Celeste H. Davis v. Department of Health and Human Services ( 2016 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CELESTE H. DAVIS, DOCKET NUMBER
Appellant, CH-0752-16-0290-I-1
v.
DEPARTMENT OF HEALTH AND DATE: September 29, 2016
HUMAN SERVICES,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL *
James E. Sullivan, Esquire, Chicago, Illinois, for the appellant.
Kathleen Mee, Esquire, Washington, D.C., 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 for lack of jurisdiction her appeal of an alleged involuntary resignation.
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
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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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erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the 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. See 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 February 23, 2016, the appellant submitted a letter to the agency in
which she stated that she was actively searching for another job and wished to be
assigned to nonspecified duties and placed on administrative leave until she found
other employment or became eligible for retirement in approximately 18 months.
Initial Appeal File (IAF), Tab 1 at 43-45. The agency denied her request the next
day. Id. at 47. Coincidentally, the appellant suffered a medical episode that day,
which was shortly thereafter diagnosed as a serious medical condition that
rendered her unable to work.
¶3 The appellant filed an appeal in which she asserted that she had
involuntarily resigned or had been constructively removed. Id. at 2. The
administrative judge issued an acknowledgment order in which she noted that it
was not clear from the record assembled thus far whether the appellant had
separated from the agency, and she ordered the appellant to submit evidence and
argument showing that the Board had jurisdiction over her appeal. IAF, Tab 2.
After considering the parties’ responses, the administrative judge issued an initial
decision on the written record. She found that the appellant had not made a
nonfrivolous allegation that she was actually separated from the agency or that
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she was subjected to a constructive suspension, and she dismissed the appeal for
lack of jurisdiction. IAF, Tab 10, Initial Decision at 1-2, 5-8.
¶4 In her petition for review, the appellant argues that the egregious facts
underlying her claim of intolerable working conditions that led to her
February 23, 2016 letter make a compelling case in support of a finding that her
resignation was involuntary. Petition for Review (PFR) File, Tab 1 at 1-3. That
may or may not be the case. However, before the Board can determine whether
the appellant’s resignation was involuntary, she is required to prove by
preponderant evidence that she resigned. An action cannot constitute a
constructive removal over which the Board may exercise jurisdiction unless the
employee was actually separated from her position. Donahue v. U.S. Postal
Service, 100 M.S.P.R. 387, ¶ 21 (2005). The evidence in this appeal
unequivocally shows that the appellant is an agency employee on approved leave.
IAF, Tab 6 at 19-22. The fact that she has now exhausted all her paid leave and
is in an unpaid leave status, as she asserts on review, PFR File, Tab 1 at 2,
does not change the fact that she remains employed by the agency. Insofar as the
appellant challenges on review the administrative judge’s finding that, based on
the current record, the Board lacks jurisdiction over this appeal as a constructive
suspension, we disagree with her assertion. See Rosario-Fabregas v. Merit
Systems Protection Board, No. 2015-3102, 2016 WL 4363176 (Fed. Cir. Aug. 16,
2016); Abbott v. U.S. Postal Service, 121 M.S.P.R. 294, ¶ 10 (2014) (finding 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). We find
that, because the appellant has not proven that she has been subjected to an
adverse action within the Board’s jurisdiction, the administrative judge correctly
dismissed her appeal.
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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. You must submit your request to the
court at the following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
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 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 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.
If you are interested in securing pro bono representation for an 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
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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.