Campbell v. Merit Systems Protection Board , 456 F. App'x 902 ( 2011 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
ELMER E. CAMPBELL, JR.,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
__________________________
2011-3096
__________________________
Petition for review of the Merit Systems Protection
Board in case no. SF0752100331-I-1.
____________________________
Decided: December 16, 2011
____________________________
ELMER E. CAMPBELL, JR., of Vallejo, California, pro se.
KATHERINE M. SMITH, Attorney, Office of the General
Counsel, Merit Systems Protection Board, of Washington,
DC, for respondent. With her on the brief were JAMES M.
EISENMANN, General Counsel, and KEISHA DAWN BELL,
Deputy General Counsel.
__________________________
Before LOURIE, PLAGER, and DYK, Circuit Judges.
CAMPBELL v. MSPB 2
PER CURIAM.
Elmer Campbell, Jr., (“Campbell”) appeals from the
final decision of the Merit Systems Protection Board (“the
Board”) dismissing his appeal for lack of jurisdiction.
Campbell v. U.S. Postal Serv., SF-0752-10-0331-I-1, 115
M.S.P.R. 531 (M.S.P.B., Jan. 7, 2011). While the Board
correctly held that it lacked jurisdiction over Campbell’s
constructive suspension claim and properly dismissed his
VEOA appeal, the Board failed to consider whether
Campbell established jurisdiction based on a furlough of
30 days or less. We affirm in part, vacate in part, and
remand for further proceedings to consider whether
jurisdiction exists because Campbell was subjected to a
furlough of 30 days or less.
BACKGROUND
Campbell has been employed by the United States
Postal Service (“the Postal Service”) since 1982 as a full
duty mail handler. Prior to his employment with the
Postal Service, he served in the Marine Corps, where he
suffered a service-connected injury resulting in the ampu-
tation of his right leg below the knee. In July 1985, he
sustained an injury in the performance of his duties as a
mail handler, which he received compensation for from
the Office of Workers’ Compensation Programs (“OWCP”)
and was consequently placed on “light duty.”
Campbell remained on light duty until the OWCP de-
termined in June 1997 that he had fully recovered from
his work-related injury. Campbell, however, maintained
that his prior military service-related injury prevented
him from returning to full duty. Therefore, he continued
to perform light duty within his medical restrictions.
According to Campbell, beginning in October 28, 2009,
the Postal Service began denying Campbell light-duty
3 CAMPBELL v. MSPB
work because such work was reserved for employees
injured on the job, and Mr. Campbell’s injuries preceded
his employment with the Postal Service and were thus not
job-related. On subsequent days, Campbell reported to
work every morning, clocked in, and was then told there
was little or no light-duty work for him to perform. He
then applied for annual or sick leave to cover the portion
of his 8-hour day not worked (or risk being AWOL) and
clocked out. He was paid for the time he clocked in.
On January 12, 2010, Campbell filed an appeal to the
Board—pro se at the time although shortly thereafter he
was represented—alleging that the Postal Service dis-
criminated against him and improperly denied him work.
