Jermaine Lewis v. United States Postal Service ( 2022 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JERMAINE ANTHONY LEWIS, DOCKET NUMBER
Appellant, DA-0752-16-0347-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: June 28, 2022
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Gale R. Thames, Washington, D.C., for the appellant.
Yvette K. Bradley, Esquire, Dallas, Texas, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his alleged constructive suspension appeal for lack of jurisdiction . For
the reasons discussed below, we GRANT the appellant’s petition for re view and
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
REMAND the case to the regional office for further adjudication in accordance
with this Remand Order.
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 The appellant is employed as a Carrier Technician by the agency. Initial
Appeal File (IAF), Tab 16 at 28. On November 4, 2015, he filed an appeal
claiming that the agency failed to restore him to duty after his physician cleared
him to return to work with restrictions. Lewis v. U.S. Postal Service, MSPB
Docket No. DA-0353-16-0073-I-1, Initial Decision (July 11, 2016). The
administrative judge issued a decision that dismissed the appeal for lack of
jurisdiction, finding that the appellant failed to raise a nonfrivolous allegation
that his absence was the result of a compensable injury. Id. During the
processing of that appeal, the appellant alleged that the agency improperly placed
him in a nonduty, nonpay status, and the administrative judge docketed those
allegations in the present appeal. IAF, Tab 1.
¶3 The administrative judge issued a jurisdictional order, advising the
appellant that his claim that the agency improperly placed him in a nonduty,
nonpay status may establish a constructive suspension appealable to the Board
under 5 U.S.C. §§ 7512(2) and 7513(d). IAF, Tab 3 at 3-4. She explained that an
employee’s continued absence constitutes a constructive suspension when an
involuntary absence occurs at the agency’s direction or when the following
conditions are met: (1) an employee, who had been absent from work due t o
medical restrictions, requests work within those restrictions; (2) the agency is
bound by an agency policy, regulation, or contractual provision to offer available
light-duty work to the employee; and (3) the agency fails to offer the employee
any available light-duty work. Id. at 3 (citing Hahn v. U.S. Postal Service,
86 M.S.P.R. 139, ¶ 6 (2000)). She further explained that, once an employee
makes a nonfrivolous allegation that he was able to work within certain
restrictions, that he communicated his willingness to work, and that the agency
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prevented him from returning to work, the burden then shift s to the agency to
show either that there was no work available within the employee’s restrictions or
that it offered such work to the employee, and he declined it. Id. In the order,
the administrative judge instructed the appellant to file evidence and argument in
support of his claim. Id. at 4. The appellant replied, arguing, among other
things, that the agency refused to allow him to return to work with
accommodation beginning in April 2013, despite his repeated requests. IAF,
Tabs 5, 8, 15, 17. He also submitted medical documentation dated 2012 through
2015, and provided both signed and unsigned statements on his behalf. IAF,
Tabs 7, 10-11, 14, 18.
¶4 In an initial decision issued without holding the requested hearing, the
administrative judge dismissed the appeal for lack of jurisdiction. IAF, Tabs 1,
19, Initial Decision (ID) at 2. She found that the appellant failed to raise a
nonfrivolous allegation that he was able to return to work to perform his normal
duties and that, as a result, his absence beginning April 10, 2013, did not
constitute a constructive suspension. ID at 5-7. The appellant has filed a petition
for review, and the agency has filed a response in opposition . Petition for Review
(PFR) File, Tabs 1, 3.
¶5 Prior to the issuance of the initial decision, the Board clarified its
jurisprudence regarding constructive suspension claims , such as alleged here, in
Bean v. U.S. Postal Service, 120 M.S.P.R. 397 (2013). In particular, the Board
noted that it has recognized several fact patterns that may give rise to an
involuntary constructive suspension and it therefore rejected as misleading the
statement in a line of Board cases (including Hahn on which the administrative
judge relied) that constructive suspensions arise in only two situations. Bean,
120 M.S.P.R. 397, ¶ 8 n.4; ID at 3. Instead, the Board held that, assuming the
jurisdictional requirements of 5 U.S.C. chapter 75 are otherwise met, proof of the
following by preponderant evidence is sufficient to establish jurisdiction over a
constructive suspension claim: (1) the employee lacked a meaningful choice in
4
the matter; and (2) it was the agency’s wrongful actions that deprived the
employee of that choice. Bean, 120 M.S.P.R. 397, ¶ 8; see Romero v. U.S. Postal
Service, 121 M.S.P.R. 606, ¶ 8 (2014) (applying the jurisdictional standard set
forth in Bean); see also Rosario-Fabregas v. Merit Systems Protection Board,
833 F.3d 1342, 1345-46 (Fed. Cir. 2016) (finding that the Board’s standard for
establishing jurisdiction in constructive suspension cases, as set forth in Romero,
is appropriate). If the appellant makes a nonfrivolous allegation of jurisdiction,
then he is entitled to a jurisdictional hearing. Barrand v. Department of Veterans
Affairs, 112 M.S.P.R. 210, ¶ 8 (2009). A nonfrivolous allegation of Board
jurisdiction is an allegation of fact that, if proven, could establish that the Board
