Elaine Jones v. United States Postal Service

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

ELAINE JONES, DOCKET NUMBER
Appellant, AT-0752-15-0236-I-1

v.

UNITED STATES POSTAL SERVICE, DATE: December 23, 2016
Agency.

THIS ORDER IS NONPRECEDENTIAL 1

John R. Macon, Memphis, Tennessee, for the appellant.

Cynthia R. Allen, Esquire, Memphis, Tennessee, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member

REMAND ORDER

¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her enforced leave appeal for lack of jurisdiction. For the reasons
discussed below, we GRANT the appellant’s petition for review , REVERSE her
enforced leave, and REMAND the case to the regional office for further
adjudication in accordance with this Order.

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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BACKGROUND
¶2 The appellant is a preference-eligible Mail Handler at the agency’s
Processing and Distribution Center in Memphis, Tennessee. Initial Appeal File
(IAF), Tab 1 at 1, 7, Tab 5 at 51. On March 12, 2013, she filed a claim for
workers’ compensation with the Department of Labor’s Office of Workers’
Compensation Programs (OWCP), alleging that she had sustained a work-related
injury on March 7, 2013. IAF, Tab 5 at 65, 73-74. The agency subsequently
placed her in a limited-duty assignment repairing damaged mail. IAF, Tab 5
at 50, 72, Tab 12 at 11. The OWCP denied the appellant’s claim for workers’
compensation on June 27, 2013, and it denied her request for reconsideration of
its initial decision on November 1, 2013. IAF, Tab 5 at 63-71. The appellant did
not inform the agency that her OWCP claim had been denied and continued to
work in the limited-duty assignment. IAF, Tab 22, Hearing Compact Disc (HCD)
(testimony of the appellant).
¶3 In a letter dated November 17, 2014, the agency requested updated medical
information and restrictions from the appellant’s physician in connection with her
limited-duty assignment. IAF, Tab 5 at 50. On December 3, 2014, the appellant
submitted updated medical information and requested a temporary, light -duty
assignment. IAF, Tab 5 at 44, 49, Tab 9 at 19-20; HCD (testimony of the
appellant). In her physician’s certification dated November 24, 2014, the
physician estimated that the appellant required a restricted work assignment for
6 months and indicated that she could not perform the activities of climbing,
kneeling, bending, stooping, twisting, pulling, or pushing. IAF, Tab 5 at 49. Her
physician also indicated that she was limited to lifting or carrying 5 to 10 pounds.
Id.
¶4 On December 5, 2014, A.B., the Relief Tour 1 Manager , Distribution
Operations, told the appellant to leave work and go home pending a decision on
her request for light duty. IAF, Tab 5 at 12, 19, Tab 9 at 20, Tab 15 at 9; HCD
(testimony of A.B. and the appellant). In a letter dated the same day, the agency
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denied the appellant’s light-duty request because there was no light-duty work
available within her medical restrictions. IAF, Tab 5 at 45. However, the
appellant did not receive this letter because it was mailed to an incorrect address.
IAF, Tab 9 at 20-22; HCD (testimony of the appellant).
¶5 On December 26, 2014, the appellant filed a Board appeal alleging that the
agency constructively suspended her beginning December 5, 2014, when it ended
her limited-duty assignment and failed to allow her to work within her medical
restrictions. IAF, Tab 1 at 1-6. She argued that the agency violated her rights to
due process and committed harmful procedural error. IAF, Tab 1 at 2, Tab 6 at 6,
9. She further claimed that the agency discriminated against her based on
disability and age. IAF, Tab 1 at 2, Tab 6 at 8.
¶6 On January 8, 2015, the agency sent another letter to the appellant denying
her request for light duty because there was no light-duty work available within
her medical restrictions. IAF, Tab 5 at 46. She received this letter on January 9,
2015. Id. at 47-48. On February 4, 2015, she again requested light duty and
submitted a new physician’s certification with less restrictive medical limitations.
IAF, Tab 9 at 29-30. The agency denied her second request for light duty. Id.
at 28, 30-31. With a third request for light duty made in May 2015, the appellant
submitted a new physician’s certification indicating that she could lift 10 to
20 pounds, stand for 3 hours, bend, stoop, twist, and pull. IAF, Tab 21. In a
letter dated May 20, 2015, the agency approved her request for temporary light
duty for 3 hours a day. IAF, Tab 20. The appellant returned to work on July 22,
2015, and was assigned to the flat sorter. HCD (testimony of the appellant).
¶7 The agency filed a motion to dismiss the appeal for lack of jurisdiction.
IAF, Tab 5 at 7-8. The administrative judge found that the appellant made a
nonfrivolous allegation that the Board has jurisdiction over her appeal. IAF,
Tab 13 at 1. After holding a jurisdictional hearing, the administrative judge
issued an initial decision dismissing the appeal for lack of jurisdiction. IAF,
Tab 25, Initial Decision (ID) at 1, 9-10. Specifically, she found that the appellant
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is an employee with the right to appeal an adverse action under 5 U.S.C. chapter
75 because she is a preference-eligible Postal Service employee with 1 year of
current, continuous service in the same or similar position. 2 ID at 5. However,
the administrative judge found that the appellant failed to prove that her absence
of more than 14 days was a constructive suspension. ID at 6-8. The
administrative judge reasoned that, although the appellant lacked a meaningful
choice in her absence from work, it was not the agency’s wrongful actions that
deprived her of that choice. ID at 6, 9. The administrative judge further found
that the agency did not act improperly by denying the appellant’s initial requests
for light duty. ID at 8. Finally, the administrative judge found that the
appellant’s claims of discrimination based on disability and age were insufficient
to establish a constructive suspension. ID at 9. 3
¶8 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has filed a response. PFR File, Tab 3. The appellant has
filed a reply to the agency’s response. PFR File, Tab 4.

