                         UNITED STATES OF AMERICA
                      MERIT SYSTEMS PROTECTION BOARD
                                      2014 MSPB 47

                             Docket No. DC-0752-12-0366-I-1

                                     Mary A. Abbott,
                                        Appellant,
                                             v.
                              United States Postal Service,
                                          Agency.
                                       June 23, 2014

           Allison E. Eddy, Esquire, Virginia Beach, Virginia, for the appellant.

           Jasmin A. Dabney, Landover, Maryland, for the agency.

                                         BEFORE

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



                                 OPINION AND ORDER

¶1         The appellant has petitioned for review of the initial decision that
     dismissed her appeal of her placement on enforced leave for lack of jurisdiction.
     For the reasons set forth below, we GRANT the appellant’s petition and
     REMAND this appeal for adjudication on the merits.

                                      BACKGROUND
¶2         The following facts, as set forth in the initial decision, are undisputed: the
     appellant held the position of EAS-17 Supervisor, Customer Services at the
     Denbigh Postal Station in Newport News, Virginia. Initial Appeal File (IAF),
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     Tab 43, Initial Decision (ID) at 2. The appellant submitted a request to work a
     light-duty assignment on December 29, 2011.           ID at 2.       Subsequently the
     Officer-In-Charge denied the appellant’s request on the ground that there was no
     work available within the appellant’s medical restrictions. ID at 2.
¶3         On January 6, 2012, the agency proposed to place the appellant on enforced
     leave because there was no available work within her medical restrictions. ID at
     2; see IAF, Tab 8 at 61. After granting the appellant an opportunity to reply to
     the notice, by letter dated February 6, 2012, the agency issued a final decision
     effecting the enforced leave action against her on February 8, 2012. ID at 2; IAF,
     Tab 8 at 17-18, 57.
¶4         On February 9, 2012, the appellant filed the instant appeal in which she
     challenged the agency’s enforced leave action against her. IAF, Tab 1. After a
     jurisdictional hearing, the administrative judge dismissed the appeal for lack of
     jurisdiction, finding that the appellant failed to establish that the agency’s action
     constituted a constructive suspension . ID at 10. The administrative judge also
     determined that, absent an otherwise appealable action, the Board lacked
     jurisdiction to consider the appellant’s affirmative defenses. Id.
¶5         The appellant has filed a petition for review of the initial decision, and the
     agency has submitted a response in opposition to the appellant’s petition.
     Petition for Review File, Tabs 1, 3.

                                         ANALYSIS
¶6         The Board has jurisdiction over appeals only from the types of agency
     actions specifically enumerated by law, rule, or regulation.          Perez v. Merit
     Systems Protection Board, 931 F.2d 853 , 855 (Fed. Cir. 1991). These appealable
     actions include suspensions for more than 14 days.           5 U.S.C. § 7512 .     A
     “suspension” is the temporary placement of an employee in a nonpay, nonduty
     status. 5 U.S.C. § 7501 (2). This definition covers not just unpaid absences but
     also an agency’s placement of an employee on sick or annual leave against her
                                                                                       3

     will. Yarnell v. Department of Transportation, 109 M.S.P.R. 416 , ¶ 10 (2008).
     For jurisdictional purposes, whether the employee was able to perform her regular
     duties is immaterial. Id. Rather, the only question is whether the employee’s
     placement in a leave status was voluntary or involuntary; only the latter is
     appealable. Id.
¶7         As we recently explained in Bean v. U.S. Postal Service, 120 M.S.P.R. 397
     (2013), the Board has long recognized that certain leaves of absence may also be
     appealable under chapter 75 as constructive suspensions. Specifically, in Bean,
     the appellant alleged that leave that appeared to be voluntary actually was not.
     Id., ¶ 8 n.3. Such appeals typically involve employee-initiated absences in which
     the appellant alleges that:   (1) she lacked a meaningful choice, and (2) the
     absence was caused by the agency’s improper actions.             Id., ¶¶ 9-11; see
     Boudousquie v. Department of the Air Force, 102 M.S.P.R. 397 , ¶ 10 (2006) (an
     agency’s misleading statements that the appellant must request leave without pay
     status may support a finding of constructive suspension); Peoples v. Department
     of the Navy, 83 M.S.P.R. 216 , ¶¶ 6-9 (1999) (involving allegations of
     constructive suspension on the basis that the appellant’s absences were the result
     of intolerable working conditions).
¶8         In constructive adverse action appeals, nonfrivolous allegations do not
     establish jurisdiction; rather, the appellant must prove by preponderant evidence
     that the action was involuntary to establish Board jurisdiction.     Heath v. U.S.
     Postal Service, 107 M.S.P.R. 366 , ¶ 6 (2007); see Garcia v. Department of
     Homeland Security, 437 F.3d 1322 , 1325 (Fed. Cir. 2006) (en banc).             The
     jurisdictional issue in such appeals is often dispositive. That is, if the appellant
     fails to meet her burden of establishing by preponderant evidence that she was
     constructively suspended, the appeal will be dismissed because the Board lacks
     jurisdiction over appeals of employees’ voluntary actions. See Perez, 931 F.2d at
     854 (placement of an employee in a nonpay, absence without leave status, even
     for longer than 14 days, was not an action appealable to the Board because the
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     employee voluntarily absented himself, and it was his, not the agency’s choice, to
     remain away from work after his request for paid sick leave was denied).
     Because such constructive suspensions are often effected without notice,
     however, if the appellant establishes jurisdiction, the Board will reverse the
     agency’s action on due process grounds without proceeding to the merits. E.g.,
     Crutch v. U.S. Postal Service, 119 M.S.P.R. 460 , ¶ 12 (2013); Bannister v.
     General Services Administration, 42 M.S.P.R. 362 (1989).
¶9         The instant appeal, however, is not a case in which an appellant alleges that
     leave that appears to be voluntary actually is not.           Rather, it concerns the
     agency’s placing the appellant on enforced leave. In Pittman v. Merit Systems
     Protection Board, 832 F.2d 598 , 599–600 (Fed. Cir. 1987), our reviewing court
     held that placement of an employee on enforced leave due to his medical
     condition, which prevented him from performing in any available position,
     constituted an appealable suspension of more than 14 days. ∗             Subsequently,
     however, the Board, in several cases beginning with Childers v. Department of
     the Air Force, 36 M.S.P.R. 486 , 488-89 (1988), mischaracterized Pittman as
     holding that “placement in enforced leave status for more than fourteen days,
     based on alleged physical or mental disability, constitutes a constructive
     suspension appealable to the Board.”           (Emphasis added).       See also, e.g.,



