Thomas v. Dept. of the Navy, 2016 MSPB 34

Sep 27, 2016

OUTCOME: Successful appeal

My client had an allergy to mold and requested a mold-free workplace and a reasonable accommodation. My client's employer refused, ordering her to report for duty three days/week, and to telework two ... days/week. Because reporting for duty would endanger her health and violate her doctor's orders, my client refused to come to work. Rather than allow her to telework full time, her employer instead put my client in "leave without pay" status for the three days/week that she was absent. My client challenged this decision before an administrative judge of the Merit Systems Protection Board, arguing that the LWOP was a constructive suspension. The judge dismissed the case, finding that my client chose not to come to work, and therefore had not been suspended. On appeal, the MSPB reversed, finding that, because my client's doctor had ordered to avoid her contaminated workplace, my client had no choice but to stay home. The MSPB then reinstated my client's case so that it could proceed to a hearing.