Isom Harris v. United States Postal Service ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ISOM W. HARRIS, IV, DOCKET NUMBER
Appellant, SF-0752-18-0538-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: March 21, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Melinda A. Harris , Lancaster, California, for the appellant.
Catherine V. Meek , and W. Jason Jackson , Esquire, Long Beach,
California, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his appeal of an alleged suspension for lack of jurisdiction. Generally,
we grant petitions such as this one only in the following circumstances: the
initial decision contains erroneous findings of material fact; the initial decision is
based on an erroneous interpretation of statute or regulation or the erroneous
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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. 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. Except as expressly MODIFIED to clarify the basis for the
jurisdictional dismissal, we AFFIRM the initial decision.
BACKGROUND
The appellant was formerly employed as Postmaster of the Lynwood Post
Office in Lynwood, California. Initial Appeal File (IAF), Tab 1. On
September 19, 2016, he was performing a route exam in Long Beach, California,
when he was exposed to the sound of continued gunfire, causing flashbacks to his
combat experience in the Gulf War and triggering an episode of posttraumatic
stress disorder (PTSD). IAF, Tab 17 at 13. He took sick leave the following day,
September 20, 2016, and remained in sick leave status through October 3, 2016.
Id. at 16-20. On or about October 6, 2016, the appellant filed a claim with the
Office of Workers’ Compensation Programs (OWCP), seeking continuation of
pay (COP) based on his September 19, 2016 injury. Id. at 14-15.
The record contains conflicting information as to whether the appellant
returned to work. His time and attendance records indicate regular work hours
for the period from October 4 through November 10, 2016, after which he
reentered leave status. 2 Id. at 20-30. However, the agency asserts that the
2
Specifically, the time records indicate that the appellant was on paid administrative
leave from November 14 through December 2, 2016; leave under the Family and
Medical Leave Act from December 5, 2016, through February 28, 2017; regular sick or
3
appellant did not return to work or attempt to do so at any point after
September 19, 2016. Id. at 5, 9. For his part, the appellant states that he returned
to work on October 4, 2016. Petition for Review (PFR) File, Tab 1 at 7. He
further alleges that he was scheduled to give a testimonial at a meeting on
October 7, 2016, but that on that same day the agency called him to a meeting at
the district office and placed him on administrative leave, effective immediately,
pending investigation into alleged misconduct. IAF, Tab 1 at 6, Tab 18 at 3,
Tab 19 at 3. According to the appellant, the agency’s unexpected action
aggravated his PTSD, rendering him permanently disabled, and he remained
absent thereafter. IAF, Tab 9 at 3; PFR File, Tab 1 at 7-8.
In a subsequent undated letter, the appellant advised the agency that he had
suffered an aggravation to his injury on October 7, 2016—the day of his
placement on administrative leave—and wished to file a CA -2 form in connection
with his pending OWCP claim. IAF, Tab 17 at 103. He further stated that the
agency had incorrectly recorded work hours instead of leave, and he requested
either COP or sick leave through a period ending November 4, 2016. Id. In
support of his request, the appellant provided medical documentation, including
an October 24, 2016 letter from a marriage and family therapist and an
October 26, 2016 letter from his treating physician. Id. at 104-05. The therapist
opined that the appellant suffered from PTSD as a result of his war experience,
and that the symptoms had been exacerbated by “uncertainty about his job
situation,” resulting from the sudden death of his former regional manager, and
also by his assignment to deliver mail near a shooting range. Id. at 104. He
further stated that the appellant had suffered “what clearly seems hostile
treatment by some of his superiors,” and that he was considering disability
retirement. Id. The appellant’s physician opined that the appellant “is currently
disabled due to [PTSD]. He is not able to perform his duties as Postmaster of the
annual leave from March 1 through August 18, 2017; and leave without pay (LWOP)
beginning August 21, 2017, and continuing through the remainder of his employment.
IAF, Tab 17 at 20-102.
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Lynwood Post Office. I anticipate that this condition will last more than a year.”
Id. at 105.
On November 17, 2016, the appellant completed an application for
disability retirement. 3 Id. at 106-14. In his statement of disability, he indicated
that he suffered from PTSD, that the agency had taken actions that aggravated his
condition, and that as a result he was unable to perform his duties as Postmaster.
Id. at 114. On August 21, 2017, he entered leave without pay (LWOP) status,
having exhausted his sick and annual leave. IAF, Tab 1 at 6, Tab 17 at 73.
