Brandon Bruce v. Department of Health and Human Services

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

BRANDON SINCLAIR BRUCE, DOCKET NUMBER

Appellant, DC-0752-21-0022-I-2

v.

DEPARTMENT OF HEALTH AND DATE: April 14, 2022

HUMAN SERVICES,

Agency.

THIS ORDER IS NONPRECEDENTIAL 1

Brandon Sinclair Bruce, San Diego, California, pro se.

Sara M. Klayton, Esquire, Washington, D.C., for the agency.

BEFORE

Raymond A. Limon, Vice Chair

Tristan L. Leavitt, Member

REMAND ORDER

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

dismissed his constructive suspension appeal as moot. For the reasons discussed

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

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

decision, and REMAND the case to the regional office for further adjudication in

accordance with this Remand Order.

BACKGROUND

¶2 The parties to this appeal neglected to submit many of the primary

documents that would normally be found in an ably-prepared case file. In order

to determine what transpired, we have relied largely on copies of the equal

employment opportunity (EEO) and arbitration decisions that the parties

submitted below. Nevertheless, the material facts do not appear to be in dispute.

¶3 On January 26, 2014, the appellant was appointed to the position of

Regulatory Counsel in the agency’s Center of Tobacco Products. Bruce v.

Department of Health & Human Services, MSPB Docket No. DC-0752-21-0022-

I-2 (RAF), Tab 8 at 93. His official duty station was at the agen cy’s White Oak

Campus in Silver Spring, Maryland. RAF, Tab 10 at 12, 246, 282. The appellant

has various medical conditions. Bruce v. Department of Health & Human

Services, MSPB Docket No. DC-0752-21-0022-I-1 (IAF), Tab 1 at 16. He

requested accommodations prior to the date of his appointment and has been

receiving some form of accommodation ever since. Id. at 75.

¶4 Over time, developments in the appellant’s medical conditions required

some changes in his accommodations, most notably for full time telework from

his home in the Washington, D.C. area, beginning in June 2016. Id.; RAF, Tab 8

at 157. For health reasons, in or around August 2017, the appellant moved from

the Washington, D.C. area to San Diego, California. RAF, Tab 8 at 133, Tab 12

at 32. The agency approved the appellant’s request to telework full time from his

new home in San Diego for a period of 6 months, beginning November 12, 2017.

RAF, Tab 9 at 168. The agency informed the appellant that at the end of that

period, on May 14, 2018, he would need to return to duty at the White Oak

Campus. Id.

¶5 On April 25, 2018, the appellant contacted the agency and requested that his

temporary arrangement of teleworking from San Diego be made permanent. IAF,

Tab 1 at 36. On May 10, 2018, the agency denied the appellant’s request and

ordered him to return to duty at the White Oak Campus according to the terms of

the telework agreement. Id. at 37. The appellant did not report for duty as

directed but instead attempted to cover his absence with var ious forms of leave.

Id. at 38-40. Nevertheless, the appellant’s leave requests for May 22, 23, and 25,

2018, were denied, and he was carried in absence without leave (AWOL) status

on those dates. Id. at 26, 39. Soon thereafter, the appellant exhausted his leave

balance, and he began a lengthy period of AWOL, beginning June 5, 2018. Id.

at 26, 39-40. On July 11, 2018, the agency proposed the appellant’s removal

based on charges of AWOL, failure to follow leave-requesting procedures, and

failure to follow instructions. Id. at 17. The appellant was removed effective

December 1, 2018. Id. at 42.

¶6 Meanwhile, the appellant elected to contest his removal through negotiated

grievance procedures, and he filed multiple EEO complaints about various other

matters, including the agency’s denial of his request for accommodation through

telework from San Diego. In July 2019, an Equal Employment Opportunity

Commission (EEOC) administrative judge found that, in light of the permanent

nature of the appellant’s disability, the agency committed disability

discrimination by granting his telework request on less than a 2 -year basis. Id.

at 27, 76. On March 5, 2020, an arbitrator, relying in part on the EEOC

administrative judge’s finding of discrimination, issued a part ial opinion and

award, mitigating the appellant’s removal to a 5-day suspension. 2 Id. at 74-79.

¶7 On August 24, 2020, an EEOC administrative judge issued a prehearing

decision on three of the appellant’s other EEO complaints. IAF, Tab 1 at 24 -72.

