Betty Hallett v. Department of Agriculture ( 2022 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BETTY HALLETT, DOCKET NUMBER
Appellant, SF-0752-16-0233-I-1
v.
DEPARTMENT OF AGRICULTURE, DATE: June 9, 2022
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Betty Hallett, Bainbridge Island, Washington, pro se.
Joshua N. Rose, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her constructive suspension appeal for lack of jurisdiction. For the
reasons discussed below, we GRANT the appellant’s petition for review ,
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
2
REVERSE the initial decision, and REMAND the case to the Western Regional
Office for further adjudication in accordance with this Remand Order.
BACKGROUND
¶2 The appellant, a GS-12 Supervisory Public Health Veterinarian with the
agency’s Food Safety and Inspection Service, filed this appeal in which she
alleged that her absence from work from September 8, 2014, to March 30, 2015,
was a constructive suspension, arguing that the agency discriminated against her
on the basis of her medical noise restrictions and failed to grant her repeated
requests for a reasonable accommodation. Initial Appeal File (IAF), Tab 1 at 7.
She alleged that the agency failed to provide her a safe workplace, asserting that
the noise level at her first duty station in February 2010, was excessive,
sometimes reaching 134 decibels (dB), and she attributed her hearing problems to
the proximity of the splitting saws used at the meat processing plants where she
performed her duties. Id. at 7-9. The appellant described conflicts that she had
with the inspectors she worked with at the processing plants and contended that
agency officials and employees engaged in a long and complicated series of
retaliatory actions against her. Id. at 7-19. She also filed an equal employment
opportunity (EEO) complaint in which she alleged that the agency constructively
suspended her due to her sex, race, color, national origin, and physical disability,
and engaged in reprisal for prior EEO activity. Id. at 176-207. 2
¶3 As recounted by the administrative judge, primarily on the basis of the
testimony before her, the agency transferred the appellant to less noisy work
environments, but personnel shortages required the agency to occasionally
reassign her to noisier environments. IAF, Tab 53, Initial Decision (ID) at 3-4.
Additionally, complaints that the agency received about the appellant from one of
2
Because some of the pleadings in this appeal are of substantial length and are
unnumbered in the hard copy of the file, page number citations in those instances refer
to the electronic record.
3
her subordinates and from the management of one of the processing plants caused
the agency to detail the appellant away from one of the less noisy work
environments in accordance with agency policy regarding workplace violence.
Id.; IAF, Tab 12 at 101, Tab 21 at 67. The appellant filed a June 2014 claim with
the Office of Workers’ Compensation Programs (OWCP) and, after subsequently
experiencing increased symptoms of tinnitus, she provided the agency with
updated medical restrictions, first limiting her noise exposure to 100 dB, then to
60 dB, and ultimately limiting her to office work only with no noise exposure at
all. IAF, Tab 12 at 102, 109, 118-23, 128-30; Tab 21 at 64, 68, 107-08; Tab 39
at 5-6.
¶4 The appellant requested reasonable accommodation, but the agency
determined that she was not disabled and consequently denied her request, in
large part because her physician indicated that her hearing, despite some loss, was
still within normal limits. IAF, Tab 12 at 42, 107, 117. Upon her September 8,
2014 return from previously scheduled annual leave, the agency informed the
appellant that it had no work available within her medical restrictions. Id.
at 104-06. As such, the appellant was absent from the workplace on leave
without pay (LWOP) from September 8, 2014, to March 30, 2015. Id. at 102-06.
In March 2015, OWCP denied the appellant’s injury claim and the agency
subsequently ordered her to return to duty or submit new medical documentation.
Id. at 118-23. The agency placed the appellant on administrative leave effective
April 27, 2015, id. at 125, 128-30, and subsequently allowed her to return to
work, but the record reflects some controversy as to the particular duty station, id.
at 131-35.
¶5 The agency issued a December 15, 2015 final agency decision on the
appellant’s EEO complaint finding no discrimination, and the appellant timely
filed the instant appeal. IAF, Tab 1 at 1-22, 176-207. The administrative judge
found that the appellant had made nonfrivolous allegations sufficient to warrant a
jurisdictional hearing on her constructive suspension claim. IAF, Tab 14 at 1-2.
4
After holding the hearing, the administrative judge dismissed the appeal for lack
of jurisdiction, finding that even though the appellant lacked a meaningful choice
concerning her absence from work, she failed to demonstrate that any improper or
wrongful actions by the agency led to her lack of choice. ID at 8 -14 (citing Bean
v. U.S. Postal Service, 120 M.S.P.R. 397, ¶ 7 (2013)).
¶6 In her petition for review, the appellant argues that the agency suspended
her in retaliation for protected whistleblowing disclosures, reiterates her argument
that the agency failed to provide her with reasonable accommodation, claims that
she was denied due process, and generally contends that the administrative judge
erred in assessing the facts. Petition for Review (PFR) File, Tab 3. The agency
has filed a response in opposition to the petition for review and the appellant has
filed a reply to the agency’s response. PFR File, Tabs 5 -6.
DISCUSSION OF ARGUMENTS ON REVIEW
¶7 The Board’s jurisdiction is limited to those matters over which it has been
given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems
Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). The appellant has the burden
of proving the Board’s jurisdiction by a preponderance of the evidence. 5 C.F.R.
