                        NOTE: This disposition is nonprecedential.


   United States Court of Appeals for the Federal Circuit

                                        2008-3256

                                  WALTER L. HAWKINS,

                                                        Petitioner,

                                             v.

                        MERIT SYSTEMS PROTECTION BOARD,

                                                        Respondent,

                                            and

                          UNITED STATES POSTAL SERVICE,

                                                        Intervenor.


      Walter L. Hawkins, of Atlanta, Georgia, pro se.

      Stephanie M. Conley, Attorney, Office of the General Counsel, Merit Systems
Protection Board, of Washington, DC, for respondent. With her on the brief were B. Chad
Bungard, General Counsel, and Calvin M. Morrow, Acting Assistant General Counsel.

       David M. Hibey Trial Attorney, Commercial Litigation Branch, Civil Division, United
States Department of Justice, of Washington, DC, for intervenor. With him on the brief were
Gregory G. Katsas, Assistant Attorney General, Jeanne E. Davidson, Director, and Harold D.
Lester, Jr., Assistant Director.

Appealed from: Merit Systems Protection Board
                           NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit
                                        2008-3256

                                 WALTER L. HAWKINS,

                                                                        Petitioner,

                                             v.

                         MERIT SYSTEMS PROTECTION BOARD,

                                                                        Respondent,
                                            and

                          UNITED STATES POSTAL SERVICE,

                                                                        Intervenor.

Petition for review from the Merit Systems Protection Board in AT0752080134-I-1.
                            ___________________________

                           DECIDED: December 4, 2008
                           ___________________________


Before MAYER and DYK, Circuit Judges, and HUFF, District Judge * .

PER CURIAM.


      Walter L. Hawkins (“Hawkins”) petitions for review of a decision of the Merit

Systems Protection Board (“Board”) dismissing his appeal for lack of jurisdiction.

Hawkins v. U.S. Postal Service, AT0752080134-I-1 (M.S.P.B. May 7, 2008) (“Final

Decision”). We affirm.

                                   BACKGROUND

      In November 2004, Hawkins, an EAS-17 Customer Service Supervisor with the

U.S. Postal Service (“USPS”), was granted leave under the Family and Medical Leave

      *
       Honorable Marilyn L. Huff, District Judge, United States District Court for the
Southern District of California, sitting by designation.
Act of 1993 for medical reasons. Hawkins did not then return to work. In January 2005,

he began submitting medical documentation to his supervisor stating that he could

return to work “if reassigned to another work site.”    On August 4, 2007, Hawkins

contacted his supervisor about returning to work. His supervisor referred Hawkins to

the supervisor’s own supervisor, Mark Forward (“Forward”). In a letter to Forward dated

August 20, 2007, Hawkins informed Forward that he had been submitting leave

requests for the past three years and that he had attached medical documentation

advising that he should be reassigned. Hawkins also emailed and repeatedly called

Forward for information about returning to work. However, Hawkins did not in fact

return to work during that period. On September 10, 2007, USPS issued Hawkins a

Notice of Proposed Separation-Disability, charging “Inability to Perform the Essential

Functions of Your Position.” Hawkins was not separated and, apparently, is currently

employed by the USPS at another worksite.

        On November 14, 2007, Hawkins filed an appeal with the Board alleging that the

USPS constructively suspended him from his position, effective August 20, 2007, when

it refused to allow him to return to work.   He also alleged that the USPS’s action

constituted discrimination and retaliation, because the notice of separation was issued

two weeks after Hawkins filed an EEO complaint. Hawkins now stated that he was

ready and willing to return to work at his original location (though at the same time

submitting a medical opinion that he could not do so), and that he did not have a

disability.

        The administrative judge (“AJ”), without holding a hearing, found that Hawkins

voluntarily had declined to return to work and had not established that the USPS had




2008-3256                              2
constructively suspended him by refusing to permit him to return. 1 Therefore, the Board

lacked jurisdiction over his discrimination and retaliation claims. The AJ recognized that

a constructive suspension may arise “when an employee who is absent from work for

medical reasons requests to return to work with altered duties and the agency denies

the request. If the agency is obligated by policy, regulation, or contract to offer light-

duty work to the appellant, his continued absence for more than 14 days may constitute

a suspension.” Hawkins v. U.S. Postal Serv., AT0752080134-I-1, slip op. at 2 (M.S.P.B.

