                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     YOSUP J. CHOI,                                  DOCKET NUMBER
                         Appellant,                  SF-0752-14-0449-C-1

                  v.

     DEPARTMENT OF THE NAVY,                         DATE: April 14, 2015
                 Agency.



            THIS FINAL O RDER IS NONPRECEDENTIAL 1

           A. Brian Henson, Esquire, Decatur, Georgia, for the appellant.

           Joshua Roever, China Lake, California, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1        The appellant has filed a petition for review of the initial decision, which
     denied his petition for enforcement. Generally, we grant petitions such as this
     one only when: the initial decision contains erroneous findings of material fact;
     the initial decision is based on an erroneous interpretation of statute or regulation
     or the erroneous application of the law to the facts of the case; the judge’s rulings

     1
        A nonprecedential order is one that the Board has determined does not add
     sign ificantly 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 Parties may cite nonprecedential orders,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

     during either the course of the appeal or the initial decision were not consistent
     with required procedures or involved an abuse of discretion, and the resulting
     error affected the outcome of the case; or new and material evidence or legal
     argument is available that, despite the petitioner’s due diligence, was not
     available when the record closed. See Title 5 of the Code of Federal Regulations,
     section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
     appeal, and based on the following points and authorities, we conclude that the
     petitioner has not established any basis under section 1201.115 for granting the
     petition for review. Therefore, we DENY the petition for review and AFFIRM
     the initial decision, but we MODIFY it to provide the appellant with mixed-case
     appeal rights. See Caros v. Department of Homeland Security, 122 M.S.P.R. 231,
     ¶ 25 (2015).
¶2        From August 7, 2012, to December 30, 3012, the agency carried the
     appellant on sick leave based on a request from his physician. Near the end of
     that period, the agency asked the appellant to submit documentation clearing him
     to return to duty. MSPB Docket No. SF-0752-14-0430-I-1, Initial Appeal File
     (IAF), Tab 6 at 78, 108-09, 126. 2 When he did not do so, the agency offered him
     a fitness-for-duty (FFD) examination to which he agreed. 3 Id. at 93-97.         The
     psychologist who examined the appellant determined that he was not fit for duty,
     as did another psychologist who reviewed the updated documentation.               Id.
     at 67-73. As a result, the agency proposed and effected the appellant’s removal
     for having failed the FFD examination. Id. at 56-60, 63-66. After filing an equal
     employment opportunity (EEO) complaint with the agency, id. at 47-54, the
     appellant filed a Board appeal in which he challenged the removal and claimed


     2
       MSPB Docket Nos. SF-0752-14-0449-I-1 and SF-0752-14-0430-I-1 were previously
     joined appeals and one initial decision addressed both matters.
     3
      After the appellant’s sick leave ran out, he was allowed to use the remainder of his
     annual leave, and was then placed on leave without pay pending resolution of his
     employment status.
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     that the   agency constructively      suspended   him during the     period   from
     December 31, 2012, until May 19, 2013, the effective date of his removal, id.,
     Tab 1.
¶3         In an initial decision based on the written record, the administrative judge
     considered both actions.    Id., Tab 22, Initial Decision (ID).   He reversed the
     suspension finding that the appellant reasonably believed that he had to be
     medically cleared before he could return to duty, that he was, therefore,
     constructively suspended, and that the period of leave lasted more than 14 days
     and was imposed without providing him minimum due process. ID at 3-6. The
     administrative judge ordered the agency to cancel the suspension and
     retroactively restore the appellant, effective December 31, 2012, until the date of
     his removal, and to pay him “the appropriate amount of back pay (if any) with
     interest” in accordance with the Office of Personnel Management (OPM)
     regulations.   ID at 14.    The administrative judge sustained the removal, ID
     at 7-13, but found unsupported the appellant’s claims of national origin and
     disability discrimination and retaliation for protected EEO activity, ID at 10-13.
     The initial decision became the Board’s final decision as to both actions when
     neither party filed a petition for review.
¶4         In a petition for enforcement, the appellant claimed that the agency was not
     in compliance with the Board’s decision because it had determined that he was
     not entitled to back pay for the period of the constructive suspension.
     Compliance Appeal File, Tab 1 at 1-3. The appellant referred to the agency’s
     Disclaimer of Back Pay and Compliance Statement wherein the agency stated that
     no back pay was owed the appellant because he was not ready, willing, and able
     to perform his duties during the period in question. Id. at 5-11. The appellant
     argued that there was no medical documentation showing that he should not
     return to work after December 30, 2012, until the results of his FFD examination,
     and that it was improper for the agency to deny him back pay when it had denied
     him due process. Id. at 2-3.
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¶5        In his initial decision, the administrative judge found that the agency had
     fully complied with the Board’s order, and he denied the appellant’s petition for
     enforcement. Id., Tab 4, Compliance Initial Decision (CID) at 1-4.
¶6        On petition for review, the appellant argues as he did below that, for the
     period from December 31, 2012, until February 13, 2013, the date of the results
     of his FFD examination, there was no evidence that he was not ready, willing, and
     able to return to work, and that, having denied him due process in connection
     with the constructive suspension, the agency may not rely on an OPM regulation
     to deny him back pay. Petition for Review, File, Tab 1 at 2-5. The agency has
     responded to the petition, id., Tab 3, and the appellant has filed a reply, id.,
     Tab 4.
¶7        When an employee has been the victim of an unjustified personnel action,
     the Board’s goal is to place him in the circumstances in which he would have
     been had the personnel action never occurred. Kerr v. National Endowment for
     the Arts, 726 F.2d 730, 733 (Fed. Cir. 1984).       In accordance with that goal,
     OPM’s regulations and the Board’s case law provide that an employee is not
     entitled to back pay for any period during which he was not “ready, willing, and
     able” to perform his duties due to an incapacitating illness or injury, or for other
     reasons unrelated to the unjustified personnel action. King v. Department of the
     Navy, 100 M.S.P.R. 116, ¶ 12 (2005), aff’d, 167 F. App’x 191 (Fed. Cir. 2006);
     accord Davis v. Department of the Navy, 50 M.S.P.R. 592, 598 (1991) (when the
     agency presents a “substantial basis” for questioning the appellant’s ability to
     work, it is then incumbent upon the appellant to show that he was ready, willing,
     and able to work during the relevant period); 5 C.F.R. § 550.805(c).
¶8        The agency bears the initial burden of proving that it has provided the
     appellant with the appropriate amount of back pay.       King, 100 M.S.P.R. 116,
     ¶ 13. However, where the agency produces “concrete and positive evidence, as
     opposed to a mere theoretical argument,” demonstrating that there is some
     substance to its affirmative defense that the appellant was not ready, willing, and
                                                                                      5