The Administrative Judge (“AJ”) issued an Acknowl-
edgement Order on January 14, 2010, advising Campbell
that he appeared to be alleging a “constructive suspen-
sion” claim and that he needed to establish jurisdiction by
making a nonfrivolous allegation that he was absent from
work for medical reasons and asked to return work with
altered duties, and the agency denied his request and
unreasonably failed to accommodate him. In addition, the
AJ also advised Campbell that it appeared he was claim-
ing jurisdiction under the Veterans Employment Oppor-
tunity Act of 1998 (“VEOA”), 5 U.S.C. § 3330a. The AJ
ordered Campbell to file evidence and argument support-
ing jurisdiction, namely, that he had exhausted his rem-
edy at the Department of Labor. Campbell responded,
alleging that the agency’s denial of 8 hours of light-duty
work per day was an appealable constructive suspension
pursuant to 5 U.S.C. §§ 7512 and 7513, and that it vio-
lated the Rehabilitation Act of 1973, the Americans with
Disabilities Act, and Title VII of the Civil Rights Act of
1964. He did not address the VEOA claim.
The Postal Service moved to dismiss and submitted
evidence of Campbell’s time and attendance records and
CAMPBELL v. MSPB 4
that Campbell had been paid for working between 0.11
and 3.98 hours on most days between October 29, 2009
and the filing of the appeal. On April 28, 2010, the AJ
issued its Initial Decision dismissing Campbell’s appeal
for lack of jurisdiction. The AJ found that Campbell had
failed to make a nonfrivolous allegation of constructive
suspension because he was never in a continuous period
of non-pay, non-duty status of over 14 days. The AJ also
dismissed Campbell’s VEOA complaint because he had
failed to submit any evidence to establish VEOA jurisdic-
tion.
Campbell petitioned the full Board for review, and on
January 7, 2011, the Board issued a Final Order, dismiss-
ing Campbell’s appeal for lack of jurisdiction. The Board
noted that even if Mr. Campbell had made an allegation
of absence for 14 consecutive days, there could be no
constructive suspension because the agency acted in
accordance with the applicable collective bargaining
agreement, which permitted light duty assignments to
consist of less than 8 hours per day or less than 40 hours
per week. Campbell then timely appealed. We have juris-
diction pursuant to 28 U.S.C. § 1295(a)(9).
DISCUSSION
The scope of our review in an appeal from a Board de-
cision is limited. We can set aside the Board's decision
only if it was “(1) arbitrary, capricious, an abuse of discre-
tion, or otherwise not in accordance with law; (2) obtained
without procedures required by law, rule, or regulation
having been followed; or (3) unsupported by substantial
evidence.” 5 U.S.C. § 7703(c); see Briggs v. Merit Sys. Prot.
Bd., 331 F.3d 1307, 1311 (Fed. Cir. 2003).
On appeal, Campbell argues that since October 29,
2009, he has been informed that there was no work for
him and that he was forced to choose between taking
5 CAMPBELL v. MSPB
annual or sick leave or risk being considered AWOL and
that on some days he has been forced to take leave with-
out pay. He also argues that he was at all times a full-
time regular employee who was merely performing some
light-duty functions due to his military service-connected
injury, and is therefore entitled to full-time employment.
The time spent clocking in, clocking out, and filing leave
paperwork was not “work” even though he received pay-
ment, however small.
The government argues that Campbell failed to make
a nonfrivolous allegation that he was absent for more
than 14 continuous days, or that the agency violated any
contractual provision in denying him light work. Instead,
the government notes that Campbell was paid each day
spent clocking in, clocking out, and awaiting information
about available work, and, occasionally, performing light-
duty assignments. In other words, Campbell was not
absent for 14 consecutive days. In addition, the govern-
ment urges that even if he had alleged the required 14-
day absence, there could have been no constructive sus-
pension because the Postal Service acted in accordance
with the applicable collective bargaining agreement.
We conclude that the Board did not err in holding that
Campbell was not subjected to a suspension of more than
14 days and hence was not entitled to appeal to the
Board. An employee’s absence for more than 14 days that
results in a loss of pay may be a “constructive suspension”
appealable to the Board under 5 U.S.C. §§ 7512(2) and
7513(d), but it is undisputed that Campbell did not un-
dergo a continuous suspension for over 14 days. It simply
appears that the agency had insufficient light-duty work
for Campbell. In addition, Campbell’s allegations of
disability discrimination and violations of the ADA and
Rehabilitation Act are not independent sources of Board
jurisdiction. See Cruz v. Dep't of the Navy, 934 F.2d 1240,
CAMPBELL v. MSPB 6
1245 (Fed. Cir. 1991); Wren v. Dep’t of the Army, 2
M.S.P.R. 1, 2 (1980), aff’d, 618 F.2d 867, 871-73 (D.C. Cir.
