Passman & Kaplan, P.C., Attorneys at Law Map & Directions Open: Menu

Developments at the MSPB: MSPB Constructive Suspension Decision

Developments at the MSPB: On September 27, 2016, the Merit Systems Protection Board (Board) issued a precedential decision in Thomas v. Dept. of the Navy, 2016 MSPB 34. The Board reinstated Appellant Stephanie Thomas' dismissed constructive suspension appeal. Ms. Thomas claimed that the Agency compelled her to take 3 days/week of leave without pay (LWOP) because it had denied her reasonable accommodation request for telework, and reporting to her workplace would violate her doctor's orders. The Board found that Ms. Thomas had made a nonfrivolous allegation of constructive suspension. This decision expands the circumstances recognized in Board precedent for constructive suspension claims.

Ms. Thomas has a mold allergy.  She alleged that mold contamination in her workplace was making her ill. Ms. Thomas requested a mold-free workplace and/or telework as reasonable accommodations. The Agency only allowed Ms. Thomas to telework two days/week while it reviewed her accommodation request, requiring her to report to her regular workplace the other three days. Citing doctor's orders, Appellant would not report to her workstation. In response, the Agency placed Appellant on approved LWOP for three days/week.

After Ms. Thomas was on LWOP for more than 15 days, she appealed to the MSPB, charging that her placement on LWOP constituted a constructive suspension. The administrative judge dismissed. Under prior Board caselaw, Ms. Thomas had to make a nonfrivolous allegation (1) that she lacked meaningful choice in accepting LWOP; and (2) that the agency's wrongful actions caused that deprivation of choice. The administrative judge found a failure to meet the second prong, based on Agency claims of mold remediation and later test results which were found to constitute a good faith attempt to provide a mold-free environment. Ms. Thomas then appealed to the Board.

On Petition for Review, the Board reversed, finding the administrative judge erred in holding Ms. Thomas to a higher burden of proof than the "nonfrivolous allegation" standard required to establish jurisdiction. The Board found that Ms. Thomas had met the nonfrivolous allegation standard. Specifically, the Board held that choosing between accepting LWOP and violating doctor's orders to avoid the contaminated workspace was not a meaningful choice, and that the Agency's failure to reasonably accommodate Ms. Thomas deprived her of that choice.

Based on Thomas, future appellants will be able to pursue constructive suspension cases by showing that agency denial of reasonable accommodations forced them to take leave.

Ms. Thomas was represented by Passman & Kaplan Founding Principal Edward H. Passman and Passman & Kaplan Associate Erik D. Snyder.

If you are a federal employee in need of legal representation in matters before the MSPB, and need assistance, you might want to request an initial consultation with one of Passman & Kaplan's attorneys.

OUR OFFICE LOCATION

Passman & Kaplan, P.C., Attorneys at Law
1828 L Street NW, Suite 600
Washington, DC 20036

Washington Law Office Map