Opinion

Franklin Martin v. United States Postal Service

2022 MSPB 22

Court: Merit Systems Protection Board
Filed: Jul 20, 2022
Status: Published
Cited by: 8 cases
Authority: More cited than 67.2%

explaining that because such constructive suspensions are often implemented without notice, if an appellant establishes jurisdiction, the Board will reverse the agency’s action on due process grounds without proceeding to the merits

How later courts described this case

explaining that because such constructive suspensions are often implemented without notice, if an appellant establishes jurisdiction, the Board will reverse the agency’s action on due process grounds without proceeding to the merits

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

2022 MSPB 22

Docket No. DC-0752-17-0281-I-1

Franklin Martin,

Appellant,

United States Postal Service,

Agency.

July 20, 2022

Franklin Martin, Durham, North Carolina, pro se.

Brandon L. Truman, Charlotte, North Carolina, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

OPINION AND ORDER

¶1 The appellant has filed a petition for review of the initial decision, which

dismissed his constructive suspension appeal for lack of jurisdiction . For the

reasons discussed below, we GRANT the appellant’s petition for review,

REVERSE the initial decision, FIND that the Board has jurisdictio n over this

appeal, REVERSE the appellant’s constructive suspension, and FIND that he

established his affirmative defense of disability discrimination.

BACKGROUND

¶2 The appellant, a preference-eligible Window Clerk, left work after suffering

an anxiety attack that triggered an asthma attack on December 15, 2016. Initial

Appeal File (IAF), Tab 1 at 2, Tab 8 at 11, Tab 14 at 13, Tab 20, Hearing

Compact Disc (HCD) (testimony of the appellant). Ac cording to the appellant, he

saw his primary care physician at her first availability on January 11, 2017, and

then saw his clinical psychologist, for further evaluation and clearance to return

to work. IAF, Tab 12 at 3; HCD (testimony of the appellant). The appellant

believed, and the agency agreed, that he was required to submit medical

documentation to the agency and receive the agency’s permission prior to

returning to work. IAF, Tab 14 at 41; HCD (testimony of the appellant). On

January 12, 2017, his psychologist faxed a note to the agency’s Occupational

Health Nurse Administrator (OHNA) stating that the appellant’s health episode

on December 15, 2016, was psychological in nature and that he had sufficiently

recovered to return to work with no restrictions. IAF, Tab 4 at 11-12, Tab 14

at 39. After not hearing anything from the agency regarding his clearance to

return to work, the appellant reported to his duty station on January 26, 2017, but

a supervisor told him that he had to leave because he had not been cleared to

return to work. IAF, Tab 1 at 6; HCD (testimony of the appellant).

¶3 On January 27, 2017, the appellant filed the instant Board appeal, alleging

that the agency had constructively suspended him following an absence for

medical reasons and discriminated against him on the basis of disability. IAF,

Tab 1, Tab 11 at 2. On February 9, 2017, he received a February 6, 2017 letter

from his station manager informing him that his psychologist’s return-to-work

letter was deficient because it did not state whether the appellant was a threat to

himself or others. IAF, Tab 8 at 3, 15. In a letter to the agency dated

February 13, 2017, the appellant’s psychologist stated that the appellant was not a

threat to himself or others. IAF, Tab 14 at 43.

¶4 The agency “concede[d]” that the Board had jurisdiction over this appeal,

indicated that it would pay the appellant back pay and benefits, and moved that

the appeal be stayed pending the payment of back pa y and benefits, which would

render the appeal moot. IAF, Tab 9. The administrative judge issued an order

advising the parties that the appeal would not be rendered moot by such payments

because the appellant had raised an affirmative defense of disabilit y

discrimination and might be entitled to additional damages if he prevailed. IAF,

Tab 11 at 3. In its prehearing submissions, the agency indicated that it returned

the appellant to work and that it intended to provide him back pay for the period

from January 12 through March 20, 2017. IAF, Tab 13 at 7, 20.