Jan. 22, 2008) (“Initial Decision”). The AJ found that Hawkins failed to show that the

USPS was obligated by the Rehabilitation Act, policy, regulation, or contract to offer him

such a reassignment. In the absence of such an obligation, the AJ found that the USPS

did not constructively suspend Hawkins when it refused to reassign Hawkins to a new

position.

       The Initial Decision became the final decision of the Board when the Board

denied Hawkins’s petition for review. Final Decision, slip op. at 1-2.

       We have jurisdiction over Hawkins’s petition pursuant to 28 U.S.C. § 1295(a)(9).

                                      DISCUSSION

       Pursuant to 5 U.S.C. § 7703(c), we must affirm a decision of the Board unless we

find it to be: (1) arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law; (2) obtained without procedures required by law, rule, or

regulation having been followed; or (3) unsupported by substantial evidence.         See



       1
         The AJ found that Hawkins “has not identified any facts which show that the
[USPS] has prevented him from resuming his regular duties.” [RA-5] In addition, “[a]ll
of his attempts to return to work have been conditioned on reassignment to a different
location.”



2008-3256                                3
Kewley v. Dep't of Health & Human Servs., 153 F.3d 1357, 1361 (Fed. Cir. 1998).

Whether the Board has jurisdiction to adjudicate an appeal is a question of law, which

this Court reviews de novo. Forest v. Merit Sys. Prot. Bd., 47 F.3d 409, 410 (Fed. Cir.

1995). The appellant has the burden to establish the Board’s jurisdiction. 5 C.F.R.

§ 1201.56(a)(2)(i); Garcia v. Dep’t of Homeland Sec., 437 F.3d 1322, 1328 (Fed. Cir.

2006).

         As the Board recognized, a constructive suspension may have occurred when an

employee is absent from work for medical reasons, requests to return to work with

altered duties, the agency denies the request, and the agency is obligated by policy,

regulation, or contract to offer alternative work. Hardy v. U.S. Postal Serv., 94 M.S.P.R.

539, 544 (M.S.P.B. 2003). The medical evaluations submitted by Hawkins show that he

is not able to return to the same job he left due to medical reasons in 2004. However,

the Board found that the USPS had no obligation under any policy, regulation, or

contract to offer Hawkins alternative work, and this issue is not disputed. Although the

Rehabilitation Act, 29 U.S.C. § 791, requires that an agency accommodate a qualified

disabled employee, Hawkins is not disabled under the Act. Hawkins agrees that he is

not disabled. Even if Hawkins claimed to be disabled under the Rehabilitation Act, his

inability to work for a particular supervisor or at a particular location would not be a

disability within the meaning of the Act. See 29 C.F.R. § 1630.2(g); Miller v. Dep’t of

Health & Human Servs., 23 M.S.P.R. 128, 134-35 (M.S.P.B. 1984). In the absence of

an obligation to reassign Hawkins, USPS’s failure to grant his request for a

reassignment did not constitute a constructive suspension.




2008-3256                               4
        Hawkins contends that he made a non-frivolous jurisdiction allegation that

required the Board to hold a hearing on the issue of jurisdiction. “[O]nce a claimant

makes non-frivolous claims of Board jurisdiction, namely claims that, if proven, establish

the Board's jurisdiction, then the claimant has a right to a hearing.” Garcia, 437 F.3d at

1344.    The Board properly declined to hold a hearing on the issue of jurisdiction

because Hawkins did not raise a fact issue as to his alleged constructive suspension.

The only possible issue of fact is whether Hawkins made an unconditional offer to return

to his original position. The evidence supports the Board’s decision that he did not

make such an offer during the period in question.

        For the foregoing reasons, the decision of the Board is affirmed.

                                          COSTS

        No costs.




2008-3256                                5
