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

Campbell v. United States Postal Service, AT-0752-00-02320I1, June 21, 2001

The Merit Systems Protection Board held that all time in a leave without pay status counts toward completion of the one-year of current and continuous service necessary for a preference eligible employee in the excepted service to have adverse action rights.

Appellant, who was removed from her position after being in a non-pay status for more than one year, filed an appeal with the Merit Systems Protection Board (MSPB). The agency motioned to dismiss for lack of jurisdiction based on a previous enforced leave appeal that determined this appellant was not an employee with a right to appeal to the MSPB. That determination was founded on the MSPB finding the appellant had not completed one year of current and continuous service in her present position. The Administrative Judge (AJ) in the current case found the appellant was collaterally estopped from showing completion of the one-year continuous service requirement and dismissed the appeal for lack of jurisdiction.

The appellant filed for review of the AJ's decision by the full MSPB, arguing the Mail Processor position she was dismissed from was substantially the same as the former Mail Handler position she had occupied and thus she had completed the one-year continuous service requirement. The agency did not respond to the petition for review.

Regarding the Handler position being substantially the same as the Processor position issue, the MSPB found collateral estoppel applied based on Campbell v. USPS, AT075298-1090-I-1 (Dec 8, 1999). However, the MSPB framed the issue to be decided in the current case as whether the appellant had completed the one-year continuous service in the appellant's Processor position. In this regard, the MSPB noted that the Office of Personnel Management limits the time creditable to the one-year service requirement for those in non-pay status to 22 days for the competitive service but has no similar limitation for individuals in the excepted service. Therefore, the MSPB found that the appellant had completed her one-year of continuous service requirement while she was in leave without pay status. The MSPB remanded the case back to the AJ for a finding on the appellant's preference eligible status.