Menoken v. MSPB

• Court: Court of Appeals for the Federal Circuit
• Decided: September 14, 2023
• Docket: 22-2301
• Status: Unpublished

Opinion

Case: 22-2301 Document: 42 Page: 1 Filed: 09/14/2023

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

CASSANDRA M. MENOKEN, Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD, Respondent ______________________

2022-2301 ______________________

Petition for review of the Merit Systems Protection Board in No. DC-0752-19-0297-I-1. ______________________

Decided: September 14, 2023 ______________________

CASSANDRA M. MENOKEN, Washington, DC, pro se.

STEPHEN FUNG, Office of General Counsel, United States Merit Systems Protection Board, Washington, DC, for respondent. Also represented by ALLISON JANE BOYLE, KATHERINE MICHELLE SMITH. ______________________

Before LOURIE, LINN, and STOLL, Circuit Judges. PER CURIAM. Case: 22-2301 Document: 42 Page: 2 Filed: 09/14/2023

Cassandra M. Menoken appeals from a final order of the Merit Systems Protection Board that denied her peti- tion for review of its initial decision that had dismissed her appeal for lack of jurisdiction. For the following reasons, we affirm. BACKGROUND Ms. Menoken was employed for many years as an At- torney-Advisor for the Equal Employment Opportunity Commission (EEOC). Sometime around 2014, the agency allowed Ms. Menoken to work remotely as a reasonable ac- commodation for a disability, namely stress and depres- sion. Effective September 5, 2018, the agency revoked this accommodation after determining that it was no longer ef- fective and offered her alternative accommodations that would provide for part-time remote work and regular breaks from work on days that she would report to work in person. Ms. Menoken did not report to work in person on September 5, 2018. Indeed, she did not report to work in person at any time in the following months. Instead, as she explained to her supervisor, Robbie Dix, she would be “tak- ing extended leave while [she] consider[ed] [her] options for the long term.” SAppx. 1 18. Accordingly, she requested sick and annual leave covering the time between Septem- ber 18, 2018, and October 2, 2018, “subject to further ex- tension.” Id. On October 5, 2018, during her extended leave period, Ms. Menoken filed an appeal to the Board alleging that the agency had constructively suspended her by revoking her full-time telework status. See Menoken v. Equal Emp. Op- portunity Comm’n, 2018 MSPB LEXIS 4512 (Nov. 27, 2018). The Board issued an initial decision dismissing her appeal for lack of jurisdiction. Id. at *12–13. In this

1 References to “SAppx.” refer to the supplemental appendix submitted by the respondent. Case: 22-2301 Document: 42 Page: 3 Filed: 09/14/2023

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decision—which is not on appeal to us here—the Board ex- plained that Ms. Menoken failed to make a nonfrivolous al- legation of constructive suspension because such a claim requires a showing that the employee’s absence was caused by wrongful agency action that deprived the employee of the choice to use leave, id. at *11–12 (citing Thomas v. Dep’t of the Navy, 123 M.S.P.R. 628, 633 (2016)), and Ms. Menoken’s absence from work was voluntary. Ms. Me- noken did not file any appeal from that decision, and it be- came the final decision of the Board. On October 26, 2018, while Ms. Menoken was still on leave, the EEOC informed her that it would not allow her to continue using her paid leave unless it deemed the use justified. Ms. Menoken did not return to work, and from October 29, 2018, to November 16, 2018, she was placed on absence without leave (AWOL) status. On November 23, 2018, Ms. Menoken submitted to the EEOC a letter from her psychologist recommending that the agency allow Ms. Menoken to use her remaining sick and annual leave until she could retire. On November 26, 2018, Ms. Menoken’s supervisor notified her that she would be permitted to resume using her accrued sick and annual leave until her retirement was finalized. The EEOC further informed Ms. Menoken that she would be “required to exhaust available leave prior to receiving Leave Without Pay” (LWOP), and that “if she elected to use LWOP, it would first be converted to paid leave if she had such leave available.” SAppx. 160 ¶ 4. In other words, af- ter her paid leave was exhausted, her status would change to LWOP, where it would remain until her retirement. On November 29, 2018, Ms. Menoken submitted her retire- ment package, which indicated that she would retire effec- tive January 31, 2019. Ms. Menoken was scheduled to run out of paid leave on December 19, 2018. Contrary to the process that the agency had laid out—i.e., that all paid leave would be Case: 22-2301 Document: 42 Page: 4 Filed: 09/14/2023

