UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
OTIS THORNE, DOCKET NUMBER
Appellant, DC-3443-16-0089-I-1
v.
DEPARTMENT OF DEFENSE, DATE: September 1, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Otis Thorne, District Heights, Maryland, pro se.
Doug Choi and Emily Shilts, Fort Belvoir, Virginia, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his appeal for lack of jurisdiction. Generally, we grant petitions such
as this one only when: the initial decision contains erroneous findings of material
fact; the initial decision is based on an erroneous interpretation of statute or
regulation or the erroneous application of the law to the facts of the case; the
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2 On September 13, 2015, the appellant, a GS-5 Nursing Assistant, was
contacted by his supervisor and told that his superiors had determined that, due to
an agency investigation, he would be placed on administrative leave and was not
to report to work. His supervisor explained that the appellant would receive
further instruction, Initial Appeal File (IAF), Tab 1 at 2, Tab 4 at 2, 4-6, although
the agency’s subsequent attempts to reach the appellant were unsuccessful, IAF,
Tab 10 at 10-11. On September 21, 2015, the agency sent him a certified letter
officially notifying him that he was authorized and directed to use administrative
leave beginning September 13, 2015, and continuing until further notice “to
minimize any adverse effect on workplace production and discipline due to [his]
recent conduct.” 2 Id. at 12. The appellant was advised that, during this period of
administrative leave, he must be available to meet with agency officials as
required and must contact his supervisor on regular duty days, that he could
request leave, and that his failure to follow these instructions could result in
formal disciplinary action. Id. The certified letter was returned as “unclaimed.”
IAF, Tab 10 at 14. On October 5, 2015, the agency sent the appellant another
certified letter ordering him to return to duty by October 16, 2015. Id. at 16. The
2
According to the agency, it had received a complaint that the appellant had sexually
assaulted an active duty United States Navy sailor. IAF, Tab 10 at 10.
3
agency explained that the appellant had stopped communicating with his
supervisors, failing to “follow the process of accountability,” and that he had not
requested leave or provided any documents concerning his continued absence.
Therefore, he was advised that he had been placed in an absence without leave
(AWOL) status, and that his failure to return to duty by October 16, 2015, or to
comply with the requirements of the letter, may result in disciplinary action. Id.
at 17. That letter too was returned as “unclaimed.” Id. at 18. The appellant’s
timecards were marked AWOL beginning on October 17, 2015. Id. at 20.
¶3 On appeal, the appellant challenged the agency’s action placing him on
administrative leave, and he claimed the action was retaliation for
whistleblowing. IAF, Tab 1. He requested a hearing. Id. at 2. The
administrative judge advised the appellant of what he needed to allege to
establish the Board’s jurisdiction over a claim of retaliation for whistleblowing as
an individual right of action (IRA) appeal. IAF, Tab 3. The agency moved that
the appeal be dismissed for lack of jurisdiction. IAF, Tab 8. During a status
conference, the appellant alleged that he had been suspended without pay since
September 2015 and had not received notice of the suspension. IAF, Tab 9. The
administrative judge then issued an order on jurisdiction and proof requirements
for constructive suspensions. IAF, Tab 11. In response, the appellant indicated
that he was “still looking” for the “paper” from the Office of Special Counsel,
and he submitted a copy of a January 22, 2016 letter from the agency authorizing
and directing him to use administrative leave beginning that date and continuing
until further notice, and again reminding him of the requirements for such leave. 3
IAF, Tab 12.
¶4 In his initial decision based on the written record, the administrative judge
found that the appellant failed to establish Board jurisdiction over his
3
According to the agency, the appellant has continued not to comply with the
requirements it set out for the granting of administrative leave, and he therefore remains
on AWOL status. Petition for Review File, Tab 3 at 10.
4
constructive suspension appeal because he failed to prove that his absence was
involuntary. 4 IAF, Tab 15, Initial Decision (ID) at 3-4. The administrative judge
further found that the appellant failed to establish Board jurisdiction over his
whistleblower retaliation claim because he failed to demonstrate that he
exhausted his remedy before OSC and did not make nonfrivolous allegations that
he made a protected disclosure. 5 ID at 5‑6.
¶5 The appellant has filed a petition for review, Petition for Review (PFR)
File, Tab 1, to which the agency has responded, PFR File, Tabs 3‑4, and the
appellant has replied thereto, PFR File, Tab 5.
