                         UNITED STATES OF AMERICA
                      MERIT SYSTEMS PROTECTION BOARD
                                      2016 MSPB 34

                             Docket No. DC-0752-16-0013-I-1

                                 Stephanie D. Thomas,
                                        Appellant,
                                               v.
                                Department of the Navy,
                                         Agency.
                                    September 27, 2016

           Erik D. Snyder, Esquire, and Edward H. Passman, Esquire, Washington,
             D.C., for the appellant.

           Denise Gillis, Quantico, Virginia, for the agency.

                                         BEFORE

                            Susan Tsui Grundmann, Chairman
                               Mark A. Robbins, Member



                                 OPINION AND ORDER

¶1         This case is before the Board on the appellant’s petition for review of the
     initial decision, which dismissed her constructive suspension appeal for lack of
     jurisdiction. For the reasons set forth below, we GRANT the appellant’s petition,
     VACATE the initial decision, and REMAND the appeal for further proceedings,
     consistent with this Opinion and Order.

                                     BACKGROUND
¶2         The appellant, a Program Analyst employed with the Regional Contracting
     Office at Marine Corps Base Quantico, Virginia, filed a request for reasonable
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accommodation on June 4, 2012, citing her condition of allergic rhinitis due to
mold, carpet mites, and other allergens throughout her building (Building 2010).
Initial Appeal File (IAF), Tab 29 at 16-17. She stated that increased exposure
limited her ability to perform her duties due to increased migraine headaches,
chest pains, coughing, and itching, and that exposure to the allergens could cause
asthma if she were not removed from them. Id. at 16. She asked to be allowed to
temporarily telework or, in the alternative, to work in another facility, until the
allergens were completely removed, id. at 17, and she submitted supporting
information from her doctor, id. at 37, and numerous photographs of the work
site, id. at 18-36.   The agency permitted the appellant to telework while
Building 2010 underwent renovation, after which she was directed to return to
duty, and she did so. Id. at 38-39. However, soon after, the appellant notified the
agency that she had tested positive for mold and that her symptoms had returned.
Id. at 43. She again requested that she be provided an allergen-free workplace.
Id. at 44.   In response, the agency sought additional information from the
appellant’s physician including the nature, severity, and duration of her condition
and impairment, an explanation of the impact of her condition on her activities,
the extent to which her impairment limited her ability to perform activities, an
explanation of whether the impairment was or could be controlled by medication,
and an estimate of the expected date of her full or partial recovery. Id. at 45.
The agency provided the appellant an alternate work location, Building 3101,
while it considered her reasonable accommodation request, id. at 48, and, after
she provided additional medical documentation, id. at 50, the agency assigned her
to Building 3101 permanently, id. at 51-52. The appellant asserted, however, that
she also was being exposed to mold in Building 3101.           Id. at 53-59.    On
August 22, 2014, the appellant suffered a heart attack while at work, after which
she requested that, based on her doctor’s recommendation, she be permitted to
work at home. Id. at 61-62. She returned to duty in Building 3101 for several
days in November, but again experienced allergic symptoms. Id. at 78.
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¶3         On November 25, 2014, the agency denied the appellant’s request for
     full‑time telework, directing her to return to Building 2010.         Id. at 81.    She
     did not do so, however, in reliance on her doctor’s statement that, because of
     health concerns, she never return to that building. 1 Id. at 86-89.
¶4         Subsequently, a private company conducted a visual inspection and
     collected a number of samples in Building 2010.              IAF, Tab 8 at 93-111.
     Building 2010 was assigned a “minor” Health Risk Assessment Code, a low level
     of risk, although a number of recommendations were made.              Id. at 105.    On
     March 24, 2015, the agency proposed to remove the appellant for failure to
     follow instructions and unauthorized absence.          IAF, Tab 8 at 87.           While
     accompanying her attorney to Building 2010 to reply to the charges, the appellant
     again suffered allergic symptoms. IAF, Tab 29 at 139. On June 25, 2015, the
     agency decided not to proceed with the removal action and instructed the
     appellant to return to her position under a 30‑day trial period of telework not to
     exceed 2 days a week, with the remaining 3 days classified as leave without pay
     (LWOP). IAF, Tab 8 at 87-89. In July 2015, the appellant submitted another
     reasonable accommodation request, describing her condition and limitations as
     permanent and requesting reassignment to a work environment free of mold,
     contaminants, and irritants, not to include Buildings 2010 or 3101, or, if that
     were not possible, then reassignment to a mutually agreeable position in a work
     location free of mold, contaminants, and irritants. Id. at 18-19. On August 13,
     2015, during the “RA [Reasonable Accommodation] Process,” the appellant was
     again directed to telework on Tuesdays and Thursdays and was placed on LWOP
     on Mondays, Wednesdays, and Fridays. IAF, Tab 29 at 112. On September 9,
     2015, the agency again requested additional medical documentation, specifically,


