JOSE E. ROSARIO-FABREGAS, Petitioner
MERIT SYSTEMS PROTECTION BOARD, Respondent DEPARTMENT OF THE ARMY, Intervenor
for review of the Merit Systems Protection Board in No.
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.
Dyk, Wallach, and HUGHES, Circuit Judges.
Hughes, Circuit Judge.
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.
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.
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.
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
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.
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.
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 ...