DISCUSSION OF ARGUMENTS ON REVIEW
¶9 The Board’s jurisdiction is limited to those matters over which it has been
given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems
Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). The appellant has the burden
of proving the Board’s jurisdiction by a preponderance of the evidence. 4 5 C.F.R.
§ 1201.56(b)(2)(i)(A). A constructive suspension appeal concerns leave that
appears to be voluntary, but actually was not. Bean v. U.S. Postal Service,

2
Neither party challenges these findings on review, and we see no reason to disturb
them.
3
The administrative judge made a typographical error by stating in the subh eading that
the appellant also claimed reprisal. ID at 9. Based on our review of the record, we find
that the appellant did not raise an allegation of reprisal.
4
A preponderance of the evidence is the degree of relevant evidence that a reasonable
person, considering the record as a whole, would accept as sufficient to find that a
contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).
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120 M.S.P.R. 397, ¶ 7 (2013). An employee may establish jurisdiction if she can
prove that she lacked a meaningful choice in the matter and it was the agency’s
wrongful actions that deprived her of that choice. Id., ¶ 8. In contrast, an
agency’s placement of an employee on enforced leave for more than 14 days
constitutes an appealable suspension within the Board’s jurisdiction, not a
constructive suspension. Abbott v. U.S. Postal Service, 121 M.S.P.R. 294, ¶ 10
(2014). To sustain such a suspension, the agency must prove by preponderant
evidence that the charged conduct occurred, that a nexus exists between the
conduct and service efficiency, and that the penalty is reasonable. Id.
¶10 In her petition for review, the appellant reasserts her argument below that
the Board has jurisdiction over her appeal because the agency placed her on
enforced leave for more than 14 days. PFR File, Tab 1 at 3, Tab 4 at 2; IAF,
Tab 1 at 2, Tab 6 at 7, Tab 9 at 2, Tab 24 at 4. For the following reasons, we find
that the administrative judge erroneously analyzed the appellant’s claim as a
constructive suspension instead of an appealable suspension. The record reflects
that the appellant had been performing her limited-duty assignment until
December 5, 2014, when A.B., the agency manager, told the appellant to leave
work and go home pending a decision on her request for light duty. IAF, Tab 9
at 20; HCD (testimony of A.B. and the appellant). Thus, her absence does not
appear to have been voluntary or self‑initiated, but constituted enforced leave.
Like Abbott, 121 M.S.P.R. 294, ¶ 11, the agency’s action here constitutes an
appealable suspension within the Board’s jurisdiction because it placed the
appellant in an enforced leave status for more than 14 days against her will.
¶11 Because a tenured Federal employee has a property interest in continued
employment, an agency is prohibited from placing an appellant on enforced leave
for more than 14 days without providing the due process required under the Fifth
Amendment. Martin v. U.S. Postal Service, 123 M.S.P.R. 189, ¶ 11 (2016). An
agency’s failure to provide a tenured public employee with an opportunity to
present a response, either in person or in writing, to an appealable agency action
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that deprives him of his property right in his employment constitutes an
abridgement of his constitutional right to minimum due process of law, i.e., prior
notice and an opportunity to respond. Cleveland Board of Education v.
Loudermill, 470 U.S. 532, 546 (1985). Here, the agency did not provide the
appellant with notice of any proposed enforced leave or an opportunity to be
heard, either before or after it imposed the enforced leave. Consequently, the
agency’s enforced leave action cannot be sustained. See, e.g., Martin,
123 M.S.P.R. 189, ¶ 11 (reversing the agency’s suspension action because it
violated her constitutional due process rights).
¶12 However, the parties disagree as to whether the appellant or the agency
caused the delay between when the agency granted the appellant’s request for
light duty on May 20, 2015, and when she returned to work in July 2015. IAF,
Tab 20, Tab 23 at 11-12, Tab 24 at 3. Because we are unable to determine when
the suspension ended, we remand this appeal and direct the administrative judge
to make a finding as to the end date of the suspension.
¶13 On remand, the administrative judge should further develop the record on
this issue if necessary, and should hold a hearing on the appellant’s affirmative
defenses of discrimination based on age and disability. IAF, Tab 1 at 1; see Hess
v. U.S. Postal Service, 123 M.S.P.R. 183, ¶¶ 9-10 (2016) (remanding the
appellant’s discrimination claims for a hearing because sh e raised a cognizable
claim of discrimination in connection with an otherwise appealable action).
Finally, to the extent the appellant seeks to appeal her assignment of only 3 hours
of work per day beginning in July 2015, we find that the Board lacks jurisdiction
to decide whether she is entitled to an 8-hour per day light‑duty assignment.
IAF, Tab 7 at 11, Tab 24 at 9-10; PFR File, Tab 1 at 9‑10; see Gamble v. U.S.
Postal Service, 48 M.S.P.R. 228, 230-33 (1991).
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ORDER
¶14 For the reasons discussed above, we reverse the enforced leave action and
remand this case to the Atlanta Regional Office for further adjudication in
accordance with this Remand Order.

FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.