Case Report for May 27, 2011
Appellant: Barbara R. King
Agency: Department of the Air Force
Decision Number: 2011 MSPB 56
Docket Numbers: DA-0752-10-0200-I-1; DA-0752-09-0604-R-1
Issuance Date: May 26, 2011
Appeal Type: Adverse Action by Agency
Action Type: Reduction in Grade/Pay
The appellant petitioned for review of an initial decision that dismissed her individual right of action (IRA) appeal as untimely filed. On July 17, 2009, the appellant filed an adverse action appeal contesting the agency’s decision to demote her. That appeal was dismissed as premature because it appeared that the appellant had filed a request for corrective action with the Office of Special Counsel (OSC) before filing with the Board. The appellant filed her IRA appeal with the Board on January 12, 2010, one day after the deadline prescribed by 5 U.S.C. § 1214(a)(3)(ii) and 5 C.F.R. § 1209.5(a)(1). The administrative judge issued an initial decision dismissing the appeal as untimely filed, finding that, “[w]hile the appellant filed the appeal less than five minutes beyond the time limit, and the circumstances she describes would normally exhibit good cause for waiving the filing deadline pursuant to5 C.F.R. § 1201.22, the Board has no authority to waive the statutory time limit for filing an [IRA] appeal even for good cause shown.”
Holdings: The Board vacated the initial decision, dismissed the IRA appeal for lack of jurisdiction, and reopened and remanded the demotion appeal for adjudication:
1. Although the administrative judge was correct that the Board has no authority to waive the statutory time limit for filing an IRA appeal, this appeal presents the more fundamental issue of whether the appellant elected to appeal her demotion with the Board before filing a complaint with OSC.
2. Under 5 U.S.C. § 7121(g), an employee who has been subjected to an action that is appealable to the Board and alleges that she has been affected by a prohibited personnel practice other than a claim of unlawful discrimination may elect to pursue one, and only one, of the following remedial processes: (a) an appeal to the Board under 5 U.S.C. § 7701; (b) a grievance filed pursuant to the provisions of a negotiated grievance procedure; or (c) a complaint following the procedures for seeking corrective action from OSC under 5 U.S.C. §§ 1211-1222. An employee’s first timely-filed action determines the exclusive election under § 7121(g).
3. After receiving additional information through a show‑cause order, the Board determined that the appellant filed her demotion appeal prior to filing a complaint with OSC. Having made a binding election by first filing a direct appeal with the Board, that appeal should have been processed in accordance with adverse action procedures under 5 U.S.C. Chapter 75. The Board therefore reopened that appeal and remanded it to the regional office for adjudication.
4. Because the appellant made a binding election to pursue a Board appeal under § 7701 challenging her demotion, she was barred under § 7121(g) from also pursuing corrective action before OSC with respect to the same action. The Board therefore lacks jurisdiction over the appellant’s IRA appeal.
Appellant: Alan Zygas
Decision Number: 2011 MSPB 55
Docket Number: SF-0752-10-0001-I-1
Issuance Date: May 24, 2011
Appeal Type: Adverse Action by Agency
Action Type: Constructive Adverse Action
Jurisdiction - Constructive Suspension
The agency petitioned for review of an initial decision that found that the appellant had been constructively suspended for a 9-month period. On December 8, 2008, after a confrontation with his supervisor over a work matter, the appellant left work early and requested sick leave for the remainder of the day on the basis of “[s]tress hostile working conditions.” His supervisor denied the request “pending documentation,” and the appellant acknowledged that he would need medical documentation before returning to work. The next day, an Occupational Health Nurse Administrator (OHNA) notified the appellant that, before he would be cleared to return to work, his doctor would need to answer a number of specified questions. On December 23, the OHNA received a letter from a psychiatrist stating that the appellant was suffering “significant anxiety and major depression” as a result of “serious job difficulties, reportedly with service managers and supervisors,” stated that the appellant was stable and was not a danger to himself or others, and recommended that the appellant either take a medical leave of absence or transfer to another location within the agency. Also on December 23, the OHNA notified the appellant that his medical documentation was incomplete and that he was not authorized to return to work until his doctor clarified all of the questions in her December 9 letter. The next day, the appellant reported to work, but was told that he was not cleared to return to work, that he would have to go home, and that management would contact when the OHNA cleared him to work. Thereafter, in response to virtually every communication by the appellant’s doctors and other health professionals that the appellant was stable, not a danger to himself or others, and could return to work, the OHNA deemed the documentation deficient. The appellant was eventually allowed to return to work on September 24, 2009.
In his appeal, the appellant alleged that the agency constructively suspended him during the period from December 2008 until his return in September 2009. In an initial decision based on the written record, the administrative judge found that the agency’s refusal to allow the appellant to return to work on December 24, 2008, constituted a constructive suspension and that the appellant was not afforded notice or an opportunity to respond to that adverse action. The judge therefore reversed the appellant’s suspension and ordered the agency to award him back pay and benefits. The judge also ordered the agency to provide interim relief should either party file a petition for review.
Holdings: The Board affirmed the initial decision’s finding that the appellant was constructively suspended, vacated the interim relief order, and forwarded the appellant’s claim that the agency improperly reduced his work hours following issuance of the initial decision to the regional office for docketing and adjudication as a new restoration appeal:
1. The administrative judge erred in ordering interim relief.
a. The purpose of interim relief is not to make the appellant whole at the interim relief stage of the proceedings; it is to protect the appellant from hardship during the pendency of his appeal if he prevails in the initial decision. It is a fundamental element of interim relief that the appellant be reinstated with pay effective as of the date of the initial decision.
b. In an appeal of a suspension without pay, interim relief normally should not be provided if the suspension had concluded and the appellant had been returned to paid duty status at the time that the initial decision was issued.
c. Interim relief was inappropriate here, as the appellant had been returned to paid duty status at the time that the initial decision was issued.
2. The administrative judge correctly found that the agency constructively suspended the appellant by refusing to allow him to return to work on December 24, 2008.
a. Constructive suspensions generally arise in 2 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. The key question for jurisdictional purposes is whether the employee or the agency initiated the absence.
b. Contrary to the agency’s contention that section 865 of its Employee and Labor Manual (ELM) supported its requirement of a return-to-work clearance, this provision is triggered only when the agency has “reliable and objective information” indicating that the appellant was unable to do his job or that he posed a threat to himself or others. This standard was not met here. The ELM therefore did not authorize the agency’s demand for additional medical information as a condition for allowing the appellant to return to work.
c. The record is clear that the appellant was not seeking any restrictions or accommodations as a condition for returning to work. As of December 24, 2008, the agency had medical documentation indicating that, while suffering from anxiety and depression, the appellant was stable, could perform his job, and was not a threat to himself or others. This documentation was sufficient to support the appellant’s request to return to work.
3. The appellant has alleged that, after the initial decision was issued, the agency improperly reduced his hours of work per day from 8 hours to 2½ hours. The agency replied that this action was taken as a result of the agency’s National Reassessment Process, which is not a part of this appeal. The Board forwarded this matter to the regional office for docketing and adjudication as a new restoration appeal.
The U.S. Court of Appeals for the Federal Circuit issued non-precedential decisions in the following cases:
Smets v. Merit Systems Protection Board, No. 2011-3018 (May 26, 2011) (MSPB Docket No. SF-1221-09-0607-W-1) (affirming the Board’s decision, which dismissed this IRA appeal for lack of jurisdiction)