Smith v. Department of Army

• Decision Date: 11 August 2006
• Docket Number: No. 05-3266.,05-3266.
• Citation: 458 F.3d 1359
• Parties: Joseph E. SMITH, Petitioner, v. DEPARTMENT OF THE ARMY, Respondent.
• Court: U.S. Court of Appeals — Federal Circuit

458 F.3d 1359

Joseph E. SMITH, Petitioner, v. DEPARTMENT OF THE ARMY, Respondent.

No. 05-3266.

United States Court of Appeals, Federal Circuit.

August 11, 2006.

Vincent E. Polsinelli, Nixon Peabody LLP, of Albany, New York, argued for petitioner. With him on the brief was John E. Higgins.

Tara K. Hogan, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent. With her on the brief were Peter D. Keisler, Assistant Attorney General, David M. Cohen, Director, and Harold D. Lester, Jr., Assistant Director. Of counsel was J. Ellen Purcell Marchese, Attorney-Advisor, United States Department of the Army, of Watervliet, New York.

Before RADER, SCHALL, and PROST, Circuit Judges.

Opinion for the court filed by Circuit Judge PROST.

Dissenting opinion filed by Circuit Judge RADER.

PROST, Circuit Judge.

Joseph E. Smith filed an appeal with the Merit System Protection Board ("Board") alleging a constructive suspension from a Welder position with the Department of the Army ("agency"). His appeal alleged procedural due process violations and disability discrimination. The administrative judge issued an initial decision holding there was a procedural due process violation, but no disability discrimination, and ordered the agency to reinstate Smith with back pay. Smith v. Dep't of Army, No. NY0752960278-E-1 (M.S.P.B. Apr.3, 1997) ("1997 Decision"). The agency reinstated Smith as a Welder but then removed him on June 19, 1997 for his physical inability to perform the duties of that position. Smith appealed the disability finding to the Equal Employment Opportunity Commission ("EEOC"), which held that the agency did engage in disability discrimination when it failed to place him in an available open position to accommodate his disability in November 1996. Smith v. White, No. 03A20073, 2003 WL 21210039 (E.E.O.C. May 15, 2003), slip op. at 7 ("EEOC Decision"). The Board adopted the decision of the EEOC finding disability discrimination and ordered the agency to carry out the EEOC order and award back pay and benefits under the Back Pay Act. Smith v. Dep't of Army, 93 M.S.P.R. 611 (2003) ("2003 Order"). Smith filed a petition for enforcement with the Board when the agency refused to provide any relief for the discrimination beyond the date of his removal. The Board's final decision upheld a finding by the administrative judge that the agency had complied with its prior order and was not required to provide any remedy beyond the date of Smith's removal. Smith v. Dep't of Army, NY0752960278-C-1, 98 M.S.P.R. 639 (M.S.P.B. May 9, 2005) ("Final Order"). Because we find that Smith's removal did not in itself terminate the relief due him for the November 1996 discrimination, we vacate the Board's decision and remand for a proper determination of the relief due him under the Board's 2003 Order.

BACKGROUND

On July 13, 1995, the agency determined that Smith could not work in his position as a Welder WG-3703-10 because a disability prevented him from wearing required hearing protection. Over the next several months, Smith engaged in a prolonged process with the agency seeking to have the agency recognize his condition as an occupational injury and secure assignment to a light-duty position. Smith was willing and able to work a light duty position that did not require the use of hearing protective equipment but was repeatedly told no such position existed. See 1997 Decision, slip op. at 3-13.

On April 4, 1996, Smith filed a "mixed case appeal" to the Board's New York regional office.¹ In his initial complaint, Smith alleged that he was constructively suspended as of July 14, 1995 due to a "series of actions and inactions resulting in a total failure on the part of the Agency to provide [him] with any consistent information about his employment status and to provide him with reasonable accommodation for his handicap and/or appropriate compensation." Statement of Appellant in Support of Appeal to M.S.P.B., at 2 (April 4, 1996). Smith alleged that these actions violated his due process rights by placing him on enforced leave for more than fourteen days without the proper procedural requirements. Id. at 4. Smith also alleged that the actions stated a claim for disability discrimination under, inter alia, the Americans with Disabilities Act ("ADA") because the agency refused to acknowledge that his disability was job-related and had refused to place him in a position accommodating his disability. Id. at 4-5.

