Case Report for July 1, 2010
Appellant: John P. Sanchez
Decision Number: 2010 MSPB 121
Docket Number: SF-0353-09-0588-I-1
Issuance Date: June 25, 2010
Appeal Type: Restoration to Duty
Action Type: Denial After Recovery from Compensable Injury
Restoration to Duty
The appellant petitioned for review of an initial decision that dismissed his restoration appeal for lack of jurisdiction. The appellant is a non-preference eligible Mail Processing Clerk who sustained a work-related injury in 1992, and thereafter worked in a series of limited duty assignments. In 2009, as part of its National Reassessment Process (NRP) Pilot Program, the agency reviewed the assignments of those performing limited duty to ensure that they are consistent with employees’ medical restrictions and contain only “operationally necessary tasks.” If a limited duty assignment does not meet these criteria, and if the supervisor or manager is unable to identify operationally necessary tasks available with the employee’s work restrictions, the employee will be sent home until such work becomes available or his medical restrictions change. In April 2009, the agency issued the appellant a letter stating that, because there was no operationally necessary work within his medical restrictions available at his workplace, he should not report against for duty unless he was informed that such work had become available. The agency later expanded its search for alternative positions beyond his tour of duty and current facility, but still found that none were available.
On appeal to the Board, the appellant contended that the agency improperly denied him restoration and failed to accommodate his medical condition, and that he had been constructively suspended. In dismissing the appeal for lack of jurisdiction, the administrative judge found that the appellant failed to make a non-frivolous allegation that the agency’s discontinuation of his limited duty assignment was an arbitrary and capricious denial of restoration. The judge found it unnecessary to determine whether the appeal was timely filed.
Holdings: The Board denied the appellant’s petition for review, reopened the appeal on its own motion, reversed the initial decision, and remanded the case to the regional office for further adjudication:
1. The appellant established jurisdiction over his restoration appeal by making a non-frivolous allegation that the denial of restoration was arbitrary and capricious.
a. Under 5 C.F.R. § 353.304(c), an individual who is partially recovered from a compensable injury may appeal to the MSPB for a determination of whether the agency is acting arbitrarily and capriciously in denying restoration. The only jurisdictional issue at issue here is whether the appellant made a non-frivolous allegation that the agency’s denial of his request for restoration was “arbitrary and capricious.”
b. Under 5 C.F.R. § 353.301(d), agencies must make efforts to restore partially recovered employees “in the local commuting area.” The local commuting area is the geographic area in which an individual lives and can reasonably be expected to travel back and forth daily to his usual duty station. The question of what constitutes a local commuting area is one of fact, which is ordinarily determined by factors such as common practice, the availability and cost of public transportation or the convenience and adequacy of highways, and the travel time required to go to and from work.
c. Because the agency’s search for available work was apparently limited to a single district, whether the agency searched the entire commuting area remains an unanswered question of material fact, which must be explored on remand.
2. The appellant’s claim of disability discrimination must be resolved on remand.
OPM’s restoration regulation, 5 C.F.R.
§ 353.301(d), requires treating employees substantially the same as
individuals protected under the Rehabilitation Act of 1973. The relevant standards are those applied
under the Americans with Disabilities Act (
b. Because an agency’s obligation to search for a restoration assignment for partially recovered employees extends only to the local commuting area, the obligation to undertake substantially the same effort as it would exert when reassigning disabled employees is also limited to the local commuting area.
c. In resolving the appellant’s claim that the agency failed to accommodate his disability, the administrative judge should take into consideration the results of the interactive process required to determine an appropriate accommodation, in which both parties have an obligation to assist in the search for an appropriate accommodation, and both have an obligation to act in good faith in doing so.
3. Based on the record evidence below, it appears that the appellant would be unable to establish jurisdiction over a constructive suspension because he lacks veterans’ preference status, and he does not appear to be a manager, supervisor, or employee engaged in personnel work. Nevertheless, this issue needs to be explored further because the appellant did not have an adequate opportunity to address the issue below.
4. In light of the finding that jurisdiction has been established, the timeliness of the appeal must be resolved on remand.
Appellant: Esperanza Harris
Agency: Department of Veterans Affairs
Decision Number: 2010 MSPB 122
Docket Number: PH-0752-09-0478-I-1
Issuance Date: June 29, 2010
Appeal Type: Adverse Action by Agency
Action Type: Reduction in Grade/Pay
The appellant petitioned for review of an initial decision that dismissed for lack of jurisdiction her appeal of an alleged involuntary reduction in grade. In March 2005, the agency awarded the appellant a within‑grade pay increase (WIGI) from Step 1 to Step 2 of her GS-5 position. In November 2005, the agency placed the appellant on a 30-day Employee Assistance Plan following an unsatisfactory mid-year performance review, and in February 2006, placed her on a performance improvement plan (PIP). Nevertheless, the agency awarded the appellant a second WIGI, from Step 2 to Step 3, in March 2006. In June 2006, the agency notified the appellant that her performance continued to be unacceptable and, in a performance appraisal for the period April 2005 through March 2006, rated her performance as unacceptable in all 5 critical elements of her position. In March 2007, the agency proposed the appellant’s removal. In a decision letter issued in June 2007, the deciding official informed the appellant of his decision to remove her, but stated that, “in lieu of the removal and as requested by your union representatives,” he agreed to assign her to another position, and offered the appellant a choice of 2 positions, both of which entailed a reduction in grade or pay. The appellant signed a letter accepting 1 of the positions, but added a statement that she did not agree with the demotion. The agency reduced her in grade and pay from her GS-5, Step 3 position to a GS-4, Step 6 position.