¶5 After holding the appellant’s requested hearing, the administrative judge

issued an initial decision finding that, notwithstanding the agency’s conceding

jurisdiction, the Board lacked jurisdiction over the appeal because the appellant

failed to show that his absence from work was involuntary. IAF, Tab 21, Initial

Decision (ID). In so finding, the administrative judge explained that the agency

had a reasonable basis for requesting documentation reg arding whether the

appellant was a danger to himself or others because the station manager knew that

his absence was related to a psychological condition, he engaged in an altercation

with his supervisor before leaving work on December 15, 2016, and he previously

was reassigned to his current duty station because he could not work with a

particular supervisor. ID at 27. She further found that the agency timely notified

the appellant of the requirement to provide the additional medical documentation

and that, although the agency’s delay in returning the appellant to work was

regrettable, it was not wrongful. ID at 28-32. Because she found that the

appellant failed to establish jurisdiction over his appeal, she did not reach the

appellant’s disability discrimination affirmative defense but noted that she would

have found that he failed to establish it. ID at 32 n.2.

¶6 The appellant has filed a petition for review of the initial decision and has

submitted, for the first time on review, a sworn statement from a coworker

attesting that she, not the appellant, had a disagreement with the appellant’s

supervisor on December 15, 2016. Petition for Review (PFR) File, Tab 1 at 12.

The agency has responded in opposition to the petition for review. PFR File,

Tab 3.

ANALYSIS

¶7 A preference-eligible Postal Service employee who has completed more

than 1 year of current continuous service, like the appellant, may appeal a

suspension, or a constructive suspension, of more than 14 days to the Board.

5 U.S.C. §§ 7511(a)(1)(B)(ii), 7512(2), 7513(d); see Rosario-Fabregas v. Merit

Systems Protection Board, 833 F.3d 1342, 1345-46 (Fed. Cir. 2016) (recognizing

the Board’s jurisdiction over constructive suspensions of more than 14 days) ;

IAF, Tab 4 at 9. Although various fact patterns may give rise to an appealable

constructive suspension, all constructive suspension claims are premised on the

proposition that an absence that appears to be voluntary actually is not.

Rosario-Fabregas v. Department of the Army, 122 M.S.P.R. 468, ¶ 8 (2015),

aff’d, 833 F.3d 1342. To demonstrate that the absence was not voluntary and is

an actionable constructive suspension, an appellant must show the following:

(1) he lacked a meaningful choice in the matter; and (2) it was the agency’s

wrongful actions that deprived him of that choice. Id. This analysis extends to

situations in which the agency prevented the appellant’s return to work after an

initially voluntary leave of absence. Id.

¶8 The appellant must prove jurisdiction in a constructive adverse action

appeal by preponderant evidence. 1 Abbott v. U.S. Postal Service, 121 M.S.P.R.

294, ¶ 8 (2014). The jurisdictional issue in such appeals is often dispositive. Id.

That is, if the appellant fails to meet his burden of establishing by preponderant

evidence that he was constructively suspended, the appeal will be dismissed

because the Board lacks jurisdiction over appeals of employees’ voluntary

actions. Id. Because such constructive suspensions are often effected without

A preponderance of the evidence is the degree of relevant evidence that a reasonable

person, considering the record as a whole, would accept as sufficient to find that a

contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).

notice, however, if the appellant establishes jurisdiction, the Board will reverse

the agency’s action on due process grounds without proceeding to the merits. Id.

¶9 Here, once the appellant submitted a medical note on January 12, 2017,

releasing him to return to work without restrictions, the agency’s decision not to

permit him to return deprived him of a meaningful choice in the matter. See

Romero v. U.S. Postal Service, 121 M.S.P.R. 606, ¶ 9 (2014). Thus, the appellant

satisfied the first prong of the constructive suspension test. The administrative

judge found, however, that he failed to prove that his ab sence resulted from the

agency’s wrongful actions. ID at 26-32.

¶10 As explained by our reviewing court, “[w]hen an employee voluntarily

takes leave, an agency may properly refuse to allow the employee to resume

working if the employee does not satisfy the agency’s conditions for returning to

work.” Rosario-Fabregas, 833 F.3d at 1347. The employee’s resulting absence

is not a constructive suspension. Id. If, however, the agency’s conditions for

returning to work are wrongful, then the employee’s absence following the

agency’s refusal to allow him to return to work may be deemed a constructive

suspension. See Rosario-Fabregas, 122 M.S.P.R. 468, ¶ 8.