Three of the claims encompassed in these complaints are directly relevant to the

2

The second partial award, dated July 20, 2020, concerned additional status quo ante

relief related specifically to the removal. IAF, Tab 1 at 80-82.

issues now before the Board. Id. at 24-27. Specifically, the appellant claimed

that the agency discriminated against him by (1) denying his requests for leave

for May 22, 23, and 25, 2018, and carrying him in AWOL status for those dates,

(2) subjecting him to a “‘de facto’ indefinite suspension,” when it placed him in a

nonduty status without due process beginning on May 14, 2018, and (3) carrying

him in AWOL status from June 5, 2018, forward. IAF, Tab 1 at 26-27; RAF,

Tab 8 at 157, Tab 7 at 23, 38-40, Tab 10 at 10-12.

¶8 On the first issue, the EEOC administrative judge found that the appellant

was properly considered AWOL on May 22, 23, and 25, 2018, and she granted

summary judgment in favor of the agency. IAF, Tab 1 at 56-58. On the second

issue, the EEOC administrative judge found that the appellant’s indefinite

suspension claim amounted to a mixed-case complaint not properly before her at

that stage of the proceedings, and she remanded the claim to the agency to issue a

new decision with Board appeal rights. Id. at 47-48. On the third issue, the

EEOC administrative judge granted summary judgment in favor of the appellant,

finding that the agency discriminated against him ba sed on disability when it

carried him in AWOL status beginning June 5, 2018. Id. at 68-71. After a

hearing on some remaining claims, the EEOC administrative judge issued a bench

decision, ordering among other things that the agency award the appellant pa y

and benefits for the period between May 21, 2018, and December 1, 2018, as well

as $60,000 in compensatory damages due to the physical and emotional

consequences of the agency’s failure to accommodate him during that period. 3

RAF, Tab 5 at 60-73.

¶9 As for the indefinite suspension claim on remand to the agency, the agency

identified the claim accepted for adjudication as whether it discriminated against

3

The EEOC administrative judge explicitly excluded relief for May 22, 23, and 25,

2018, because she had already found that the appellant was properly considered AWOL

on those dates. RAF, Tab 5 at 60. She also excluded relief for a period equivalent to

the 5-day suspension to which the arbitrator had mitigated the removal. Id.

the appellant based on race, sex, or disability, or retaliated against him for

protected activity when it “‘unlawfully’ forced him to serve a ‘De Facto’

indefinite suspension by classifying him in a Non-Duty status, without first

providing him ‘due process’ or an explanation for the Agency’s actions.” IAF,

Tab 1 at 9-10. On October 8, 2020, the agency issued a final decision finding no

discrimination and notifying the appellant of Board appeal rights. Id. at 9-22.

The appellant timely appealed that final agency decision to the Board and

requested a hearing. Id. at 1-8; see 5 C.F.R. § 1201.154(b).

¶10 The administrative judge conducted a status conference, during which the

appellant clarified “that he was appealing his placement on [AWOL] for an

extended period of time, which he alleged was tantamount to a constructive

suspension.” RAF, Tab 6 at 1. The agency raised the issue of mootness, arguing

that, in prior EEO and arbitration proceedings, the appellant had already obtained

all the relief that he could receive if he prevailed in his Boa rd appeal. Id. at 1-2.

The administrative judge provided the parties notice of the mootness issue, of the

appellant’s jurisdictional burden in his constructive suspension claim, and of

issues of res judicata and collateral estoppel that may be implicated by the prior

related proceedings. Id. at 1-7. She ordered the appellant to file evidence and

argument to show that the appeal is within the Board’s jurisdiction. Id. at 7.

¶11 After the parties responded, the administrative judge issued an initial

decision dismissing the appeal as moot. RAF, Tabs 7-14, Tab 16, Initial Decision

(ID). She found that the agency returned the appellant to the status quo ante with

respect to all of the AWOL dates at issue. ID at 6. She further found that the

agency had restored all of the leave that the appellant had expended in order to

avoid AWOL after May 21, 2018, and that the Board lacks the authority to restore

leave used prior to that date. ID at 7-8. The administrative judge also found that

the Board lacks the authority to grant relief for the tax liability that the appellant

incurred because of the back pay awards, to order compensatory damages in

addition to those ordered by the EEOC, to grant any injunctive or

forward-looking relief, or to adjudicate the appellant’ s due process claim absent

an otherwise appealable action. ID at 8-11.