1982). As Campbell admittedly did not undergo consecu-
tive suspensions and there is no evidence that the agency
was attempting to circumvent Board jurisdiction, the
Board correctly dismissed Campbell’s appeal, assuming it
was properly characterized as a constructive suspension.
Although Campbell failed to establish jurisdiction
based on a suspension of more than 14 days, the Board
erred in failing to consider whether Campbell had estab-
lished jurisdiction based on a furlough of 30 days or less.
See 5 U.S.C. § 7512(5). Although the AJ’s Acknowledge-
ment Order construed Campbell’s initial pro se appeal as
a constructive suspension claim, the statute quite clearly
indicates that while a suspension is placement in non-
duty, non-pay status for “disciplinary” reasons, 5 U.S.C.
§ 7501(2), a furlough is placement in non-duty, non-pay
status for “lack of work” or other nondisciplinary reasons,
§ 7511(a)(5). Campbell’s initial appeal indicated that his
claim was based on a lack of work. Furthermore, data was
submitted to the AJ indicating that Campbell was forced
to accept leave without pay for certain periods. Thus, the
AJ was obligated to consider an alternative basis for
jurisdiction based upon a furlough. See McNeese v. Dep’t
of Homeland Sec., 97 M.S.P.R. 28, 31 (M.S.P.B. 2004)
(“AJs are ‘expected to interpret pleadings liberally.’”
(citation omitted)). Furthermore, jurisdiction over claims
brought pursuant to the Americans with Disabilities Act
and the Rehabilitation Act are not defeated by the exis-
tence of a collective bargaining agreement. Accordingly,
the Board erred by failing to address whether Campbell
had established jurisdiction based upon a furlough of 30
days or less.
As for Campbell’s claim under the VEOA, Campbell
failed, after being ordered by the AJ, to establish jurisdic-
7 CAMPBELL v. MSPB
tion. Under the VEOA, the Board has appellate jurisdic-
tion over the appeal of a preference-eligible veteran, such
as Campbell, alleging a violation of any statute or regula-
tion relating to veterans’ preference. To establish jurisdic-
tion over a VEOA claim, the veteran must file a complaint
with the Secretary of Labor within 60 days of the agency’s
violation. 5 U.S.C. § 3330a(a)(2)(A). He may then file an
appeal with the Board no sooner than 61 days after filing
the complaint with the Secretary of Labor or no later than
15 days after receiving written notification from the
Department of Labor that it is unable to resolve the
complaint. § 3330a(d)(1)(A), (B). Written notification to
the Secretary of an intent to appeal must also be filed.
§ 3330a(d)(2)(A). In short, the appellant must show that
he exhausted his Department of Labor remedy.
The Administrative Judge ordered Campbell to file
evidence and argument in support of jurisdiction over his
VEOA appeal. Campbell did not respond to that request
and did not submit any evidence or argument of jurisdic-
tion before the Administrative Judge or the Board. There-
fore, the Board was correct to dismiss his VEOA appeal
for lack of jurisdiction.
While Campbell did submit a letter from the Depart-
ment of Labor on appeal, we will not consider that evi-
dence and argument as it was not raised below. See
Elmore v. Dep’t of Transp., 421 F.3d 1339, 1342 (Fed. Cir.
2005). Even so, the letter would not have established
jurisdiction under VEOA. While Campbell is correct that
the letter does show that he contacted the Department of
Labor, it does not reference any complaint filed, the date
of that complaint, the inability of the Department of
Labor to resolve that complaint, or written notice of an
appeal.
CAMPBELL v. MSPB 8
In conclusion, while the Board was correct in deter-
mining that it lacked jurisdiction over Campbell’s con-
structive suspension and VEOA appeals, it erred by
failing to consider whether Campbell had established
jurisdiction based on a furlough of 30 days or less. Accord-
ingly, we affirm in part, vacate in part, and remand for
consideration of whether Campbell has established juris-
diction based on a furlough of 30 days or less.
AFFIRMED IN PART, VACATED IN PART, AND
REMANDED
COSTS
No costs.