¶11 The Board adjudicates claims of disability discrimination raised in

connection with an otherwise appealable action under the substantive standards of

section 501 of the Rehabilitation Act. The standards under the Americans wit h

Disabilities Act (ADA), as amended by the Americans with Disabilities Act

Amendments Act of 2008, have been incorporated by reference into the

Rehabilitation Act and the Board applies them to determine whether there has

been a Rehabilitation Act violation. 29 U.S.C. § 791(f); Miller v. Department of

the Army, 121 M.S.P.R. 189, ¶ 13 n.3 (2014). The ADA significantly restricts the

medical inquiries that an agency may make of an employee . Archerda v.

Department of Defense, 121 M.S.P.R. 314, ¶ 29 & n.6 (2014). Under the ADA,

an agency may require a medical examination or make a medical inquiry

regarding whether an employee “is an individual with a disability or as to the

nature or severity of the disability” only when such inquiry or examination “is

shown to be job-related and consistent with business necessity.” 42 U.S.C.

§ 12112(d)(4)(A). The Equal Employment Opportunity Commission (EEOC) has

promulgated regulations implementing this statutory provision and issued

enforcement guidance addressing the ADA’s limitations on disability-related

inquiries and medical examinations during employment. 29 C.F.R.

§§ 1630.13(b), 1630.14(c); EEOC Enforcement Guidance: Disability-Related

Inquiries and Medical Examinations of Employees under the [ADA],

Notice 915.002, 2000 WL 33407181 (July 27, 2000) (Enforcement Guidance).

The Board generally defers to the EEOC on issues of substantive discrimination

law, and we find that it is appropriate to do so here. See Evans v. Department of

Homeland Security, 107 M.S.P.R. 484, ¶ 9 (2007).

¶12 Ordinarily, a disability-related inquiry or medical examination may be

“job-related and consistent with business necessity” if an employer “has a

reasonable belief, based on objective evidence, that: (1) an employee’s ability to

perform essential job functions will be impaired by a medical condition; or (2) an

employee will pose a direct threat due to a medical condition.” Archerda,

121 M.S.P.R. 314, ¶ 30 (quoting Watkins v. U.S. Postal Service, EEOC Appeal

No. 01981800, 2001 WL 1097442, at *2 (Aug. 29, 2001)); Enforcement

Guidance, 2000 WL 33407181, at *6. The agency’s Employee and Labor

Relations Manual (ELM) incorporates this standard. Specifically, ELM,

section 865.1 provides that the agency can require employees returning from

medically related absences to submit documentation to clear their return to work

when it “has a reasonable belief, based upon reliable and objective information”

that the employee may be unable to perform the essential functions of his position

or may present a “direct threat to the health or safety of [himself] or othe rs due to

that medical condition.” IAF, Tab 14 at 7, 33-34. It is the agency’s burden to

show that its disability-related inquiries and requests for examination are

job-related and consistent with business necessity. Archerda, 121 M.S.P.R. 314,

¶ 31.

¶13 Here, the agency did not allege that the appellant could not perform his

essential job functions but argued that the station manager acted within her

discretion under ELM, section 865.1, to require language regarding whether the

appellant was a risk to himself or others because his absence was related to a

mental health condition. IAF, Tab 13 at 6-7, Tab 14 at 5-8. In addition, the

station manager testified that she requested the additional information because

she heard that the appellant engaged in a “back-and-forth” with his supervisor

just before he left work on December 15, 2016, and because she was aware that

he could not work with a particular supervisor at another facility. HCD

(testimony of the station manager). The administrative judge found that these

reasons were sufficient to provide the agency with a reasonable basis to require

the appellant to submit medical documentation containing the direct threat

language. ID at 27. The appellant challenges these findings on review, arguing

that he did not engage in an altercation before departing work on December 15,

2016, and that there was no evidence that he posed a direct threat to himself or

others. PFR File, Tab 1 at 2‑5. For the reasons that follow, we agree with the

appellant that the agency did not have a reasonable basis to request additional

medical information and that the administrative judge erred in finding otherwise.

¶14 “Direct Threat means a significant risk of substantial harm to the health or

safety of the individual or others that cannot be eliminated or reduced by

reasonable accommodation.” 29 C.F.R. § 1630.2(r); see Archerda, 121 M.S.P.R.

314, ¶ 30. The Board has found that an agency had a reasonable belief that the

employee presented a “direct threat” when he submitted a psychiatrist’s note less

than 5 months earlier stating that he had experienced “aggressive episodes.”