¶12 The appellant has filed a petition for review, contesting some procedural

matters and arguing that the Board should allow an exception to the mootness

doctrine due to the agency’s ongoing acts of discrimination. Petition for Review

(PFR) File, Tab 1. The agency has filed a response. PFR File, Tab 3.

ANALYSIS

¶13 Mootness can arise at any stage of litigation, and an appeal will be

dismissed as moot where the appellant has obtained all of the relief he could have

obtained had he prevailed before the Board, or where there is no further relief the

Board can grant. Uhlig v. Department of Justice, 83 M.S.P.R. 29, ¶ 7 (1999). In

order to render an appeal moot, an agency must prove that it completely

rescinded its action, thereby returning the appellant to the status quo ante and not

leaving him in a worse position because of the rescission than he would have

been in if the matter had been adjudicated. Fernandez v. Department of Justice,

105 M.S.P.R. 443, ¶ 5 (2007).

¶14 This appeal concerns an alleged constructive suspension allegedly

beginning on May 14, 2018, which preceded the appellant’s removal. 4 IAF,

Tab 1 at 9-23; RAF, Tab 6 at 1-2, Tab 7 at 4. However, before determining

whether the appellant’s constructive suspension claim is moot, we must first

determine the dates that his claim encompasses. In the EEO proceedings, the

agency construed the appellant’s claim as encompassing only the periods during

4

The Board has jurisdiction to review an arbitrator’s final decision under 5 U.S.C.

§ 7121(d) when the subject matter of the grievance is one over which the Board has

jurisdiction and the appellant alleged EEO discrimination in connection with the

underlying action. Brookens v. Department of Labor, 120 M.S.P.R. 678, ¶ 4 (2014).

The appellant here has not sought additional relief for his removal in the context of the

instant appeal. Nor has he expressed dissatisfaction with the decision of the arbitrator.

Therefore, we have not interpreted his pleadings below or on review as requesting

review of the arbitration decision under 5 U.S.C. § 7121(d).

which the agency had previously carried him in AWOL status. IAF, Tab 1 at 10

n.2. In so doing, the agency disregarded the explicit language of the accepted

claim, i.e., that the agency had constructively suspended the appellant “by

classifying him in a Non-Duty status.” Id. at 10, 27. The agency explained that

“[w]hile the claim is framed as non-duty status, the proper characterization per

the proposed removal is [AWOL]. As such, all subsequent references in this final

agency decision will be to non-duty status, specifically, AWOL.” Id. at 10 n.2.

We are not satisfied with this explanation.

¶15 A “suspension” is the temporary placement of an employee in a nonpay,

nonduty status. Engler v. Department of the Army, 121 M.S.P.R. 547, ¶ 6

(2014). It is well settled that a constructive suspension may encompass not only

unpaid absences but periods of paid leave that an employee was forced to take

due to an improper agency action. E.g., Bean v. U.S. Postal Service,

120 M.S.P.R. 397, ¶ 14 (2013); Kaminsky v. Department of Health & Human

Services, 13 M.S.P.R. 397, 398-99 (1982). We find insufficient basis to restrict

the appellant’s constructive suspension claim to periods of only unpaid,

unapproved absences. Nor do we believe his claim is limited to the absences that

served as the basis of his proposed removal.

¶16 Indeed, the appellant has reconfirmed in this Board appeal that his

constructive suspension claim encompasses not only the periods in which he was

classified as AWOL, but the entire “six (6) months and seventeen (17) days” of

nonduty status leading up to the removal, i.e., the entire period during which he

was in nonduty status, beginning with the expiration of the telework agreement

on May 14, 2018. RAF, Tab 7 at 4, 23, 28. He explained that, in addition to the

periods of AWOL, he is seeking relief for the agency forcing him to use leave

that he did not intend to use, beginning April 25, 2018. Id. at 8, 21-22, 26.

¶17 With those parameters in mind, we proceed first to the issue of whether the

appellant made a nonfrivolous allegation of jurisdiction over a constructive

suspension. To establish Board jurisdiction over a constructive suspension

appeal, an appellant must show that (1) he lacked any meaningful choice but to

absent himself from work, and (2) it was the agency’s wrongful actions that

deprived him of that choice. Bean, 120 M.S.P.R. 397, ¶¶ 8, 13. The appellant

must also meet the other requirements of chapter 75 jurisdiction which , as

relevant here, are that he was an “employee” within the meaning of 5 U.S.C.

