Stephanie D. Thomas v. Department of the Navy
2016 MSPB 34
| MSPB | 2016Background
- Appellant, a Program Analyst at Marine Corps Base Quantico, sought reasonable accommodation for allergic rhinitis due to mold and allergens in Building 2010.
- Agency allowed telework during renovation and later moved appellant to Building 3101, then permanently; appellant alleged continued mold exposure in both buildings.
- Appellant suffered a heart attack at work in 2014 and later requested to work from home; agency offered telework 2 days/week with LWOP for other days.
- In 2015, agency limited telework to 2 days/week and required LWOP on three days; appellant sought reassignment to a mold-free environment.
- Appellant alleged constructive suspension (LWOP) and also argued potential actual suspension via enforced leave beyond 14 days; initial judge dismissed for lack of jurisdiction.
- Board granted petition for review, remanding to determine whether appellant nonfrivolously alleged a constructively suspended status and, alternatively, an actual suspension.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appellant established jurisdiction for a constructive suspension | Thomas argues she was not voluntary absent; agency deprived meaningful choice. | Department of the Navy contends no constructive suspension since accommodation attempts were reasonable. | Nonfrivolous allegations satisfy jurisdiction; remand for hearing |
| Whether the agency improperly failed to accommodate or forced untenable leave | Thomas alleges failure to accommodate deprived meaningful choice and forced leave. | Agency contends accommodations were pursued in good faith and reasonable. | Appellant stated nonfrivolous claim of failure to accommodate; remand for adjudication |
| Whether the agency actually suspended appellant by enforced LWOP for more than 14 days | Appellant offered a nonconstructive suspension theory as alternative jurisdictional basis. | Agency defense not dispositive absent finding of constructive suspension. | Remand to consider actual suspension theory if constructive suspension not proven |
Key Cases Cited
- Rosario-Fabregas v. Department of the Army, 122 M.S.P.R. 468 (2015) (two-pronged test for actionable constructive suspension: meaningful choice and agency deprivation)
- Romero v. U.S. Postal Service, 121 M.S.P.R. 606 (2014) (requires showing agency actions deprived meaningful choice in constructives)
- Bean v. U.S. Postal Service, 120 M.S.P.R. 397 (2013) (nonfrivolous allegations entitle hearing in constructive suspension context)
- Abbott v. U.S. Postal Service, 121 M.S.P.R. 294 (2014) (enforced leave for more than 14 days as potential suspension)
- Pittman v. Merit Systems Protection Board, 832 F.2d 598 (Fed. Cir. 1987) (precedent on appealability of suspension decisions)
- Garcia v. Department of Homeland Security, 437 F.3d 1322 (2006) (jurisdictional hearing standards for constructive adverse action)
- Moore v. U.S. Postal Service, 117 M.S.P.R. 84 (2011) (jurisdictional hearing entitlement in intolerable working conditions cases)
- Ferdon v. U.S. Postal Service, 60 M.S.P.R. 325 (1994) (nonfrivolous allegations determined by written record)