Opinion

Kyle Milowski v. Department of Homeland Security

Court: Merit Systems Protection Board
Filed: Jun 11, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 17.0%

holding that the agency’s refusal to allow the employee to return to work when the employee failed to provide appropriate medical documentation, including a medical release, did not constitute a constructive suspension

How later courts described this case

holding that the agency’s refusal to allow the employee to return to work when the employee failed to provide appropriate medical documentation, including a medical release, did not constitute a constructive suspension

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

KYLE MILOWSKI, DOCKET NUMBER

Appellant, AT-0752-19-0238-I-1

DEPARTMENT OF HOMELAND DATE: June 11, 2024

SECURITY,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Lawrence Berger , Esquire, Glen Cove, New York, for the appellant.

Katie Chillemi , Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member*

*Member Kerner did not participate in the adjudication of this appeal.

FINAL ORDER

The agency has filed a petition for review of the initial decision, which

reversed its alleged constructive suspension action. For the reasons discussed

below, we GRANT the agency’s petition for review, VACATE the initial

decision, and DISMISS the appeal for lack of jurisdiction.

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

BACKGROUND

The appellant is a GS-13 Deportation Officer (Course

Developer/Instructor) for Immigration and Customs Enforcement at the Federal

Law Enforcement Training Center in Glynco, Georgia. On April 17, 2017, he

informed his supervisor that he would be out of work because of a medical

condition. Initial Appeal File (IAF), Tab 4 at 14. He remained out of work and

filed a claim with the Office of Workers’ Compensation Programs (OWCP). On

June 22, 2017, he emailed his supervisor, asking “What are my options for

returning to work now?” Id. at 17. His supervisor responded: “Have you been

medically cleared to return to work? If so, please provide medical doctors note.

Upon receipt of medical clearance to return to work note, we’ll discuss your

options.” Id. at 17-18. The appellant responded that he had not been cleared to

work but did not want to exhaust his leave. IAF, Tab 17 at 34. His supervisor

responded, “Your return to work is a moot point, [sic] until medical

documentation is provided, [sic] clearing you to return to work.” Id. at 36. The

appellant did not provide medical documentation to his supervisors and

apparently did not contact his supervisors again until August 1, 2018.

Meanwhile, however, on November 21, 2017, in connection with his

OWCP claim, 2 the appellant submitted a medical report and several pages of

medical documentation from a physician that recounted his medical history, the

nature and diagnosis of his medical condition, its symptoms, and recommended

treatment. IAF, Tab 6 at 80-87. The physician preparing the report, Dr. S,

concluded that the appellant was “to remain out of work until further evaluation.”

Id. at 80.

On August 1, 2018, the appellant submitted to his supervisor a medical note

from Dr. R, stating that the appellant was able to return to work with the

accommodation of an ergonomic chair and a standing/sitting workstation.

The record does not reflect the status of the appellant’s OWCP claim. In any event, it

is not relevant to this appeal.

Id. at 77. The agency responded with an August 3, 2018 letter in which it noted

that the August 1 note was not signed and did not contain adequate information to

allow the agency to conclude that the appellant was capable of performing the

essential functions of his position. Id. at 71. The agency requested additional

information from the appellant’s physician in lieu of a formal fitness for duty

examination, and it prepared a list of questions for his physician to answer along

with a copy of the appellant’s position description. Id. at 71-72. The appellant

responded by submitting a photocopy of the list of questions with unsigned,

handwritten, cursory answers. Id. at 69.

The agency sent the appellant an August 29, 2018 letter informing him that

the handwritten answers that he provided were substantively inadequate, it was

unclear who wrote them, and they were unsigned. Id. at 63-64. It requested that

the appellant provide additional medical documentation and suggested that

documentation concerning his treatment following the November 21, 2017 note

from Dr. S would be useful. Id. The agency informed the appellant that his

failure to submit proper medical documentation would result either in a fitness for

duty examination or a determination of his fitness for duty based on the available

information. Id. at 64.

The appellant did not submit medical documentation. Instead, he alleged

that other agency employees with medical conditions were not required to

undergo fitness for duty examinations, he expressed his mistrust of the agency’s

physician, Dr. M, he referred to a prior quasi-disciplinary incident in which he

believed he was treated unfairly, and he asserted that instructors are not called

upon to perform the same duties as the law enforcement officers they instruct and

should not be held to the same physical standards. Id. at 59-60. On October 25,

2018, the agency issued a notice scheduling the appellant for a fitness for duty

examination with an outside physician pursuant to 5 C.F.R. part 339. Id.

at 56-57. It instructed him to complete a medical release to facilitate review of

the medical records pertinent to his condition. Id.

When the appellant did not respond, the agency sent him another notice,

dated November 6, 2018, instructing him to participate in the fitness for duty

process and to complete a medial release. Id. at 30. The notice informed the

appellant that his failure to cooperate would result in the agency taking action

based on the information currently available to it, which showed that the

appellant was not fit for duty, and which could result in disciplinary action for

failure to follow instructions, up to and including removal. Id.

