Discriminatory Constructive Suspension

Wednesday, June 19, 2013

In Crutch v. U.S. Postal Service, 2013 MSPB 38 (May 22, 2013), the MSPB found that the employee's involuntary absence from the workplace was a "constructive suspension" for which the employee received no due process. Consequently, the agency was ordered to cancel the suspension and make the employee whole for lost pay and benefits. Additionally, a majority of the Board found that the suspension was discriminatory based on the employee's disability in violation of the Rehabilitation Act. Therefore, the case was remanded to the administrative judge to permit the employee to present evidence and argument in support of his claim for compensatory damages.

Specifically, the record reflects that since 2001, the employee had a reasonable accommodation for a post traumatic arthritic hip. The accommodation was that the employee be able to intermittently sit and rest his hip. The employee submitted updated medical certifications regarding his condition in 2008, 2009 and 2010.In 2011, the agency informed the employee that he was required to submit a request for "light duty." The employee testified that because of harassment he experienced when he tried to exercise his reasonable accommodation, he requested FMLA leave for two days to deal with his hip pain. When the employee returned, the agency informed him that he would not be permitted to work again until he either submitted new documentation that he could work without the reasonable accommodation or that he requested light duty. The employee claimed that the agency's refusal to allow him to return to work with his existing reasonable accommodation was disability discrimination and a constructive discharge.

The Board first reiterated its long-standing case law that a constructive suspension claim arises in two situations: 1) where the agency places an employee on enforced leave pending an inquiry into his ability to perform; and 2) where an employee, who initiated his own absence, requests to return to work with medical restrictions, but the agency fails to grant the required light duty or reasonable accommodation. The Board held that, in the facts of this case, the employee established a constructive suspension under either standard.

Specifically, the Board noted that an employee absent on FMLA leave has a right to return to the same position he held when the leave commenced. The agency violated FMLA regulations by barring the employee from returning to work after requesting and receiving an appropriate return to duty certificate from the employee's physician. Next, the Board held that the agency improperly demanded the employee request a light duty assignment. Under the agency's employee relations manual, light duty is for employees who cannot perform the essential functions of their position. In this case, the employee had shown for 10 years that he was able to perform the essential functions of his position with a reasonable accommodation. Therefore, the agency improperly demanded the employee request light duty. The Board further held that the agency failed to provide the employee with a reasonable accommodation for his disability as required by the Rehabilitation Act. The Board held that the failure to provide the employee a continued reasonable accommodation for his hip condition, which was the reason for the employee's absence, constituted a constructive suspension.

Turning to the employee's claim of disability discrimination, the Board found that the employee's testimony and medical evidence established that he was a qualified individual with a disability that substantially limited his ability to stand and walk, and that he had requested a reasonable accommodation for his disability that would allow him to fully perform the essential functions of his position. By refusing to allow the employee to return to work with the same reasonable accommodation he had for 10 years, the Board held the agency committed disability discrimination. The Board ordered the agency to cancel the constructive suspension, pay the employee's back pay and benefits, and to restore any annual or sick leave the appellant used during the period of the constructive suspension. The administrative judge was directed to allow evidence and argument on the employee's claim for compensatory damages.

Member Robbins issued a concurring opinion. Member Robbins agreed that the agency initiated the employee's absence and therefore the absence became an appealable constructive suspension once the absence exceeded 14 days. Member Robbins found that because the employee did not request any change in duties or work environment, the employee's absence became involuntary merely when the employee reported for work but the agency refused to allow him to work, regardless of whether he could perform with or without accommodation. Member Robbins would reverse the constructive suspension for failure to afford the appellant minimum due process, and then later address the appellant's disability discrimination claim.

The case is a reminder that agencies cannot prohibit employees from working when there is no legitimate medical reason to keep them from the workplace, or when employees can perform the essential functions of their positions with reasonable accommodations.