     1
      After August 22, 2014, the appellant never returned to duty at Building 2010, and she
     only returned to Building 3101 for a few days.
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     the level of a particular allergen which caused an allergic reaction for the
     appellant and the identity of other mold, allergens, contaminants, or irritants to
     which she is allergic, along with the associated level which causes an allergic
     reaction for her. Id. at 125. In response, the appellant’s physician provided his
     opinion that the appellant could not work in Building 2010, and he requested that
     she be allowed to telework 5 days a week or be assigned to another building free
     from contamination, or to another position in a completely different location. Id.
     at 127.
¶5         The appellant filed an appeal in which she alleged that she is able to work
     every day with reasonable accommodation, but that the agency constructively
     suspended her by placing her on LWOP on every Monday, Wednesday, and
     Friday since August 18, 2015. 2 IAF, Tab 1 at 3-4. She also alleged that, by its
     action, the agency discriminated against her on the basis of her disability and
     retaliated against her for her prior equal employment opportunity (EEO) activity.
     She requested a hearing. Id. at 4. As an alternative theory of Board jurisdiction,
     the appellant alleged that the agency actually, as opposed to constructively,
     suspended her by placing her on LWOP for more than 14 days against her will.
     IAF, Tab 29 at 13-15.
¶6         In an initial decision based on the written record, the administrative judge
     dismissed the appeal for lack of jurisdiction. IAF, Tab 30, Initial Decision (ID)
     at 1, 7. He found that, to establish an appealable constructive suspension, an
     employee must demonstrate that she lacked a meaningful choice in the matter and
     that it was the agency’s improper actions that deprived her of that choice. ID
     at 4-7. The administrative judge then found that, even if he were to assume that


     2
       Effective March 10, 2016, the agency removed the appellant for failure to follow
     instructions, unauthorized absence, and disrespectful/inappropriate conduct. Her appeal
     of that action is pending in the Board’s Washington Regional Office. Thomas v.
     Department of the Navy, MSPB Docket No. DC-0752-16-0482-I-1.
                                                                                      5

     the appellant lacked a meaningful choice in returning to work, relief could not be
     granted because she did not establish that it was the agency’s actions that
     deprived her of the choice. ID at 5-6. He found that the agency made a good
     faith effort to provide the appellant with a mold-free environment and therefore
     did not wrongfully deprive her of a choice to return to work and that the agency
     did not act wrongly by requiring the appellant to provide the additional medical
     documentation requested. ID at 5-6. Finally, the administrative judge found no
     basis to conclude that the discrimination alleged by the appellant precipitated her
     absence. ID at 7.
¶7         The appellant has filed a petition for review, Petition for Review (PFR)
     File, Tab 1, the agency has responded in opposition, PFR File, Tab 3, and the
     appellant has submitted a reply, PFR File, Tab 4.

                                         ANALYSIS
¶8         On review, the appellant argues that the administrative judge erred in
     denying her a jurisdictional hearing on her constructive suspension claim. PFR
     File, Tab 1 at 11-12.     The appellant also argues that the administrative judge
     erred in failing to consider the appellant’s alternative claim that the agency
     imposed upon her an enforced leave suspension. Id. at 12. We agree with the
     appellant’s assertions.
¶9         The Board has explained that, although various fact patterns may give rise
     to an appealable constructive suspension, all constructive suspension claims are
     premised on the proposition that an absence that appears to be voluntary actually
     is not.   Rosario-Fabregas v. Department of the Army, 122 M.S.P.R. 468, ¶ 8
     (2015), aff’d, No. 2015-3102, 2016 WL 4363176 (Fed. Cir. Aug. 16, 2016). To
     demonstrate that an absence from work was not voluntary, and is an actionable
     constructive suspension, an appellant must show that:           (1) she lacked a
     meaningful choice in the matter; and (2) it was the agency’s wrongful actions that
     deprived her of that choice. Id.; Romero v. U.S. Postal Service, 121 M.S.P.R.
                                                                                         6

