Constructive Suspensions before the Merit Systems Protection Board (MSPB)
This guide provides an overview of constructive suspensions before the Merit Systems Protection Board (MSPB) and is applicable to federal government employees.
IntroductionMany federal government employees have appeal rights to the Merit Systems Protection Board (MSPB) when certain types of disciplinary action are taken against them. Appealable actions to the MSPB include suspensions of more than 14 days.
Constructive Suspensions and Enforced LeaveGenerally, the process for a federal government agency to suspend an employee is to issue a notice of proposed disciplinary action to the employee, allow the employee time and opportunity to respond to the proposal, and then issue a decision on the proposed disciplinary action. However, in some cases, an agency takes an action that effectively results in an employee of the federal government being suspended from duty without going through the normal disciplinary process. Such circumstances typically arise where an employee has requested a reasonable accommodation for his or her disability and, as a result of the agency not providing the accommodation, the employee is unable to work. When this occurs, the agency may have constructively suspended the employee. Where the employee is required to take leave in such a circumstance, the agency also may have placed the employee on an enforced leave status. In other words, the federal agency's actions result in the employee being required to take leave that the employee otherwise would not have used.
Ability of MSPB to Hear Appeals Regarding Constructive Suspensions and Enforced LeaveThe MSPB recently clarified its ability to hear these types of appeals in the case of Bean v. United States Postal Service, 120 M.S.P.R. 397 (2013). In Bean, the MSPB stated that an employee demonstrates a constructive suspension may have occurred by showing: (1) the employee lacked a meaningful choice in what seems like a voluntary decision not to work; and (2) the agency's improper actions led to this lack of meaningful choice. Bean, 120 M.S.P.R. at *P11.
Example of a Constructive SuspensionFor example, in Bean, the employee requested a reasonable accommodation of working only during daylight hours as a result of his Post-Traumatic Stress Disorder (PTSD). Bean,
2013 M.S.P.B. at *P2 (2013). The agency provided the employee with an effective
reasonable accommodation for two years by assigning him to a tour of duty during
daylight hours. Bean, 2013 M.S.P.B. at *P3. However, the agency later reassigned the employee to work a shift that did not end until 11:30 p.m. Bean, 2013 M.S.P.B. at *P4. The employee took leave and otherwise avoided coming to work as a result of the agency's decision to reassign him to a shift that was not within his medical restrictions. Bean, 2013 M.S.P.B. at *P4. The MSPB held that if the employee was able to prove his allegations, he could establish that he was constructively suspended because "he was compelled to take leave because his only alternative was to work after dark, in violation of his doctor's orders, and that the agency forced him into this untenable position by improperly taking him off of the tour 2 day shift and otherwise failing to accommodate his condition."
When a Constructive Suspension May OccurA federal employee who has been required to use his or her own leave, or be on leave without pay (LWOP), as a result of the agency's failure to grant the employee's request for reasonable accommodation may have basis to file an appeal with the MSPB for the constructive suspension and/or enforced leave status. Similarly, in an employee who is forced to use his or her own leave for another reason, such as during an agency's investigation of an employee, also may have a basis to file an appeal with the MSPB. The MSPB only can hear cases where the constructive suspension or enforced leave continued for 15 days or more. Where the time period is less then 15 days, there are other avenues through which an employee could file a claim, including an Equal Employment Opportunity (EEO) complaint with the agency.
ConclusionThe circumstances of each case are different. If you believe that you or someone you know may have been constructively suspended or placed in an enforced leave status, please contact an attorney who specializes in representing federal government employees in appeals before the MSPB.