Nicholas S. Trobovic v. Merit Systems Protection Board , 232 F. App'x 958 ( 2007 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2006-3341
NICHOLAS S. TROBOVIC,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent,
and
GENERAL SERVICES ADMINISTRATION,
Intervenor.
Nicholas S. Trobovic, of Berwyn, Pennsylvania, pro se.
Michael A. Carney, General Attorney, Office of the General Counsel, Merit
Systems Protection Board, of Washington, DC, for respondent. With him on the brief
were B. Chad Bungard, General Counsel, and Rosa M. Koppel, Deputy General
Counsel.
Robert E. Chandler, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for intervenor. With him on
the brief were Peter D. Keisler, Assistant Attorney General, David M. Cohen, Director,
and Todd M. Hughes, Assistant Director.
Appealed from: United States Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2006-3341
NICHOLAS S. TROBOVIC,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent,
and
GENERAL SERVICES ADMINISTRATION,
Intervenor.
___________________________
DECIDED: April 6, 2007
___________________________
Before BRYSON, Circuit Judge, PLAGER, Senior Circuit Judge, and GAJARSA, Circuit
Judge.
PER CURIAM.
Nicholas S. Trobovic was employed by the General Services Administration
(“GSA”) as a building management specialist at the Peter Rodino Federal Building in
Newark, New Jersey. He appealed to the Merit Systems Protection Board from an
alleged constructive suspension. The Board dismissed his appeal for failure to make
nonfrivolous allegations sufficient, if proved, to establish its jurisdiction. Mr. Trobovic
petitions for review of that decision. We vacate and remand.
I
The Merit Systems Protection Board has jurisdiction to hear appeals from
specific personnel actions and decisions. One such action is a suspension for more
than 14 days. 5 U.S.C. §§ 7701(a), 7512(d), 7513(a), (d). A suspension is defined as
“the placing of an employee, for disciplinary reasons, in a temporary status without
duties or pay.” Id. §§ 7511(a)(2), 7501(2). Our cases have recognized that even if an
employee has not been formally suspended, the employer’s imposition of personnel
actions that result in the loss of duties and pay may constitute a constructive
suspension and that such a constructive suspension is within the Board’s jurisdiction.
E.g., Pittman v. Merit Sys. Prot. Bd., 832 F.2d 598 (Fed. Cir. 1987); Mercer v. Dep’t of
Health & Human Servs., 772 F.2d 858 (Fed. Cir. 1985). To qualify as a constructive
suspension, such a personnel action must result from an employer’s conduct that
denies the employee duties and pay, not from conduct by the employee. Perez v. Merit
Sys. Prot. Bd., 931 F.2d 853, 855 (Fed. Cir. 1991). Thus, in cases concerning the
denial of pay and duties resulting from an employee’s absence from work, “the
dispositive inquiry in determining whether there has been a ‘suspension’ for purposes of
[MSPB jurisdiction] is whether the employee’s absence from the agency was voluntary
or involuntary.” Holloway v. U.S. Postal Serv., 993 F.2d 219, 221 (Fed. Cir. 1993).
The administrative judge to whom this case was assigned was concerned that
the Board might not have jurisdiction over this appeal because there was no suspension
of more than 14 days. The administrative judge therefore ordered Mr. Trobovic to file
affidavits or other evidence to show that the Board had jurisdiction over his appeal.
2006-3341 2
In response to the administrative judge’s order, Mr. Trobovic alleged that four
distinct actions caused his constructive suspension: (1) being barred from his
workplace, (2) being placed in absent without leave (“AWOL”) status, (3) being
subjected to a hostile work environment, and (4) being denied work that would
accommodate his disabilities. The administrative judge ruled that Mr. Trobovic had not
made any nonfrivolous allegations that would establish the Board’s jurisdiction over the
appeal. The administrative judge therefore denied Mr. Trobovic a jurisdictional hearing
and dismissed Mr. Trobovic’s appeal. That initial decision became the final decision of
the Board when the full Board denied Mr. Trobovic’s petition for review.
Mr. Trobovic petitions for review and argues that the Board erred in its
conclusions. We review without deference the question whether a federal employee
made nonfrivolous allegations of fact sufficient to establish the Board’s jurisdiction.
