   Mr. Reed declined the offer, and continued his limited-duty assignments.

Those assignments included working with labels and stamping return-to-sender mail.

Mr. Reed complained to the agency that the movements necessary to complete those

tasks violated his repetitive motion restrictions. As a result of Mr. Reed’s complaint, the

agency concluded that there was no work available for Mr. Reed as a PS-06 Letter

Carrier.    Consequently, in February 2002, the agency summoned Mr. Reed to a

supervisor’s office where he was informed that the agency had no work available for




06-3017                                  2
him as a letter carrier. The agency again offered Mr. Reed the PS-05 clerk position,

which it believed to be within the physical limitations that Mr. Reed could endure.

Mr. Reed was told that he must leave the premises if he refused the offer, and when he

did refuse the offer, he was escorted off the premises.     Mr. Reed applied for and

received compensation benefits under the Federal Employees’ Compensation Act,

which is administered by the Department of Labor’s Office of Workers’ Compensation

Programs (“OWCP”).

      In June 2003, the agency again offered a PS-05 clerk position, which Mr. Reed

accepted. He returned to work in September 2003, and his compensation benefits

terminated.

                                           III

      The Board held that the Administrative Judge erred in ruling that Mr. Reed had

been involuntarily suspended from February 2002 until September 2003 and

involuntarily demoted to the PS-05 position in September 2003.

      With respect to the issue of involuntary suspension, the Board correctly noted

that the dispositive issue in determining if the suspension was involuntary is who

initiated the absence. Perez v. Merit Sys. Protection Bd., 931 F.2d 853, 855 (Fed. Cir.

1991) (“It was his choice, not the agency’s, to remain away from work.”). Upon review

of the evidence, the Board concluded that, even though Mr. Reed was escorted off the

premises in February 2002, such was the result of his refusal to accept the only job

available to him in the agency. The Board held that the agency had not instructed

Mr. Reed not to report for work. To the contrary, the agency notified Mr. Reed by letter

on March 5, 2002, that the clerk position offer was still open should Mr. Reed wish to




06-3017                                3
accept the offer and return to work.     As Mr. Reed had himself contended that the

physical burdens of the carrier job excluded him from it, the Board held that the agency

had offered Mr. Reed a job it felt he could perform. Mr. Reed was found by the Board to

have placed himself out of work by declining the clerk position. Consequently, the

Board held that Mr. Reed, not the agency, had initiated Mr. Reed’s absence from work.

As such, his absence from work from February 2002 until September 2003 did not

constitute a constructive suspension.

       The Board also rejected the Administrative Judge’s analysis of the involuntary

demotion issue.     The Administrative Judge concluded that the wrongful (to the

Administrative Judge) suspension placed the agency in such a position of power over

Mr. Reed that he had no realistic alternative but to accept the demotion to the PS-05

position. The Board, having rejected the Administrative Judge’s premise, concluded

that Mr. Reed voluntarily accepted the lower grade position.

       The Board’s jurisdiction over Mr. Reed’s appeal depended upon whether

Mr. Reed’s contentions of constructive suspension and involuntary demotion had merit.

When the Board rejected those contentions, it found itself without jurisdiction to address

Mr. Reed’s cross-petition for review of the discrimination issues.

       Mr. Reed timely sought review in this court of the Board’s final decision

dismissing his appeal. He now challenges the Board’s decision on the suspension and

demotion issues.

                                             IV

       We must affirm the final decision of the Board unless we determine that it is

arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law.




06-3017                                  4
5 U.S.C. § 7703(c) (2000). Further, where the Board’s decision rests on findings of fact,

we must sustain its fact-findings if supported by substantial evidence. Id.

      The facts demonstrate, by more than substantial evidence, that Mr. Reed

declared himself unfit for the PS-06 letter carrier position and that the agency had no

work available for him in that status. The agency offered him a suitable alternative, less

attractive to be sure, which he rejected. During his entire period of suspension, he

received compensation from OWCP. Mr. Reed’s options were few: he could return to

work in a lower grade position and forfeit OWCP compensation, or he could remain in

non-pay suspension status. The Board’s finding that Mr. Reed absented himself from

work, rather than being pushed into absence by the agency, is supported by substantial

evidence. That finding underlies the Board’s conclusion that his suspension was not

constructively caused by the agency. We see no error in the Board’s conclusion that

Mr. Reed failed to show a constructive suspension by the agency.

      The evidence is also substantial supporting the Board’s conclusion that Mr. Reed

voluntarily accepted the PS-05 position to which he returned in September 2003. His

claim to a forced demotion was correctly rejected by the Board.

      Because we affirm the Board’s final decision on the suspension and demotion

issues, the Board was correct in determining that it lacked jurisdiction to address

Mr. Reed’s cross-petition for review of the discrimination issues on which the

Administrative Judge ruled adversely to Mr. Reed.

      The Board’s final decision is affirmed.




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