      606, ¶ 8 (2014).      Assuming that the jurisdictional requirements of 5 U.S.C.
      chapter 75 are otherwise met, proof of these two things is sufficient to establish
      Board    jurisdiction.    Rosario-Fabregas,     122 M.S.P.R.   468,   ¶ 8;   Romero,
      121 M.S.P.R. 606, ¶¶ 8-9. Our reviewing court has specifically stated that the
      jurisdictional analysis set forth above is appropriate.          Rosario ‑ Fabregas,
      No. 2015-3102, slip op. at 3.
¶10           Here, the administrative judge dismissed the appeal for lack of jurisdiction,
      finding that the appellant did not establish that she suffered a constructive
      suspension. In particular, he found that the appellant did not establish that the
      agency deprived her of a meaningful choice. ID at 4-5. In making this finding,
      as explained below, the administrative judge held the appellant to a higher burden
      of proof than is required at this stage of the proceeding. ID at 6.
¶11           It is well settled that, in a constructive adverse action appeal, if an
      appellant makes a nonfrivolous allegation of fact establishing Board jurisdiction,
      she is entitled to a hearing at which she must prove jurisdiction by preponderant
      evidence.    Garcia v. Department of Homeland Security, 437 F.3d 1322, 1344
      (Fed. Cir. 2006) (holding that, in a constructive adverse action appeal, “[a] denial
      of a request for a [jurisdictional] hearing would be proper where the claimant has
      failed to make allegations that, if proven, could satisfy one or more of the
      elements necessary to establish Board jurisdiction”); see Moore v. U.S. Postal
      Service, 117 M.S.P.R. 84, ¶ 11 (2011) (stating that an appellant is entitled to a
      jurisdictional hearing in a constructive suspension appeal based upon intolerable
      working conditions when she makes nonfrivolous allegations that her working
      conditions were so intolerable that a reasonable person in her position would have
      been compelled to absent herself from the workplace). Whether allegations are
      nonfrivolous is determined based on the written record.         See Ferdon v. U.S.
      Postal Service, 60 M.S.P.R. 325, 329 (1994).
¶12           As set forth above, the appellant alleged that, beginning in 2012, she
      suffered from allergic rhinitis due to exposure to allergens in Building 2010 and
                                                                                       7