In her Board appeal, the appellant contended that her reduction in grade and pay was involuntary, and therefore an appealable adverse action. She argued that the agency knew or should have known it could not prevail on its threatened removal action, because she received a WIGI in March 2006, during the period she allegedly failed to demonstrate satisfactory performance. In dismissing the appeal, the administrative judge found, based in part on the agency’s documentary evidence of the appellant’s performance issues, that she failed to make a non-frivolous allegation that the agency knew or should have known it could not prevail on its proposed removal action.
Holdings: The Board granted the appellant’s petition for review, vacated the initial decision, and remanded the case to the regional office for further adjudication:
1. A reduction in grade that an employee accepts voluntarily is not within the Board’s jurisdiction. Such a reduction is involuntary, however, and within the Board’s jurisdiction, if the appellant can show that the agency knew or should have known that a proposed adverse action that led to the acceptance of the demotion could not be substantiated.
2. If an appellant makes a non-frivolous allegation casting doubt on the voluntariness of a reduction in grade, she is entitled to a hearing at which she must prove jurisdiction by a preponderance of the evidence.
3. Approval of a WIGI requires a determination that an employee’s performance is at an acceptable level of competence, which requires that the employee’s most recent rating of record be at least at the fully successful level.
4. If the appellant’s performance was unacceptable as of March 2006, the agency could have issued a new rating reflecting current performance so as to avoid granting an underserved WIGI. The agency’s approval of the WIGI could support a find that the appellant’s performance was satisfactory at that time. This constitutes a non-frivolous that the agency knew or should have known that its removal action could not be substantiated.
Appellant: Michael B. Graves
Agency: Department of Veterans Affairs
Decision Number: 2010 MSPB 123
Docket Number: SF-3330-09-0570-I-1
Issuance Date: June 30, 2010
Appeal Type: Veterans Employment Opportunities Act
The appellant petitioned for review of an initial decision that denied corrective action in his VEOA appeal. The appellant applied for, but was not selected, for a Medical Records Technician/Coder (MRT) position under an open, continuous vacancy announcement. The record reflected that the agency initially intended to fill 2 MRT positions, 1 at the GS-6/7/8 level and 1 at the GS-4/5 training level, but decided to fill just 1 position, at the higher level. On appeal to the Board, the administrative judge found that the appellant established jurisdiction over his VEOA appeal, but found on the merits that the appellant failed to establish that the agency violated his veterans’ preference rights. The judge found, among other things, that: (1) Although 38 U.S.C. § 7403(f)(2) requires that the agency apply the “principles of preference” established under 5 U.S.C. Chapter 33 in hiring veterans, the agency could properly require veterans to possess qualifications that are approximately equal to other candidates before giving them hiring preference; (2) the agency had already selected a non-preference eligible candidate for the GS-6/7/8 level position prior to receiving the appellant’s application; (3) the agency’s decision not to fill the GS-4/5 trainee level position did not violate statutory or regulatory requirements or the agency’s policy regarding veterans’ preference; and (4) the appellant’s argument that the agency denied him his right to compete under 5 U.S.C. § 3304(f)(1) was without merit.
Holdings: The Board granted the appellant’s petition for review, found that the agency violated his veterans’ preference rights, and remanded the case to the regional office for further adjudication:
1. The agency must comply with the requirements set forth in Title 5 of the U.S. Code for the competitive service when filling hybrid positions under 38 U.S.C. § 7401(3), and the agency violated the appellant’s veterans’ preference rights with respect to the GS-6/7/8 MRT position.
a. When filling “hybrid” positions such as MRT positions under 38 U.S.C. § 7401(3), an agency must comply with the competitive service veterans’ preference requirements set for in Title 5 of the U.S. Code; it is inadequate to use veterans’ preference status as a “tie-breaker” in the selection process.
b. Contrary to the administrative judge’s finding, the Board found that the evidence shows that the appellant’s application was pending before the agency selected someone else for the GS-6/7/8 MRT position.
c. The agency violated the appellant’s veterans’ preference rights under 5 U.S.C. § 3317, which requires that the examining authority certify “enough names from the top of the appropriate register” to permit the appointing authority “to consider at least three names for appointment to each vacancy.” The agency did not comply with this provision, forwarding only a single individual to the appointing authority.
d. The agency violated the appellant’s veterans’ preference rights under 5 U.S.C. § 3318, as it did not comply with the “pass over” requirements of that provision.
2. The appeal must be remanded to determine the type of veterans’ preference to which the appellant is entitled.
a. If the appellant was entitled to a 10-point preference and the agency did not properly credit him, that would be a separate veterans’ preference violation. If a veteran is receiving compensation for a disability of 10% or more, his name ranks above those of others referred for consideration.
b. The present record is insufficient to make a determination of whether the appellant was entitled to be considered as a 10-point preference eligible.
3. The appellant failed to prove that the agency violated his veterans’ preference rights by not selecting him for the GS-4/5 trainee level position. The decision to cancel the second vacancy was within the agency’s authority.
4. The appellant failed to prove that the agency violated his right to compete under 5 U.S.C. § 3304(f)(1), which applies only when an agency uses merit promotion procedures to fill a vacancy. The agency did not use merit promotion procedures in filling this position.