Cassandra M. Menoken v. Merit Systems Protection Board

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
CASSANDRA M. MENOKEN,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2022-2301
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-0752-19-0297-I-1.
______________________
Decided: September 14, 2023
______________________
CASSANDRA M. M ENOKEN, Washington, DC, pro se.
STEPHEN F UNG, Office of General Counsel, United
States Merit Systems Protection Board, Washington, DC,
for respondent. Also represented by ALLISON J ANE B OYLE,
K ATHERINE M ICHELLE SMITH .
______________________
Before L OURIE, L INN, and STOLL , Circuit Judges.
P ER CURIAM .
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MENOKEN v. MSPB 2
Cassandra M. Menoken appeals from a final order of
the Merit Systems Protection Board that denied her peti-
tion for review of its initial decision that had dismissed her
appeal for lack of jurisdiction. For the following reasons,
we affirm.
BACKGROUND
Ms. Menoken was employed for many years as an At-
torney-Advisor for the Equal Employment Opportunity
Commission (EEOC). Sometime around 2014, the agency
allowed Ms. Menoken to work remotely as a reasonable ac-
commodation for a disability, namely stress and depres-
sion. Effective September 5, 2018, the agency revoked this
accommodation after determining that it was no longer ef-
fective and offered her alternative accommodations that
would provide for part-time remote work and regular
breaks from work on days that she would report to work in
person. Ms. Menoken did not report to work in person on
September 5, 2018. Indeed, she did not report to work in
person at any time in the following months. Instead, as she
explained to her supervisor, Robbie Dix, she would be “tak-
ing extended leave while [she] consider[ed] [her] options for
the long term.” SAppx.1 18. Accordingly, she requested
sick and annual leave covering the time between Septem-
ber 18, 2018, and October 2, 2018, “subject to further ex-
tension.” Id.
On October 5, 2018, during her extended leave period,
Ms. Menoken filed an appeal to the Board alleging that the
agency had constructively suspended her by revoking her
full-time telework status. See Menoken v. Equal Emp. Op-
portunity Comm’n, 2018 MSPB LEXIS 4512 (Nov. 27,
2018). The Board issued an initial decision dismissing her
appeal for lack of jurisdiction. Id. at *12–13. In this
1 References to “SAppx.” refer to the supplemental
appendix submitted by the respondent.
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MENOKEN v. MSPB 3
decision—which is not on appeal to us here—the Board ex-
plained that Ms. Menoken failed to make a nonfrivolous al-
legation of constructive suspension because such a claim
requires a showing that the employee’s absence was caused
by wrongful agency action that deprived the employee of
the choice to use leave, id. at *11–12 (citing Thomas
v. Dep’t of the Navy, 123 M.S.P.R. 628, 633 (2016)), and
Ms. Menoken’s absence from work was voluntary. Ms. Me-
noken did not file any appeal from that decision, and it be-
came the final decision of the Board.
On October 26, 2018, while Ms. Menoken was still on
leave, the EEOC informed her that it would not allow her
to continue using her paid leave unless it deemed the use
justified. Ms. Menoken did not return to work, and from
October 29, 2018, to November 16, 2018, she was placed on
absence without leave (AWOL) status.
On November 23, 2018, Ms. Menoken submitted to the
EEOC a letter from her psychologist recommending that
the agency allow Ms. Menoken to use her remaining sick
and annual leave until she could retire. On November 26,
2018, Ms. Menoken’s supervisor notified her that she
would be permitted to resume using her accrued sick and
annual leave until her retirement was finalized. The
EEOC further informed Ms. Menoken that she would be
“required to exhaust available leave prior to receiving
Leave Without Pay” (LWOP), and that “if she elected to use
LWOP, it would first be converted to paid leave if she had
such leave available.” SAppx. 160 ¶ 4. In other words, af-
ter her paid leave was exhausted, her status would change
to LWOP, where it would remain until her retirement. On
November 29, 2018, Ms. Menoken submitted her retire-
ment package, which indicated that she would retire effec-
tive January 31, 2019.
Ms. Menoken was scheduled to run out of paid leave on
December 19, 2018. Contrary to the process that the
agency had laid out—i.e., that all paid leave would be
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MENOKEN v. MSPB 4
exhausted first before switching to LWOP—Ms. Menoken
requested to be on LWOP for the entirety of December 19,
and instead use her final hours of paid leave on Decem-
ber 21. Having failed to realize that Ms. Menoken was
scheduled to exhaust her available paid leave on Decem-
ber 19, her supervisor, Mr. Dix, initially approved this re-
quest. When he realized the error, Mr. Dix corrected
Ms. Menoken’s timesheet to reflect her leave status pursu-
ant to the agency’s prior instructions: she had used her fi-
nal hours of paid leave on December 19 and was on LWOP
status on December 21.
These precise dates are relevant because, on Decem-
ber 22, 2018, the federal government, including the EEOC,
entered into a partial shutdown because of a lapse in ap-
propriations. Ms. Menoken was furloughed for the length
of the shutdown, which lasted until January 28, 2019.
