United States Merit Systems Protection Board

Case Report for September 25, 2009

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.



Appellant: Jose Tardio

Agency: Department of Justice

Decision Number: 2009 MSPB 188

Docket Number: DE-0752-08-0432-I-1

Issuance Date: September 23, 2009

Appeal Type: Adverse Action by Agency

Action Type: Constructive Adverse Action

Jurisdiction - Suspensions

Both parties petitioned for review of an initial decision that found that the appellant had been constructively suspended for a period of 3 months preceding his removal for medical inability to perform the duties of his position. After a hearing, the administrative judge (AJ) held that the agency had constructively suspended the appellant during this period, and reversed the suspension because the agency did not provide the appellant with the procedural protections of 5 U.S.C.  7513(b). The AJ further found that the appellant failed to prove his affirmative defense of disability discrimination.

Holdings: The Board reversed the initial decision and dismissed the appeal for lack of jurisdiction:

1. The appellant was not subjected to a suspension within the Board’s jurisdiction.

a. An employee’s absence for more than 14 days that results in a loss of pay may be an appealable suspension under 5 U.S.C.  7512(2) and 7513(d). The dispositive question in determining whether an appealable suspension took place is who initiated the absence; if the employee initiated the leave period, the absence is not a constructive suspension.

b. Constructive suspension claims generally arise in two situations: (1) when an agency places an employee on enforced leave pending an inquiry into his ability to perform; or (2) when an employee who is absent from work for medical reasons asks to return to work with altered duties, and the agency denies the request.

c. The AJ erred in finding that the appellant’s claim fell under the first situation. The agency did not place the appellant on enforced leave pending an inquiry into his ability to perform. Instead, the appellant voluntarily absented himself from work for medical reasons and requested that the agency place him on leave without pay. He later asked the agency to provide him a light duty position within the restrictions defined by his physician.

d. Once an employee who was absent due to a medical condition makes a nonfrivolous allegation that he was able to work within certain restrictions, that he communicated his willingness to work, and that the agency prevented him from returning to work, the burden of production shifts to the agency to show that there was no work available within the employee’s restrictions.

e. Here, the record reflects that there was no work available within the appellant’s restrictions. Accordingly, the appellant’s absence did not constitute a constructive suspension within the Board’s jurisdiction.

2. In light of its findings on jurisdiction, the Board found it unnecessary to address the agency’s contention that the appeal was untimely filed.

3. Absent an otherwise appealable action, the Board lacks jurisdiction to consider the appellant’s claim of disability discrimination.

Appellant: Michael J. Silva

Agency: Department of Homeland Security

Decision Number: 2009 MSPB 189

Docket Number: DC-4324-08-0776-I-1

Issuance Date: September 23, 2009

Appeal Type: Uniformed Services Employment and Reemployment Rights Act (USERRA)

USERRA/VEOA/Veterans’ Rights

The appellant petitioned for review of an initial decision that dismissed his USERRA claim for lack of jurisdiction. The appellant performed services as a Financial Manager for the agency under a contract between the agency and a private company. When the appellant was called to active duty with the U.S. Army in Iraq, the company placed another person in the Financial Manager position. After he was released from active duty, the appellant requested reinstatement. After consulting with the agency, the company informed the appellant that it would not reinstate him because the agency had disapproved his reemployment. The appellant filed a complaint with the Department of Labor, which referred the complaint to the Office of Special Counsel, which initiated an appeal on the appellant’s behalf. The AJ held that the appellant lacks standing to file a USERRA appeal because he did not hold an appointment in the civil service at the time he was called up for active military duty, and thus was not an “employee” under Title 5 of the U.S. Code. The AJ additionally held that the Board’s USERRA jurisdiction is limited to disputes between individuals and executive agencies, and that here, the appellant’s dispute is with a private party.

Holdings: The Board reversed the initial decision and remanded the case to the regional office for further development of the record:

1. In many cases, the Board’s inquiry into USERRA jurisdiction focuses on its subject matter jurisdiction, i.e., whether the appellant has made a nonfrivolous allegation that his rights under USERRA have been violated in some way. This case requires the Board to address two additional jurisdictional elements: (1) standing, i.e., whether the appellant falls within the category of individuals who may bring a USERRA claim before the Board; and (2) the category of parties against whom a USERRA appeal may be pursued before the Board.

2. The appellant is a “person” who may bring a USERRA appeal before the Board. USERRA’s standing requirement under 38 U.S.C.  4324 is straightforward. It provides that “a person may submit a complaint against a Federal Executive agency . . . .” The decisions cited by the AJ in finding that an individual must be appointed in the civil service or meet the Title 5 definition of “employee” in order to bring a USERRA claim are either distinguishable or support a finding that the appellant has standing to bring a USERRA appeal.

3. The Board lacks authority to adjudicate a claim against a private employer for violation of an individual’s USERRA rights.

a. USERRA provides, 38 U.S.C.  4324(b), that a person may submit a complaint to the Board “against a Federal executive agency or the Office of Personnel Management.” Likewise, the Board is empowered to order relief against “a Federal executive agency or the Office of Personnel Management.”

b. USERRA includes a parallel provision, 38 U.S.C.  4323, that provides for a right of action in federal court against “a private employer” for violation of a person’s USERRA rights.

4. A federal agency could be considered an individual’s “employer” under USERRA, even when the individual was not appointed in the civil service but instead formally was employed by a government contractor, if the agency exercised direct control over the government contractor to such an extent that the agency effectively prevented the individual’s reemployment. Whether that was true in this case must be determined on remand.


