U.S. Merit Systems Protection Board 
Case Report for July 13, 2012

Change Font Size: + + + + +

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:  Mary Bennett
Agency:  United States Postal Service
Decision Number:  2012 MSPB 79
Docket Number:  SF-0353-11-0154-I-1
Issuance Date:  July 6, 2012
Appeal Type:  Restoration to Duty
Action Type:  After Recovery from Compensable Injury

Jurisdiction
Restoration - Partial Recovery from Compensable Injury
Disability Discrimination - Accommodation
Furlough

    The appellant petitioned for review of an initial decision that denied on the merits her restoration claim as a partially recovered individual.  After the appellant had partially recovered from a work-related injury, the agency provided her with a series of limited duty assignments.  One of these assignments consisted of rewrapping damaged letters for 8 hours per day at a particular facility.  The agency subsequently informed the appellant that it was unable to identify enough available necessary tasks within her medical restrictions in order for her to complete a full day of work and offered her limited duty assignments of less than 8 hours per day.  The agency continued its search for available necessary tasks for the appellant but was unable to identify enough to complete a full day of work.  On appeal to the Board, the appellant argued that the agency improperly denied her restoration because the rewrap duties from which she was removed were still available and were being performed by other employees, that her work hours were improperly reduced from full-time to part-time, that she was constructively suspended, and that the agency denied her reasonable accommodation in violation of the Rehabilitation Act.  After a hearing, the administrative judge found that the appellant failed to prove by preponderant evidence that the agency acted in an arbitrary and capricious manner in denying her request for restoration.  The judge found that the rewrap duties that the appellant had been performing prior to her reassignment were absorbed into the positions of other bid holders who had insufficient hours to complete their day and whose positions included rewrapping damaged mail.  The judge further found that the agency performed an adequate search for available work within the appellant's medical restrictions within the local commuting area.  With respect to the appellant's allegation of disability discrimination, the judge found that the appellant occupied a mail handler position and that this position requried the performance of tasks beyond her medical restrictions, and that the appellant did not articulate or provide any evidence of an accommodation that would enable her to perform the essential functions of her position.  

Holdings:  The Board modified the initial decision and dismissed the appeal for lack of jurisdiction:

1.  After the appellant filed her petition for review, the Board issued its decision in Latham v. U.S. Postal Service, 117 M.S.P.R. 400 (2012), which changed the jurisdictional test for a partially recovered individual from a nonfrivolous allegation of each element of a restoration claim to a preponderance of the evidence standard.  Although the Board agreed with the judge's conclusion that the appellant failed to establish by preponderant evidence that the agency's actions were arbitrary and capricious, it modified the initial decision to dismiss the appeal for lack of jurisdiction.

2.  The appellant established that she was absent from her position due to a compensable injury, that she 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 of her, and that the agency denied her request for restoration by reducing her hours of work.  Thus, the ultimate issue was whether the appellant demonstrated by preponderant evidence that the denial of restoration was arbitrary and capricious.

3.  The judge correctly found that there is no indication in the record that the agency's job search was geographically inadequate.

4.  The Board considered the appellant's allegation of disability discrimination to the extent that it pertains to the jurisdictional question of whether the denial of restoration was arbitrary and capricious.  The dispositive question in this regard was whether the appellant could perform the essential functions of her position as a mail handler or any other position for which she was qualified, with or without reasonable accommodation.  The appellant did not argue that there was a vacant position, for which she was qualified, with essential functions that she could perform with or without accommodation.  It is well established that the Rehabilitation Act imposes no obligation on the agency to create modified work assignments, and the provision of limited duty tasks that do not constitute a separate postion is not a reasonable accommodation, and that the agency is not required to create a new position for the appellant in order to provide reasonable accommodation.

5.  Because it was undisputed that the tasks of the appellant's former modified assignment (rewrapping damaged letters) were still being performed by other employees, the question became whether those employees lacked sufficient work prior to absorbing the appellant's modified duties, and if so, whether the reassignment of that work violated any other law, rule, or regulation.  

6.  The judge properly found that the employees who absorbed the appellant's rewrapping tasks were bid holders whose duties included rewrapping damaged mail and who lacked sufficient work to complete an 8-hour workday.  

7.  The Board found unpersuasive the appellant's argument that the agency violated a local memorandum of understanding (LMOU) concerning the assignment of rewrapping work.  The LMOU applied only to light duty employees, and the appellant is a limited duty employee.  Even if the LMOU did apply to the appellant, she failed to establish that the agency violated its provisions.

8.  Regarding the appellant's argument that the judge failed to adjudicate her claim that she was furloughed, a claim that a partial-day absence could constitute a furlough is subsumed in the restoration appeal.