On December 7, 2017, the agency proposed to remove the appellant on
misconduct charges unrelated to his absences. Harris v. U.S. Postal Service,
MSPB Docket No. SF-0752-18-0448-I-1, Initial Appeal File (0448 IAF), Tab 5
at 16-31. The deciding official sustained the proposed action, and the appellant
was removed effective March 17, 2018. Id. at 10-14. The appellant then filed a
timely Board appeal contesting his removal. 4 0448 IAF, Tab 1. During a close of
record conference on May 21, 2018, the appellant asserted that he was not paid
during the period he was under investigation, beginning in October 2016. 0448
IAF, Tab 19 at 3. The administrative judge observed that the appellant appeared
to have raised a claim of a constructive suspension or an enforced leave action.
Id. at 3. She invited the appellant to file a separate appeal and advised him of the
jurisdictional standards applicable to both types of actions. Id. at 3-6.
3
The copy provided by the agency omits portions of the application, most notably the
Supervisor’s Statement, which may have served to clarify the circumstances
surrounding the appellant’s absences. We take notice that the Board has before it the
record in the appellant’s pending appeal of the Office of Personnel Management’s
decision denying his application. Harris v. Office of Personnel Management ,
MSPB Docket No. SF-844E-18-0486-I-1; see 5 C.F.R. § 1201.64 (stating that the Board
may take official notice of verifiable facts); Woodjones v. Department of the Army,
89 M.S.P.R. 196, ¶ 15 (2001) (taking official notice of actions in another Board appeal).
4
On September 7, 2018, the administrative judge issued an initial decision affirming the
removal action. Harris v. U.S. Postal Service, MSPB Docket No. SF-0752-18-0448-I-1,
Initial Decision. Neither party filed a petition for review of that decision, which is now
the final decision of the Board.
5
On May 24, 2018, the appellant filed the instant appeal. IAF, Tab 1. He
identified the agency’s action as “constructive suspension/enforced leave,” with
an effective date of October 7, 2016. Id at 4. He alleged that during the period
from October 7, 2016, when he was notified of his placement on paid
administrative leave, to December 7, 2017, when the notice of proposed removal
was issued, the agency had in fact failed to pay him, and that the loss of pay
caused irreparable mental and physical harm. Id. He indicated he did not want a
hearing. Id. at 2.
The administrative judge advised the appellant of his burden of proof on
jurisdiction and timeliness and ordered him to file evidence and argument
addressing those issues. IAF, Tab 2. The appellant filed several pleadings in
response. IAF, Tabs 3-6, 9-13. The agency filed a motion to dismiss the appeal,
contending that the appellant’s appeal was untimely filed and that he failed to
make a nonfrivolous allegation that his absence from work was involuntary. IAF,
Tab 17.
Based on the written record, the administrative judge dismissed the appeal
for lack of jurisdiction. IAF, Tab 23, Initial Decision (ID). Regarding the
constructive suspension claim, the administrative judge found that the appellant
was unable to work, and thus did not have a meaningful choice as to whether to
return to duty, but that it was not the agency’s actions that deprived him of that
choice. ID at 3-7. The administrative judge also did not credit the appellant’s
assertion that the agency initiated his absence by placing him on administrative
leave on October 7, 2016. ID at 8. Having concluded that the Board lacked
jurisdiction over the appeal, the administrative judge did not reach the issue of
timeliness. Id.On petition for review, the appellant contends the agency falsified his time
and attendance records by marking regular work hours during the period from
October 7, 2016, through November 10, 2016. PFR File, Tab 1 at 6. He asserts
that he did not leave the agency voluntarily on October 7, 2016, and he provides a
6
copy of a July 13, 2018 memorandum from his union representative, who relates
that the agency placed the appellant on paid administrative leave effective
October 7, 2016. 5 Id. at 2-3. The appellant further claims the agency’s
October 7, 2016 action aggravated his PTSD, leading to his permanent disability
and the loss of his career. Id. at 7-8. The agency has filed a response, to which
the appellant has replied. PFR File, Tabs 3, 4.
ANALYSIS
The appellant bears the burden of proving jurisdiction by a preponderance
of the evidence. 5 C.F.R. § 1201.56(b)(2)(i)(A). 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). As relevant here, appealable actions include suspensions of more than
14 days. 5 U.S.C. § 7512(2).