In an initial decision, the administrative judge found that Smith had been on enforced leave for more than fourteen days beginning on July 14, 1995, conferring the Board with jurisdiction over his appeal. 1997 Decision, slip op. at 12 ("[T]he appellant's absences were not voluntary and were a single, continuing action stemming from the problem relating to hearing protective equipment."). On the discrimination issue, the administrative judge held that Smith had not proven his claim because he failed to prove that a suitable position was available to accommodate his disability during the time of his involuntary suspension. Id., slip op. at 16. Regarding the due process argument however, the administrative judge agreed with Smith, finding that the agency had deprived him of required procedural protections in enacting the suspension. Id., slip op. at 14. Therefore, the administrative judge ordered the agency to cancel Smith's suspension and provide back pay from July 14, 1995, the date his suspension began. Id., slip op. at 16.

In response to this order, the agency cancelled Smith's suspension, reinstated him to his previous position as Welder WG-3703-10, and paid him back pay from July 14, 1995 through the date of his reinstatement. Shortly thereafter, on May 13 1997, the agency proposed Smith's removal based on a permanent disability. As one basis for the removal, the agency cited Smith's inability to perform his position as a Welder WG-3703-10 because he could not wear the required hearing protection, the very disability which formed the basis of Smith's disability claim. The agency also cited the lack of any vacancy to which Smith could be reassigned. Smith's separation became effective June 19, 1997.

On April 8, 1998, Smith appealed the Board's decision that the agency's actions did not constitute disability discrimination to the EEOC.² Following proceedings lasting over six years, the EEOC disagreed with the Board's finding, concluding that the agency had indeed engaged in disability discrimination. EEOC Decision, slip op. at 7. The EEOC found that the position of Material Expediter WG-6910-6 became available in November 1996 and that the agency's failure to assign Smith to this position as a reasonable accommodation was discrimination in violation of the ADA. Id. slip op. at 5-7. Because the EEOC disagreed with the Board's finding regarding the existence of discrimination, it referred the case back to the Board for further consideration. Id.

Thereafter, the Board concurred and adopted the EEOC's decision. 2003 Order, slip op. at 5-6 (holding that that Board could not disagree with the EEOC's finding where, as here, the EEOC's decision rested solely on an interpretation of discrimination law). The Board ordered the agency to "carry out EEOC's decision" and to "pay the appellant the correct amount of back pay, interest on back pay, and other benefits under the Back Pay Act." Id. The agency was also ordered to notify Smith once it believed it had fully complied with the order, at which point Smith could file a petition for enforcement with the administrative judge if he believed that the agency had not fully complied. Id., slip op. at 6.

Based on the 2003 Order, Smith sought relief from the agency. The agency responded on August 19, 2003 that it believed it was already in full compliance with the order. The agency first stated that it was not required to restore Smith to the Material Expediter WG 6910-06 position:

The appellant separated from Federal service effective June 19, 1997. The appellant did not file an appeal or complaint regarding the separation, and now the time to pursue same has expired. Therefore the appellant's period of entitlement for restoration is from November 19, 1996 thru June 19, 1997, a period which has expired.... Therefore the agency's obligations as regards restoration to the position Material Expediter have been fulfilled.

The agency then stated that it had also already complied with the 2003 Order regarding the payment of any back pay due Smith:

The agency has complied with all back pay requirements ordered by the MSPB.... The case giving rise to the EEOC decision is the constructive suspension effective 13 July 1995, which was reversed by the MSPB on 3 April 1997. That decision was not appealed by the Agency, which awarded full back pay under 5 CFR [§] 550.805 for the position of Welder WG307-10.

Because the agency had already paid Smith from July 14, 1995, the date the constructive suspension began, to June 19, 1997, the date Smith was removed from the agency, the agency asserted that nothing more was due. Id.

Smith petitioned the Board for enforcement of its order, arguing that if the agency had not, as the EEOC and Board concluded, discriminated by refusing to reassign him to the open Material Expediter position in November 1996, his employment would not have been terminated in June 1997 by reason of medical disqualification for the Welder's position. Therefore, Smith asserted that he was entitled to compensation under the Back Pay Act from November 19, 1996, the date of the discrimination, through at least December 3, 2000, the date that the agency claims the Material Expediter position was abolished due to a reduction-in-force.

The administrative judge denied Smith's petition for enforcement holding that Smith was not entitled to compensation after June 19, 1997, the effective date of his removal....