      that her condition was permanent and could cause asthma if she were not removed
      from the allergens. IAF, Tab 29 at 16. The appellant explained that she was
      capable of performing her duties in a healthy, allergen-free environment, and she
      requested that the agency reasonably accommodate her condition by allowing her
      to work in that type of environment. Id. at 17. Over the next 3 years, the agency
      sought additional medical documentation, the appellant provided documentation
      and continued to seek reasonable accommodation, and the agency attempted with
      mixed success to accommodate the appellant’s conditions by, among other things,
      assigning her to Building 3101 and allowing her to telework from her home. Id.
      at 38-39, 43-45, 48, 50-52, 78, 81, 139; IAF, Tab 8 at 18-19.
¶13         As noted, on June 25, 2015, the agency instructed the appellant to work
      2 days a week in a telework status, with the remaining 3 days classified as
      LWOP.        IAF, Tab 8 at 87-89.    In a July 13, 2015 reasonable accommodation
      request describing the appellant’s condition and limitations as permanent, she
      sought, as an accommodation, reassignment to a work environment free of mold,
      contaminants, and irritants, not to include Buildings 2010 or 3101, and, if that
      were not possible, then reassignment to a mutually agreeable position in a work
      location free of mold, contaminants, and irritants. Id. at 18-19. On September 9,
      2015, the agency again requested additional medical documentation, specifically,
      the level of a particular allergen which caused an allergic reaction for the
      appellant and the identity of other mold, allergens, contaminants, or irritants to
      which she is allergic, along with the associated level which causes an allergic
      reaction for her. Id. at 56-57. In response, the appellant’s physician provided his
      opinion that no accommodation would allow the appellant to work in
      Building 2010 and that she should be allowed to telework 5 days a week or be
      assigned to another building free from contamination or to another unidentified
      position in a completely different location. Id. at 58.
¶14         We find that the appellant has, by these claims, made a nonfrivolous
      allegation     that   she   was     constructively   suspended.   Rosario-Fabregas,
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      No. 2015‑3102, slip op. at 3; Romero, 121 M.S.P.R. 606, ¶ 8. She has done so by
      nonfrivolously alleging that, during the time in question, she was compelled to be
      in a nonpay status for 3 days each week because the alternative presented by the
      agency was for her to work in violation of her doctor’s orders such that she
      lacked a meaningful choice in the matter, and by nonfrivolously alleging that the
      agency forced her into this untenable position by failing to accommodate her
      condition. 3 See Bean v. U.S. Postal Service, 120 M.S.P.R. 397, ¶ 14 (2013).
¶15         The parties disagree as to whether the medical evidence the appellant
      submitted in support of her request for accommodation was sufficient, whether
      the agency was justified in continuing to demand additional documentation, and
      whether the accommodations the agency offered were, in fact, reasonable.
      Nevertheless, at this stage of the proceedings, the appellant need only
      nonfrivolously allege that the agency failed to reasonably accommodate her
      condition, and this she has done based on her allegations and supporting
      documentation.     We find that the appellant’s allegations, if proven, could
      establish that she lacked a meaningful choice in this matter and that it was the
      agency’s improper actions that deprived her of that choice. The jurisdictional
      prerequisites of 5 U.S.C. chapter 75 otherwise appear to be satisfied. 5 U.S.C.
      § 7511(a)(1)(A); IAF, Tab 8 at 7. Therefore, under the principles set forth above,
      we find that the appellant has made a nonfrivolous allegation that she was
      subjected to an appealable constructive suspension and she is entitled to a
      jurisdictional hearing.
¶16         On remand, the appellant must prove by preponderant evidence the matters
      that she has nonfrivolously alleged. If she does so, she will have established the
      Board’s   jurisdiction    over   her   constructive   suspension   appeal,   and   the

      3
        On January 7, 2016, the agency denied the appellant’s reasonable accommodation
      request. IAF, Tab 29 at 132. Her telework schedule was canceled, and she was ordered
      to return to work in Building 2010 on a full-time basis. Id. at 136.
                                                                                        9

      administrative judge must reverse the action as effected without due process,
      although he still must analyze the appellant’s claims of disability discrimination
      and retaliation for EEO activity, if she wishes to pursue those claims.      If the
      appellant does not establish the Board’s jurisdiction over her constructive
      suspension appeal, then the administrative judge must dismiss it on that basis.
¶17         However, during adjudication, as noted above, the appellant offered an
      alternative basis for Board jurisdiction, specifically, that the agency actually
      suspended her by placing her on LWOP against her will for 3 days a week
      beginning on August 18, 2015, and continuing until October 21, 2015, when she
      filed her appeal and even thereafter.    IAF, Tab 1 at 8-9, Tab 29 at 13-15; see
      Abbott v. U.S. Postal Service, 121 M.S.P.R. 294, ¶ 10 (2014) (stating that an
      agency’s placement of an employee on enforced leave for more than 14 days
      constitutes an appealable suspension within the Board’s jurisdiction and that
      previous Board decisions characterizing such suspensions as constructive were in
      error); see also Pittman v. Merit Systems Protection Board, 832 F.2d 598,
      599‑600 (Fed. Cir. 1987). The administrative judge did not address this claim.
      If, on remand, he finds that the appellant did not establish her constructive
      suspension claim, he shall consider her nonconstructive suspension claim.
                                                                                    10


                                          ORDER
¶18         For the reasons discussed above, we remand this case to the regional office
      for further adjudication in accordance with this Opinion and Order.



      FOR THE BOARD:


      ______________________________
      Jennifer Everling
      Acting Clerk of the Board
      Washington, D.C.
