Protecting Workers’ Rights

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MSPB EXPANDS CONSTRUCTIVE SUSPENSION CASE LAW IN P&K CASE

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 reversed the administrative judge’s dismissal decision below, reinstating Ms. Thomas’ appeal. Ms. Thomas claimed that the Agency had 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 on those days would violate her doctor’s orders. The Board found that Ms. Thomas had made a non-frivolous allegation that the Agency’s actions denied her a meaningful choice on whether or not to take the LWOP, thus constituting a possible constructive suspension. This decision expands the circumstances recognized in Board precedent for constructive suspension claims. Ms. Thomas was represented by Passman & Kaplan Founding Principal Edward H. Passman and Passman & Kaplan Associate Erik D. Snyder. 

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