Jermaine Lewis v. United States Postal Service

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JERMAINE ANTHONY LEWIS, DOCKET NUMBER

Appellant, DA-0752-16-0347-I-1

v.

UNITED STATES POSTAL SERVICE, DATE: June 28, 2022

Agency.

THIS ORDER IS NONPRECEDENTIAL 1

Gale R. Thames, Washington, D.C., for the appellant.

Yvette K. Bradley, Esquire, Dallas, Texas, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

REMAND ORDER

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

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

the reasons discussed below, we GRANT the appellant’s petition for re view and

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

REMAND the case to the regional office for further adjudication in accordance

with this Remand Order.

DISCUSSION OF ARGUMENTS ON REVIEW

¶2 The appellant is employed as a Carrier Technician by the agency. Initial

Appeal File (IAF), Tab 16 at 28. On November 4, 2015, he filed an appeal

claiming that the agency failed to restore him to duty after his physician cleared

him to return to work with restrictions. Lewis v. U.S. Postal Service, MSPB

Docket No. DA-0353-16-0073-I-1, Initial Decision (July 11, 2016). The

administrative judge issued a decision that dismissed the appeal for lack of

jurisdiction, finding that the appellant failed to raise a nonfrivolous allegation

that his absence was the result of a compensable injury. Id. During the

processing of that appeal, the appellant alleged that the agency improperly placed

him in a nonduty, nonpay status, and the administrative judge docketed those

allegations in the present appeal. IAF, Tab 1.

¶3 The administrative judge issued a jurisdictional order, advising the

appellant that his claim that the agency improperly placed him in a nonduty,

nonpay status may establish a constructive suspension appealable to the Board

under 5 U.S.C. §§ 7512(2) and 7513(d). IAF, Tab 3 at 3-4. She explained that an

employee’s continued absence constitutes a constructive suspension when an

involuntary absence occurs at the agency’s direction or when the following

conditions are met: (1) an employee, who had been absent from work due t o

medical restrictions, requests work within those restrictions; (2) the agency is

bound by an agency policy, regulation, or contractual provision to offer available

light-duty work to the employee; and (3) the agency fails to offer the employee

any available light-duty work. Id. at 3 (citing Hahn v. U.S. Postal Service,

86 M.S.P.R. 139, ¶ 6 (2000)). She further explained that, once an employee

makes a nonfrivolous allegation that he was able to work within certain

restrictions, that he communicated his willingness to work, and that the agency

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prevented him from returning to work, the burden then shift s to the agency to

show either that there was no work available within the employee’s restrictions or

that it offered such work to the employee, and he declined it. Id. In the order,

the administrative judge instructed the appellant to file evidence and argument in

support of his claim. Id. at 4. The appellant replied, arguing, among other

things, that the agency refused to allow him to return to work with

accommodation beginning in April 2013, despite his repeated requests. IAF,

Tabs 5, 8, 15, 17. He also submitted medical documentation dated 2012 through

2015, and provided both signed and unsigned statements on his behalf. IAF,

Tabs 7, 10-11, 14, 18.

¶4 In an initial decision issued without holding the requested hearing, the

administrative judge dismissed the appeal for lack of jurisdiction. IAF, Tabs 1,

19, Initial Decision (ID) at 2. She found that the appellant failed to raise a

nonfrivolous allegation that he was able to return to work to perform his normal

duties and that, as a result, his absence beginning April 10, 2013, did not

constitute a constructive suspension. ID at 5-7. The appellant has filed a petition

for review, and the agency has filed a response in opposition . Petition for Review

(PFR) File, Tabs 1, 3.

¶5 Prior to the issuance of the initial decision, the Board clarified its

jurisprudence regarding constructive suspension claims , such as alleged here, in

Bean v. U.S. Postal Service, 120 M.S.P.R. 397 (2013). In particular, the Board

noted that it has recognized several fact patterns that may give rise to an

involuntary constructive suspension and it therefore rejected as misleading the

statement in a line of Board cases (including Hahn on which the administrative

judge relied) that constructive suspensions arise in only two situations. Bean,

120 M.S.P.R. 397, ¶ 8 n.4; ID at 3. Instead, the Board held that, assuming the

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

following by preponderant evidence is sufficient to establish jurisdiction over a

constructive suspension claim: (1) the employee lacked a meaningful choice in

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the matter; and (2) it was the agency’s wrongful actions that deprived the

employee of that choice. Bean, 120 M.S.P.R. 397, ¶ 8; see Romero v. U.S. Postal

Service, 121 M.S.P.R. 606, ¶ 8 (2014) (applying the jurisdictional standard set

forth in Bean); see also Rosario-Fabregas v. Merit Systems Protection Board,

833 F.3d 1342, 1345-46 (Fed. Cir. 2016) (finding that the Board’s standard for

establishing jurisdiction in constructive suspension cases, as set forth in Romero,

is appropriate). If the appellant makes a nonfrivolous allegation of jurisdiction,

then he is entitled to a jurisdictional hearing. Barrand v. Department of Veterans