§ 1201.56(b)(2)(i)(A). A constructive suspension appeal concerns leave that
appears to be voluntary, but actually was not. Bean, 120 M.S.P.R. 397, ¶ 7. An
employee may establish jurisdiction if she can prove that she lacked a meaningful
choice in the matter and it was the agency’s wrongful actions that deprived her of
that choice. Id., ¶ 8. In contrast, an agency’s placing an employee on enforced
leave for more than 14 days constitutes an appealable suspension within the
Board’s jurisdiction, not a constructive suspension. Abbott v. U.S. Postal Service,
121 M.S.P.R. 294, ¶ 10 (2014).
¶8 In her petition for review, the appellant reasserts her argument below that
the Board has jurisdiction over her appeal because the agency placed her on
enforced leave for more than 14 days. PFR File, Tab 3 at 5. For the following
5
reasons, we find that the administrative judge erroneously construed and analyzed
the appellant’s claim as a constructive suspension instead of an appealable
suspension. As noted above, the record reflects that after the appellant returned
to work from previously scheduled annual leave, the agency told her to leave
work because it could find no work within her medical restrictions. IAF, Tab 12
at 104-06. Under such circumstances, the appellant’s absence does not appear
voluntary, but instead constitutes an appealable suspension within the Board’s
jurisdiction because the agency placed her in an enforced leave status for more
than 14 days against her will. See, e.g., Abbott, 121 M.S.P.R. 294, ¶ 11.
¶9 Because a tenured Federal employee has a property interest in continued
employment, an agency is prohibited from placing an appellant on enforced leave
for more than 14 days without providing the due process required under the Fifth
Amendment. Cleveland Board of Education v. Loudermill, 470 U.S. 532, 546
(1985); see Martin v. U.S. Postal Service, 123 M.S.P.R. 189, ¶ 11 (2016). An
agency’s failure to provide a tenured public employee with proper notice and an
opportunity to present a response, either in person or in writing, to an appealable
agency action that deprives her of her property right in her employment
constitutes an abridgement of her constitutional right to minimum due process of
law, i.e., prior notice and an opportunity to respond. Id. Here, the agency did not
provide the appellant with notice of any proposed enforced leave or an
opportunity to be heard, either before or after it imposed the enforced leave , and
the record reflects that she was in an LWOP status for at least 400 hours. IAF,
Tab 12 at 128. Consequently, we reverse the agency’s enforced leave action.
See, e.g., Martin, 123 M.S.P.R. 189, ¶ 11 (reversing the agency’s suspension
action because it violated the appellant’s constitutional due process rights).
¶10 Given our finding that the appellant’s suspension is an appealable action,
she is entitled to a decision on her claim that the agency’s action constituted
reprisal for her prior EEO activity and on her discrimination claims. See 5 U.S.C.
§ 7702(a)(1). The case therefore must be remanded to the regional office to
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adjudicate these claims. See Aldridge v. Department of Agriculture,
111 M.S.P.R. 670, ¶ 23 (2009); Totten v. U.S. Postal Service, 68 M.S.P.R. 255,
257 (1995). On remand, the administrative judge should, if necessary, hold a
hearing on the appellant’s affirmative defenses of discrimina tion based on sex,
race, color, physical disability, and national origin, and retaliation for protected
EEO activity. 3 IAF, Tab 1 at 5; see Hess v. U.S. Postal Service, 123 M.S.P.R.
183, ¶¶ 9-10 (2016) (remanding the appellant’s discrimination claims for a
hearing because she raised a cognizable claim of discrimination in connection
with an otherwise appealable action and sought compensatory damages).
¶11 The administrative judge also should allow the appellant to proceed with
her whistleblower reprisal claims to the extent they relate to her suspension. PFR
File, Tab 3 at 29; IAF, Tab 52 at 4. The appellant alleges other “retaliatory
actions,” such as unfavorable work assignments, based on her protected
disclosures. Thus, the administrative judge should provide her with notice
regarding her burden of proving these possible whistleblowing allegations as an
affirmative defense to an otherwise appealable action (i.e., this appealable
suspension) or, alternatively, how to establish jurisdiction over such claims in
connection with any personnel actions that are not otherwise appealable in an
3
In the initial decision, the administrative judge indicated that in the appellant’s EEO
complaint filed with the agency, she raised claims not only based on these protected
purviews, but also based on age discrimination. ID at 6 (citing IAF, Tab 1 at 176 -207).
The materials cited by the administrative judge do not support this conclusion. IAF,
Tab 1 at 176-207. Further, the administrative judge did not list an age discrimination
claim in her prehearing conference summary and order among the issues to b e resolved
at hearing. IAF, Tab 47 at 2. The parties did not object to this summary and order
although the administrative judge invited them to do so, and the appellant did not raise
a claim of age discrimination in her written closing statement followin g the hearing.
IAF, Tab 47 at 7, Tab 52. In fact, in an affidavit in the record below, completed during
the agency’s investigation into her EEO complaint, the appellant stated that she was
“not claiming age discrimination, although it probably exists as well.” IAF, Tab 16
at 20, 86. In light of our remand, we find it unnecessary to resolve on review whether
the appellant raised a claim of age discrimination below. The administrative judge
should affirmatively indicate in the remand initial decision whe ther the appellant raised
such a claim and, if she did, adjudicate it.
7
individual right of action (IRA) appeal. See, e.g., Corthell v. Department of
Homeland Security, 123 M.S.P.R. 417, ¶¶ 13-14 (2016) (remanding an appeal for
the appellant to receive notice of the requirements for establishing jurisdiction
over his IRA appeal); PFR File, Tab 3 at 21.
ORDER
¶12 The initial decision is reversed, and the case is remanded to the Western
Regional Office for further adjudication.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.