Edith Marsalis v. Department of the Treasury
Background
- Appellant Edith Marsalis, a seasonal tax examiner, was charged by the agency with 71 hours of AWOL after she sought FMLA leave.
- Marsalis appealed to the MSPB, alleging prohibited personnel practices under 5 U.S.C. § 2302(b)(1), disability discrimination, retaliation, and FMLA violations.
- The administrative judge ordered the appellant to show the Board’s jurisdiction; the agency moved to dismiss, arguing no appealable action and that Marsalis’ grievance election barred Board review.
- The administrative judge dismissed the appeal for lack of jurisdiction; Marsalis filed a timely petition for review of that initial decision.
- The Board considered whether it had jurisdiction to review an employee’s placement in AWOL status when the absence was voluntary and whether that jurisdiction supported the related discrimination, retaliation, and FMLA claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Board has jurisdiction over placement in AWOL status | Marsalis contends agency improperly placed her in AWOL despite FMLA leave approval | Agency says the Board lacks jurisdiction because the absence was voluntary and not an appealable action | Held: No jurisdiction over AWOL placement where absence was voluntary; Perez controls |
| Whether the Board may hear prohibited personnel practice, discrimination, and retaliation claims tied to AWOL | Marsalis asserts AWOL placement constitutes prohibited personnel practice and motivated by disability/retaliation | Agency argues absence of an otherwise appealable action deprives the Board of jurisdiction | Held: Without an appealable action, the Board lacks jurisdiction to hear these claims (dismissed) |
| Whether the Board should decide the FMLA violation claim | Marsalis alleges FMLA was violated by agency action | Agency alternative: grievance election may preclude Board review (also argued lack of jurisdiction) | Held: Board declined to address FMLA claim because it lacks jurisdiction over the appeal as a whole |
| Whether petitioner’s election to file a grievance bars Board review (alternative agency argument) | Marsalis reasserts merits; argues Board should hear her appeal | Agency contends grievance election precludes Board appeal | Held: Not reached—Board resolved case on lack of appealable action jurisdiction and did not decide the alternative grievance-election argument |
Key Cases Cited
- Maddox v. Merit Systems Protection Board, 759 F.2d 9 (Fed. Cir. 1985) (Board’s jurisdictional limits and burden on appellant)
- Perez v. Merit Systems Protection Board, 931 F.2d 853 (Fed. Cir. 1991) (no Board jurisdiction over AWOL placement for voluntarily absent employee)
- Penna v. U.S. Postal Service, 118 M.S.P.R. 355 (2012) (Board lacks jurisdiction over general prohibited personnel practices absent an appealable action)
- Lua v. U.S. Postal Service, 87 M.S.P.R. 647 (2001) (Board will not address FMLA claim where it lacks jurisdiction over the underlying adverse action)