Affairs, 112 M.S.P.R. 210, ¶ 8 (2009). A nonfrivolous allegation of Board

jurisdiction is an allegation of fact that, if proven, could establish that the Board

has jurisdiction over the matter at issue. Ferdon v. U.S. Postal Service,

60 M.S.P.R. 325, 329 (1994); 5 C.F.R. § 1201.4(s).

¶6 An appellant must receive explicit information on what is required to

establish an appealable jurisdictional issue. Burgess v. Merit Systems Protection

Board, 758 F.2d 641, 643-44 (Fed. Cir. 1985). Here, the administrative judge did

not inform the appellant of the proper jurisdictional standard. IAF, Tab 3.

Further, neither the agency’s pleadings nor the initial decision properly placed the

appellant on notice of how to establish jurisdiction over his appeal. ID; IAF,

Tab 16; cf. Easterling v. U.S. Postal Service, 110 M.S.P.R. 41, ¶ 11 (2008)

(finding that an administrative judge’s failure to provide an appellant with proper

Burgess notice can be cured if the agency’s pleadings contain the notice that was

lacking or if the initial decision puts the appellant on notice of what he must do to

establish jurisdiction, thus affording him the opportunity to meet his

jurisdictional burden on review).

¶7 Moreover, the appellant made the following allegations in sworn statements

below: he has a service-connected medical disability of which the agency is

aware; the agency previously approved leave for his serious medical condition

under the Family and Medical Leave Act of 1993; one of his medical conditions

has been exacerbated as a direct result of his managers’ creation of a hostile work

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environment; he recovered sufficiently to return to work with accommodation; he

informed the agency of his desire to return to work and his request for

accommodation; he submitted medical documentation supporting his requests; the

agency failed to reasonably accommodate him; the agency refused to accept or

consider his medical documentation; the agency did not seek to have him

evaluated by one of its doctors to clarify its questions concerning his medical

conditions; and the agency refused to meaningfully engage in the interactive

process. 2 IAF, Tabs 5, 8, 15, 17. In addition, the appellant submitted the sworn

statement of his union representative that supports many of his assertions,

including those concerning the appellant’s medical documentation and the

agency’s involvement in the interactive process. IAF, Tab 14 at 7. We find that

the appellant’s allegations, if proven, could establish that he lacked a meaningful

choice in the matter and that it was the agency’s improper actions that deprived

him of that choice. See Bean, 120 M.S.P.R. 397, ¶ 8. The jurisdictional

prerequisites of chapter 75 otherwise appear to be satisfied because the appellant

is a preference-eligible U.S. Postal Service employee with 1 year of current

continuous service and his absence lasted for more than 14 days. IAF, Tabs 1, 5,

15, 17; see 5 U.S.C. §§ 7511(a)(1)(B)(ii), 7512(2). Therefore, we find that the

appellant has made a nonfrivolous allegation that he was subjected to an

appealable constructive suspension under the clarified standard set forth in Bean.

¶8 Accordingly, we remand this appeal for a jurisdictional hearing to afford the

appellant an opportunity to prove jurisdiction over his constructive suspension

claim after providing him with clear notice of the elements and burdens of proo f

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The appellant claims that he submitted medical documentation to the agency showing

that he has recovered sufficiently to return to work with accommodation and that his

“medical professionals could not have stated it any clearer ‘[the appellant] is able to

perform the duties of his job with accommodations.’” IAF, Tab 17 at 4 (quoting alleged

medical professionals). However, we agree with the administrative judge’s finding that

the appellant failed to submit below any medical documentation to prove that he indeed

was cleared to work or what restrictions his physicians had imposed. ID at 6.

Therefore, the appellant must submit this medical documentation on remand.

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of such a claim. See Bean, 120 M.S.P.R. 397, ¶ 14 (remanding a constructive

suspension appeal for a jurisdictional hearing) ; Sage v. Department of the Army,

108 M.S.P.R. 398, ¶¶ 7, 9 (2008) (remanding a constructive suspension appeal for

proper Burgess notice under the former jurisdictional standard).

ORDER

For the reasons discussed above, we remand this case to the regional office

for further adjudication in accordance with this Remand Order.

FOR THE BOARD: /s/ for

Jennifer Everling

Acting Clerk of the Board

Washington, D.C.