Fields v. Merit Systems Protection Board , 544 F. App'x 981 ( 2013 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
KEITH ANDREW FIELDS,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent,
AND
UNITED STATES POSTAL SERVICE,
Intervenor.
______________________
2013-3132
______________________
Petition for review of the Merit Systems Protection
Board in No. PH0752090568-B-2.
______________________
Decided: November 8, 2013
______________________
KEITH ANDREW FIELDS, of Marion, North Carolina, pro
se.
KATHERINE M. SMITH, Attorney, Office of the General
Counsel, Merit Systems Protection Board, of Washington,
2 FIELDS v. MSPB
DC, for respondent. With her on the brief was BRYAN G.
POLISUK, General Counsel.
KATY M. BARTELMA, Trial Attorney, Civil Division,
Commercial Litigation Branch, United States Department
of Justice, of Washington, DC, for intervenor. With her on
the brief were STUART F. DELERY, Assistant Attorney
General, JEANNE E. DAVIDSON, Director, and PATRICIA M.
MCCARTHY, Assistant Director.
______________________
Before MOORE, CLEVENGER, and REYNA, Circuit Judges.
PER CURIAM.
Keith A. Fields appeals from the decision of the Merit
Systems Protection Board (Board) dismissing his appeal
of a constructive suspension claim for lack of jurisdiction.
For the reasons stated below, we affirm.
BACKGROUND
In 2007, the United States Postal Service (Postal Ser-
vice) placed Mr. Fields on off-duty status without pay
from his position as a mail processing clerk. Mr. Fields
filed a grievance, and the parties settled in arbitration in
2008. Pursuant to the settlement agreement, the Postal
Service sent Mr. Fields a letter instructing him either to
return to duty with documentation to substantiate his
absence, or provide current medical documentation ex-
plaining why he could not return. The letter stated that
failure to comply would result in Mr. Fields being consid-
ered absent without leave (AWOL). Mr. Fields did not
return to duty and did not provide the requested docu-
mentation. Throughout 2008 and 2009, in two live meet-
ings and via additional letters, the Postal Service again
requested updated information. No response to these
requests appears in the record.
FIELDS v. MSPB 3
In 2009, because he continued to fail to report to
work, the Postal Service proposed to charge Mr. Fields
with AWOL status. In response, Mr. Fields’ union repre-
sentative provided medical documents dated September
2007. The Postal Service rejected those documents as
outdated because the absences at issue began in mid-
2008, and it removed Mr. Fields from his position. After
his removal, Mr. Fields provided a letter from a physician
dated June 23, 2009. That letter described Mr. Fields’
medical state, but it did not address why he had been
continually absent from work, as the Postal Service
requested. The Postal Service maintained the removal.
Mr. Fields appealed to the Board, arguing that the
Postal Service constructively suspended him by involun-
tarily removing him from duty for more than fourteen
days without pay. The Administrative Judge (AJ) found
that Mr. Fields had not proven by a preponderance of the
evidence that the Board had jurisdiction over the con-
structive suspension claim and dismissed the appeal. See
Fields v. U.S. Postal Serv., No. PH-0752-09-0568-B-2, slip
op. at 7 (M.S.P.B. July 5, 2012) (Initial Decision). Specifi-
cally, the AJ found that the Postal Service’s request for
updated medical information was reasonable, and that
Mr. Fields undisputedly failed to comply, making his
absence voluntary. Id. at 7–8. The AJ also dismissed Mr.
Fields’ separate allegation of employment discrimination
because jurisdiction over that claim depended on having
jurisdiction over the constructive suspension claim. Id. at
9–10.
Mr. Fields petitioned the Board for review. The Board
agreed with the AJ that Mr. Fields failed to establish
jurisdiction by a preponderance of the evidence and
affirmed. See Fields v. U.S. Postal Serv., No. PH-0752-09-
0568-B-2, slip op. at 2–3 (M.S.P.B. May 16, 2013). It
rejected Mr. Fields’ argument that the Postal Service had
an obligation to obtain a medical examination for him
because he had not filed the requests necessary to trigger
4 FIELDS v. MSPB
that obligation. Id. at 2. Mr. Fields appeals. We have
jurisdiction under 28 U.S.C. § 1295(a)(9).
DISCUSSION
Whether the Board has jurisdiction over an appeal is
a question of law that we review de novo. Johnston v.
Merit Sys. Prot. Bd., 518 F.3d 905, 909 (Fed. Cir. 2008).
We review the Board’s factual findings underlying juris-
diction for substantial evidence. Bolton v. Merit Sys. Prot.
Bd., 154 F.3d 1313, 1316 (Fed. Cir. 1998). The claimant
must prove that the Board has jurisdiction over a con-
structive suspension claim by a preponderance of the
evidence, which requires establishing that his absence
from work was involuntary and due to agency action. 5
C.F.R. 1201.56(2)(i); Garcia v. Dep’t of Homeland Sec., 437
F.3d 1322, 1344 (Fed. Cir. 2006) (en banc). The Board
lacks jurisdiction over a discrimination claim unless it is
alleged along with another claim over which the Board
has jurisdiction. Garcia, 473 F.3d at 1342–43.
Mr. Fields argues that the Board had jurisdiction over
his constructive suspension claim. He argues that the
Postal Service ordered him off premises and did not allow
him to return, necessarily making his absence involun-
tary. He argues that he informed the Postal Service that
he was ready, willing, and able to work in a limited duty
capacity with certain accommodations, which the Postal
Service allegedly refused. He also argues that we should
remand his case to the Board for adjudication of his
employment discrimination claim.
We agree with the government that the Board lacked
jurisdiction over Mr. Fields’ constructive suspension
claim. Where a claimant “failed to comply in a timely
fashion with repeated instructions to return to work or
submit additional documentation,” it was the claimant’s
“choice, not the agency’s, to remain away from work.”
Perez v. Merit Sys. Prot. Bd., 931 F.2d 853, 855 (Fed. Cir.
1991). Under those circumstances, there is “not a con-
FIELDS v. MSPB 5
structive suspension or other agency action appealable to
the [Board].” Id.We agree with the government that substantial evi-
dence supports that Mr. Fields failed to timely comply
with the Postal Service’s requests. There is no dispute
that the only document timely provided to the Postal
Service was a September 2007 medical record. As the
Board found, however, the Postal Service reasonably
rejected this document as out of date because Mr. Fields
was required to substantiate absences that began not
until mid-2008. See Initial Decision, at 7. Mr. Fields
submitted the June 23, 2009 physician’s letter only after
his removal, and that letter did not indicate that Mr.
Fields had been unable to report to work due to a medical
condition.
Mr. Fields’ argument that he could not have been vol-
untarily absent because the Postal Service ordered him off
the premises fails. Mr. Fields was ordered off-duty in
2007, and those events were the subject of a separate
grievance, which Mr. Fields settled in arbitration. The
constructive suspension claim stems from his absences
after settlement—at which time the Postal Service ex-
pressly instructed Mr. Fields to return to duty.
We agree with the Board that Mr. Fields did not prove
by a preponderance of the evidence that his absence from
duty was involuntary, and affirm the Board’s dismissal.
Because the Board’s jurisdiction over Mr. Fields’ employ-
ment discrimination claim depended on having jurisdic-
tion over his constructive suspension claim, we also affirm
the dismissal of that claim.
CONCLUSION
We have considered the remainder of Mr. Fields’ ar-
guments and do not find them to be persuasive.
AFFIRMED
6 FIELDS v. MSPB
COSTS
Each party shall bear its own costs.