U.S. Office of Personnel Management - Ensuring the Federal Government has an effective civilian workforce

Noshi Gerges v. Department of Navy, BN0752990097-I-1, September 10, 2001.

The Merit Systems Protection Board held that the test for determining involuntariness is a high one and not assigning an employee sufficient work does not justify the employee to absent himself from the worksite. An absence in such circumstances does not constitute a constructive suspension.

The Department of the Navy proposed the appellant's removal after the appellant abused his paid and unpaid leave for the seven previous months. Among other things, his request to the agency to advance him leave or grant him more unpaid leave was denied and he went into an absent without leave (AWOL) status for a period of 22 days. The Navy removed the appellant based on a charge of excessive unauthorized absence. The appellant filed an appeal with the Merit Systems Protection Board (MSPB).

The appellant argued that the "absence on which that action was based was caused by agency harassment." The Administrative Judge (AJ) agreed and determined that the Navy had harassed the appellant, that the absence in question was a constructive suspension, and that removal on that grounds could not be sustained. The Navy filed a petition for review with the full Board.

The MSPB reversed the AJ's decision and upheld the removal. The Board pointed out that the Navy had done nothing to "render the workplace so pervasively unpleasant and difficult" that the employee was "deprived . . . of any other choice but to quit." Heining v. General Services Administration, 68 M.S.P.R. 513, 522 (1995). Thus, the test to demonstrate involuntariness is a high one.

Furthermore, the fact that the Navy had given the appellant administrative tasks instead of laboratory tasks was not based on inappropriate motives but rather a failure on the appellant's part to gain the required expertise and knowledge needed for laboratory tasks. An employing agency is responsible for deciding what positions it needs and what duties it should assign to those positions. The Board commented that it didn't believe that the agency's failure to assign the appellant sufficient work, even if deliberate, would be enough to justify the appellant absenting himself from the worksite. As a result, the Board disagreed with the appellant's contentions that his absences constituted a constructive suspension.

The Board also dismissed the appellant's argument that the extended paid/unpaid leave constituted harassment by the appellant's supervisor. The Board found no possible nexus between the disagreements the appellant had with the supervisor and the appellant's absenting himself from work seven weeks after the supervisor resigned.