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Rosario-Fabregas v. Merit Systems Protection Board

United States Court of Appeals, Federal Circuit

August 16, 2016

JOSE E. ROSARIO-FABREGAS, Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD, Respondent DEPARTMENT OF THE ARMY, Intervenor

         Petition for review of the Merit Systems Protection Board in No. NY-0752-13-0167-1-1.

          ROBERT J. GAJARSA, Latham & Watkins LLP, Washington, DC, argued for petitioner. Also represented by Brett Matthew Sandford, Menlo Park, CA.

          Stephen Fung, Office of the General Counsel, Merit Systems Protection Board, Washington, DC, argued for respondent. Also represented by BRYAN G. POLISUK.

          KRISTIN McGRORY, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for intervenor. Also represented by Benjamin C. Mizer, Robert E. Kirschman, Jr., Elizabeth M. Hosford; John Kasbar, U.S. Army Corps of Engineers, Jacksonville, FL.

          Before Dyk, Wallach, and HUGHES, Circuit Judges.

          OPINION

          Hughes, Circuit Judge.

         Mr. Jose Rosario-Fabregas seeks review of a final decision of the Merit Systems Protection Board dismissing his appeal for lack of jurisdiction after concluding that Mr. Rosario was not constructively suspended during his four month absence from work. Because the Board's decision applied the correct legal standard to determine whether an employee has been constructively suspended and is supported by substantial evidence, we affirm.

         I

         Mr. Rosario served as a biologist and project manager for the Regulatory Division of the Army Corps of Engineers (Corps) until he was fired in February 2010. In November 2011, the Board determined that the termination violated Mr. Rosario's due process rights and ordered his prompt restoration. This improper removal caused Mr. Rosario to suffer from depression, thus he voluntarily took sick leave to recover before resuming his duties.

         On May 7, 2012, Mr. Rosario submitted a letter from his physician, Dr. Juan Rodriguez-Velez, to his supervisor, Mr. Sindulfo Castillo, stating that his symptoms, which included severe anxiety, paranoia, chronic insomnia, marked irritability, frequent panic attacks, and aggressive episodes, were not improving. Dr. Rodriguez-Velez recommended either: (1) referring Mr. Rosario for partial hospitalization; (2) relocating Mr. Rosario's working area; or (3) providing reasonable accommodation for three months to evaluate whether Mr. Rosario was emotionally stable to continue working.

         One month later, Mr. Rosario submitted another letter to Mr. Castillo from Dr. Rodriguez-Velez, which recommended that Mr. Rosario return to work on July 2, 2012, for 20-30 hours per week, because he had "started to advance emotionally." J.A. 1279. The Corps viewed this letter as a request for reasonable accommodation of Mr. Rosario's medical condition. Therefore, on June 14, 2012, Mr. Castillo requested further information to clarify Mr. Rosario's proposed accommodation, including the number of hours he wanted to work per week, his proposed schedule, and if he was requesting leave for the hours he was not working each week or if he was requesting to be switched to a part-time schedule.

         On June 25, 2012, Mr. Castillo reminded Mr. Rosario to submit the information so that the Corps could continue processing his request for accommodation. Mr. Rosario replied that he would not be submitting the forms because he was going to return to work full time.

         The next day, Mr. Castillo informed Mr. Rosario that due to his symptomatology and the possibility of aggressive episodes, the Corps had a reasonable belief that he could not perform an essential job function and/or that he represented a direct safety threat to himself or his coworkers. Therefore, to return to duty on July 2, 2012, Mr. Rosario needed to provide a medical release from his physician addressing the history of his medical condition, his prognosis, including an estimated date of recovery, and an explanation of the condition's impact, including any resultant medical restrictions and the reasons for them. Mr. Castillo also informed Mr. Rosario that he needed to request approved leave or risk being placed in AWOL status until he provided the requested medical documentation.

         Mr. Rosario requested leave under protest. On July 23, 2012, Mr. Rosario submitted a letter from Dr. Rodriguez-Velez, which recommended that Mr. Rosario apply for disability because his depression had returned. Mr. Rosario did not provide any other medical documentation and continued to request leave under protest. On September 25, 2012, Mr. Castillo informed Mr. Rosario that he had not yet ...


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