The appellant responded by alleging that the agency’s actions constituted

harassment, retaliation against a whistleblower, and an imposition against his

privacy rights. Id. at 27. He stated that physicians employed by the Federal

Government can be sued for malpractice. Id. He averred that he was being

required to undergo a fitness for duty examination without due process. Id.

He accused his supervisors of perjury and fraud, and claimed they were refusing

to provide him with reasonable accommodation. Id. at 27-28. He concluded by

naming a number of Federal agencies against which he had instigated litigation,

and declared that he would not complete a medical release. Id. at 28.

On December 6, 2018, the agency granted the appellant’s request for

accommodation by giving him an ergonomic chair and a standing/sitting

workstation, apparently on the basis that he was determined to be a qualified

disabled individual after a January 2017 request for reasonable accommodation,

although it is not clear whether that request was predicated on the same medical

condition as the one at issue in this appeal. IAF, Tab 17 at 40, 48, 50.

On December 10, 2018, the agency informed the appellant that it had

scheduled a fitness for duty examination, it informed him of the date, time, and

location, and it informed him that his failure to cooperate could result in

disciplinary action up to and including removal. IAF, Tab 6 at 23.

The examination took place, and the appellant was returned to duty in a light duty

status effective January 30, 2019. Id. at 20.

On February 7, 2019, the appellant filed an appeal in which he contended

that his absence from June 22, 2017, through January 31, 2019, constituted an

appealable constructive suspension. IAF, Tab 1. He further contended that the

agency’s action constituted disability discrimination based on a failure to afford

him reasonable accommodation and retaliation for his prior equal employment

opportunity (EEO) activity. IAF, Tab 15 at 2, 5. The appellant waived his right

to a hearing and requested a decision on the written record. IAF, Tab 13 at 3.

After affording the parties the opportunity to submit evidence and argument

in support of their respective positions, the administrative judge found that the

appellant proved by preponderant evidence that the agency constructively

suspended him. IAF, Tab 19, Initial Decision (ID) at 3-7. She further found that

the agency committed disability discrimination when it failed to offer him a

reasonable accommodation and retaliated against him for his prior EEO activity.

ID at 7-13. The administrative judge did not order interim relief.

The agency has filed a petition for review of the initial decision. Petition

for Review (PFR) File, Tab 1. The appellant has responded in opposition to the

petition for review. PFR File, Tab 3.

ANALYSIS

The Board lacks jurisdiction over appeals of employees’ voluntary actions.

Bean v. U.S. Postal Service, 120 M.S.P.R. 397, ¶ 7 (2013). However, the Board

has always recognized that employee-initiated actions that appear voluntary on

their face are not always so. Id. The Board may have jurisdiction over such

actions under 5 U.S.C. chapter 75 as “constructive” adverse actions. Id.

Involuntary leaves of absence may be appealable to the Board as constructive

suspensions when: (1) the employee lacked a meaningful choice in the matter;

and (2) it was the agency’s wrongful actions that deprived the employee of that

choice. Rosario-Fabregas v. Merit Systems Protection Board, 833 F.3d 1342,

1346-47 (Fed. Cir. 2016); Bean, 120 M.S.P.R. 397, ¶ 8. Assuming that the

jurisdictional requirements of 5 U.S.C. chapter 75 are otherwise met, proof of

these two things is sufficient to establish Board jurisdiction. Bean, 120 M.S.P.R.

397, ¶ 8. The burden of proving Board jurisdiction is on the appellant.

Thomas v. Department of the Navy, 123 M.S.P.R. 628, ¶ 11 (2016).

Here, the appellant alleges that his absence became involuntary when the

agency denied his request to return to work on June 22, 2017. The administrative

judge found that the appellant’s request to return to work triggered an obligation

on the part of the agency to begin the process of searching for a reasonable

accommodation, and that its failure to do so was wrongful and deprived the

appellant of a meaningful choice as to whether to continue his absence. ID at 4-5.

We disagree. Although the appellant framed his request to return to work

on June 22, 2017, in terms of “options,” there were in fact no options because, as

he himself stated, he had not been cleared to return to work. IAF, Tab 6 at 17,

Tab 17 at 34. The appellant never suggested that he might be able to work a

modified version of his job, or perform some duties but not others, or made any

other remarks about duties he could perform that would have triggered the

agency’s obligation to begin the reasonable accommodation process. An

employee need not invoke magic language to make an effective request for

reasonable accommodation; he has only a general responsibility to inform his

employer that he needs accommodation for a medical condition, such as a change

or adjustment at work for a reason related to a medical condition. See generally

Gonzalez-Acosta v. Department of Veterans Affairs , 113 M.S.P.R. 277, ¶ 15

(2010). The appellant’s request to return to work, coupled with the statement that

he had not been medically cleared to return to work and his failure to provide any

medical documentation at his supervisor’s prompting, did not trigger an

obligation on the part of the agency to begin the reasonable accommodation

process. Therefore, the agency’s denial of his request to return to work on

June 22, 2017, was not a wrongful action that deprived the appellant of a

meaningful choice about returning to work.

Moreover, the administrative judge mischaracterized the agency’s response

to the appellant’s request. The agency informed him that, once he submitted

medical documentation, they could discuss his options for returning to duty.

