MSPB Clarifies Constructive Suspensions

In Rutherford v. U.S. Postal Service, 2009 MSPB 214 (October 28, 2009), the Merit Systems Protection Board reversed the decision of its administrative judge who had affirmed the placement of the employee on enforced leave due to medical restrictions. The employee had claimed that she was placed on enforced leave when light duty, which had previously been given to her, was no longer available. The Board reiterated that termination of a light-duty assignment is not, per se, an adverse action that is appealable to the Board. However, termination of a light-duty assignment that results in an employee's forced absence from work for more than 14 days may be a constructive suspension which is appealable to the Board. Specifically, the Board stated that there are two situations in which a constructive suspension claim may arise: 1) when a agency places an employee on enforced leave pending an inquiry into the employee's ability to perform; or 2) when an employee who is absent from work for medical reasons asks to return to work with altered duties, and the agency denies the request.

In evaluating whether the employee has been constructively suspended, the dispositive issue is who initiated the absence. If the employee initiated the absence, then the employee's absence is not a constructive suspension. The employee who claims a constructive suspension bears the burden of proving, by preponderant evidence, that his/her absence was involuntary. In this case, Rutherford alleged that she informed management that she was able to perform the functions of her position, that she wanted to work, and that she did not want to take leave. The Board found that Rutherford was at the agency's mercy regarding whether her medical documentation sufficiently demonstrated she could perform the duties of her position.

The problem in this case arose because the AJ did not inform the employee what her burden of proof would be at the hearing. The Board found that the evidentiary record was confusing as to whether Rutherford claimed she could perform her position of record if she returned to duty or could only perform her former light-duty position. The MSPB found that this was a critical point because, if the employee only claimed she could perform her light-duty position and the agency did not have light-duty work available, as the agency alleged, then the employee's absence would not be considered involuntary and the Board would have lacked jurisdiction over her constructive suspension claim. Because the AJ did not adequately inform the employee as to her burden of proof, and because the facts in the record were not adequate to permit the Board to determine if Rutherford's absence was voluntary or involuntary, the Board remanded the case to the AJ in order to properly advise the employee as to her burden of proof and to permit her to introduce facts into the record to clearly show whether her suspension was involuntary.

One note of interest in this case is that Rutherford did not specifically claim that the agency's constructive suspension, and failure to provide her with light-duty, was tantamount to disability discrimination because it was a failure to provide her with "reasonable accommodation." If there had been a claim of disability discrimination, then the MSPB would have had to evaluate whether the failure to place Rutherford in a light-duty position was a failure to provide reasonable accommodation. If such a claim had been made, that could alter the Board's conclusion that the failure to provide Rutherford with light-duty would render her absence voluntary.

* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to

The attorneys at Passman & Kaplan, P.C, are the authors of The Federal Employees Legal Survival Guide, Third Edition, a comprehensive overview of federal employees' legal rights. This book has been selling for $49.95 plus s&h for over two years, but as a special offer to FEDweek readers, we've reduced the price to only $29.95 plus s&h.