United States Merit Systems Protection Board

Case Report for July 30, 2010


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:  David Kinglee

Agency:  United States Postal Service

Decision Number:  2010 MSPB 153

Docket Number:  SF-0353-09-0520-I-1

Issuance Date:  July 23, 2010

Appeal Type:  Restoration to Duty

Action Type:  After Recovery from Compensable Injury

Restoration
Jurisdiction
Constructive Suspension

       The appellant petitioned for review of two initial decisions that dismissed his restoration to duty and constructive suspension appeals for lack of jurisdiction.  The appellant is a preference eligible City Letter Carrier working in a limited duty capacity because of a compensable injury.  In February 2009, the appellant submitted updated medical documentation indicating that his ability to perform tasks involving simple grasping was limited to 90 minutes per shift, and that he could not drive more than 2 hours per shift.  On April 21, 2009, the agency notified the appellant that, as part of its National Reassessment Process (NRP), it had conducted a search of his work facility and was unable to find enough operationally necessary tasks within the appellant’s medical restrictions for him to complete a full day of work.  It instructed him that he could select continuation of pay, if eligible, leave, or leave without pay for the remainder of his workday, and that he should report back for duty on his next scheduled workday.  The appellant did so, and the agency offered, and the appellant accepted, an assignment casing mail for 90 minutes per day.  Subsequently, on May 9, the agency offered, and the appellant accepted, a similar assignment for 90 minutes per day. 

       The appellant filed two appeals.  One alleged that the reduction in his work hours constituted a violation of his restoration to duty rights after partial recovery from a compensable injury.  The administrative judge dismissed this appeal for lack of jurisdiction on the basis that the appellant failed to make a non-frivolous allegation that his restoration to a modified position for 90 minutes per work day was so unreasonable as to amount to a denial of restoration.  In the second appeal, the appellant alleged that the reduction in his work hours constituted an appealable constructive suspension.  The judge found, however, that the appellant failed to make a non-frivolous allegation because the agency had not placed the appellant in a non-pay status for more than 14 consecutive days.  In both appeals, the administrative judge found that, absent jurisdiction over the underlying claim, the Board was without jurisdiction to adjudicate the appellant’s claim of disability discrimination.

Holdings:  The Board denied the appellant’s petitions for review, reopened the appeals on its own motion, reversed the initial decisions, and remanded the joined appeals to the regional office for further adjudication:

1.  The appellant has established jurisdiction over his restoration appeal.

a.  To establish Board jurisdiction over a restoration claim as a partially recovered employee, the appellant must make non-frivolous allegations that:  (1) he was absent from his position due to a compensable injury; (2) he recovered sufficiently to return to duty on a part‑time basis, or to return to work in a position with less demanding physical requirements than those previously required; (3) the agency denied his request for restoration; and (4) the denial was arbitrary and capricious.

b.  There was no dispute that the appellant made non-frivolous allegations as to the first two elements.

c.  The appellant has presented a non-frivolous allegation that the agency’s decision to reduce his limited duty from 8 hours to 90 minutes per day pursuant to its NRP constitutes a restoration denial within the meaning of the third element of the jurisdictional test.  The Board has previously found that a decision under the NRP to completely eliminate work previously afforded constitutes a non-frivolous allegation of a denial of restoration, and the Board saw no reason to reach a different conclusion where the agency has partially eliminated previously afforded limited duty.  This is not a case where an appellant is challenging the details or circumstances of the restoration, but is instead a situation where the agency is rescinding a previously provided restoration.

d.  The final jurisdictional element – a non-frivolous allegation that the denial was arbitrary and capricious – is satisfied because, as discussed in previous Board decisions regarding the NRP program, the agency’s search for operationally necessary tasks was limited to his previous workplace, and its duty was to search the entire local commuting area.

2.  The Board found that the circumstances at issue in this appeal do not give rise to a constructive suspension claim.  The appellant’s rights and remedies regarding the portion of his workday for which the agency has not assigned him work are subsumed in the restoration appeal process.  If the appellant prevails on the merits of his claim, he would be entitled to relief that would address the agency’s failure to provide him with the proper hours of work each day.  If the Board determines on the merits, however, that the agency afforded him the restoration rights to which he is entitled, it would be illogical to then hold that the agency’s proper restoration could constitute an improper constructive suspension.

3.  Because the Board has jurisdiction over the appellant’s restoration claim, it also has jurisdiction to adjudicate his claim of disability discrimination.

Appellant:  Sherman Howard

Agency:  Department of the Air Force

Decision Number:  2010 MSPB 154

Docket Number:  DA-0752-09-0172-I-1

Issuance Date:  July 26, 2010

Appeal Type:  Adverse Action by Agency

Action Type:  Removal

Penalty

       The appellant petitioned for review of a bench decision that affirmed his removal.  The agency removed the appellant from his position as an Auditor based on 5 charges of misconduct.  Following a hearing, the administrative judge issued a decision sustaining 3 charges in their entirety as well as 1 specification of a fourth charge.  The judge rejected the appellant’s affirmative defenses and further found that the removal penalty was reasonable. 

Holdings:  The Board granted the appellant’s petition for review and affirmed the bench decision as modified, still affirming the removal action:

1.  The Board discerned no basis for overturning the administrative judge’s findings with respect to the charges and affirmative defenses.  It further found that the judge did not commit any procedural error that adversely affected the appellant’s substantive rights.  It agreed with the appellant, however, that the judge erred in her analysis with respect to the reasonableness of the penalty.