has jurisdiction over the matter at issue. Ferdon v. U.S. Postal Service,
60 M.S.P.R. 325, 329 (1994); 5 C.F.R. § 1201.4(s).
¶6 An appellant must receive explicit information on what is required to
establish an appealable jurisdictional issue. Burgess v. Merit Systems Protection
Board, 758 F.2d 641, 643-44 (Fed. Cir. 1985). Here, the administrative judge did
not inform the appellant of the proper jurisdictional standard. IAF, Tab 3.
Further, neither the agency’s pleadings nor the initial decision properly placed the
appellant on notice of how to establish jurisdiction over his appeal. ID; IAF,
Tab 16; cf. Easterling v. U.S. Postal Service, 110 M.S.P.R. 41, ¶ 11 (2008)
(finding that an administrative judge’s failure to provide an appellant with proper
Burgess notice can be cured if the agency’s pleadings contain the notice that was
lacking or if the initial decision puts the appellant on notice of what he must do to
establish jurisdiction, thus affording him the opportunity to meet his
jurisdictional burden on review).
¶7 Moreover, the appellant made the following allegations in sworn statements
below: he has a service-connected medical disability of which the agency is
aware; the agency previously approved leave for his serious medical condition
under the Family and Medical Leave Act of 1993; one of his medical conditions
has been exacerbated as a direct result of his managers’ creation of a hostile work
5
environment; he recovered sufficiently to return to work with accommodation; he
informed the agency of his desire to return to work and his request for
accommodation; he submitted medical documentation supporting his requests; the
agency failed to reasonably accommodate him; the agency refused to accept or
consider his medical documentation; the agency did not seek to have him
evaluated by one of its doctors to clarify its questions concerning his medical
conditions; and the agency refused to meaningfully engage in the interactive
process. 2 IAF, Tabs 5, 8, 15, 17. In addition, the appellant submitted the sworn
statement of his union representative that supports many of his assertions,
including those concerning the appellant’s medical documentation and the
agency’s involvement in the interactive process. IAF, Tab 14 at 7. We find that
the appellant’s allegations, if proven, could establish that he lacked a meaningful
choice in the matter and that it was the agency’s improper actions that deprived
him of that choice. See Bean, 120 M.S.P.R. 397, ¶ 8. The jurisdictional
prerequisites of chapter 75 otherwise appear to be satisfied because the appellant
is a preference-eligible U.S. Postal Service employee with 1 year of current
continuous service and his absence lasted for more than 14 days. IAF, Tabs 1, 5,
15, 17; see 5 U.S.C. §§ 7511(a)(1)(B)(ii), 7512(2). Therefore, we find that the
appellant has made a nonfrivolous allegation that he was subjected to an
appealable constructive suspension under the clarified standard set forth in Bean.
¶8 Accordingly, we remand this appeal for a jurisdictional hearing to afford the
appellant an opportunity to prove jurisdiction over his constructive suspension
claim after providing him with clear notice of the elements and burdens of proo f
2
The appellant claims that he submitted medical documentation to the agency showing
that he has recovered sufficiently to return to work with accommodation and that his
“medical professionals could not have stated it any clearer ‘[the appellant] is able to
perform the duties of his job with accommodations.’” IAF, Tab 17 at 4 (quoting alleged
medical professionals). However, we agree with the administrative judge’s finding that
the appellant failed to submit below any medical documentation to prove that he indeed
was cleared to work or what restrictions his physicians had imposed. ID at 6.
Therefore, the appellant must submit this medical documentation on remand.
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of such a claim. See Bean, 120 M.S.P.R. 397, ¶ 14 (remanding a constructive
suspension appeal for a jurisdictional hearing) ; Sage v. Department of the Army,
108 M.S.P.R. 398, ¶¶ 7, 9 (2008) (remanding a constructive suspension appeal for
proper Burgess notice under the former jurisdictional standard).
ORDER
For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.