Snider & Fischer: Baltimore Attorneys, Employment Law, Labor Law, Civil Litigation

Appellant, through his counsel, the Law Offices of Snider & Fischer, LLP, and Michael J. Snider, Esq., files this Response to the Administrative Law Judge’s sua sponte ORDER to file evidence and argument regarding the Board’s jurisdiction over the instant Appeal, as amended.

Mr. Client is a GS-15 employee at the Department of Veterans Affairs, under the direct supervision of the Deputy Assistant Secretary for Human Resources Management, Ms. Ventris Gibson. Mr. Client is a highly decorated professional with many years of valued service to the federal government. He appeals the Agency’s action of placing him on involuntary annual leave for a continuous period in excess of 14 calendar days, which is a constructive suspension. (See Exhibit 1, Affidavit of Mr. Client). The Appeal is properly before the Board and does not raise the same issues as Appellant’s EEO Complaint. The Appeal should proceed to a merits hearing.

On December 19, 2002, Mr. Client (Appellant) filed an “Appeal of Constructive Suspension” (Appeal) with the Board, via Fax. The Appeal contained 21 pages of attachments, including printouts of leave records. These documents proved 1) the Agency placed Appellant on involuntary annual leave in lieu of Absent Without Leave (AWOL); 2) the Agency did not approve Appellant’s leave in advance; 3) the Agency waited until the end of each pay period to post Appellant’s leave; and 4) the Agency did not provide Appellant with a statement of his Appeal rights.

On December 24, 2002, Appellant filed a Complaint of Discrimination with the Agency’s EEO office (Exhibit 2). That Complaint raised many issues of discrimination, but did not raise the issue of “constructive suspension.” (Id).

On December 26, 2002, Mr. Client filed an Amended Appeal (Amended Appeal) and filed supplemental documents and evidence. Attached to the Amended Appeal were letters to the Agency specifically noting that Appellant was being forced to use “involuntary annual leave,” and notes from Appellant’s treating physicians supporting his request for sick leave or work at home.

Appellant alleges in his Appeal that he was constructively suspended. See Sheila A. Dize v. Department of the Navy, 73 MSPR 635 (March 21, 1997)(An employee who voluntarily initiated a leave seeks to return to work and is barred by the agency, the subsequent leave may be appealable as a constructive suspension if it lasts more than fourteen days). See also Pittman v. Merit Systems Protection Board, 832 F.2d 598, 599-600 (Fed. Cir. 1987) (an employee’s placement on enforced leave for more than fourteen days, pending the agency’s inquiry into his physical ability to perform, is a disciplinary-type action within the Board’s jurisdiction).

An employee who alleges that he was constructively suspended must prove by preponderant evidence that his absence was involuntary. See Dize, 73 M.S.P.R. at 638. The Board has also held that an employee is constructively suspended where the employee was absent due to a medical condition, requests work within his medical restrictions, the Agency is bound by agency policy, regulation, or contractual provision to offer available light-duty work to such an employee, and the Agency refuses to offer the employee any available light duty work. Baker v. United States Postal Service, 71 M.S.P.R. 680, 691-92 (1996).

The Board has held that it has jurisdiction over an Appeal where an employee makes a nonfrivolous allegation, supported by affidavit, that he or she is “ready, willing and able to work during the entire period:

“Here, the appellant submitted an affidavit below attesting to the facts that on May 10, 1996, "she was placed in an enforced leave status without her consent" and that she has been "ready, willing, and able to work" during the entire period of the alleged constructive suspension…”

Similarly, the Appellant in this case has alleged a nonfrivolous allegation that he was constructively suspended. In his Affidavit (Exhibit 1), Appellant attests to the facts that he was placed in an enforced leave status without his consent, and that he has been ready, willing and able to work during the entire period of the alleged constructive suspension (Id).

Appellant was placed in Annual Leave after submitting the following statement, under duress:

“I request to be placed involuntarily in Annual Leave status for the period November 18, 2002 through November 29, 2002. I make this request under duress only so that I will not be illegally deprived of my pay and benefits. I reserve all rights to contest this action.”

(Attachment 3 to Exhibit 1, Affidavit of Mr. Client) (emphasis in the original).

On another occasion, additional Annual Leave was ‘approved,’ but only pursuant to the following letter:

“I request to be placed involuntarily in Annual Leave status for the period December 2, 2002, through December 31, 2002. I make this request under duress only so that I will not be illegally deprived of my pay and benefits.”

(Attachment 8 to Exhibit 1, emphasis in the original). Appellant has, in fact, never submitted any voluntary request to the Agency for annual leave during the period in question. His requests were all ‘involuntary’ and stated so on their face. His only option being AWOL, these ‘approvals’ for annual leave were in fact a constructive suspension.

The record also supports his argument that the Agency was bound by a policy, regulation, or contractual provision to offer work at home to the Appellant (See Exhibit 3, VA Directive 5368 – Flexiplace).

