Hall v. Merit Systems Protection Board , 495 F. App'x 41 ( 2012 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
RHODERICK D. HALL,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent,
and
UNITED STATES POSTAL SERVICE,
Intervenor.
__________________________
2012-3063
__________________________
Petition for review of the Merit Systems Protection
Board in case no. AT0752110116-I-1.
___________________________
Decided: August 14, 2012
___________________________
RHODERICK D. HALL, pro se, of Temple, Georgia, pro
se.
JEFFREY A. GAUGER, Attorney, Office of the General
Counsel, Merit Systems Protection Board, of Washington,
DC, for respondent. With him on the brief were JAMES M.
HALL v. MSPB 2
EISENMANN, General Counsel, and KEISHA DAWN BELL,
Deputy General Counsel.
RENEE A. GERBER, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, 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, and FRANKLIN E. WHITE,
JR. Assistant Director.
__________________________
Before PROST, O’MALLEY, and REYNA, Circuit Judges.
PER CURIAM.
Rhoderick D. Hall appeals the final order of the Merit
Systems Protection Board (“Board”) denying his petition
for review of the Administrative Judge’s (“AJ”) dismissal
of his constructive suspension claim for lack of jurisdic-
tion. Hall v. U.S. Postal Serv., 2011 MSPB LEXIS 6160
(Nov. 7, 2011) (“Final Order”); Hall v. U.S. Postal Serv.,
2011 MSPB LEXIS 1150 (Feb. 21, 2011) (“Initial Deci-
sion”). For the reasons explained below, we affirm.
BACKGROUND
Mr. Hall, a preference-eligible veteran, is employed by
the United States Postal Service (“USPS”) as a Mainte-
nance Mechanic at the Network Distribution Center in
Atlanta, Georgia. Mr. Hall was absent from his position
starting on June 13, 2009, until February 1, 2011. Mr.
Hall was initially absent due to symptoms of a depressive
disorder, which he claimed was due to emotional injury on
the job from failing his promotion board. In July 2009,
Mr. Hall and his supervisor, Joseph Jose, met to discuss
his return to work. Mr. Hall and Mr. Jose disagree about
what was discussed during the meeting. According to Mr.
Jose, Mr. Hall informed him that he could not return to
3 HALL v. MSPB
full duties due to a back injury. Mr. Jose directed Mr.
Hall to have a health care provider fill out a Duty Status
Report explaining his physical limitations. Mr. Hall
states that he did not mention his back injury during the
meeting and that he had no physical limitations at the
time that impeded his job performance. He contends that
Mr. Jose gave him blank forms and told him that he could
not return until he completed them.
On August 14, 2009, Janet Williams, a Clinical Nurse
Specialist with the Department of Veterans Affairs,
signed a statement that Mr. Hall had been seen as an
outpatient at the VA mental health clinic since June 13,
2009, and that he was not expected to be able to return to
work until September 1, 2009. Following the meeting
with Mr. Jose in July, Mr. Hall made three requests for
Temporary Light Duty assignment, in August 2009,
October 2009, and May 2010. In each of these requests,
Mr. Hall claimed that his permanent, military service-
connected back injuries limited his ability to lift or carry
weight, stand, walk, kneel, bend, or stoop at one time and
throughout the day. Each of these requests was denied
because, according to the denials, USPS “carefully and
thoroughly surveyed available work assignments and
cannot at this time provide [Mr. Hall] with work within
[his] medical restrictions.” On January 31, 2011, USPS
sent Mr. Hall a letter allowing him to report to duty on
February 1 based on a letter from his chiropractor docu-
menting that he had recovered and could work without
any medical restrictions.
The present case arises from an appeal that Mr. Hall
filed with the Board on October 26, 2010, alleging that he
was placed on enforced leave from April 15, 2010, until
February 1, 2011. Mr. Hall previously had filed with the
Board two claims of constructive suspension that together
covered the period prior to April 15, 2010, each of which
HALL v. MSPB 4
was dismissed by the Board for lack of jurisdiction. Mr.
Hall did not file a petition for review or appeal to this
court in either case. The AJ applied the doctrine of res
judicata to preclude Mr. Hall from making any claims
relating to the period before April 15, 2010, based on his
prior claims. 1
On February 17, 2011, the AJ held a jurisdictional
hearing and received evidence from Mr. Hall and USPS,
including testimony from Mr. Hall and his supervisors at
USPS. In his decision dated February 23, 2011, the AJ
determined that Mr. Hall failed to meet his burden of
proof of establishing jurisdiction because the evidence
established that he, rather than the agency, initiated his
absence from work. Initial Decision at *12-15. The AJ
did not credit Mr. Hall’s testimony that he was ready,
willing, and able to work, and that he did not initiate his
absence, for several reasons. First, the AJ explained that
the light duty requests indicating that Mr. Hall suffered
from permanent physical restrictions contradicted Mr.
Hall’s testimony that he suffered from no restrictions. Id.
at *7. Second, the AJ explained that “[i]t makes little
sense that [Mr. Hall] would request light duty and claim
the need for a reasonable accommodation if he lacked
physical medical restrictions.” Id. Finally, the AJ ex-
plained that the application of res judicata based on Mr.
Hall’s prior claims precluded Mr. Hall from disputing that
he told his supervisor that he could not fully perform his
job because of his physical restrictions. Id.
Mr. Hall appealed to the Board, which denied his peti-
tion for review on November 7, 2011. The Board agreed
1 Although the AJ characterized this as res judi-
cata, it is more accurately described as collateral estoppel,
as the Board noted in its informal brief. Resp’t’s Br. 7-10.
Mr. Hall, however, has not raised this issue on appeal.
