United States Merit Systems Protection Board

Case Report for October 29, 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: Thomas G. Jarrard

Agency: Social Security Administration

Decision Number: 2010 MSPB 207

Docket Number: SF-3330-10-0024-I-1

Issuance Date: October 28, 2010

Appeal Type: Veterans Employment Opportunities Act (VEOA)

VEOA/Veterans’ Rights
Failure to State a Claim
Right to a Hearing

The appellant petitioned for review of an initial decision that dismissed his VEOA appeal for failure to state a claim upon which relief can be granted. The appellant, who is a preference eligible veteran with an 80% service-connected disability, applied for Attorney Advisor positions with the agency. The appellant was not selected for a position, and it was undisputed that one of the applicants selected was a non-preference eligible. In his complaint to the Department of Labor, and in his appeal to the Board, the appellant alleged that the agency violated his veterans’ preference rights because it failed to offer him a position without complying with the passover requirements of 5 U.S.C.  3318. The agency argued that the passover requirements of  3318 do not apply to hiring for attorney positions because application of that section presupposes examination and placement on a certificate of eligibles, but applicants for attorney positions are not subject to examination or placement on a certificate. Although the administrative judge found that the appellant had established jurisdiction over his VEOA claim, the judge agreed with the agency’s argument and dismissed the appeal for failure to state a claim upon which relief can be granted.

Holdings: The Board denied the appellant’s petition for review, reopened the appeal on its own motion, vacated the initial decision, and denied the appellant’s request for corrective action on the merits:

1. The Board has the authority to decide the merits of a VEOA appeal without a hearing if there is no genuine dispute of material fact and one party must prevail as a matter of law, which was the case here. Nevertheless, because the Board’s analysis relies on factual matters outside the appellant’s pleadings, the appropriate disposition is denial on the merits without a hearing rather than dismissal for failure to state a claim upon which relief can be granted.

2. The agency did not violate the appellant’s rights as a preference eligible veteran with an 80% service-connected disability when it selected a non-preference eligible applicant without following the passover provisions of 5 U.S.C.  3318.

a. Under section 3318, when an agency intends “to pass over a preference eligible on a certificate” in favor of a non-preference eligible, the agency must file written reasons for its intended passover with OPM, and OPM must determine whether the agency has provided a sufficient basis to warrant the intended passover.

b. Although  3318 on its face applies only to appointments in the competitive service, it also applies to appointments in the excepted service because of the provisions of 5 U.S.C.  3320.

c. Attorney Advisor positions are in Schedule A of the excepted service, which covers positions “which are not of a confidential or policy-determining character . . . for which it is not practicable to examine,” and Congress has specifically forbidden the executive branch from developing an examination for attorneys.

d. Because applicants for Schedule A attorney positions are not subject to an OPM examination within the meaning of 5 U.S.C.  3313, they are not placed on a certificate of eligibles within the meaning of 5 U.S.C.  3317(a).

e. Section 3318 specifies that the passover is on a certificate furnished under  3317(a). The very notion of “passing over” a preference eligible presupposes that he encumbers a position on a certificate; a preference eligible cannot credibly claim to have been “passed over” in favor of another applicant unless he already encumbered a ranked position ahead of the other applicant on a certificate. Without such a certificate, the term “passover” as used in  3318 is devoid of meaning.

f. To the extent that the appellant was arguing that the agency should have to follow closely analogous procedures to those in  3318, the Board disagreed. OPM’s regulation provides that, in selecting for attorney positions, agencies must “follow the principle of veteran preference as far as administratively feasible.” This vests individual agencies with broad discretion in affording veterans’ preference to applicants for attorney positions. It is undisputed that the agency treated the appellant’s veterans’ preference status as a “positive factor” in the selection process, which complies with the requirements of OPM’s regulation.