If the administrative judge determines on remand that the appellant is in fact claiming that she can only perform light duty and that she is requesting that the agency continue to provide her with light-duty assignments, then the administrative judge shall determine whether the agency is bound by agency policy, regulation, or contractual provision to offer available light-duty work to the appellant, and if so, whether the agency has failed to offer the appellant available light-duty work. See Baker v. U.S. Postal Service [96 FMSR 5377] (if an employee who is absent due to a medical condition requests work within his or her medical restrictions, and if the agency is bound by agency policy, regulation, or contractual provision to offer available light-duty work to such an employee, his continued absence is an appealable constructive suspension if the agency fails to offer the employee available light-duty work).

In this instance, there is substantial evidence that the Appellant requested to work within his medical restrictions (See Exhibit 1, See also medical documentation submitted with Appeal).

Although the issue of reasonable accommodation is mentioned in Appellant’s EEO Complaint (Exhibit 2) and is not the main subject of the instant Appeal, it is peripherally relevant to the instant Appeal.

The U.S. Equal Employment Opportunity Commission=s Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act states that an employer has to allow an employee with a disability to work at home as a reasonable accommodation, and must modify its policy concerning where work is performed if such a change is needed as a reasonable accommodation, if the accommodation would be effective and would not cause an undue hardship.

Kirn Saner, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Eastern Area), Agency, EEOC OFO 01A13291 (October 10, 2002) also states (at note 1):

AThe Commission notes that the AJ found that complainant's assertion that the agency's duty to reasonably accommodate him extended to his transportation to and from the work site was not supported by case precedent. However, the Commission has recognized that agencies may be responsible for accommodating employees with disabilities with respect to their daily commute to work such as by modifying a work schedule, applying a work-at-home policy where it would be an effective accommodation and would not be an undue hardship, or reassignment to a facility closer to the employee's home. EEOC's Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act at p. 46. (March 1,1999); see also Mitchell v. United States Postal Service, EEOC No. 01A03170 (August 27, 2001), Hupka v. Department of Defense, EEOC No. 02960003 (August 13, 1997); Kubik v. Department of Transportation, EEOC No. 01973801 (July 11, 2001). Furthermore, our regulations cite to the need to modify or adjust the manner or circumstance under which a position is held and is performed which we view as encompassing the agency's responsibility to consider work-at-home and flexiplace arrangements. 29 C.F.R. '1630.2(o)(l)(ii), 2(ii).@

It is therefore clear that work at home is a form of reasonable accommodation. The Agency in this case failed to consider or offer work at home to Appellant, therefore violating the law. In the alternative, Appellant requested sick leave (the denial of which is also at issue in Appellant’s EEO Complaint). The Agency’s denial of that sick leave was in violation of the law as well. Although the culmination of these violations was placing the Appellant on AWOL unless he ‘requested’ involuntary annual leave, they are merely background and do not deprive the Board of jurisdiction.[1]

Further, the Appellant specifically requested sick leave in the alternative to a work at home arrangement. Appellant submitted administratively acceptable medical certificates, which were rejected unjustifiably by the Agency. The sick leave requests were clearly valid and supported, and the Agency’s placement of the Appellant on involuntary annual leave was therefore a constructive suspension without justification, and must be overturned.

Appellant has not ‘voluntarily absented’ himself from the workplace, either. He was, and continues to be, willing and able to work – within his physicians’ restrictions (Exhibit 1).

The Agency’s internal Leave policy requires that leave be posted daily (Exhibit 4). The Agency clearly violated that policy with Appellant – waiting until the last day of the pay period to approve/disapprove his leave. The Agency also placed Appellant on involuntary sick leave in August 2002 – effectively placing him on a constructive furlough (Exhibit 5, Amended Appeal at Par. 29).

In light of the above, it is clear that the Appellant has made a nonfrivolous allegation that he was constructively suspended. The matter should proceed to a merits hearing.

Appellant admittedly filed an EEO Complaint on December 24, 2002 (Exhibit 2). That Complaint, however, raised only matters of discrimination and did not include allegations regarding the constructive suspension of Appellant through the forced use of involuntary annual leave.

The “matter” which is appealed to the Board in the instant Appeal is the constructive suspension of the Appellant by the Agency. The discriminatory aspects of the constructive suspension include allegations of age, religious and handicap discrimination. Appellant did not and does not intend for any of the matters raised in his EEO Complaint to be contained in his Appeal at this time. The only matter before the Board is his constructive suspension, which is not at issue in the December 24, 2002 EEO Complaint. Jurisdiction here is proper.

Michael J. Snider, Esq.
Law Offices of Snider & Fischer, LLP
100 Church Lane
Baltimore, Maryland 21208
410-358-8118 phone
410-358-1621 fax
mike@sniderlaw.com email

I certify that a copy of the foregoing was placed in the US Mail, pre-paid postage attached, addressed to:

Sherry A. Armstrong
Administrative Judge
MSPB, Washington Regional Office
1800 Diagonal Road, Suite 205
Alexandria, VA 22314-2840
Erica M. Dornburg, Esq.
Staff Attorney, OGC (023R)
Department of Veterans Affairs
810 Vermont Avenue, NW
Washington, DC 20420

[1] In the event the Board rules that raising these matters in an EEO complaint precludes consideration at this time by the Board (See Jurisdictional Basis #2, below), Appellant requests that his Appeal be dismissed without prejudice, to be refiled after 120 days have passed from December 24, 2002.