Federal Manager's Daily Report

The Merit Systems Protection Board recently reversed an administrative judge’s finding that a Social Security Administration benefits technician was constructively suspended after the technician was escorted off the agency premises following a bout of inappropriate behavior.

The technician was instructed to provide medical documentation explaining her behavior after she was removed from her worksite. After she failed to do so, and after she informed her supervisor that she was under her doctor’s care and would not return, the agency placed her on leave without pay. The technician claimed this action was tantamount to a constructive suspension, the administrative judge found the agency’s action an enforced leave suspension. The agency appealed.


On appeal, MSPB reversed, holding that when determining whether a suspension took place, the relevant inquiry is which party initiated the absence. The MSPB found the technician told the agency she would not return to work, that she was under a doctor’s care, and that her failure to provide medical documentation as ordered resulted in LWOP.

The board held that when, as here, an individual decides not to return to work, or fails to provide requested documentation, an agency action placing an individual on LWOP does not amount to a suspension. Get Full Text