Appellant: Sandra M. Soto

Agency: United States Postal Service

Decision Number: 2010 MSPB 204

Docket Number: SF-0353-09-0574-I-1

Issuance Date: October 25, 2010

Appeal Type: Restoration to Duty

Action Type: Denial After Partial Recovery from Compensable Injury

Restoration to Duty

The appellant petitioned for review of an initial decision that dismissed her restoration appeal for lack of jurisdiction. This case involves the agency’s National Reassessment Process (NRP), under which supervisors and managers of employees performing limited duty review those employees’ assignments to ensure that they are consistent with employees’ medical restrictions and contain only “operationally necessary tasks.” If the supervisor or manager is unable to identify any operationally necessary tasks within the employee’s work restrictions, the employee will be placed on leave until such work becomes available or her medical restrictions change. If there are operationally necessary tasks available with the employee’s work restrictions, but not enough to provide the employee with a full day’s work, the employee will be scheduled to work partial days, and be placed on leave for the remainder of the workday. This arrangement will continue until either the availability of work or the employee’s medical restrictions change.

The appellant in this case had partially recovered from a work-related injury and had worked in limited duty positions on a full-time basis. In April 2009, the agency notified the appellant that, because there was no operationally necessary work available for her within her medical restrictions at her duty site, she should not report again for duty unless she was informed that such work had become available. During the pendency of the Board appeal, the appellant accepted the agency’s offer of a part‑time limited duty assignment of 3 hours per day. The administrative judge dismissed the appeal for lack of jurisdiction, finding that the appellant failed to make a nonfrivolous allegation that the agency’s denial of restoration was arbitrary and capricious.

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. In the case of a partially recovered employee, i.e., one who cannot resume the full range of regular duties but has recovered sufficiently to return to part-time or light duty or to another position with less demanding physical requirements, an agency must make every effort to restore the individual to a position within her medical restrictions and within the local commuting area.

3. The administrative judge correctly found that the appellant was denied restoration from April 9, 2009, when the agency discontinued her former full-time limited duty assignment, until at least May 12, 2009, when the agency offered her the part-time limited duty assignment.

4. Although the appellant’s submissions themselves failed to raise a nonfrivolous allegation that the agency’s denial of restoration was arbitrary and capricious, the agency’s documentary submissions are sufficient to render nonfrivolous the appellant’s allegation in this regard. Specifically, the evidence does not suggest that the agency search the entire local commuting area for suitable work as it was required to do. Evidence that the agency failed to search the entire local commuting area as required by 5 C.F.R.  353.301(d) constitutes a nonfrivolous allegation that the agency acted arbitrarily and capriciously in denying restoration.

5. The Board has found that when the agency awards an employee a full-time limited duty assignment and then reduces the employee’s hours to part time under the NRP, the agency has denied the employee restoration. Accordingly, the merits of the agency’s decision to restore the appellant to part-time limited duty rather than full-time limited duty is within the Board’s jurisdiction under the circumstances of this case.

Appellant: Cynthia A. Nevers

Agency: United States Postal Service

Decision Number: 2010 MSPB 206

Docket Number: SF-0353-09-0676-I-1

Issuance Date: October 28, 2010

Appeal Type: Restoration to Duty

Action Type: Denial After Partial Recovery from Compensable Injury

Restoration to Duty

The appellant petitioned for review of an initial decision that dismissed her restoration appeal for lack of jurisdiction. As in Soto, the appellant was a partially recovered employee who had worked limited duty assignments on a full-time basis. In April 2009, the agency notified her that, pursuant to the NRP, it had searched for operationally necessary tasks meeting her medical restrictions, but was unable to identify enough operationally necessary work in order for her to work a full day, and offered her a new modified job working 2 hours per day, which she accepted. The agency later notified the appellant that it was unable to identify any operationally necessary tasks within her medical restrictions, and instructed her not to report to work unless it contacted her. On appeal to the Board, the administrative judge found that the appellant failed to make a nonfrivolous allegation that she was denied restoration with respect to the agency’s offer of less than full-time work, but that the agency’s action in sending her home without any work was a nonfrivolous allegation that she was denied restoration. The judge found, however, that the appellant failed to make a nonfrivolous allegation that this denial of restoration was arbitrary and capricious.

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. Provision of part-time work, where an agency has partially eliminated previously afforded limited duty pursuant to the NRP, constitutes a nonfrivolous allegation of a denial of restoration.

2. As in Soto, the evidence indicated that the agency did not search the entire local commuting area for suitable work, and this constitutes a nonfrivolous allegation that the denial of restoration was arbitrary and capricious. A remand is therefore necessary.