      able to work during all or part of the period for which he claims entitlement to
      back pay, the burden shifts to the appellant to show otherwise.       Id.; Lyle v.
      Department of the Treasury, 85 M.S.P.R. 324, ¶ 6 (2000).
¶9          Here, the agency’s physician notified the agency on August 7, 2012, that the
      appellant should not go to work until December 30, 2012, because he was
      suffering from severe depression.     IAF, Tab 6 at 126.      The agency sought
      additional medical documentation on December 3, 2012, id. at 179, and although
      the appellant’s attorney indicated that he would respond, id. at 107, he submitted
      no documentation.      The agency then offered the appellant the option of
      undergoing an FFD examination, and he agreed. He acknowledged that he was
      free to also submit medical documentation from his physician, but he did not do
      so.   Id. at 97-98.   The appellant rescheduled his appointment for the FFD
      examination several times before it was finally held on February 13, 2013. Id.
      at 69-73, 80-94.
¶10         Under the circumstances, we agree with the administrative judge that the
      agency had sufficient evidence demonstrating that there was substance to its
      position that the appellant was not ready, willing and able to work during all or
      part of the period from December 31, 2012, to February 13, 2013, and that the
      burden then shifted to the appellant to show otherwise.        Because he never
      responded to the agency’s evidence, despite his opportunity to do so, and did not
      submit any contrary evidence, we also agree with the administrative judge that
      the appellant provided no evidence that he was ready, willing, and able to work
      during this period. CID at 2-3.
¶11         In addition, the appellant has provided no support for his claim that the
      agency’s denial of his due process rights in connection with the constructive
      suspension precludes its denying him back pay.      See Donovan v. U.S. Postal
      Service, 101 M.S.P.R. 628, ¶¶ 9-11 (2006) (agency established that employee was
      only entitled to back pay for 1 week of 4 month period of constructive
      suspension).
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                   NOTICE TO THE APPELLANT REGARDING
                      YOUR FURTHER REVIEW RIGHTS
      The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You have the right to
request further review of this final decision.

Discrimination Claims: Administrative Review
             You may request review of this final decision on your discrimination
claims by the Equal Employment Opportunity Commission (EEOC). See Title 5
of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you
submit your request by regular U.S. mail, the address of the EEOC is:
                           Office of Federal Operations
                    Equal Employment Opportunity Commission
                                 P.O. Box 77960
                            Washington, D.C. 20013

      If you submit your request via commercial delivery or by a method
requiring a signature, it must be addressed to:
                           Office of Federal Operations
                    Equal Employment Opportunity Commission
                                131 M Street, NE
                                  Suite 5SW12G
                            Washington, D.C. 20507

      You should send your request to EEOC no later than 30 calendar days after
your receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.

Discrimination and Other Claims: Judicial Action
      If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate United States
district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with
                                                                                    7

the district court no later than 30 calendar days after your receipt of this order. If
you have a representative in this case, and your representative receives this order
before you do, then you must file with the district court no later than 30 calendar
days after receipt by your representative. If you choose to file, be very careful to
file on time. If the action involves a claim of discrimination based on race, color,
religion, sex, national origin, or a disabling condition, you may be entitled to
representation by a court-appointed lawyer and to waiver of any requirement of
prepayment of fees, costs, or other security.      See 42 U.S.C. § 2000e-5(f) and
29 U.S.C. § 794a.




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