Rosario-Fabregas, 122 M.S.P.R. 468, ¶ 17. The EEOC has concluded that an

agency had a reasonable belief that an employee presented a direct threat t o

herself when she exhibited specific behavioral changes following an accident,

including violent outbursts and unsafe actions. O’Malley v. U.S. Postal Service,

EEOC Appeal No. 01994945, 2002 WL 31232360, at *4-*5 (Sept. 26, 2002).

Further, an example in the EEOC’s Enforcement Guidance states that an agency

could require medical documentation based on a reasonable belief that the

employee posed a direct threat due to a medical condition when, prior to a period

of absence for psychiatric treatment, the employee threatened several of his

coworkers and was disciplined. Enforcement Guidance, 2000 WL 33407181,

at *14. On the other hand, the Board and EEOC have found that an agency did

not have a reasonable belief that an employee presented a direct threat due to a

medical condition when there was no evidence in the record that he was

physically violent or posed a significant risk of doing substantial harm.

Archerda, 121 M.S.P.R. 314, ¶ 32; see Clark v. U.S. Postal Service, EEOC

Appeal No. 01992682, 2001 WL 1526433, at *3-*4 (Nov. 20, 2001).

¶15 Here, as noted above, the first reason cited by the agency in support of its

decision to require the appellant to provide medical documentation containing the

direct threat language was because his absence was related to a mental health

condition. IAF, Tab 14 at 7-8. The station manager testified that she required the

appellant to provide such documentation because the OHNA advised her that the

January 12, 2017 letter indicated that his condition was psychological in nature.

HCD (testimony of the station manager). The OHNA and a postmaster testified

that the agency requires any employee whose absence from work is related to a

mental health condition to provide a medical note specifically addressing whether

he is a risk to himself or others before he may be returned to work. HCD

(testimonies of the OHNA and postmaster). The mere fact that an employee’s

absence is related to a mental health condition, however, does not constitute

objective and reliable evidence establishing, or even suggesting, that he is l ikely

to be violent or do harm. See EEOC Enforcement Guidance on the [ADA] and

Psychiatric Disabilities, Notice 915.002, 1997 WL 34622315, *13-*14 (Mar. 25,

1997) (explaining that a determination of whether an individual with a psychiatric

condition poses a direct threat must be based on “specific behavior” rather than

solely on the individual’s treatment for a psychiatric disability). Therefore, we

find that the agency’s reliance on the fact that the appellant’s absence was related

to a mental health condition was not an acceptable basis to require additional

medical documentation under the Rehabilitation Act. See Archerda,

121 M.S.P.R. 314, ¶ 30; IAF, Tab 14 at 33-34.

¶16 The station manager also testified that she required the appellant to submit

additional medical documentation containing the direct threat language because

she was aware from the Office of Workers’ Compensation Programs (OWCP)

Forms CA-17 submitted by the appellant each month that he could not work at

another facility with a particular supervisor. HCD (testimony of the station

manager). The record contains a copy of one OWCP Duty Status Report ,

Form CA-17, signed by the appellant’s psychologist in January 2017, indicating

that the appellant was diagnosed with an anxiety disorder, which OWCP accepted

as a workplace injury with a date of injury of January 19, 2005. IAF, Tab 4 at 13.

The form also indicates that the appellant was advised to resume work on

April 23, 2012, and states the following:

As described in previous CA-17 Forms submitted, [the appellant]

may return to his [position] full time, providing that [he] does not

work for, is not supervised by, and his work is neither directly nor

indirectly influenced by [the supervisor] (The person I believe is

primarily responsible for [his] work injury).

Id. It is unclear from the record when the appellant experienced difficulties

working with this particular supervisor or the circumstances surrounding those

difficulties, although it appears to have been around the beginning of 2005. Id.

Nevertheless, we find that the station manager’s knowledge that the appellant had

unspecified difficulties with a particular supervisor and that working with her

contributed to his anxiety disorder does not constitute objective evidence

establishing, or even suggesting, that he is likely to be violent or do harm.

Therefore, we find that the agency has not shown that its relian ce on the

appellant’s difficulties with a particular supervisor a number of years earlier was

an acceptable basis to require additional medical documentation under the

Rehabilitation Act. See Archerda, 121 M.S.P.R. 314, ¶ 30; IAF, Tab 14 at 33-34.

¶17 Lastly, the station manager testified that she required the appellant to

provide the direct threat information in his return-to-work letter because she

heard that he was involved in an altercation with his supervisor before he left

work on December 15, 2016. HCD (testimony of the station manager).

