MSPB Reverses Five-Year Enforced Leave Suspension

Although the Merit Systems Protection Board (MSPB or Board) is currently suffering from a lack of quorum and resulting inability to issue new decisions (Read the Press Release about the lack of quorum Here), the Board appears to have been very busy during the holiday season issuing decisions prior to the departure of MSPB Chairman Susan Tsui Grundmann.

In one Nonprecedential Final Order from the Board, issued December 20, 2016, the MSPB reversed the enforced leave suspension of a postal employee who had been placed in an enforced leave suspension status nearly five (5) years earlier. The Appellant, represented by Bonney, Allenberg, & O’Reilly, P.C. for the entire five (5) year process, had been placed on enforced leave and effectively prohibited from working starting at the beginning of 2012. The Agency’s argument for placing the employee on enforced leave was because the Agency believed the employee’s medical restrictions did not permit her to work any more than six (6) hours per day.

The employee filed an appeal to the MSPB Washington Regional Office in 2012 based on her placement on enforced leave, but the appeal was dismissed by an Administrative Judge for lack of jurisdiction. After further appeal (called a “Petition for Review”) to the full Board, the MSPB issued a decision remanding the appeal back to the Washington Regional Office and finding that the employee’s placement on enforced leave constituted a suspension status over which the MSPB had jurisdiction. Abbott v. U.S. Postal Service, 121 MSPR 294 (2014). This decision was discussed in a Prior Blog Post.

On remand, the Administrative Judge affirmed the Agency’s suspension action, and a second Petition for Review was filed with the MSPB. Finally, after nearly five (5) years of litigation, the Board agreed that the Agency’s placement of the employee on enforced leave was not supported by the evidence. While the Agency had argued that the employee’s medical restrictions did not permit her to work an 8-hour day, the Board pointed out that the Agency disregarded information from the employee’s doctor to the contrary. The MSPB therefore reversed the enforced leave suspension action “because the agency did not prove by preponderant evidence that the appellant could only work a 6-hour day.” Abbott v. U.S. Postal Service, DC-0752-12-0366-B-1 (Nonprecedential), at ¶19. Read the Full Final Order Here.

If you feel you have been subjected to an unwarranted personnel action and would like to discuss your situation with an attorney, please call the law firm of Bonney, Allenberg, & O’Reilly, P.C. to set up an initial consultation with one of our attorneys. CASE RESULTS DEPEND UPON A VARIETY OF FACTORS UNIQUE TO EACH CASE, AND CASE RESULTS FROM ONE CASE DO NOT GUARANTEE OR PREDICT A SIMILAR RESULT IN ANY FUTURE CASE.