¶6 The Board lacks jurisdiction over appeals of employees’ voluntary actions.
O’Clery v. U.S. Postal Service, 67 M.S.P.R. 300, 302 (1995), aff’d, 95 F.3d 1166
(Fed. Cir. 1996) (Table). However, the Board has recognized that
employee‑initiated actions that appear voluntary on their face are not always so,
and that the Board may have jurisdiction over such actions including involuntary
leave of absences under 5 U.S.C. chapter 75 as “constructive” adverse actions. In
Bean v. U.S. Postal Service, 120 M.S.P.R. 397 (2013), the Board recognized two
types of suspensions: involuntary leave constructive suspensions where the
employee is forced by an improper agency action to take leave, and enforced
leave suspensions where the agency places the employee on leave pending an
inquiry. See Abbott v. U.S. Postal Service, 121 M.S.P.R. 294, ¶ 10 (2014)
(clarifying that placement of an employee on enforced leave for more than
14 days constitutes an appealable suspension). Neither of these types of
suspensions applies to this situation. To the extent the appellant was forced to
take sick or annual leave, it was only for 48 hours during the pay period ending
4
We construe as inadvertent errors the administrative judge’s statements that the
appellant cannot prove by preponderant evidence that “his absence was not involuntary”
and that his constructive suspension claim “lacks merit and must be DENIED.” ID at 4.
5
We also construe as an inadvertent error the administrative judge’s statement that the
appellant’s whistleblowing claim “must be DENIED.” ID at 6.
5
on October 3, 2015, IAF, Tab 10 at 20, well less than the 15 days required to
establish Board jurisdiction. Prior to that, he was on administrative leave, a paid
status. Id.; see Lamell v. Armed Forces Retirement Home, 104 M.S.P.R. 413, ¶ 7
(2007). Beginning on October 17, 2015, he was on AWOL because he failed to
comply with the agency’s repeated instructions to remain at his home, yet keep in
regular contact with his supervisor, and be available to meet with agency
officials, if directed to do so. The appellant’s failure to comply with these
instructions was his choice, not the agency’s. Had he complied, he would have
remained in a paid duty status, albeit at his home, pending resolution of the
agency’s investigation into his conduct. Under these circumstances, we find that
the appellant’s placement on AWOL is not a constructive suspension or other
agency action appealable to the Board, Perez v. Merit Systems Protection Board,
931 F.2d 853, 855 (Fed. Cir. 1991), and the administrative judge properly
dismissed the alleged constructive suspension appeal for lack of jurisdiction. 6
¶7 On review, the appellant argues that he was denied a hearing. PFR File,
Tab 1 at 3. The administrative judge properly advised him that a hearing would
be convened only if he made nonfrivolous allegations that he was suspended for
more than 14 days. IAF, Tab 10. However, the appellant failed to nonfrivolously
allege that he was constructively suspended or suspended at all. Therefore, we
find that the administrative judge did not abuse his discretion in deciding this
case on the written record.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the U.S.
Court of Appeals for the Federal Circuit.
6
The appellant does not challenge on review the administrative judge’s finding that he
failed to establish the Board’s jurisdiction over his IRA appeal, PFR File, Tab 5 at 7,
and we find no basis to disturb the administrative judge’s finding.
6
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you want to request review of the Board’s decision concerning your
claims of prohibited personnel practices under 5 U.S.C. § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request review of this final decision by the U.S. Court of Appeals for the
Federal Circuit or any court of appeals of competent jurisdiction. The court of
appeals must receive your petition for review within 60 days after the date of this
order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If you choose
to file, be very careful to file on time. You may choose to request review of the
Board’s decision in the U.S. Court of Appeals for the Federal Circuit or any other
court of appeals of competent jurisdiction, but not both. Once you choose to seek
review in one court of appeals, you may be precluded from seeking review in any
other court.
If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
title 5 of the U.S. Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. Dec. 27,
2012). You may read this law as well as other sections of the U.S. Code, at our
website, http://www.mspb.gov/appeals/uscode/htm. Additional information about
the U.S. Court of Appeals for the Federal Circuit is available at the court’s
website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide
for Pro Se Petitioners and Appellants,” which is contained within the court’s
Rules of Practice, and Forms 5, 6, and 11. Additional information about other
7
courts of appeals can be found at their respective websites, which can be accessed
through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
If you are interested in securing pro bono representation for your appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Merit Systems Protection Board neither endorses the services provided by any
attorney nor warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.