U.S. Merit Systems Protection Board 
Case Report for September 30, 2016 

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Note:  These summaries are descriptions prepared by individual MSPB employees. They do not represent official summaries approved by the Board itself, and are not intended to provide legal counsel or to be cited as legal authority.  Instead, they are provided only to inform and help the public locate Board precedents.

BOARD DECISIONS

Appellant:  Stephanie D. Thomas
Agency:  Department of the Navy
Decision Number:  2016 MSPB 34
Docket Number:  DC-0752-16-0013-I-1
Issuance Date:  September 27, 2016
Appeal Type:  Adverse Action by Agency
Action Type:  Suspension - More than 14 Days

Jurisdiction
 - Constructive Suspension

    The appellant petitioned for review of an initial decision that dismissed her claim of a constructive suspension for lack of jurisdiction.  The appellant is a Program Analyst at Marine Corps Base Quantico, Virginia.  In June 2012, she filed a request for reasonable accommodation citing her condition of allergic rhinitis due to mold, carpet mites, and other allergens throughout her building (Bldg. 2010).  The agency permitted the appellant to telework while Building 2010 underwent renovation.  When she returned after the renovation was completed, she notified the agency that her symptoms had returned and that she had tested positive for mold, and again requested an allergen-free workplace.  The agency provided the appellant an alternate work location, but she experienced allergic symptoms in that building as well.  The agency denied the appellant's subsequent request for full-time telework and directed her to return to Building 2010.  She did not do so, relying on her doctor's statement that, because of health concerns, she should never return to that building.  After receiving a report from a private company that Building 2010 presented only a low level of risk, the agency proposed the appellant's removal for failure to follow instructions and unauthorized absence.  While accompanying her attorney to Building 2010 to reply to the charges, the appellant again suffered allergic symptoms.  The agency decided not to proceed with the removal action, and instructed the appellant to return to work on a telework basis 2 days per week, while being in a leave without pay (LWOP) status the other 3 days.  The following month the appellant submitted another reasonable accommodation request in which she described her conditions and limitations as permanent and requested reassignment to a work environment free of mold, contaminants, and irritants.  

     In her Board appeal, the appellant alleged that she is able to work every day with reasonable accommodation, but that the agency constructively suspended her by placing her on LWOP 3 days each week.  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 EEO activity.  In an initial decision based on the written record, the administrative judge dismissed the appeal for lack of jurisdiction, finding 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.  

Holdings:  The Board granted the appellant's petition for review, vacated the initial decision, and remanded the case for further proceedings:

1. All constructive suspension claims are premised on the proposition that an absence that appears to be voluntary actually is not.  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.

2. The administrative judge erred in denying the appellant a jurisdictional hearing.  The appellant made nonfrivolous allegations that she lacked a meaningful choice in being placed in an LWOP status and that it was the agency's wrongful actions that deprived her of that choice.  

3. Should the administrative judge find on remand that the appellant did not establish that she was subjected to a constructive suspension, he should consider her claim that she was subjected to an actual suspension when she was placed on LWOP status against her will for a period of more than 14 days.  




COURT DECISIONS


The U.S. Court of Appeals for the Federal Circuit issued a nonprecedential decision in the following case:


Turner v. Merit Systems Protection Board, No. 2016-1161 (Sept. 26, 2016) (MSPB Docket No. SF-315H-15-0358-I-1) (affirming the Board's decision, which dismissed Turner's appeal of his termination during his probationary period)


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