Specifically, she testified that, although she had “no idea exactly what happened”

because she was not there, the supervisor told her that he instructed the appellant

to work at a different window, the appellant refused, and there was a “back-and-

forth.” Id. The EEOC has held that a workplace argument in which an employee

pushed her chest into a coworker’s chest did not provide the agency a reasonable

basis to believe that the employee posed a direct threat to herself or others, even

though her conduct may have been improper. Snowden v. Department of Veterans

Affairs, EEOC Appeal No. 0120083032, 2011 WL 4343908, at *5 (Sept. 9, 2011).

Here, the “back-and-forth” alleged by the station manager describes a mere verbal

disagreement between the appellant and his supervisor, without any suggestion

that the appellant behaved in a threatening or violent manner. 2 HCD (testimony

of the station manager). Therefore, we find that this was an improper basis to

require the appellant to submit additional medical information under the

Rehabilitation Act. See Archerda, 121 M.S.P.R. 314, ¶ 30; IAF, Tab 14 at 33-34.

¶18 In light of the foregoing, we find that the agency violated the Rehabilitation

Act when it refused to permit the appellant to return to work and ordered him to

Because the statement that the appellant submitted on review from his coworker is

unnecessary for us to reach our conclusion here, we do not consider it. Russo v.

Veterans Administration, 3 M.S.P.R. 345, 349 (1980) (explaining that the Board will

not grant a petition for review based on new evidence absent a showing that it is of

sufficient weight to warrant an outcome different from that of the initial decision); PFR

File, Tab 1 at 13.

provide additional medical documentation that was not job-related or consistent

with business necessity. See, e.g., Snowden, 2011 WL 4343908, at *5 (finding

that the agency violated the Rehabilitation Act when it o rdered the complainant to

undergo a fitness-for-duty examination without proving it reasonably believed she

was a direct threat or could not perform her essential job functions ). Because the

agency’s actions were wrongful, the agency constructively suspen ded the

appellant when it refused to permit him to return to work, and the Board has

jurisdiction over this appeal. See Rosario-Fabregas, 122 M.S.P.R. 468, ¶ 8.

Because the appellant did not receive due process for this constructive

suspension, the action must be reversed. See Abbott, 121 M.S.P.R. 294, ¶ 8.

Furthermore, because the agency violated the Rehabilitation Act, we find that the

appellant has established his disability discrimination claim. 3 See Evans,

107 M.S.P.R. 484, ¶ 16 (finding that the agency violated the Rehabilitation Act

when it asked a potential employee to disclose the medications he was taking

prior to extending a job offer to him and that this violation constituted

discrimination based on disability); Clark, 2001 WL 1526433, at *3-*5 (finding

that the agency discriminated against the employee by requiring him to undergo a

fitness-for-duty examination without showing that such examination was

job-related or consistent with business necessity in violation of the Rehabilitation

Act).

¶19 On review, the appellant reasserts his claims that the agency subjected him

to status-based disability discrimination and failed to accommodate his medical

conditions of anxiety disorder and asthma. PFR File, Tab 1 at 6 -8, 10. The

administrative judge found that the Board lacks jurisdiction over these claims

The ADA’s restrictions on disability-related inquiries and medical examinations apply

to individuals both with and without disabilities. Archerda, 121 M.S.P.R. 314, ¶ 31.

Therefore, the appellant is protected by these restrictions regardless of whether he

qualifies as disabled within the meaning of the ADA.

and, alternatively, that the appellant failed to prove them. ID at 32 n.2. In light

of our finding that the appellant proved Board jurisdiction over his constructive

suspension, the Board has jurisdiction over these claims. However, we find it

unnecessary to separately address them. We already have found the agency’s

actions discriminatory, and therefore wrongful, based on its improper medical

inquiry. Under the particular facts of this case, we discern no basis on which the

appellant could seek additional damages for these claims, and thus decline to

address these other theories of liability. See Cerge v. Department of Homeland

Security, EEOC Request No. 0520080093, 2008 WL 559447, *2 (Feb. 20, 2008)

(explaining that compensatory damages were available to a complainant who was

sent to a fitness-for-duty examination that was not job-related or consistent with

business necessity). Because we have found in the appellant’s favor on the issues

of the constructive suspension and disability discrimination, we need not address

the appellant’s remaining allegations of error by the administrative judge. 4 See

Coltrane v. Department of the Army, 25 M.S.P.R. 397, 403 n.9 (1984).