Most federal employees are entitled to backpay for the
hours they would have worked during the shutdown. See
O FF . P ERSONNEL MGMT ., F ACT SHEET : P AY AND BENEFITS
I NFORMATION FOR EMPLOYEES AFFECTED BY THE L APSE IN
APPROPRIATIONS (2019). But employees who, on the final
day before the shutdown, were scheduled to be on unpaid
status, including LWOP or AWOL, were not entitled to re-
ceive backpay. See id. Accordingly, because Ms. Menoken
was scheduled to be on LWOP status on December 21,
Mr. Dix changed her status for the furlough period to
LWOP, which precluded her from receiving backpay.
Ms. Menoken officially retired on January 31, 2019.
[JA 8, 10] For the period between the end of the furlough
and her retirement, she remained on LWOP status be-
cause, as had been true since September 5, 2018, she never
returned to the workplace.
After her retirement, Ms. Menoken filed a second ap-
peal to the Board, alleging that she was subjected to an en-
forced leave suspension and improperly denied backpay
when the EEOC retroactively placed her on LWOP status
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MENOKEN v. MSPB 5
from December 24, 2018 (just after the start of the furlough
period) through January 31, 2019 (the date of her retire-
ment). The Board issued an initial decision finding that it
lacked jurisdiction to consider Ms. Menoken’s appeal be-
cause her absence from work was voluntary and thus out-
side the Board’s jurisdiction. See Menoken v. Equal Emp.
Opportunity Comm’n, 2019 MSPB LEXIS 1733 (May 23,
2019). Ms. Menoken filed a petition for review, and the
Board issued a final order affirming the initial decision.
See Menoken v. Equal Emp. Opportunity Comm’n,
2022 MSPB LEXIS 2910 (Aug. 5, 2022) (Board Decision).
Ms. Menoken appeals. We have jurisdiction under
28 U.S.C. § 1295(a)(9) and 5 U.S.C. § 7703.
D ISCUSSION
On appeal, Ms. Menoken argues that the Board erred
in determining it lacked jurisdiction and that the adminis-
trative judge (AJ) adjudicating her case made certain pro-
cedural errors in reaching its conclusion of no jurisdiction.
See Appellant’s Br. 12–14. We address these two argu-
ments in turn.
First, we address Ms. Menoken’s argument that the
Board had jurisdiction over her case. Whether the Board
has jurisdiction over an appeal is a question of law that we
review de novo. Herman v. Dep’t of Justice, 193 F.3d 1375,
1378 (Fed. Cir. 1999). The Board’s jurisdiction is limited
by statute. 5 U.S.C. § 7701(a); see Forest v. Merit Sys. Prot.
Bd., 47 F.3d 409, 410 (Fed. Cir. 1995) (“The [B]oard’s juris-
diction is not plenary, but is limited to actions made ap-
pealable to it by law, rule or regulation.”). Specifically, in
cases involving adverse personnel actions, the Board’s ju-
risdiction is limited to the types of appeals listed in
5 U.S.C. § 7512, which include, among other things, “a sus-
pension for more than 14 days.” § 7512(2). Relevant here,
the Board lacks jurisdiction over appeals involving an em-
ployee’s voluntary action, such as a voluntary absence from
the workplace. Garcia v. Dep’t of Homeland Sec., 437 F.3d
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MENOKEN v. MSPB 6
1322, 1327–28, 1332 (Fed. Cir. 2006) (en banc); Cruz
v. Dep’t of the Navy, 934 F.2d 1240, 1244 (Fed. Cir. 1991).
The Board has explained that, in some circumstances,
an agency’s placement of an employee in a non-pay status
without her consent can be an appealable suspension.
Martin v. U.S. Postal Serv., 123 M.S.P.R. 189, 193 (2016).
In Martin, the employee signed a settlement with her em-
ploying agency in which she agreed to retire by a certain
date. Id. at 191. The agreement was made contingent on
its approval by the Office of Personnel Management—ap-
proval that never came. Id. at 191–92. The agency placed
the employee back on paid duty status and retroactively
placed her on LWOP status for the time that her settlement
agreement had been pending. Id. The Board found that
the agency’s placement of the employee on retroactive
LWOP status, without her consent, was an appealable sus-
pension, i.e., was within the Board’s jurisdiction. Id. at 193
(citing Abbott v. U.S. Postal Serv., 121 M.S.P.R. 294, 298–
99 (2014)).
In other circumstances, however, the agency’s retroac-
tive placement of an employee on non-pay status is not an
appealable suspension. In Perez v. Merit Systems Protec-
tion Board, for example, an employee had self-entered his
time as sick leave, but the agency switched him to AWOL
status because he failed to provide satisfactory documenta-
tion for his leave. 931 F.2d 853, 855 (Fed. Cir. 1991). We
held that being switched from sick leave status to AWOL
status was not an appealable suspension, explaining that
“where an employee has voluntarily absented himself from
work, placement in a non-pay or AWOL status, even for
longer than 14 days, is not a constructive suspension or
other agency action appealable to the” Board. Id.
