                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     ELAINE JONES,                                   DOCKET NUMBER
                         Appellant,                  AT-0752-15-0236-I-1

                  v.

     UNITED STATES POSTAL SERVICE,                   DATE: December 23, 2016
                   Agency.



                  THIS ORDER IS NONPRECEDENTIAL 1

           John R. Macon, Memphis, Tennessee, for the appellant.

           Cynthia R. Allen, Esquire, Memphis, Tennessee, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                      REMAND ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     dismissed her enforced leave appeal for lack of jurisdiction.        For the reasons
     discussed below, we GRANT the appellant’s petition for review , REVERSE her
     enforced leave, 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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

                                      BACKGROUND
¶2         The appellant is a preference-eligible Mail Handler at the agency’s
     Processing and Distribution Center in Memphis, Tennessee. Initial Appeal File
     (IAF), Tab 1 at 1, 7, Tab 5 at 51. On March 12, 2013, she filed a claim for
     workers’ compensation with the Department of Labor’s Office of Workers’
     Compensation Programs (OWCP), alleging that she had sustained a work-related
     injury on March 7, 2013. IAF, Tab 5 at 65, 73-74. The agency subsequently
     placed her in a limited-duty assignment repairing damaged mail.        IAF, Tab 5
     at 50, 72, Tab 12 at 11. The OWCP denied the appellant’s claim for workers’
     compensation on June 27, 2013, and it denied her request for reconsideration of
     its initial decision on November 1, 2013. IAF, Tab 5 at 63-71. The appellant did
     not inform the agency that her OWCP claim had been denied and continued to
     work in the limited-duty assignment. IAF, Tab 22, Hearing Compact Disc (HCD)
     (testimony of the appellant).
¶3         In a letter dated November 17, 2014, the agency requested updated medical
     information and restrictions from the appellant’s physician in connection with her
     limited-duty assignment. IAF, Tab 5 at 50. On December 3, 2014, the appellant
     submitted updated medical information and requested a temporary, light -duty
     assignment.   IAF, Tab 5 at 44, 49, Tab 9 at 19-20; HCD (testimony of the
     appellant).   In her physician’s certification dated November 24, 2014, the
     physician estimated that the appellant required a restricted work assignment for
     6 months and indicated that she could not perform the activities of climbing,
     kneeling, bending, stooping, twisting, pulling, or pushing. IAF, Tab 5 at 49. Her
     physician also indicated that she was limited to lifting or carrying 5 to 10 pounds.
     Id.
¶4         On December 5, 2014, A.B., the Relief Tour 1 Manager , Distribution
     Operations, told the appellant to leave work and go home pending a decision on
     her request for light duty. IAF, Tab 5 at 12, 19, Tab 9 at 20, Tab 15 at 9; HCD
     (testimony of A.B. and the appellant). In a letter dated the same day, the agency
                                                                                        3

     denied the appellant’s light-duty request because there was no light-duty work
     available within her medical restrictions.     IAF, Tab 5 at 45.     However, the
     appellant did not receive this letter because it was mailed to an incorrect address.
     IAF, Tab 9 at 20-22; HCD (testimony of the appellant).
¶5         On December 26, 2014, the appellant filed a Board appeal alleging that the
     agency constructively suspended her beginning December 5, 2014, when it ended
     her limited-duty assignment and failed to allow her to work within her medical
     restrictions. IAF, Tab 1 at 1-6. She argued that the agency violated her rights to
     due process and committed harmful procedural error. IAF, Tab 1 at 2, Tab 6 at 6,
     9.   She further claimed that the agency discriminated against her based on
     disability and age. IAF, Tab 1 at 2, Tab 6 at 8.
¶6         On January 8, 2015, the agency sent another letter to the appellant denying
     her request for light duty because there was no light-duty work available within
     her medical restrictions. IAF, Tab 5 at 46. She received this letter on January 9,
     2015. Id. at 47-48. On February 4, 2015, she again requested light duty and
     submitted a new physician’s certification with less restrictive medical limitations.
     IAF, Tab 9 at 29-30. The agency denied her second request for light duty. Id.
     at 28, 30-31. With a third request for light duty made in May 2015, the appellant
     submitted a new physician’s certification indicating that she could lift 10 to
     20 pounds, stand for 3 hours, bend, stoop, twist, and pull. IAF, Tab 21. In a
     letter dated May 20, 2015, the agency approved her request for temporary light
     duty for 3 hours a day. IAF, Tab 20. The appellant returned to work on July 22,
     2015, and was assigned to the flat sorter. HCD (testimony of the appellant).
¶7         The agency filed a motion to dismiss the appeal for lack of jurisdiction.
     IAF, Tab 5 at 7-8. The administrative judge found that the appellant made a
     nonfrivolous allegation that the Board has jurisdiction over her appeal.       IAF,
     Tab 13 at 1.   After holding a jurisdictional hearing, the administrative judge
     issued an initial decision dismissing the appeal for lack of jurisdiction.     IAF,
     Tab 25, Initial Decision (ID) at 1, 9-10. Specifically, she found that the appellant
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     is an employee with the right to appeal an adverse action under 5 U.S.C. chapter
     75 because she is a preference-eligible Postal Service employee with 1 year of
     current, continuous service in the same or similar position. 2 ID at 5. However,
     the administrative judge found that the appellant failed to prove that her absence
     of more than 14 days was a constructive suspension.                ID at 6-8.      The
     administrative judge reasoned that, although the appellant lacked a meaningful
     choice in her absence from work, it was not the agency’s wrongful actions that
     deprived her of that choice. ID at 6, 9. The administrative judge further found
     that the agency did not act improperly by denying the appellant’s initial requests
     for light duty.    ID at 8.     Finally, the administrative judge found that the
     appellant’s claims of discrimination based on disability and age were insufficient
     to establish a constructive suspension. ID at 9. 3
¶8         The appellant has filed a petition for review. Petition for Review (PFR)
     File, Tab 1. The agency has filed a response. PFR File, Tab 3. The appellant has
     filed a reply to the agency’s response. PFR File, Tab 4.