The administrative judge interpreted this to mean that the appellant would not be

allowed to return to duty until he could perform the full range of his duties.

ID at 4-5. It seems obvious that the agency’s decision on returning the appellant

to duty would depend entirely on the appellant’s medical documentation and the

recommendations of his doctor. Moreover, the appellant had previously obtained

a reasonable accommodation and so was familiar with the process and able to

articulate what duties he could and could not do and what accommodations he

might need. Furthermore, the agency knew that the appellant had previously been

accommodated and knew how to ask for accommodation and likely found it

significant that he did not do so in this case, stating instead that he was not

cleared to return to work.

The administrative judge distinguished this appeal from the case of

Rosario-Fabregas v. Merit Systems Protection Board, 833 F.3d 1342 (Fed. Cir.

2016). ID at 6-7. The court in Rosario-Fabregas found that the agency did not

act improperly and that the appellant failed to prove that he was constructively

suspended. The administrative judge noted in particular that the agency in

Rosario-Fabregas attempted to reasonably accommodate the appellant whereas

the agency in this case did not. In Rosario-Fabregas, the appellant submitted

medical documentation and requested to return to work on a reduced schedule.

Rosario-Fabregas, 833 F.3d at 1344. The agency responded by asking for

additional information, to which the appellant did not respond adequately, leading

the court to conclude that the agency did not act wrongfully. Id. at 1344-45,

1347. In contrast, the appellant here submitted no medical documentation, even

after his supervisor requested it, and he contended without qualification

(and continued to contend for more than a year thereafter) that he was unable to

work. We find that Rosario-Fabregas is directly applicable in this appeal.

Similarly, the November 21, 2017 medical documentation 3 that the

appellant submitted did not contain a request to return to work and stated that the

appellant remained unable to work. 4 IAF, Tab 6 at 80-87. The agency’s failure to

return the appellant to work at this point was not a wrongful action that deprived

the appellant of a meaningful choice about returning to work.

The appellant’s request to return to work on August 1, 2018, on the other

hand, did contain a request for reasonable accommodation and a statement from a

physician that the appellant was able to return to work. Id. at 77. The agency

granted the appellant’s request for reasonable accommodation on December 8,

2018, and returned him to work on January 30, 2019. We find, however, that the

agency’s behavior after August 1, 2018 was reasonable, and that the delay in

returning the appellant to work was due to the appellant’s refusal to cooperate

with the fitness for duty process. The appellant occupied a secondary law

enforcement position containing physical requirements. Id. at 130-31. As such,

the agency was permitted under 5 C.F.R. § 339.301(b)(1), (b)(3) to require the

appellant to undergo a fitness for duty examination. The appellant resisted the

agency’s efforts to obtain medical documentation, objected to the agency’s

physician, and was generally hostile to the process. An agency may properly

refuse to allow an employee to resume working if the employee does not satisfy

The appellant contends that this documentation was generated to support his OWCP

claim, and that he informed his doctor that he was unable to work because the agency

would not allow him to return to work “under any conditions or accommodations.”

IAF, Tab 17 at 53. That statement is not an accurate representation of what the agency

told the appellant; it merely asked him to provide medical documentation, which he

refused to provide. IAF, Tab 4 at 17-18, Tab 17 at 36. The suggestion that the Board

should not take at face value the same medical documentation that the appellant

submitted to support a claim pending in another Federal agency is disturbing.

The administrative judge, citing Yarnell v. Department of Transportation,

109 M.S.P.R. 416, ¶ 10 (2008), found that whether the appellant was able to perform his

duties was irrelevant. ID at 4. Yarnell was a suspension case in which the appellant’s

placement in a non-duty status was clearly involuntary, not a constructive suspension

case, in which an appellant’s medical ability to return to work following an absence for

medical reasons is frequently one of the material issues in dispute.

the agency’s conditions for returning to work. Rosario-Fabregas, 833 F.3d

at 1347. We find that the appellant’s failure to cooperate with the agency’s

efforts to get him cleared to return to duty delayed his return by several months.

Further, we take official notice of the fact that most of the delay between the date

the fitness for duty examination finally took place and the date the appellant

returned to duty is accounted for by the partial Government shutdown of

December 2018 to January 2019.

On the record before us, we find that the appellant’s absence from duty

after June 22, 2017, was not caused by or prolonged because of any improper

actions on the part of the agency. See id. (holding that the agency’s refusal to

allow the employee to return to work when the employee failed to provide

appropriate medical documentation, including a medical release, did not

constitute a constructive suspension). Therefore, the appellant has failed to meet

his burden of proving by preponderant evidence that his absence from work was

an involuntary constructive suspension, and the Board lacks jurisdiction over this

appeal. Because we lack jurisdiction over the appeal, we also lack jurisdiction

over his claims of disability discrimination and retaliation for EEO activity. The

administrative judge’s findings on those issues are vacated.

NOTICE OF APPEAL RIGHTS 5

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 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

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.

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.

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

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. 6 The court of appeals must receive your petition for

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

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.

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