Coradeschi v. Dep’t of Homeland Sec., 439 F.3d 1329, 1332 (Fed. Cir. 2006).
II
The administrative judge first addressed Mr. Trobovic’s allegation that he had
been barred from his workplace for more than 14 days. If that allegation were proved, it
would establish that Mr. Trobovic’s absence from work was involuntary and that
maintaining Mr. Trobovic in nonpay, nonduty AWOL status for failing to report for work
was a constructive suspension.
The administrative judge held that Mr. Trobovic failed to make nonfrivolous
allegations that he had been barred from his workplace. We disagree. On September
28, 2005, Mr. Trobovic filed a response to the administrative judge’s order to show that
the Board had jurisdiction. In that pleading, Mr. Trobovic stated that in late July 2005,
2006-3341 3
he learned that his supervisor, GSA official Lloyd Wallace, had barred him from entering
the federal building that is his workplace. He stated that he believed the bar was in
retaliation for making protected disclosures under 5 U.S.C. § 2302(b)(8) to senior GSA
officials. The question whether a person has been barred from entering his or her
workplace is not the sort of complex ultimate fact that needs more substantiation than
Mr. Trobovic provided to be meaningfully evaluated for frivolousness. The allegation is
not inherently implausible and cannot fairly be deemed frivolous.
In response to that allegation, the GSA submitted an email from Mr. Wallace
dated September 13, 2005, which informed Mr. Trobovic that he had never been barred
from the building during normal working hours. The administrative judge apparently
credited that email, or a declaration reciting its contents, as true. But that determination
should have been reserved pending a jurisdictional hearing at which the administrative
judge would have an opportunity to weigh and assess the credibility of the evidence.
Because Mr. Trobovic had made a nonfrivolous factual allegation that would establish
the Board’s jurisdiction if true, the administrative judge erred in denying Mr. Trobovic’s
request for a hearing. Garcia v. Dep’t of Homeland Sec., 437 F.3d 1322, 1330 (Fed.
Cir. 2006) (en banc). We therefore vacate the Board’s decision and remand for a
hearing on Mr. Trobovic’s claim that he was constructively suspended by being
excluded from his workplace.
The danger of prematurely weighing evidence is illustrated here by the strength
lent to Mr. Trobovic’s allegation by new evidence that he discovered through a Freedom
of Information Act request. The GSA now acknowledges that it should have disclosed
2006-3341 4
that information to Mr. Trobovic. 1 That evidence is in the form of communications to
and from Mr. Trobovic’s supervisor, Mr. Wallace. First, in an email dated August 12,
2005, Mr. Wallace asked the head of building security to “[p]lease direct your security
staffs at the building entry points and guard booths that Nick [Trobovic] is not to be
allowed access unless he has written authorization from me or Jerry Gibson.” Second,
a handwritten note dated September 6, 2005, reflected a call from Mr. Trobovic to Mr.
Wallace “trying to get in the building.” Third, in an email dated September 12, 2005, Mr.
Wallace informed the head of building security that “Nick Trobovic’s access card has
been re-activated effective today” and that “[w]ith proper GSA ID, [Mr. Trobovic] is to be
allowed access to the building during normal operating hours.” Those emails may turn
out to substantiate Mr. Trobovic’s allegation that he was denied access to his workplace
not just after normal working hours, but also during normal working hours.
III
The administrative judge next addressed Mr. Trobovic’s allegation that the
decision to place him on AWOL status was a constructive suspension. The
administrative judge determined that the AWOL classification was a result of Mr.
Trobovic’s choice to absent himself from work without leave and therefore was not a
constructive suspension.
On appeal, Mr. Trobovic argues that he was absent from his job when he was
placed in AWOL status because of a traumatic injury that kept him from working. In
Pittman v. Merit Systems Protection Board, 832 F.2d 598 (Fed. Cir. 1987), we held that
1
The GSA has intervened in this proceeding and has requested a remand so
that the Board may consider Mr. Trobovic’s new evidence regarding his claim of forced
exclusion from the workplace. The Board does not oppose the remand request.