Appellant: Annette Ferrin-Rodgers

Agency: United States Postal Service

Decision Number: 2010 MSPB 209

Docket Number: SF-0353-09-0651-I-1

Issuance Date: October 28, 2010

Appeal Type: Restoration to Duty

Action Type: Denial After Partial Recovery from Compensable Injury

Restoration to Duty

The appellant petitioned for review of an initial decision that dismissed her restoration appeal for lack of jurisdiction. As in Soto, the appellant was a partially recovered employee who had worked limited duty assignments on a full-time basis. In April 2009, the agency notified the appellant that, pursuant to the NRP, it had searched for operationally available work within her medical restrictions, but could only find work totaling 3 hours per day, which the appellant accepted “under protest.” In dismissing the appeal for lack of jurisdiction, the administrative judge found that the appellant was essentially disputing the particulars of her restoration, and that she failed to make a nonfrivolous allegation that her assignment of 3 hours of limited duty work per day was so unreasonable as to constitute an arbitrary and capricious denial of restoration.

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. Under the circumstances of this case, where the agency had previously provided full-time limited duty work, reducing that limited work from 8 hours to 3 hours per day pursuant to the NRP constitutes a denial of restoration.

2. As in Soto, the evidence indicated that the agency did not search the entire local commuting area for suitable work, and this constitutes a nonfrivolous allegation that the denial of restoration was arbitrary and capricious. A remand is therefore necessary.

Appellant: Mari C. Rodriguez-Moreno

Agency: United States Postal Service

Decision Number: 2010 MSPB 205

Docket Number: SF-0353-10-0212-I-1

Issuance Date: October 27, 2010

Appeal Type: Restoration to Duty

Action Type: Denial After Partial Recovery from Compensable Injury

Restoration to Duty

The appellant petitioned for review of an initial decision that dismissed her restoration appeal for lack of jurisdiction. As in Soto, the appellant was a partially recovered employee who had worked limited duty assignments on a full-time basis. In November 2009, the agency notified the appellant that, pursuant to the NRP, it had determined that there was no operationally necessary work available for her within her medical restrictions, and she should not report again for duty unless she was informed that such work had become available. On appeal to the Board, the appellant alleged that the agency had not searched the entire local commuting area for operationally necessary work. The administrative judge concluded, however, that the appellant failed to make a nonfrivolous allegation in this regard because she identified no facts to support her assertion.

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. Although the appellant’s documentary submissions are themselves insufficient to raise a nonfrivolous contention that the denial of restoration was arbitrary and capricious, the agency’s documentary submissions call into question whether it searched the entire local commuting area. Without a finding as to what constitutes the local commuting area in this appeal, and an explanation of which offices outside of the Bay Valley District were actually searched, the Board cannot determine if the appellant made a nonfrivolous allegation that the agency acted arbitrarily and capriciously in denying restoration.

2. A remand is necessary to determine whether the Board has jurisdiction. If a finding of jurisdiction is made, the appellant’s claim of disability discrimination must also be adjudicated.

Appellant: Lin Yang

Agency: United States Postal Service

Decision Number: 2010 MSPB 208

Docket Number: SF-0353-09-0553-I-1

Issuance Date: October 28, 2010

Appeal Type: Restoration to Duty

Action Type: Denial After Partial Recovery from Compensable Injury

Restoration to Duty

The appellant petitioned for review of an initial decision that dismissed her restoration appeal for lack of jurisdiction. As in Soto, the appellant was a partially recovered employee who had worked limited duty assignments on a full-time basis. In April 2009, the agency notified the appellant that, pursuant to the NRP, it had determined that there was no operationally necessary work available for her within her medical restrictions, and she should not report again for duty unless she was informed that such work had become available. In dismissing the appeal for lack of jurisdiction, the administrative judge found that the appellant failed to make a nonfrivolous allegation that the agency’s denial of restoration was arbitrary and capricious.

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. The Board found that the evidence indicated that the agency did not search the entire local commuting area for suitable work, and this constitutes a nonfrivolous allegation that the denial of restoration was arbitrary and capricious. A remand is therefore necessary.