exhausted first before switching to LWOP—Ms. Menoken requested to be on LWOP for the entirety of December 19, and instead use her final hours of paid leave on Decem- ber 21. Having failed to realize that Ms. Menoken was scheduled to exhaust her available paid leave on Decem- ber 19, her supervisor, Mr. Dix, initially approved this re- quest. When he realized the error, Mr. Dix corrected Ms. Menoken’s timesheet to reflect her leave status pursu- ant to the agency’s prior instructions: she had used her fi- nal hours of paid leave on December 19 and was on LWOP status on December 21. These precise dates are relevant because, on Decem- ber 22, 2018, the federal government, including the EEOC, entered into a partial shutdown because of a lapse in ap- propriations. Ms. Menoken was furloughed for the length of the shutdown, which lasted until January 28, 2019. Most federal employees are entitled to backpay for the hours they would have worked during the shutdown. See OFF. PERSONNEL MGMT., FACT SHEET: PAY AND BENEFITS INFORMATION FOR EMPLOYEES AFFECTED BY THE LAPSE IN APPROPRIATIONS (2019). But employees who, on the final day before the shutdown, were scheduled to be on unpaid status, including LWOP or AWOL, were not entitled to re- ceive backpay. See id. Accordingly, because Ms. Menoken was scheduled to be on LWOP status on December 21, Mr. Dix changed her status for the furlough period to LWOP, which precluded her from receiving backpay. Ms. Menoken officially retired on January 31, 2019. [JA 8, 10] For the period between the end of the furlough and her retirement, she remained on LWOP status be- cause, as had been true since September 5, 2018, she never returned to the workplace. After her retirement, Ms. Menoken filed a second ap- peal to the Board, alleging that she was subjected to an en- forced leave suspension and improperly denied backpay when the EEOC retroactively placed her on LWOP status Case: 22-2301 Document: 42 Page: 5 Filed: 09/14/2023

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from December 24, 2018 (just after the start of the furlough period) through January 31, 2019 (the date of her retire- ment). The Board issued an initial decision finding that it lacked jurisdiction to consider Ms. Menoken’s appeal be- cause her absence from work was voluntary and thus out- side the Board’s jurisdiction. See Menoken v. Equal Emp. Opportunity Comm’n, 2019 MSPB LEXIS 1733 (May 23, 2019). Ms. Menoken filed a petition for review, and the Board issued a final order affirming the initial decision. See Menoken v. Equal Emp. Opportunity Comm’n, 2022 MSPB LEXIS 2910 (Aug. 5, 2022) (Board Decision). Ms. Menoken appeals. We have jurisdiction under 28 U.S.C. § 1295(a)(9) and 5 U.S.C. § 7703. DISCUSSION On appeal, Ms. Menoken argues that the Board erred in determining it lacked jurisdiction and that the adminis- trative judge (AJ) adjudicating her case made certain pro- cedural errors in reaching its conclusion of no jurisdiction. See Appellant’s Br. 12–14. We address these two argu- ments in turn. First, we address Ms. Menoken’s argument that the Board had jurisdiction over her case. Whether the Board has jurisdiction over an appeal is a question of law that we review de novo. Herman v. Dep’t of Justice, 193 F.3d 1375, 1378 (Fed. Cir. 1999). The Board’s jurisdiction is limited by statute. 5 U.S.C. § 7701(a); see Forest v. Merit Sys. Prot. Bd., 47 F.3d 409, 410 (Fed. Cir. 1995) (“The [B]oard’s juris- diction is not plenary, but is limited to actions made ap- pealable to it by law, rule or regulation.”). Specifically, in cases involving adverse personnel actions, the Board’s ju- risdiction is limited to the types of appeals listed in 5 U.S.C. § 7512, which include, among other things, “a sus- pension for more than 14 days.” § 7512(2). Relevant here, the Board lacks jurisdiction over appeals involving an em- ployee’s voluntary action, such as a voluntary absence from the workplace. Garcia v. Dep’t of Homeland Sec., 437 F.3d Case: 22-2301 Document: 42 Page: 6 Filed: 09/14/2023

1322, 1327–28, 1332 (Fed. Cir. 2006) (en banc); Cruz v. Dep’t of the Navy, 934 F.2d 1240, 1244 (Fed. Cir. 1991). The Board has explained that, in some circumstances, an agency’s placement of an employee in a non-pay status without her consent can be an appealable suspension. Martin v. U.S. Postal Serv., 123 M.S.P.R. 189, 193 (2016). In Martin, the employee signed a settlement with her em- ploying agency in which she agreed to retire by a certain date. Id. at 191. The agreement was made contingent on its approval by the Office of Personnel Management—ap- proval that never came. Id. at 191–92. The agency placed the employee back on paid duty status and retroactively placed her on LWOP status for the time that her settlement agreement had been pending. Id. The Board found that the agency’s placement of the employee on retroactive LWOP status, without her consent, was an appealable sus- pension, i.e., was within the Board’s jurisdiction. Id. at 193 (citing Abbott v. U.S. Postal Serv., 121 M.S.P.R. 294, 298– 99 (2014)). In other circumstances, however, the agency’s retroac- tive placement of an employee on non-pay status is not an appealable suspension. In Perez v. Merit Systems Protec- tion Board, for example, an employee had self-entered his time as sick leave, but the agency switched him to AWOL status because he failed to provide satisfactory documenta- tion for his leave. 931 F.2d 853, 855 (Fed. Cir. 1991). We held that being switched from sick leave status to AWOL status was not an appealable suspension, explaining that “where an employee has voluntarily absented himself from work, placement in a non-pay or AWOL status, even for longer than 14 days, is not a constructive suspension or other agency action appealable to the” Board. Id. On appeal, Ms. Menoken asserts that “there is no dis- tinction to be made between this case and Martin,” because her timesheet was, like the employee’s in Martin, retroac- tively changed to indicate that she was on LWOP status. Case: 22-2301 Document: 42 Page: 7 Filed: 09/14/2023

