U.S. Merit Systems Protection Board 
Case Report for June 6, 2016

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Note:  These summaries are descriptions prepared by individual MSPB employees. They do not represent official summaries approved by the Board itself, and are not intended to provide legal counsel or to be cited as legal authority.  Instead, they are provided only to inform and help the public locate Board precedents.

BOARD DECISIONS

Appellant:  Doreen K. Kingsley
Agency:  United States Postal Service
Decision Number:  2016 MSPB 21
Docket Number:  SF-0353-15-0511-I-1
Issuance Date:  May 25, 2016
Appeal, Action Type:  Restoration to Duty - After Recovery from Compensable Injury

Jurisdiction - Nonfrivolous Allegations
Restoration
 - Partial Recovery after Compensable Injury

    The appellant petitioned for review of an initial decision that denied her restoration appeal.  The appellant suffered multiple compenable injuries as a City Carrier between March 2005 and March 2012.  The agency gave the the appellant a limited-duty assignment in March 2012.  When the appellant's work restrictions increased in June 2012, the agency searched the relevant 50-mile commuting area, but was unable to locate any work within her new restrictions, and sent her home on August 2, 2012.  The appellant provided new medical restrictions in November 2012.  The agency's December 2012 search did not locate any work the the appellant could perform, but the agency expanded its search in January 2013 and located a rehabilitation position for the the appellant as a Customer Care Agent.  She served in this position from March 2013 until her removal in March 2015.  

     During the regional office proceeding, the administrative judge found that the relevant timeframe for determining whether the agency improperly denied the appellant restoration was between June 2012, when the appellant alleged she first sought restoration, and March 2013, when she was appointed to the Customer Care Agent position.  The appellant agreed that this was the pertinent timeframe.  After conducting a hearing, the judge found that the agency had denied the the appellant restoration in July 2012, but, because it conducted adequate searches for available work in the relevant commuting area and found no vacant position for which the appellant was qualified, the denial was not arbitrary and capricious.  The judge also rejected the appellant's claims that offer of the rehabilitation position was so unreasonable that it was effectively a denial of restoration, and that the agency was guilty of disability discrimination on the basis that it failed to provide her a reasonable accommodation.  

Holdings:  The Board denied the petition for review and affirmed the initial decision as modified, still denying the appellant's restoration and discrimination claims:

1. The Board noted that, pursuant to a recent regulatory change (5 C.F.R.  1201.57(a)(4), (b)), jurisdiction is established
in restoration appeals by making nonfrivolous allegations.  The administrative judge properly applied these regulations in finding that the appellant established jurisdiction.  

2. The Board agreed with the administrative judge's reasoning in finding that the offer of the rehabilitation position was not so unreasonable as to amount to a denial of restoration within the Board's jurisdiction.  The Board declined to adjudicate whether the duties required of the appellant in the rehabilitation position exceeded her medical limitations because this claim concerned the period after she began working this position, which was outside of the scope of the appeal agreed to by the appellant.

3. Shortly before the initial decision was issued, the Board issued a decision that clarified the evidentiary standards and burdens of proof under which it analyzes Title VII discrimination claims, (Savage v. Department of the Army, 122 M.S.P.R. 612, 42-43, 51 (2015)), but applying the Savage framework would not alter the the administrative judge's finding on the appellant's discrimination claims.  



COURT DECISIONS

The U.S. Court of Appeals for the Federal Circuit issued nonprecedential decisions in the following cases:

Gray v. Merit Systems Protection Board, No. 2015-3186 (May 25, 2016) (MSPB Docket No. DC-1221-14-1122-W-1) (affirming the the Board's decision, which dismissed Gray's IRA appeal for lack of jurisdiction)

Khol v. Department of Defense, No. 2015-3164 (June 2, 2016) (MSPB Docket No. DC-0752-14-0624-I-1) (affirming the the Board's decision, which sustained the action of the agency imposing a six-day furlough in 2013 in response to sequestration legislation)

U.S. Merit Systems Protection Board | Case Reports