The appellant appears to argue that he suffered an appealable suspension on
two theories. First, he alleges that the agency suspended him when it placed him
on enforced leave beginning October 7, 2016. He also argues that he suffered a
constructive suspension because the agency’s October 7, 2016 action aggravated
his PTSD, rendering him permanently disabled and depriving him of the choice to
return to work at a later date, including the period he was in LWOP status. See
Romero v. U.S. Postal Service, 121 M.S.P.R. 606, ¶¶ 5-8 (2014) (distinguishing
between enforced leave actions, which do not purport to be voluntary, and
constructive suspensions, in which leave that appeared to be voluntary actually
5
While the July 13, 2018 memorandum postdates the initial decision in this appeal, the
appellant has not established that the information contained therein is new, i.e., that it
was previously unavailable despite his due diligence. See Grassell v. Department of
Transportation, 40 M.S.P.R. 554, 564 (1989) (holding that to constitute new and
material evidence, the information contained in the documents, not just the documents
themselves, must have been unavailable despite due diligence when the record closed);
5 C.F.R. § 1201.115(d). Thus, the memorandum does not by itself serve as grounds for
review. See Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980). Nonetheless,
we find it plausible that the agency did in fact place the appellant on paid administrative
leave beginning October 7, 2016.
7
was not); Abbott v. U.S. Postal Service, 121 M.S.P.R. 294, ¶¶ 7, 9-10 (2014)
(same). We find the appellant did not establish jurisdiction on either theory.
Generally, an agency’s placement of an employee on enforced leave for
more than 14 days constitutes an appealable suspension within the Board’s
jurisdiction. Id., ¶ 10. However, the pertinent statute defines a “suspension” as
“the placing of an employee, for disciplinary reasons, in a temporary status
without duties and pay.” 5 U.S.C. §§ 7501(2), 7511(a)(2) (emphasis added). For
this reason, the Board lacks jurisdiction over an agency’s decision to place an
employee on paid administrative leave. See, e.g., Reymann v. U.S. Postal
Service, 77 M.S.P.R. 407, 409 (1998). Thus, accepting as true the appellant’s
claim that he was involuntarily placed on paid administrative leave effective
October 7, 2016, the agency’s action did not constitute an appealable suspension
within the Board’s jurisdiction. While we agree with the appellant that his time
and attendance records are incorrect in reporting work hours, rather than
administrative leave, for the period from October 7 through December 2, 2016, he
has provided no evidence, such as earnings and leave statements or bank records,
to corroborate his claim that the agency failed to pay him during that period.
We have also considered whether the appellant’s absences beginning
August 28, 2017, when he entered LWOP status, constitute a constructive
suspension within the Board’s jurisdiction. As the Board explained in Bean v.
U.S. Postal Service, 120 M.S.P.R. 397 (2013), all constructive suspensions have
two things in common: (1) the appellant lacked a meaningful choice as to
whether to return to work; and (2) it was the agency’s wrongful actions that
deprived the employee of that choice. 6 Id., ¶ 8. Regarding the first element, we
find the appellant lacked a meaningful choice in the matter, as it is undisputed
6
The initial decision erroneously states that the question of who initiated the absence
remains the dispositive issue in “enforced leave type constructive suspensions.” ID
at 5-6. These do not exist. As the Board clarified in Abbott, 121 M.S.P.R. 294, ¶ 10,
the placement of an employee on enforced leave for more than 14 days is an ordinary
suspension within the Board’s jurisdiction, and the case law concerning constructive
suspensions is not applicable to such a case.
8
that he was medically incapable of returning to his job as Postmaster. See id.,
¶ 13 (rejecting the notion that working outside medical restrictions is a viable
option for Federal employees).
As to the second element, the appellant argues that the agency aggravated
his PTSD, rendering him permanently disabled, when it placed him on
administrative leave without warning, pending investigation into alleged
misconduct. PFR File, Tab 1 at 7-8. Thus, in his view, it was the agency’s
wrongful actions that deprived him of a meaningful choice whether to return to
work. However, apart from the appellant’s own conclusory statements, the only
record evidence that might lend support to that conclusion is the October 24, 2016
letter from the appellant’s marriage and family therapist, who opined that the
appellant’s PTSD was aggravated by “uncertainty about his work situation” and
“hostile treatment by some of his superiors.” IAF, Tab 17 at 104. We find these
vague statements do not amount to preponderant evidence that the agency took
wrongful actions that were so injurious as to cause the appellant’s incapacitation.
Moreover, the appellant has not demonstrated that the agency acted improperly in
assigning him to the route in Long Beach, or in placing him on paid
administrative leave pending an investigation that ultimately resulted in his
removal. Accordingly, we find the appellant has failed to show by preponderant
evidence that he suffered an appealable constructive suspension.
NOTICE OF APPEAL RIGHTS 7
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
7
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
9
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit 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, 10, and 11.
10
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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
11
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction. 8 The court of appeals must receive your petition for
8
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
12
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit 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, 10, 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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
13
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.