MSPB takes on leave-related unpleasant choices

Neil McPhie is Director of Legal Services for Tully Rinckey PLLC.

No one likes having to make unpleasant choices. People facing such choices often find themselves in a lose-lose situation. But recent years have seen the Merit System Protection Board (MSPB) make great strides in ensuring certain federal employees, particularly those who have had to choose between taking leave or working outside of their medical restrictions, do not have to choose between such unpleasant options.

While I was MSPB chairman, the Board heard Johnson v. U.S. Postal Service (2009). The appellant in this case was a mail handler with back and knee problems to whom the agency initially granted light-duty within his medical restrictions. When his conditions worsened to the point where he could no longer perform his duties, he went on leave and later requested to return to work with light-work duties within a new set of medical restrictions. A plant manager denied this request because there was “no productive work available” within the new medical restrictions. Due to an administrative error, the appellant was granted a 26-day light-duty assignment, which the plant manager, who under a collective bargaining agreement had final say on all requests for light duty, later terminated.

The MSPB judge in Johnson found the termination of the temporary light-duty assignment constituted a 26-day constructive suspension, because he was not allowed to complete the assignment and it was terminated without notice or an opportunity to respond. But the Board disagreed, saying, “though the agency terminated the appellant’s light-duty assignment, it did not prevent him from returning to work in his regular duties.” It further noted “[t]he appellant was faced with the unpleasant alternatives of returning to work with duties outside his medical restrictions, or requesting leave...The appellant’s decision not to return to his regular duties or to his…light-duty work, however unpleasant, was nonetheless voluntary.”

Three years later, in Bean v. U.S. Postal Service (2012), an MSPB judge, relied on Johnson’s unpleasant choices premise to dismiss the case. The appellant, a mail handler who suffered from post-traumatic stress disorder that was exacerbated by darkness, took sick leave, annual leave and leave without pay after the agency put him on a nighttime shift. “[S]uch circumstances, however unpleasant, [do]not to render involuntary an employee’s decision not to come to work,” the MSPB judge said.

On appeal, however, the Board in Bean v. U.S. Postal Service (2013) rejected the prior Board’s reasoning in Johnson and the MSPB judge’s findings that relied on that case. Noting how constructive suspension cases hinge on the employee’s lack of a “meaningful choice” and improper agency action, the Board said “it is easy to make the mistake of treating that [voluntariness]as the only issue in the appeal and of examining all of facets of a case under that lens—even the ones that relate only to agency culpability.” The Board then said that in Johnson it appeared “the real reason for the dismissal was not that the absence was voluntary (it was not) but that it was not precipitated by an improper agency action.” After rejecting Johnson’s unpleasant choice premise, the Board refused to dismiss and remanded Bean. “[T]he 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,” the Board said.

Federal employees, however, should not interpret the Bean decision as allowing them to take leave and allege constructive suspension whenever they are confronted with unpleasant choices. For example, the appellant in Romero v. U.S. Postal Service (2014), a customer services supervisor, became absent because of chronic headaches. Although his absence was initially voluntary, it “arguably became involuntary” when the agency was not able to provide him with a position with a stable work schedule and in a work environment with minimal noise and stress. But the Board found this enforced leave did not constitute constructive suspension because there was no evidence of improper agency action. In fact, the Board said, “the agency worked diligently to find the appellant a position that met these restrictions.”

Despite the Bean decision, many federal employees with accommodation needs will doubtlessly continue to face unpleasant choices. They should consult with an experienced federal employment law attorney to learn if there are any pleasant, or at least bearable, alternatives.

Neil McPhie is the Director of Legal Services for Tully Rinckey PLLC and the former chairman of the U.S. Merit Systems Protection Board. He concentrates his practice in federal sector employment and labor law and can be reached at info@fedattorney.com.