§ 7511(a)(1), and his suspension was for more than 14 days. Id., ¶ 8; see

5 U.S.C. § 7512(2).

¶18 In this case, it is undisputed that, during the time of the claimed

constructive suspension, the appellant was an “employee” under 5 U.S.C.

§ 7511(a)(1)(A). IAF, Tab 1. It is also undisputed that the appellant was

continuously absent from work from May 14, 2018, until his removal 6½ months

later. RAF, Tab 14 at 279-93. We further find that the appellant has made a

nonfrivolous allegation that he lacked a meaningful choice in this lengthy

absence. Specifically, after the agency discontinued his ability to telework, the

appellant was faced with the choice of being absent from work or returning to

duty at the White Oak Campus, which he alleges would have violated his medical

restrictions. IAF, Tab 1 at 37; see Bean, 120 M.S.P.R. 397, ¶¶ 13-14. We also

find a nonfrivolous allegation that the appellant was deprived of his choice

through a wrongful agency action because two different EEOC administrative

judges found that the agency’s refusal to allow the appellant to telework after

May 14, 2018, was discriminatory and a violation of the Rehabilitation Act of

1973. IAF, Tab 1 at 27, 68-71, 76. For these reasons, we find that the appellant

has made nonfrivolous allegations of Board jurisdiction over his constructive

suspension appeal.

¶19 We now turn to the issue of whether the appellant’s claim is moot. For the

reasons explained in the initial decision, we agree with the administrative judge

that the appellant has already received full relief for the period that he was

carried in AWOL status, from June 5 to December 1, 2018, including status quo

ante relief and compensatory damages arising from his claim of discrimination.

ID at 6-7, 9-10. We also find that, to the extent that the appellant did not receive

status quo ante relief for the other AWOL dates of May 22, 23, and 25, 2018, he

is precluded from litigating that issue before the Board. The EEOC, a tribunal of

competent jurisdiction, has already rendered a final judgment on the merits,

finding that the appellant was properly carried in AWOL status on those dates. 5

IAF, Tab 1 at 56-58; see Carson v. Department of Energy, 398 F.3d 1369, 1375

(Fed. Cir. 2005) (setting forth the elements of res judicata). Finally, the

administrative judge found the agency already restored all of the leave that the

appellant took beginning May 21, 2018, to avoid AWOL. ID at 8. However,

although the EEOC ordered the agency to award the appellant “back pay from the

time beginning May 21, 2018,” RAF, Tab 5 at 60, the agency’s records appear to

reflect that it did not restore the 10 hours of sick leave that the appellant took on

May 24, 2018, 6 RAF, Tab 14 at 278-82. Nor is there any indication that the

appellant has been compensated for the 40 hours of annual leave that he took at

the beginning of the alleged constructive suspension period, between May 14

and 17, 2018. Id. at 278-79.

¶20 For these reasons, we find that the appeal is not moot. If the appellant were

to prevail on the merits of his constructive suspension claim, the Board could

provide him additional relief by ordering the agency to restore the 10 hours of

sick leave and 40 hours of annual leave that the appellant took between May 14

and 24, 2018. See Borden v. Department of Justice, 59 M.S.P.R. 353, 357

(1993); Clements v. Department of the Navy, 21 M.S.P.R. 275, 277 & n.2 (1984).

Because the appellant has otherwise made a nonfrivolous allegation of Board

5

Regardless of what was required by the EEOC administrative judge’s orders, the

agency changed the appellant’s status on May 22, 23, and 25, 2018, from AWOL to

“excused absence,” but it is not clear whether the agency afforded the appellant back

pay and benefits for those dates. ID at 6 & n.4; RAF, Tab 14 at 279. In any event, we

find that the matter is immaterial to the issues in this appeal.

6

During the relevant time period, the appellant worked a compressed schedule of

10 hours per day, 4 days per week. RAF, Tab 9 at 168.

jurisdiction over his constructive suspension claim, he is entitled to the

jurisdictional hearing that he requested. See Moore v. U.S. Postal Service,

117 M.S.P.R. 84, ¶¶ 11-14 (2011); Holden v. U.S. Postal Service, 78 M.S.P.R.

420, 423 (1998).

ORDER

¶21 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.