2.  The deciding official considered the appellant’s poor performance as an aggravating factor weighing in favor of removal, even though the proposal notice did not mention the appellant’s poor performance as an aggravating factor.  This was error.  As a result, the agency’s penalty determination is not entitled to deference.

3.  After conducting its own analysis of the reasonableness of the penalty, the Board concluded that the removal penalty was within the bounds of reasonableness.

Appellant:  Susan C. Sanders

Agency:  Social Security Administration

Decision Number:  2010 MSPB 155

Docket Number:  PH-0432-09-0551-I-1

Issuance Date:  July 26, 2010

Appeal Type:  Performance

Action Type:  Removal

Performance-Based Actions

       The appellant petitioned for review of an initial decision that sustained her removal for unacceptable performance.  Following a hearing, the administrative judge found that:  OPM had approved the agency’s performance appraisal system; the appellant’s performance standards were reasonable and based on objective criteria; the performance standards and critical elements were timely communicated to the appellant; the appellant was informed of how her performance of 3 critical elements was deficient and what she needed to do to bring her performance of these elements to a satisfactory level; the agency afforded the appellant an opportunity to improve her performance with assistance; and the appellant failed to bring her performance to an acceptable level during the performance period.  The administrative judge further found that the appellant failed to prove her affirmative defense of disability discrimination based on her asserted learning disability.

Holdings:  The Board denied the appellant’s petition for review, reopened the appeal on its own motion, affirmed the initial decision as modified, still sustaining the appellant’s removal:

1.  The appellant was not denied the right to a fair hearing or the ability to call relevant witnesses.

2.  The administrative judge properly found that the agency provided the appellant with a reasonable opportunity to improve her performance of the 3 critical elements prior to taking the performance-based removal action.

3.  The administrative judge properly found that the appellant failed to prove her affirmative defense of disability discrimination.  The Board found in this regard that the appellant’s requested accommodation – that the agency provide her with a mentor 8 hours per day during the 120-day performance improvement period – was unreasonable and would have negatively affected the agency’s ability to conduct business. 

Appellant:  Trevor L. Dunbar

Agency:  United States Postal Service

Decision Number:  2010 MSPB 156

Docket Number:  SF-0752-09-0788-I-1

Issuance Date:  July 28, 2010

Appeal Type:  Adverse Action by Agency

Action Type:  Removal

Timeliness – PFA

       The appellant petitioned for review of an initial decision that dismissed his appeal as untimely filed.  By letter dated May 19, 2009, the agency notified the appellant of its decision to remove him effective June 6, 2009.  The appellant filed an appeal with the Board on July 16, 2009.  In response to the administrative judge’s order to file evidence and argument to show that the appeal was timely filed or that good cause existed for the delay, the appellant alleged that the agency’s decision letter did not reach his post office box until June 25.  The agency submitted evidence that it sent the letter to the appellant’s post office box by certified mail and delivery confirmation, and alleged that its letter reached the appellant’s post office box no later than May 28, and that the appellant’s union filed a grievance on June 2, indicating that the appellant had given the union a copy of the decision letter on or before that date. 

       Without holding a hearing, the administrative judge issued a decision dismissing the appeal as untimely filed.  He found that “the evidence suggests that the appellant was aware of the removal letter at least as of June 2, 2009.”  The judge found that, even if the appellant were not aware of the decision letter as of that date, he failed to exercise due diligence in collecting his mail and failed to show good cause for the filing delay.

Holdings:  The Board, Member Rose dissenting, granted the appellant’s petition for review, vacated the initial decision, and remanded the appeal for further adjudication:

1.  Generally, an appellant must file his appeal no later than 30 days after the effective date of the action being appealed, or 30 days after the date he receives the agency’s decision, whichever is later.

2.  Both the Board and the U.S. Court of Appeals for the Federal Circuit have found that, under the Board’s regulations, an appellant cannot be charged with constructive receipt of an agency decision letter on the basis that the appellant was negligent in collecting his mail.  The date that an appellant actually receives the agency’s decision letter is the relevant date for determining the filing deadline, not the date that it was delivered to his address of record. 

3.  The Board is unable to decide the timeliness issue because there are issues of material fact that cannot be resolved on the existing record.  Specifically, the date that the appellant actually received the agency’s decision letter, and the issue of whether the appellant intentionally avoided receiving the decision letter, remain in dispute.

       In her dissenting opinion, Member Rose noted that, in Saddler v. Department of the Army, 68 F.3d 1357 (Fed. Cir. 1995), the court identified 3 situations in which constructive receipt would still apply:  where the appellant’s designated representative received the decision notice; where the notice is delivered to a relative at the appellant’s residence; and where there is evidence of intentional avoidance.  Here, she would have found that the appellant’s designated union representative clearly received a copy of the decision notice because the record contains a grievance over the removal action that the union filed on the appellant’s behalf.  She rejected the appellant’s contention that the grievance concerns only the notice of proposed removal.

Appellant:  Ernest Gerald, Jr.

Agency:  Department of the Treasury

Decision Number:  2010 MSPB 157

Docket Number:  NY-0752-08-0259-I-1

Issuance Date:  July 29, 2010

Appeal Type:  Adverse Action by Agency

Action Type:  Removal

Timeliness – PFR

       The appellant petitioned for review of an initial decision that dismissed his appeal as untimely filing.  The petition for review was filed almost 19 months after the deadline for timely filing.

Holdings:  The Board dismissed the appellant’s petition for review as untimely filed without good cause shown for the delay in filing.