2006-3341 5
the Board had jurisdiction to review an agency’s decision to place an employee in
nonpay, nonduty status because that action was taken on account of the employee’s
physical incapacity. Id. at 600. The Board, however, argues that the present case is
more accurately compared to Perez v. Merit Systems Protection Board, 931 F.2d 853(Fed. Cir. 1991). There, we explained that Pittman is limited to situations in which the
agency acknowledges the employee’s physical inability to work; in such a case, the
denial of pay and duties is not deemed to be result of the employee’s voluntary conduct.
Id. at 855. In Perez, by contrast, the agency placed an absentee employee on nonpay,
nonduty status because the employee did not provide satisfactory medical
documentation of his inability to work. Id. at 854. We held that on those facts the
suspension of pay was due to the employee’s choice not to either return to work or
furnish sufficient medical documentation excusing his absence. Accordingly, we found
that there was no constructive suspension and no basis for the Board to review the
suspension of pay. Id. at 855.
Our holding in Perez covered even the period during which the agency was
evaluating the employee’s medical documentation. 931 F.2d at 854. Similarly, in
Holloway v. United States Postal Service, we applied Perez to the 27-day-plus period
during which the agency was considering the employee’s submitted medical opinion
documenting his incapacity. 993 F.2d 219, 221–22 (Fed. Cir. 1993). As we noted in
Holloway, however, the Board found the agency’s ultimate rejection of the employee’s
medical documentation to be without error. Id. at 221. And in Perez, we simply stated
that the employee’s medical documentation of his incapacity to work “was
2006-3341 6
unsatisfactory,” apparently reciting the agency’s unchallenged conclusion to that effect.
931 F.2d at 855.
Here, Mr. Trobovic alleges two facts that would distinguish his case from Perez
and Holloway. First, he alleges that the GSA’s rejection of his medical documentation
of his inability to work was erroneous because he had provided “sufficient medical
documentation to justify being placed in an approved leave status.” But unlike the
relatively straightforward question whether Mr. Trobovic was denied access to his
workplace during normal working hours, the question whether the GSA erred in finding
insufficient Mr. Trobovic’s medical evidence of his inability to work is an ultimate fact
requiring complex subsidiary factfinding. We therefore agree with the administrative
judge that Mr. Trobovic’s conclusory allegation of GSA error, without more, cannot be
deemed nonfrivolous. Thus, the administrative judge properly dismissed that allegation
as a basis for establishing the Board’s jurisdiction. Cf. Briscoe v. Dep’t of Veterans
Affairs, 55 F.3d 1571, 1573 (Fed. Cir. 1995) (“Although an appellant need not prove her
entire case before she is entitled to a hearing, the board may request sufficient
evidence to determine if, in the first instance, there is any support for what otherwise
might be bald allegations.”).
Second, Mr. Trobovic alleges that the GSA deliberately failed to consider his
medical documentation for 71 days. It may be that an agency can constructively
suspend an employee on nonpay, nonduty status by failing to evaluate the employee’s
medical documentation of his inability to work if the period of delay is so lengthy as to
show a deliberate delay. We hold, however, that the alleged 71-day delay in this case
2006-3341 7
does not rise to that level. The administrative judge did not err in dismissing this
allegation as a basis for establishing the Board’s jurisdiction.
IV
The administrative judge next addressed Mr. Trobovic’s allegation that a hostile
work environment forced him to absent himself from his workplace and therefore led to
his placement in nonpay, nonduty status. In response to the administrative judge’s
order to show cause for finding Board jurisdiction, Mr. Trobovic submitted a sworn
pleading setting forth several attributes of his work environment. Specifically, Mr.
Trobovic alleged that he had an unmanageable workload; that his supervisor, Mr.
Wallace, gave a promotion to another employee instead of Mr. Trobovic; that a co-
worker used insulting language to refer to him in the presence of other co-workers and
contractors; that Mr. Wallace accused Mr. Trobovic of criminal activity at the behest of
disgruntled members of the charitable organization on whose board Mr. Trobovic
serves; and that Mr. Wallace humiliated Mr. Trobovic by directing him “to report to non-
supervisory co-workers and/or contract employees.”
The administrative judge did not address any of those allegations. Rather, the
administrative judge picked out Mr. Trobovic’s introductory statement that he intended
to demonstrate a hostile work environment and rested at finding that statement
conclusory. That failure to examine Mr. Trobovic’s specific factual allegations was
improper. Garcia, 437 F.3d at 1344 (“[I]f indeed the administrative judge decided that
Ms. Garcia’s allegations were frivolous, this court requires that the Board further
elaborate on its decision by providing some specificity.”).