5 HALL v. MSPB
with the AJ’s view of the evidence and declined to over-
turn the AJ’s fact finding. Final Order at *2-3. The
Board also noted that Mr. Hall had provided no evidence
that he identified any accommodation that would have
enabled him to perform the duties of his position. Id. at
*4. Mr. Hall timely filed this appeal, and we have juris-
diction pursuant to 28 U.S.C. § 1295(a)(9).
STANDARD OF REVIEW
Our standard of review in an appeal from the Board is
limited by statute. 5 U.S.C. § 7703(c); see Carr v. Soc.
Sec. Admin., 185 F.3d 1318, 1321 (Fed. Cir. 1999); O’Neill
v. Office of Pers. Mgmt., 76 F.3d 363, 364-65 (Fed. Cir.
1996). We may reverse a decision of the Board only if it is
“(1) arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with law; (2) obtained without
procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial evi-
dence.” 5 U.S.C. § 7703(c) (2006). Whether the Board has
jurisdiction over an appeal is a question of law, which we
review de novo. Herman v. Dep’t of Justice, 193 F.3d
1375, 1378 (Fed. Cir. 1999). This court is bound by the
AJ’s factual findings on which a jurisdictional determina-
tion is based unless those findings are not supported by
substantial evidence. Bolton v. Merit Sys. Prot. Bd., 154
F.3d 1313, 1316 (Fed. Cir. 1998). The AJ’s evaluation of
witness credibility is within the discretion of the AJ and
such evaluations are “virtually unreviewable” on appeal.
King v. Dep’t of Health & Human Servs., 133 F.3d 1450,
1453 (Fed. Cir. 1998).
DISCUSSION
To establish jurisdiction in a constructive suspension
case, the claimant bears the burden of proving by a pre-
ponderance of the evidence that his absence from work
was involuntary. Garcia v. Dep’t of Homeland Security,
HALL v. MSPB 6
437 F.3d 1322, 1344 (Fed. Cir. 2006) (en banc); see also 5
C.F.R. § 1201.56(a)(2)(i). There are two situations in
which the Board may exercise jurisdiction over a con-
structive suspension claim. The first is when an agency
places an employee on enforced leave for more than
fourteen days pending an inquiry into his ability to per-
form, and the agency initiates the absence. Johnson v.
U.S. Postal Serv., 85 M.S.P.R. 184, 187 (2000). The
second is when an employee is absent from work for
medical reasons and requests to return to work with
altered duties, but the agency denies the request even
though it is obligated to offer the employee available
light-duty work. Id. Although an agency is required to
offer available light-duty work, an agency is under no
obligation to create a new position in order to provide
reasonable accommodation for medical restrictions.
Gonzalez-Acosta v. Dep’t of Veterans Affairs, 113 M.S.P.R.
277, 282-83 (2010).
Substantial evidence supports the AJ’s finding that
Mr. Hall initiated his absence. Mr. Hall submitted three
different Temporary Light Duty Requests and Duty
Status Reports showing that he had physical restrictions
and requesting light-duty assignments on the basis of
those restrictions. The AJ found that these documents
were more persuasive than Mr. Hall’s statements that he
had no physical restrictions. Initial Decision at *7. Mr.
Hall asserts that the witnesses relied upon by the AJ –
Mr. Hall’s supervisors Mr. Jose and Wayne Wilkerson –
provided false testimony. That challenge, however,
concerns the AJ’s determinations of credibility, which are
within the AJ’s discretion. See King, 133 F.3d at 1453.
Additionally, the fact that Mr. Hall was allowed to return
to work promptly after submitting documentation from
his chiropractor supports the finding the Mr. Hall initi-
ated his own absence by failing to provide that documen-
7 HALL v. MSPB
tation in response to earlier requests. An employee’s
failure to provide satisfactory medical documentation does
not constitute a constructive suspension. See Perez v.
Merit Sys. Prot. Bd., 931 F.2d 853, 855 (Fed. Cir. 1991).
That USPS offered Mr. Hall the choice between not work-
ing and requesting leave, or providing medical documen-
tation and returning to work, does not mean that Mr.
Hall’s absence was involuntary. Moon v. Dep’t of the
Army, 63 M.S.P.R. 412, 419 (1994).
There is also substantial evidence in the record to
support the Board’s finding that USPS did not construc-
tively suspend Mr. Hall because there was no light-duty
work available to accommodate Mr. Hall’s physical re-
strictions. As USPS stated in its responses to Mr. Hall’s
Temporary Light Duty Request forms, the agency “care-
fully and thoroughly surveyed available work assign-
ments” and could not provide Mr. Hall with “work within
[his] medical restrictions.” Mr. Hall argues that the
information about the physical restrictions in his Tempo-
rary Light Duty Requests is exaggerated and incorrect
and that he had no physical restrictions. The AJ, how-
ever, made a credibility determination and believed the
agency’s evidence over Mr. Hall’s testimony. This is
within the AJ’s discretion. See King, 133 F.3d at 1453.
There is no evidence in the record, moreover, indicating
that Mr. Hall identified an accommodation that would
allow him to perform his job under his then-stated physi-
cal restrictions. The Board correctly noted that there was
no obligation for USPS to create a new job in order to
accommodate Mr. Hall’s physical restrictions. Final
Order at *4-5. Mr. Hall has not shown that the AJ’s
decision was arbitrary, capricious, an abuse of discretion,
not in accordance with law, or unsupported by substantial
evidence such that we may reverse the Board’s decision. 5
U.S.C. § 7703(c).
HALL v. MSPB 8
CONCLUSION
We have considered Mr. Hall’s arguments and found
them unpersuasive. The Board’s decision is affirmed.
AFFIRMED
COSTS
Each party shall bear its own costs.