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Appellant’s Br. 16. But there is one key distinction be- tween Ms. Menoken and the employee in Martin—Ms. Me- noken’s leave was voluntary. As the Board explained in Abbott, when determining whether the Board has jurisdiction, “the only question is whether the employee’s placement in a leave status was voluntary or involuntary; only the latter is appealable.” 121 M.S.P.R. at 297. In Martin, for example, the employee remained on paid duty status until she had negotiated and signed her settlement agreement and only was placed on LWOP status retroactively by the agency. 123 M.S.P.R. at 191–92. Her placement in leave status was thus invol- untary and appealable. Id. at 193. In contrast, Ms. Meno- ken voluntarily entered into a non-pay leave status months before the disputed time period of December 2018 to Janu- ary 2019. Unlike the appellant in Martin, then, Ms. Meno- ken’s placement on leave status was not involuntary—and thus her appeal is not within the Board’s jurisdiction. See Cruz, 934 F.2d at 1244; 5 U.S.C. § 7512. In other words, as we said in Perez, “[i]t was [her] choice, not the agency’s, to remain away from work.” 931 F.2d at 855. Ms. Menoken nonetheless suggests that her leave was involuntary because she elected leave with pay instead of LWOP status on December 21, 2022, and the agency should not have changed her timesheet to reflect that she had run out of paid leave on December 19, 2022. But “[i]t is well-settled that” how the agency chooses to manage its own internal leave policies, including when and how to au- thorize LWOP, “is within the agency’s discretion.” Sam- brano v. Dep’t of Def., 116 M.S.P.R. 449, 450 (2011); see also Campana v. Dep’t of the Navy, 873 F.2d 289, 291 (Fed. Cir. 1989) (authorization of LWOP is a matter of agency discre- tion). The Board in this case found that the agency had not abused its discretion in changing Ms. Menoken’s timesheet to reflect her LWOP status for the time period in question, noting that her absence “imposed a burden on the agency” and there was no evidence suggesting “that the agency was Case: 22-2301 Document: 42 Page: 8 Filed: 09/14/2023

required to grant her intermittent LWOP.” Board Decision at *14. We see no error in the Board’s determination that the agency did not abuse its discretion in these circum- stances and thus this argument does not establish Board jurisdiction. Finally, we turn to Ms. Menoken’s argument that the Board made certain procedural errors in making its deter- mination that it lacked jurisdiction. Procedural matters regarding discovery and evidentiary issues “fall within the sound discretion of the [B]oard and its officials.” Curtin v. Off. of Pers. Mgmt., 846 F.2d 1373, 1378 (Fed. Cir. 1988) (citing Spezzaferro v. FAA, 807 F.2d 169, 173 (Fed. Cir. 1986)). We will not overturn the Board’s determinations on such issues “unless an abuse of discretion is clear and is harmful.” Id. If an appellant alleges an abuse of discretion occurred, in order to prevail, she “must prove that the error caused substantial harm or prejudice to [her] rights which could have affected the outcome of the case.” Id. at 1379 (citing Cornelius v. Nutt, 472 U.S. 648, 657–59 (1985)); see also 5 U.S.C. § 7701(c)(2)(A). Ms. Menoken argues that the Board erred by failing to allow further discovery and not requiring the agency to submit its agency file. Appellant’s Br. 14. Ms. Menoken does not identify any details regard- ing how the denial of additional discovery or agency file “caused substantial harm or prejudice to [her] rights,” or how they “could have affected the outcome of the case.” Curtin, 846 F.2d at 1378. Ms. Menoken’s limited argu- ment on this issue does not explain how the Board abused its discretion. On this record, we decline to conclude that the Board abused its discretion in determining that further discovery, including the agency’s submission of its agency file, was not necessary to reach its determination. Case: 22-2301 Document: 42 Page: 9 Filed: 09/14/2023

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CONCLUSION We have considered Ms. Menoken’s remaining argu- ments and find them unpersuasive. 2 For the above rea- sons, we affirm the Board’s dismissal for lack of jurisdiction. AFFIRMED COSTS No costs.

2 We note that Ms. Menoken filed a memorandum in lieu of oral argument. Dkt. 38, 39 (corrected version). In this memorandum, Ms. Menoken repeats the arguments made in her briefing. See Dkt. 39 at 3. As these arguments are resolved by our opinion, we do not address this filing separately.