Petitioner: Benjamin Dela Rosa

Respondent: Office of Personnel Management

Tribunal: U.S. Court of Appeals for the Federal Circuit

Docket Number: 2009-3121

Issuance Date: September 22, 2009

- Deposits
- Service Credit

Dela Rosa sought review of a Board that affirmed OPM’s determination that he was ineligible to make a deposit into the Civil Service Retirement System (CSRS). Dela Rosa worked as a civilian employee of the Department of the Navy in the Philippines for 25 years, from 1967 to 1992, under a series of indefinite or “not-to-exceed” appointments. No deductions for the CSRS were ever withheld from his pay. Upon his retirement in 1992, he received retirement pay equivalent to 105% of 25 months basic pay under the terms of a collective bargaining agreement. In 2007, Dela Rosa submitted an application to make a deposit for his service under the CSRS. On appeal to the MSPB, the AJ affirmed OPM’s determination that Dela Rosa was ineligible to make a deposit on several grounds: (1) The statute allowing employees to make a deposit into the CSRS for service for which retirement deductions from pay have not been made limits this option to current employees; (2) Dela Rosa could not qualify for a CSRS retirement annuity because he had never served in a “covered position,” and it would make no sense to allow an individual to make a deposit into the CSRS when that person cannot be eligible for a CSRS retirement annuity; and (3) Dela Rosa’s receipt of retirement benefits under the provisions of the collective bargaining agreement precluded him from eligibility because of the provision of law excluding “an employee subject to another retirement system for Government employees.”

Holdings: The court affirmed the Board’s decision. It held, inter alia, that Dela Rosa is not allowed to make a deposit under the regulation that allows an employee to make a deposit when, through “administrative error,” his agency did not withhold employee deductions for any pay period.

Proposed Regulations

The Equal Employment Opportunity Commission (EEOC) issued a Federal Register Notice proposing to revise its Americans with Disability Act (ADA) regulations and accompanying interpretive guidance in order to implement the ADA Amendments Act of 2008, Pub. L. No. 110‑325. Comments on the proposed regulations, 74 Fed. Reg. 48431-48450, are due no later than November 23, 2009. The EEOC described the nature of the revised regulations as follows:

Pursuant to the 2008 amendments, the definition of disability under the ADA, 42 U.S.C. 12101, et seq., shall be construed in favor of broad coverage to the maximum extent permitted by the terms of the ADA as amended, and the determination of whether an individual has a disability should not demand extensive analysis. The Amendments Act makes important changes to the definition of the term “disability” by rejecting the holdings in several Supreme Court decisions and portions of EEOC’s ADA regulations. The effect of these changes is to make it easier for an individual seeking protection under the ADA to establish that he or she has a disability within the meaning of the ADA. . . . .

The Amendments Act retains the ADA’s basic definition of “disability” as an impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment. However, it changes the way that these statutory terms should be interpreted in several ways, therefore necessitating revision of the existing regulations and interpretive guidance contained in the accompanying “Appendix to Part 1630—Interpretive Guidance on Title I of the Americans with Disabilities Act,” which are published at 29 CFR part 1630.

Consistent with the provisions of the Amendments Act and Congress’s expressed expectation therein, the proposed rule:

—Provides that the definition of “disability” shall be interpreted broadly;

—Revises that portion of the regulations defining the term “substantially limits” as directed in the Amendments Act by providing that a limitation need not “significantly” or “severely” restrict a major life activity in order to meet the standard, and by deleting reference to the terms “condition, manner, or duration” under which a major life activity is performed, in order to effectuate Congress’s clear instruction that “substantially limits” is not to be misconstrued to require the “level of limitation, and the intensity of focus” applied by the Supreme Court in Toyota Motor Mfg., Ky v. Williams, 534 U.S. 134 [sic: correct citation is 534 U.S. 184] (2002) (2008 Senate Managers’ Statement at 6);

—Expands the definition of “major life activities” through two nonexhaustive lists:

—The first list includes activities such as caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working, some of which the EEOC previously identified in regulations and sub-regulatory guidance, and some of which Congress additionally included in the Amendments Act;

—The second list includes major bodily functions, such as functions of the immune system, special sense organs, and skin; normal cell growth; and digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, and reproductive functions, many of which were included by Congress in the Amendments Act, and some of which have been added by the Commission as further illustrative examples;

—Provides that mitigating measures other than “ordinary eyeglasses or contact lenses” shall not be considered in assessing whether an individual has a “disability”;

—Provides that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active;

—Provides that the definition of “regarded as” is changed so that it no longer requires a showing that the employer perceived the individual to be substantially limited in a major life activity, and instead provides that an applicant or employee who is subjected to an action prohibited by the ADA (e.g., failure to hire, denial of promotion, or termination) because of an actual or perceived impairment will meet the “regarded as” definition of disability, unless the impairment is both transitory and minor;

—The proposed rule provides that actions based on an impairment include actions based on symptoms of an impairment, and the Commission invites public comment on this point;

—Provides that individuals covered only under the “regarded as” prong are not entitled to reasonable accommodation; and,

—Provides that qualification standards, employment tests, or other selection criteria based on an individual’s uncorrected vision shall not be used unless shown to be job-related for the position in question and consistent with business necessity.

74 Fed. Reg. at 48432.