ORDER

¶20 We ORDER the agency to cancel the appellant’s constructive suspension

effective January 12 through March 20, 2017. See Kerr v. National Endowment

for the Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency must complete this

action no later than 20 days after the date of this decision.

¶21 We also ORDER the agency to pay the appellant the correct amount of back

pay, interest on back pay, and other benefits under the Back Pay Act and/or Postal

To the extent that, for the first time on review, the appellant asserts that the agency

violated his return-to-work rights under 5 C.F.R. § 825.214, PFR File, Tab 1 at 9-10, we

decline to consider this new argument on review, Banks v. Department of the Air Force,

4 M.S.P.R. 268, 271 (1980) (explaining that the Board generally will not consider an

argument raised for the first time in a petition for review absent a showing that it is

based on new and material evidence not previously available despite the party’s due

diligence).

Service Regulations, as appropriate, no later than 60 calendar days after the date

of this decision. We ORDER the appellant to cooperate in good faith in the

agency’s efforts to calculate the amount of back pay, interest, and benefits due,

and to provide all necessary information the agency requests to help it carry out

the Board’s Order. If there is a dispute about the amount of back pay, interest

due, and/or other benefits, we ORDER the agency to pay the appellant the

undisputed amount no later than 60 calendar days after the date of this decision.

¶22 We further ORDER the agency to tell the appellant promptly in writ ing

when it believes it has fully carried out the Board’s Order and of the actions it has

taken to carry out the Board’s Order. The appellant, if not notified, should ask

the agency about its progress. See 5 C.F.R. § 1201.181(b).

¶23 No later than 30 days after the agency tells the appellant that it has fully

carried out the Board’s Order, the appellant may file a petition for enforcement

with the office that issued the initial decision on this appeal if the appellant

believes that the agency did not fully carry out the Board’s Order. The petition

should contain specific reasons why the appellant believes that the agency has not

fully carried out the Board’s Order, and should include the da tes and results of

any communications with the agency. 5 C.F.R. § 1201.182(a).

¶24 For agencies whose payroll is administered by either the National Finance

Center of the Department of Agriculture (NFC) or the Defense Finance and

Accounting Service (DFAS), two lists of the information and documentation

necessary to process payments and adjustments resulting from a Board decision

are attached. The agency is ORDERED to timely provide DFAS or NFC with all

documentation necessary to process payments and adjustments resulting from the

Board’s decision in accordance with the attached lists so that payment can be

made within the 60-day period set forth above.

¶25 This is the final decision of the Merit Systems Protection Board in this

appeal. Title 5 of the Code of Federal Regulations, section 1201.113 ( 5 C.F.R.

§ 1201.113).

NOTICE TO THE APPELLANT

REGARDING YOUR RIGHT TO REQUEST

ATTORNEY FEES AND COSTS

You may be entitled to be paid by the agency for your reasonable attorney

fees and costs. To be paid, you must meet the requirements set out at title 5 of

the United States Code (U.S.C.), sections 7701(g), 1221(g), or 1214(g). The

regulations may be found at 5 C.F.R. §§ 1201.201, 1202.202, and 1201.203. If

you believe you meet these requirements, you must file a motion for attorney fees

and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.

You must file your motion for attorney fees and costs with the office that issued

the initial decision on your appeal.

NOTICE TO THE APPELLANT

REGARDING YOUR RIGHT TO REQUEST

COMPENSATORY DAMAGES

You may be entitled to be paid by the agency for your compensatory

damages, including pecuniary losses, future pecuniary losses, and nonpecuniary

losses, such as emotional pain, suffering, inconvenience, mental anguish, and loss

of enjoyment of life. To be paid, you must meet the requirements set out at

42 U.S.C. § 1981a. The regulations may be found at 5 C.F.R. §§ 1201.201,

1201.202, and 1201.204. If you believe you meet these requirements, you must

file a motion for compensatory damages WITHIN 60 CALENDAR DAYS OF

THE DATE OF THIS DECISION. You must file your motion with the office that

issued the initial decision on your appeal.

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

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:

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.

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. ____ , 137 S. Ct. 1975 (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 a ny court

of appeals of competent jurisdiction. 6 The court of appeals must receive your

petition for 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