A recent MSPB decision clarifies situations in which a federal employee may appeal a personnel action on grounds that it is a “constructive suspension,” sending a case back to a hearing officer who had ruled that an employee had no grounds to appeal.
The case involved an employee who requested a workplace accommodation, citing her allergies to mold and other allergens in her building. She was allowed to telework while the building was being renovated but afterward when she returned the symptoms persisted—as they did after she was later moved to a different building. The agency then denied her a request for full-time telework and instructed her to telework two days a week and be on leave without pay the other three.
She appealed to MSPB, saying that she could work every day with a reasonable accommodation and placing her on LWOP three days a week amounted to a suspension. The hearing officer ruled that the agency had done all it needed to do to accommodate her.
However, the full merit board said she made nonfrivolous allegations that she lacked a meaningful choice in being placed in an LWOP status and that it was the agency’s wrongful actions that deprived her of that choice.
“All constructive suspension claims are premised on the proposition that an absence that appears to be voluntary actually is not. To demonstrate that an absence from work was not voluntary, and is an actionable constructive suspension, an appellant must show that: (1) she lacked a meaningful choice in the matter; and (2) it was the agency’s wrongful actions that deprived her of that choice,” it said.
“Should the administrative judge find on remand that the appellant did not establish that she was subjected to a constructive suspension, he should consider her claim that she was subjected to an actual suspension when she was placed on LWOP status against her will for a period of more than 14 days,” it added.