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Developments at the MSPB: Suspension Reversed

Developments at the MSPB: On January 21, 2016, the Merit Systems Protection Board (MSPB) issued its decision in Martin v. U.S. Postal Service, 2016 MSPB 6. Reversing the decision below, the MSPB found that Ms. Martin had been suspended without due process, and ordered the Agency to retroactively reinstate her to duty with back pay.

Ms. Martin was an employee with a discrimination complaint pending against the U.S. Postal Service. As part of a settlement agreement to resolve that discrimination complaint, Ms. Martin agreed to retire if the Agency took certain personnel actions that would result in the Office of Personnel Management (OPM) increasing her 'high-3' salary average for retirement purposes. After Ms. Martin retired pursuant to the settlement agreement, OPM refused to increase her 'high-3' average. As a result, the settlement agreement became void and Ms. Martin sought reinstatement. The Agency ultimately opted to reinstate Ms. Martin on the books--but then involuntarily retroactively placed her into leave without pay (LWOP) status for the time when she was retired and refused to pay back pay. These actions effectively suspending Ms. Martin for over a year without her having had pre-suspension due process.

Ms. Martin first raised these issues in the EEO forum, and then ultimately timely filed a mixed-case appeal of this suspension at the MSPB. The administrative judge dismissed the appeal, on the grounds that Ms. Martin's entry into unpaid status was part of a settlement agreement and therefore voluntary--and thus not a "constructive suspension" within MSPB jurisdiction. Ms. Martin then filed a petition for review with the MSPB.

The MSPB found that the administrative judge below had erred in treating Ms. Martin's involuntary retroactive placement on LWOP as a constructive suspension, when it was in fact legally an actual suspension and was involuntary. As an actual suspension, Ms. Martin was entitled to pre-suspension due process; since Ms. Martin had been denied this due process, the suspension was legally invalid. The MSPB ordered the Agency to retroactively reinstate Ms. Martin to full duty status with back pay. As the administrative judge had not decided Ms. Martin's discrimination claims below, the MSPB remanded for a hearing on the discrimination claims.

Ms. Martin was represented by Passman & Kaplan Founding Principal Joseph V. Kaplan.

If you are federal employee facing an adverse action, including one which you believe might be discriminatory, and wish to discuss your rights, contact Passman & Kaplan, P.C. to request an initial consultation.

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