2006-3341 8
Nonetheless, we find that the Board’s dismissal was proper on another basis:
The alleged facts do not rise to the level of working conditions so intolerable that “a
reasonable person confronted with the same circumstances would feel coerced” into
leaving the workplace. The conduct that Mr. Trobovic identifies, while regrettable if it
occurred, is not sufficiently severe or pervasive to satisfy the demanding legal standard
of proving that the GSA intentionally created a hostile work environment that would
have coerced an employee in Mr. Trobovic’s circumstances to absent himself from
work. See Garcia, 437 F.3d at 1329 (“[T]he doctrine of coercive involuntariness is a
narrow one[,] requiring that the employee satisfy a demanding legal standard.”
(quotation marks omitted)); cf. Williams v. Giant Food Inc., 370 F.3d 423, 434 (4th Cir.
2004) (holding that working conditions were not intolerable to the point of coercion
where “supervisors yelled at employee, told her she was a poor manager, gave her poor
performance evaluations, chastised her in front of customers, and once required her to
work with an injured back”); Breeding v. Arthur J. Gallagher & Co., 164 F.3d 1151,
1159–60 (8th Cir. 1999) (stating that “a feeling of being unfairly criticized or having to
endure difficult or unpleasant working conditions” would not coerce an employee to
leave a workplace, even where the unpleasantness involved a supervisor fondling his
genitals in front of the employee and using inappropriate language with her).
V
Next, Mr. Trobovic argues that the GSA constructively suspended him once he
was on AWOL status by refusing his requests to return to work. “If an employee who
initiated his own absence from work requests to return to work within certain medical
restrictions, and if the agency is bound by agency policy, regulation, or contractual
2006-3341 9
provision to offer available light-duty work to such an employee, the employee’s
continued absence constitutes a constructive suspension appealable to the Board if the
agency fails to offer the employee any available light-duty work.” Schultz v. U.S. Postal
Serv., 78 M.S.P.R. 159, 163 (1998). Mr. Trobovic asserted before the administrative
judge that the Rehabilitation Act of 1973 requires the agency to offer available light-duty
work accommodating his medical restrictions.
The administrative judge found that “the record clearly shows that the appellant
has never requested to return to work since he initiated his absence on June 17, 2005.”
Instead, the administrative judge found, Mr. Trobovic’s own submissions made clear
that he “remained out of work based on his claim that he is unable to work due to a
traumatic injury.”
Mr. Trobovic alleged before the Board that he requested a rearranged schedule
but did not state when he requested it. Further, Mr. Trobovic submitted an EEO report
to the Board indicating that his supervisor, Mr. Wallace, had previously considered a
requested accommodation allowing him to work past 6:00 p.m. but found that
accommodation unavailable because “it would be too costly to run the building for one
or two employees and in accordance with the union contract, employees are not
allowed to work beyond six p.m.” In his pleadings before the Board, Mr. Trobovic did
not allege that work under the modified schedule he requested was available. Nor did
Mr. Trobovic allege that Mr. Wallace was incorrect in explaining why light-duty work was
unavailable. In order for a refusal to allow an employee to return to light-duty work to be
a constructive suspension, that light-duty work must be available. Schultz, 78 M.S.P.R.
at 163. In light of that defect, we hold that Mr. Trobovic has not articulated facts that
2006-3341 10
would show a constructive suspension, and thus the administrative judge properly
dismissed the alleged denial of accommodation as a basis for finding Board jurisdiction.
VI
Finally, Mr. Trobovic asserts that his appeal before the Board should have been
treated as a “restoration to duty” appeal over which the Board had jurisdiction. Mr.
Trobovic did not make that argument before the Board and therefore may not raise it
here. Cecil v. Dep’t of Transp., 767 F.2d 892, 894 (Fed. Cir. 1985).
* * * * *
In summary, we vacate and remand on Mr. Trobovic’s claim that he was
constructively suspended by being excluded from his workplace, but we reject the
remainder of his challenges to the Board’s decision.
2006-3341 11