U.S. Merit Systems Protection Board 
Case Report for May 31, 2013

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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:  Jessie B. Crutch
Agency:  United States Postal Service
Decision Number:  2013 MSPB 38
Docket Number:  DA-0752-11-0553-I-1
Issuance Date:  May 22, 2013
Appeal Type:  Adverse Action by Agency
Action Type:  Removal

Jurisdiction - Constructive Suspension
Discrimination - Disability Discrimination

    The appellant petitioned for review of an initial decision that dismissed his construction suspension appeal for lack of jurisdiction.  The record indicated that agency had accommodated the appellant’s permanent impairment of the right hip for a lengthy period by allowing him to rest it for a few minutes as needed.  But after a 2-day absence on FMLA leave in March 2011, the agency refused to let him return to duty unless he either provided updated medical evidence that removed the condition that he be permitted to intermittently rest his hip while performing his regular job duties or submitted a request for light duty.  The appellant remained in a non-duty, non-pay status through August 19, 2011, and he filed a Board appeal alleging he had been constructively suspended.  

Holdings:  The Board granted the appellant's petition for review, reversed the initial decision, and forwarded the appellant's claim for compensatory damages to the regional office for adjudication:

1.  An employee's involuntary absence for more than 14 days that results in a loss of pay or forces an employee to take leave that he did not intend to use is a constructive suspension within the Board's jurisdiction.  Such claims arise in two situations.  The first occurs when an agency places an employee on enforced leave pending an inquiry into his ability to perform.  The second occurs when an employee who initiated his own absence requests to return to work within certain medical restrictions.  If the agency is obligated to offer available light-duty work or is bound by the Rehabilitation Act of 1973 to accommodate the medical condition and to allow the employee to return, the agency's failure to offer available light-duty work or reasonably accommodate the employee becomes a constructive suspension.

2. The appellant established a constructive suspension under the first criterion.

a. Contrary to regulation, the agency did not reinstate the appellant to the position he held prior to taking FMLA leave; nor did it properly request a return to duty certification.  If, as in this case, an employee's medical provider certifies that the employee can perform the essential functions of the position in a return to duty certification, the employer may seek clarification from the provider, but may not delay the employee's return to duty while this clarification is sought.

b. The agency improperly demanded that the appellant request a light-duty assignment before allowing him to return to duty.  The agency's Employee and Labor Relations Manual indicates that light duty is for an employee who cannot perform the essential functions of his position.  The appellant has shown that he can perform the essential functions of his position with a reasonable accommodation.  

3. The appellant established a constructive suspension under the second criterion.  An agency's obligation to return to duty within his medical restrictions an employee who was previously voluntarily absent for medical reasons includes the duty to provide reasonable accommodation in accordance with the Rehabilitation Act.  The agency's failure to do so here constitutes a constructive suspension.

4. The agency committed disability discrimination because the appellant established that, during the period of his constructive suspension, the agency unjustifiably withdrew a reasonable accommodation for the appellant's disabling hip condition.

     In a concurring opinion, Member Roberts stated that this case is not governed by the principle that a voluntary absence can become involuntary, but by the principle that the agency initiated the appellant's absence on March 26, 2011.  The appellant was scheduled to work that day and reported for work, but was prevented from doing so by the agency.  


Appellant:  Marilyn L. Weldon
Agency:  Department of Veterans Affairs
Decision Number:  2013 MSPB 39
Docket Number:  SF-0752-12-0393-I-1
Issuance Date:  May 24, 2013
Appeal Type:  Adverse Action by Agency
Action Type:  Removal

Settlement
 - Validity - Result of Misrepresentation

    The appellant petitioned for review of an initial decision that dismissed her removal appeal as settled.  The appellant's removal stemmed from a physical altercation she had with a co-worker.  The appeal of that removal action was resolved by a written settlement agreement in which the agency agreed to cancel the appellant's removal and replace it with a resignation.  On review, the appellant alleged that the settlement agreement is invalid because it was the result of an agency misrepresentation.  Specifically, she alleges that she was misled when she was told that neither party involved in the underlying physical altercation would be retained as an employee, and that she signed the agreement based on this representation, but that she learned after signing it that the other employee involved in the altercation was reinstated to her previous position.  

Holdings:  The Board granted the appellant's petition for review and remanded the case to the regional office for further adjudication:

1. A settlement agreement will be set aside if it resulted from misrepresentation.  An employee's decision to enter into a settlement agreement is considered involuntary if it resulted from the employee's reasonable reliance on the agency's misleading statements.   

2. The appellant made a nonfrivolous allegation of facts which, if proven, could establish that she was misled into signing the settlement agreement.  A remand to the regional office was therefore appropriate to provide the appellant an opportunity to prove her allegation of agency misrepresentation.  



Appellant:  Jeanene N. Mills
Agency:  United States Postal Service
Decision Number:  2013 MSPB 40
Docket Number:  CH-0752-12-0440-I-1
Issuance Date:  May 30, 2013
Appeal Type:  Adverse Action by Agency
Action Type:  Removal

Court Review - Appeal Rights in Mixed Cases

    The appellant petitioned for review of an initial decision that affirmed her removal for failure to maintain a regular work schedule.  The administrative judge found that the agency proved its charge and that the removal penalty was reasonable.  The judge also found that the appellant failed to prove her affirmative defense of disability discrimination.  

Holdings:  The Board denied the appellant's petition for review and issued a precedential decision to explain its notice of appeal rights in this mixed case:

1. Where, as here, the appellant was affected by an action that is appealable to the Board and claims that the action constituted discrimination, the dispute is referred to as a "mixed case appeal," which is governed by 5 U.S.C. 7702.  As provided in 5 U.S.C. 7703(b)(2), "[c]ases of discrimination subject to the provisions of section 7702 . . . shall be filed" in district court under the applicable anti-discrimination statute.  

2. In a recent nonprecedential decision, Doe v. Department of Justice, No. 2012-3204 (May Fed. Cir. 3, 2013), the appellant sought review from the Court of Appeals for the Federal Circuit of a final Board decision in a mixed case appeal.  Although the petitioner did not seek review of the Board's conclusion that he had failed to prove his discrimination claim, the court transferred the case to district court because judicial review lay in that forum.  The court's decision was based on the Supreme Court's recent decision in Kloeckner v. Solis, 133 S. Ct. 596 (2012), where the Court held that, under the plain language of section 7702(b)(2), judicial review of a mixed case lies in district court, not the Federal Circuit, even if the Board's final decision does not decide a discrimination claim on the merits.

3. Although Kloeckner did not deal with the precise question of whether an appellant has the option of seeking judicial review in a mixed case before the Federal Circuit on issues other than discrimination, and even though the Doe decision is not precedential, the Board determined that it should be applied in this case.  Accordingly, the Board is revising its standard language regarding an appellant's right to court review in a mixed case so that it no longer includes an option to file an appeal with the Federal Circuit if the appellant does not seek review of the findings on discrimination.  Court review in such cases is solely with district courts as provided in section 7702(b)(2).  
     

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