Appellant:  Michael A. Honea
Agency:  Department of Homeland Security
Decision Number:  2012 MSPB 80
Docket Number:  DE-315H-11-0178-I-1
Issuance Date:  July 9, 2012
Appeal Type:  Termination of Probationers

Jurisdiction
Probationers

    The agency petitioned for review of an initial decision that reversed the appellant's probationary termination.  The appellant received an appointment to his position effective January 4, 2010, subject to the completion of a 1-year probationary period.  On January 3, 2011, the agency notified the appellant that he was terminated effective that day, citing both performance and conduct issues.  The appellant argued that he completed his probationary period on January 3, 2011, and was therefore entitled to the due process rights of an employee.  The administrative judge found that agency personnel actions are generally effective at midnight on the effective date unless another time is specified and that, because the termination letter did not specify a time of day when the action would be effective, the termination became effective at midnight.  The judge concluded that the appellant completed his probationary period.  Because the agency did not afford the appellant the minimum due process rights to which he was entitled, the action must be reversed.

Holdings:  The Board vacated the initial decision and dismissed the appeal for lack of jurisdiction:

1.  It is well-settled that to terminate a person while that person is still a probationer, the separation action must be effected prior to the end of the probationer's tour of duty on the last day of probation, which is the day before the anniversary date of his appointment.

2.  It was undisputed that:  The appellant's tour of duty on January 3, 2011, was from 6:00 a.m. to 2:30 p.m.; the agency notified him in writing that day that his termination was effective that day without specifying a particular time of day; and that, upon such notification, he turned in all of his government-issued property and was escorted from the workplace by 8 a.m.  

3.  Where, as here, the evidence clearly establishes that the agency took all necessary actions prior to completion of the appellant's probationary tour of duty to carry out his termination, its failure to identify in the notice letter the time at which the separation was to go into effect is not dispositive on the question of whether the appellant's termination was effected prior to the conclusion of his tour of duty.  



Appellant:  Sandra R. Corum
Agency:  United States Postal Service
Decision Number:  2012 MSPB 81
Docket Number:  DC-0353-06-0728-I-1
Issuance Date:  July 10, 2012
Appeal Type:  Restoration to Duty
Action Type:  After Recovery from Compensable Injury

Jurisdiction
Restoration - Partial Recovery from Compensable Injury

    The appellant petitioned for review of an initial decision that dismissed her appeal for lack of jurisdiction.  After sustaining a work-related injury in 1998, the appellant applied for and was granted disability retirement in 2003.  In 2005 and 2006, the appellant sought reinstatement with the agency, stating that she had recovered from her injury and was able to return to duty.  The agency responded that "it is not in the best interest of the Postal Service" that she be reinstated because of her past accident history (11 accidents in 24 years).  The agency also advised the appellant that she was entitled to apply for "reemployment" in accordance with guidelines in a pamphlet entitled "Information for Disability Annuitants," but that the "law does not require your former agency or any other Federal agency to offer you a position."  On appeal to the Board, the appellant asserted that she had fully recovered and that the agency had failed to restore her to duty following a compensable injury.  The administrative judge found that the appellant did not establish that she was fully recovered, and therefore entitled to restoration, because her position required lifting of 70 pounds yet she was still under a 50-pound lifting restriction.  The judge further found that, although the appellant's documentation showed that she was recovered from a back injury, she did not show that she was partially recovered because the medical documentation supporting her disability retirement application provided diagnoses of shoulder, neck, and back injuries, and the appellant had not shown that she had recovered from all 3 injuries.  The judge held that the agency's denial of restoration rights was not arbitrary and capricious because the appellant offered no objective medical evidence to the agency to establish that she was fully or partially recovered and physically capable of performing any job duties.  

Holdings:  The Board granted the appellant's petition for review, reversed the initial decision, finding that the appellant showed that the agency arbitrarily and capriciously denied her restoration, and ordered the agency to conduct a proper job search:

1.  The record supports the judge's conclusion that the appellant had not fully recovered from her compensable injury.

2.  Regarding the appellant's right to restoration as a partially recovered individual, the judge correctly found that the appellant established an absence due to a compensable injury, and that her retirement on disability did not preclude restoration.  

3.  Regarding the judge's finding that the appellant was not partially recovered because her medical documentation did not show recovery with respect to her neck and shoulder, the appellant's compensable injury was based solely on a "sprain of back, lumbar region," and her doctor indicated that she had recovered from this injury.  Further, there is no indication that OPM granted the appellant's disability retirement application based on injuries to her neck and shoulder, as opposed to the back sprain for which she received workers' compensation benefits.  In any event, the medical documentation and the appellant's testimony establish that she is pain free in all areas, including her neck, shoulder, and back.  In sum, the appellant showed that she has recovered sufficiently to return to work part-time or light duty or another position with less demanding physical requirements.

4.  Because the agency did not make every effort to restore the appellant in the local commuting area, the agency's denial of the appellant's restoration request was arbitrary and capricious.

5.  The Board will not order the appellant restored to an assignment, nor will it order back pay based on such an assignment, because that would put her in a better position that if the wrongful action had not occurred.  Where, as here, the denial of restoration was arbitrary and capricious for lack of a proper job search, the proper remedy is for the agency to conduct an appropriate search within the local commuting area retroactive to the date of the appellant's request for restoration, and to consider her for any suitable vacancies.  