On appeal, Ms. Menoken asserts that “there is no dis-
tinction to be made between this case and Martin,” because
her timesheet was, like the employee’s in Martin, retroac-
tively changed to indicate that she was on LWOP status.
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MENOKEN v. MSPB 7
Appellant’s Br. 16. But there is one key distinction be-
tween Ms. Menoken and the employee in Martin—Ms. Me-
noken’s leave was voluntary.
As the Board explained in Abbott, when determining
whether the Board has jurisdiction, “the only question is
whether the employee’s placement in a leave status was
voluntary or involuntary; only the latter is appealable.”
121 M.S.P.R. at 297. In Martin, for example, the employee
remained on paid duty status until she had negotiated and
signed her settlement agreement and only was placed on
LWOP status retroactively by the agency. 123 M.S.P.R.
at 191–92. Her placement in leave status was thus invol-
untary and appealable. Id. at 193. In contrast, Ms. Meno-
ken voluntarily entered into a non-pay leave status months
before the disputed time period of December 2018 to Janu-
ary 2019. Unlike the appellant in Martin, then, Ms. Meno-
ken’s placement on leave status was not involuntary—and
thus her appeal is not within the Board’s jurisdiction. See
Cruz, 934 F.2d at 1244; 5 U.S.C. § 7512. In other words, as
we said in Perez, “[i]t was [her] choice, not the agency’s, to
remain away from work.” 931 F.2d at 855.
Ms. Menoken nonetheless suggests that her leave was
involuntary because she elected leave with pay instead of
LWOP status on December 21, 2022, and the agency
should not have changed her timesheet to reflect that she
had run out of paid leave on December 19, 2022. But “[i]t
is well-settled that” how the agency chooses to manage its
own internal leave policies, including when and how to au-
thorize LWOP, “is within the agency’s discretion.” Sam-
brano v. Dep’t of Def., 116 M.S.P.R. 449, 450 (2011); see also
Campana v. Dep’t of the Navy, 873 F.2d 289, 291 (Fed. Cir.
1989) (authorization of LWOP is a matter of agency discre-
tion). The Board in this case found that the agency had not
abused its discretion in changing Ms. Menoken’s timesheet
to reflect her LWOP status for the time period in question,
noting that her absence “imposed a burden on the agency”
and there was no evidence suggesting “that the agency was
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MENOKEN v. MSPB 8
required to grant her intermittent LWOP.” Board Decision
at *14. We see no error in the Board’s determination that
the agency did not abuse its discretion in these circum-
stances and thus this argument does not establish Board
jurisdiction.
Finally, we turn to Ms. Menoken’s argument that the
Board made certain procedural errors in making its deter-
mination that it lacked jurisdiction. Procedural matters
regarding discovery and evidentiary issues “fall within the
sound discretion of the [B]oard and its officials.” Curtin
v. Off. of Pers. Mgmt., 846 F.2d 1373, 1378 (Fed. Cir. 1988)
(citing Spezzaferro v. FAA, 807 F.2d 169, 173 (Fed. Cir.
1986)). We will not overturn the Board’s determinations
on such issues “unless an abuse of discretion is clear and is
harmful.” Id. If an appellant alleges an abuse of discretion
occurred, in order to prevail, she “must prove that the error
caused substantial harm or prejudice to [her] rights which
could have affected the outcome of the case.” Id. at 1379
(citing Cornelius v. Nutt, 472 U.S. 648, 657–59 (1985)); see
also 5 U.S.C. § 7701(c)(2)(A). Ms. Menoken argues that the
Board erred by failing to allow further discovery and not
requiring the agency to submit its agency file. Appellant’s
Br. 14. Ms. Menoken does not identify any details regard-
ing how the denial of additional discovery or agency file
“caused substantial harm or prejudice to [her] rights,” or
how they “could have affected the outcome of the case.”
Curtin, 846 F.2d at 1378. Ms. Menoken’s limited argu-
ment on this issue does not explain how the Board abused
its discretion. On this record, we decline to conclude that
the Board abused its discretion in determining that further
discovery, including the agency’s submission of its agency
file, was not necessary to reach its determination.
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MENOKEN v. MSPB 9
CONCLUSION
We have considered Ms. Menoken’s remaining argu-
ments and find them unpersuasive.2 For the above rea-
sons, we affirm the Board’s dismissal for lack of
jurisdiction.
AFFIRMED
COSTS
No costs.
2 We note that Ms. Menoken filed a memorandum in
lieu of oral argument. Dkt. 38, 39 (corrected version). In
this memorandum, Ms. Menoken repeats the arguments
made in her briefing. See Dkt. 39 at 3. As these arguments
are resolved by our opinion, we do not address this filing
separately.
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