Court to MSPB: Prematurely Weighing Evidence Can Be Dangerous

By on April 9, 2007 7:20 AM in Current Events with 0 Comments
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A building management specialist with the General Services Administration in Newark, New Jersey, has convinced the Federal Circuit to vacate and remand a decision by the Merit Systems Protection Board that had dismissed his appeal of a constructive suspension. (Trobovic v. Merit Systems Protection Board and General Services Administration, C.A.F.C. No. 2006-3341 (nonprecedential), 4/6/07)

Trobovic argued unsuccessfully to the Board that the agency had constructively suspended him by (1) barring him from his workplace, (2) placing him in AWOL status, (3) subjecting him to a hostile working environment, and (4) denying him work that would accommodate his disabilities. (Opinion p. 3)

The administrative judge determined that Trobovic had failed to make nonfriviolous allegations that would give the Board jurisdiction over his appeal, and dismissed the case. The full Board declined to review this decision so Trobovic took his case to the appeals court.

He argued that the Board had erred in concluding there was not a constructive suspension. The court was not persuaded by arguments (2) through (4); however, it found with regard to the first argument—that the agency’s barring of Trobovic from his workplace was a constructive suspension—that there was sufficient reason for the Board to hold a hearing.

Trobovic claimed that he had been barred from his workplace for more than 14 days and therefore had suffered a suspension that was appealable to the Board. The court agreed: “If that allegation were proved, it would establish that Mr. Trobovic’s absence from work was involuntary and that maintaining Mr. Trobovic in nonpay, nonduty AWOL status for failing to report for work was a constructive suspension.” (p. 3)

The court called the question “not the sort of complex ultimate fact that needs more substantiation than Mr. Trobovic provided to be meaningfully evaluated for frivolousness.” (p. 4)

In short, the court determined that Trobovic deserved a hearing on his claim.

The court gave the Board a bit of a lecture too: “The danger of prematurely weighing evidence is illustrated here by the strength lent to Mr. Trobovic’s allegation by new evidence that he discovered through a Freedom of Information Act request.” (p. 4)

© 2020 Susan McGuire Smith. All rights reserved. This article may not be reproduced without express written consent from Susan McGuire Smith.


About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.