By Debra Roth
If you’re in an agency that places employees on forced leave, beware: The law has changed, and how the Merit Systems Protection Board will adjudicate an appeal of such actions has dramatically shifted.
A Postal Service supervisor for customer services submitted a request to work on light-duty assignment. The employee’s supervisor denied her request on the grounds that, within the employee’s medical restrictions, there was no work available. The USPS then proposed and issued a final decision effecting the enforced leave action. The employee appealed the decision to the board, but an MSPB administrative judge dismissed the appeal finding that the employee failed to establish that enforced leave for more than 14 days constituted a constructive suspension. The employee filed a petition for full board review, and the board reversed the administrative judge, finding that an enforced suspension was not a constructive suspension, but a directly appealable suspension.
In finding that an agency action forcing an employee to be placed on her paid leave is an adverse action directly appealable to the board, the board has altered the burdens of proof — from the employee onto the agency.
Per the board, an appealable “suspension” is the temporary placement of an employee in a nonpay, nonduty status for more than 14 days. This definition covers not just unpaid absences, but also an agency’s placement of an employee on sick or annual leave against her will. “For jurisdictional purposes,” the board stated, “whether the employee was able to perform her duties is immaterial. Rather, the only question is whether the employee’s placement in a leave status was voluntary or involuntary …” As the board noted, only involuntary placements in leave status are directly appealable.
The board recognized that certain use of leave may also be appealable as “constructive” suspensions, and usually are “employee-initiated absences in which the appellant alleges that: she lacked a meaningful choice, and the absence was caused by the agency’s improper actions.”
In these “constructive” suspensions where the suspension was employee-initiated, the employee must prove by preponderant evidence that the action was involuntary to establish board jurisdiction, and that if the employee cannot prove such, the appeal will be dismissed.
The board then held that as to the USPS employee who was placed on enforced leave, it “is not a case in which an appellant alleges that leave that appears to be voluntary is not. Rather, it concerns the agency’s placing the appellant on enforced leave.” The board noted the conflict between Pittman v. MSPB, 832 F.2d 598 (Fed. Cir. 1987), which held that placement of an employee on enforced leave due to his medical condition, which prevented him from performing in any available position constituted an appealable suspension of more than 14 days, and subsequent cases like Childers v. Department of the Air Force, 36 M.S.P.R. 486 (1998), which “mischaracterized Pittman” as holding that such a placement constituted a “constructive” suspension.
Due to the confusion from the mischaracterization of Pittman in Childers, the board noted that it has adjudicated appeals involving agency placement of an employee on enforced leave as an alleged “constructive” suspension, rather than adjudicating it properly as a suspension. To clarify, the board ruled that “an agency’s placement of an employee on enforced leave for more than 14 days constitutes an appealable suspension within the board’s jurisdiction.” In so doing, the board overruled its previous case law that used a constructive suspension framework for enforced leave cases.
By handling forced leave appeals as regular suspension cases and not as “constructive,”the board has shifted the burden of proof to the agency to establish the merits of forcing an employee to use his or her leave. A tougher place to be for the agency.
Debra L. Roth is a partner at the law firm Shaw Bransford & Roth in Washington. She is general counsel to the Senior Executives Association and the Federal Managers Association, host of the “FEDtalk” program on Federal News Radio, and a regular contributor to Federal News Radio’s “Federal Drive” morning show. Email your legal questions to firstname.lastname@example.org. View her blog at blogs.federaltimes.com/federal-law.