Joseph L. Deshields, Jr., Petitioner, v. Equal Employment Opportunity Commission, Respondent, 833 F.2d 1022 (Fed. Cir. 1987)

DECISION

The decision of the Merit Systems Protection Board (MSPB), MSPB No. AT07528610631, which dismissed petitioner's appeal for lack of jurisdiction is affirmed.

OPINION

Mr. DeShield's was formerly employed as an Equal Opportunity Specialist in the Atlanta District Office of the Equal Opportunity Commission. He was placed on administrative leave for the purpose of an evaluation by a medical doctor to determine the state of his physical and mental health. He appealed to the MSPB contending: (1) that the administrative leave and medical examination were improperly forced upon him by the agency; (2) that he was mentally and physically competent to perform his job; (3) that the agency had a practice of harassing competent employees and replacing them with incompetent employees; (4) that he had been harassed by his supervisors and managers; and (5) that the agency had discriminated against him because of his handicap.

Mr. DeShields did not suffer any loss of pay or other benefits while on administrative leave. The MSPB properly concluded that it had no jurisdictional over his appeal, because the action did not constitute a suspension within the Board's appellate jurisdiction. Under the provisions of 5 U.S.C. § 7501(2), a suspension is not appealable to the MSPB, unless it is established that the employee had been placed in a temporary status without duties and without pay (emphasis added). See Martel v. Dept. of Transportation, FAA, 735 F.2d 504, 507 Fed. Cir. 1984).

Although Mr. DeShields was placed on administrative leave involuntarily, the action was not an appealable suspension within the language of the statute and the holding of this court in the Martel case. Therefore, the MSPB properly dismissed his appeal for lack of jurisdiction.