                       DISCUSSION OF ARGUMENTS ON REVIEW
¶9         The Board’s jurisdiction is limited to those matters over which it has been
     given jurisdiction by law, rule, or regulation.           Maddox v. Merit Systems
     Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). The appellant has the burden
     of proving the Board’s jurisdiction by a preponderance of the evidence. 4 5 C.F.R.
     § 1201.56(b)(2)(i)(A).    A constructive suspension appeal concerns leave that
     appears to be voluntary, but actually was not.         Bean v. U.S. Postal Service,

     2
       Neither party challenges these findings on review, and we see no reason to disturb
     them.
     3
       The administrative judge made a typographical error by stating in the subh eading that
     the appellant also claimed reprisal. ID at 9. Based on our review of the record, we find
     that the appellant did not raise an allegation of reprisal.
     4
      A preponderance of the evidence is the degree of relevant evidence that a reasonable
     person, considering the record as a whole, would accept as sufficient to find that a
     contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).
                                                                                        5

      120 M.S.P.R. 397, ¶ 7 (2013). An employee may establish jurisdiction if she can
      prove that she lacked a meaningful choice in the matter and it was the agency’s
      wrongful actions that deprived her of that choice.       Id., ¶ 8.   In contrast, an
      agency’s placement of an employee on enforced leave for more than 14 days
      constitutes an appealable suspension within the Board’s jurisdiction, not a
      constructive suspension. Abbott v. U.S. Postal Service, 121 M.S.P.R. 294, ¶ 10
      (2014). To sustain such a suspension, 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.
¶10        In her petition for review, the appellant reasserts her argument below that
      the Board has jurisdiction over her appeal because the agency placed her on
      enforced leave for more than 14 days. PFR File, Tab 1 at 3, Tab 4 at 2; IAF,
      Tab 1 at 2, Tab 6 at 7, Tab 9 at 2, Tab 24 at 4. For the following reasons, we find
      that the administrative judge erroneously analyzed the appellant’s claim as a
      constructive suspension instead of an appealable suspension. The record reflects
      that the appellant had been performing her limited-duty assignment until
      December 5, 2014, when A.B., the agency manager, told the appellant to leave
      work and go home pending a decision on her request for light duty. IAF, Tab 9
      at 20; HCD (testimony of A.B. and the appellant). Thus, her absence does not
      appear to have been voluntary or self‑initiated, but constituted enforced leave.
      Like Abbott, 121 M.S.P.R. 294, ¶ 11, the agency’s action here constitutes an
      appealable suspension within the Board’s jurisdiction because it placed the
      appellant in an enforced leave status for more than 14 days against her will.
¶11        Because a tenured Federal employee has a property interest in continued
      employment, an agency is prohibited from placing an appellant on enforced leave
      for more than 14 days without providing the due process required under the Fifth
      Amendment. Martin v. U.S. Postal Service, 123 M.S.P.R. 189, ¶ 11 (2016). An
      agency’s failure to provide a tenured public employee with an opportunity to
      present a response, either in person or in writing, to an appealable agency action
                                                                                       6

      that deprives him of his property right in his employment constitutes an
      abridgement of his constitutional right to minimum due process of law, i.e., prior
      notice and an opportunity to respond.          Cleveland Board of Education v.
      Loudermill, 470 U.S. 532, 546 (1985).       Here, the agency did not provide the
      appellant with notice of any proposed enforced leave or an opportunity to be
      heard, either before or after it imposed the enforced leave. Consequently, the
      agency’s enforced leave action cannot be sustained.            See, e.g., Martin,
      123 M.S.P.R. 189, ¶ 11 (reversing the agency’s suspension action because it
      violated her constitutional due process rights).
¶12         However, the parties disagree as to whether the appellant or the agency
      caused the delay between when the agency granted the appellant’s request for
      light duty on May 20, 2015, and when she returned to work in July 2015. IAF,
      Tab 20, Tab 23 at 11-12, Tab 24 at 3. Because we are unable to determine when
      the suspension ended, we remand this appeal and direct the administrative judge
      to make a finding as to the end date of the suspension.
¶13         On remand, the administrative judge should further develop the record on
      this issue if necessary, and should hold a hearing on the appellant’s affirmative
      defenses of discrimination based on age and disability. IAF, Tab 1 at 1; see Hess
      v. U.S. Postal Service, 123 M.S.P.R. 183, ¶¶ 9-10 (2016) (remanding the
      appellant’s discrimination claims for a hearing because sh e raised a cognizable
      claim of discrimination in connection with an otherwise appealable action).
      Finally, to the extent the appellant seeks to appeal her assignment of only 3 hours
      of work per day beginning in July 2015, we find that the Board lacks jurisdiction
      to decide whether she is entitled to an 8-hour per day light‑duty assignment.
      IAF, Tab 7 at 11, Tab 24 at 9-10; PFR File, Tab 1 at 9‑10; see Gamble v. U.S.
      Postal Service, 48 M.S.P.R. 228, 230-33 (1991).
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                                           ORDER
¶14        For the reasons discussed above, we reverse the enforced leave action and
      remand this case to the Atlanta Regional Office for further adjudication in
      accordance with this Remand Order.




      FOR THE BOARD:                         ______________________________
                                             Jennifer Everling
                                             Acting Clerk of the Board
      Washington, D.C.