     ∗
       Although appealable suspensions of more than 14 days must be “disciplinary,” our
     reviewing court has held that suspensions that are

           ordered because the agency believes that the employee’s retention on
           active duty could result in damage to federal property, or be detrimental to
           governmental interests, or be injurious to the employee, his fellow
           workers, or the public [] are “disciplinary” in the broader sense of
           maintaining the orderly working of the Government against possible
           disruption by the suspended employee . . . .
     Pittman, 832 F.2d at 599 (quoting Thomas v. General Services Administration, 772 F.2d
     86, 89 (Fed. Cir. 1985)).
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      Rutherford v. U.S. Postal Service, 112 M.S.P.R. 570 , ¶ 9 (2009); White v. U.S.
      Postal Service, 45 M.S.P.R. 219 , 221 (1990); Green v. Department of the Navy,
      37 M.S.P.R. 582 , 585 (1988).      As a result, the Board has adjudicated many
      claims involving an agency’s placement of an employee on enforced leave as
      alleged constructive suspensions. See, e.g., Crutch, 119 M.S.P.R. 460 , ¶ 6 (an
      employee’s involuntary absence for more than 14 days that results in a loss of pay
      or forces her to take leave that she did not intend to use is a constructive
      suspension within the Board’s jurisdiction under 5 U.S.C. §§ 7512 (2) and
      7513(d)).
¶10         We now clarify 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. Pittman, 832 F.2d at 599–600; Norrington v. Department of
      the Air Force, 83 M.S.P.R. 23 , ¶ 8 (1999); see 5 U.S.C. §§ 7512 (2), 7513(d),
      7701(a).    To the extent that the Board has in past decisions adjudicated such
      appeals using the jurisdictional framework for constructive suspensions, those
      decisions are overruled.    The suspensions under these circumstances are not
      “constructive,” and the case law concerning constructive suspensions is
      inapplicable.   Rather, to sustain such suspensions, 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.
      Norrington, 83 M.S.P.R. 23 , ¶ 8; see Pope v. U.S. Postal Service, 114 F.3d 1144 ,
      1147 (Fed. Cir. 1997).
¶11         Here, as stated above, the administrative judge adjudicated the appellant’s
      claim that she was placed on enforced leave using the Board’s framework for
      adjudicating appeals of alleged constructive suspensions.      ID at 10.   Because
      there is no dispute that the agency placed the appellant in an enforced leave status
      for more than 14 days against her will, the agency’s action constitutes an
      appealable suspension within the Board’s jurisdiction. Moreover, the agency has
      provided the appellant a proposal notice and a final decision on the proposed
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      action. Therefore, we REMAND this appeal for adjudication on the merits. In
      addition, because we have determined that the Board has jurisdiction over the
      appeal, the administrative judge should adjudicate the appellant’s affirmative
      defenses of due process, harmful procedural error, disability discrimination, and
      disparate treatment.

                                          ORDER
¶12         We REMAND this appeal to the regional office for further adjudication in
      accordance with this Opinion and Order.



      FOR THE BOARD:


      ______________________________
      William D. Spencer
      Clerk of the Board
      Washington, D.C.