Appellant:  Anita Marynowski
Agency:  Department of the Navy
Decision Number:  2012 MSPB 82
Docket Number:  SF-315H-11-0601-I-1
Issuance Date:  July 12, 2012
Appeal Type:  Termination of Probationers

Jurisdiction - Probationers
 - Partisan Political or Marital Status Discrimination

    The appellant petitioned for review of an initial decision that dismissed her appeal of her probationary termination for lack of jurisdiction.  The agency terminated the appellant's employment during her probationary period citing unacceptable performance.  On appeal to the Board, the appellant alleged that her termination was based on both partisan political discrimination and marital status discrimination.  Regarding the former, she alleged that she was forced to endure political discussions about President Obama, that coworkers assumed that, because of her race (Caucasion), she was a Republican, and that her supervisor said that the office was like a club and they were people of color and the appellant needed to understand that.  She alleged that her supervisor decided to terminate her employment in part because the supervisor thought the appellant did not get along with everyone else that was in the same racial and political club.  Regarding marital status discrimination, the appellant alleged that, when she and her supervisor were alone, the supervisor repeatedly commented on her appearance and how that would please the appellant's husband, that the supervisor appeared to be jealous of the appellant because the appellant had a husband and the supervisor was single, and that, while the supervisor did not take the time to train the appellant when she began work at the agency, the supervisor always took time away from work to discuss the appellant's appearance and how it would please her husband.  Based on the written record, the administrative judge found that the appellant failed to make a nonfrivolous allegation of jurisdiction and dismissed the appeal on that basis.

Holdings:  The Board vacated the initial decision and remanded the appeal for further adjudication:

1.  A probationary employee in the competitive service who has not completed 1 year of current continuous service has no statutory right of appeal to the Board.  Under OPM's regulation at 5 C.F.R. 315.806(b), however, such an individual may appeal a termination if she alleges that it was based on partisan political reasons or marital status.  

2.  If an appellant makes nonfrivolous claims of jurisdiction, i.e., factual allegations that, if proven, would establish that her termination was based on partisan political reasons or marital status, she is entitled to a jurisdictional hearing at which she must prove that her termination was based on one of those reasons.

3.  The appellant did not make a nonfrivolous allegation that her termination was based on partisan political reasons, which means discrimination based on affiliation with any political party or candidate.  The Board found that the appellant's bare assertions that her termination was based on her coworkers' belief that she was a Republican was mere conjecture.  Further, the Board agreed with the judge that the appellant's allegation about "people of color" or a "club" referring to African Americans does not indicate discrimination based on affiliation with any political party or candidate.

4.  A majority of the Board, Member Robbins dissenting, found that the appellant nonfrivolously alleged that her termination was based on marital status.  The appellant's allegations, taken as true, indicate that the supervisor took a keen interest in the state of the probationer's marital status.  Furthermore, by alleging that the supervisor, who recommended the appellant's termination, was jealous that the appellant had a husband, and that her fixation on the appellant's marital status caused her to lose training opportunities, the appellant stated a basis for her belief that there was a causal connection between her marital status and her termination.  

    In a dissenting opinion, Member Robbins agreed that the appellant did not nonfrivolously allege that the termination of her appointment durng her probationary period constituted discrimination for partisan political reasons, but disagreed that she had nonfrivolously alleged marital status discrimination.  Member Robbins noted that the appellant did not deny the significant performance deficiencies alleged in the termination notice, and that she did not contend that the agency retained non-married probationers with similar performance deficiencies.  He concluded that she did not make any allegations that, if proven, would permit an inference that the agency's reasons for terminating her appointment were a pretext for marital status discrimination.



Appellant:  Eric Rose
Agency:  Department of Defense
Decision Number:  2012 MSPB 83
Docket Number:  AT-0752-11-0814-I-1
Issuance Date:  July 12, 2012
Appeal Type:  Adverse Action by Agency
Action Type:  Suspension - Indefinite

Jurisdiction - Suspension

    The agency petitioned for review of an initial decision that reversed the appellant's alleged constructive suspension for a period of approximately six weeks.  The appellant was an employee of the Department of Defense's Defense Commissary Agency, which is a tenant activity at a Department of the Navy installation.  On June 10, 2011, a Navy official issued a notice barring the appellant from entering the installation for carrying a concealed weapon and threats of violence against persons inside the commissary.  Starting the next day, the Department of Defense began carrying the appellant in an absence without leave status because of his failure to report to work.  On July 1, 2011, the appellant filed a Board appeal alleging that the agency had constructively suspended him for more than 14 days.  The administrative judge found that the situation presented -- an employee being barred by one governmental entity from being able to report for duty to another governmental entity -- was addressed by the Board in Hollingsworth v. Defense Commissary Agency, 82 M.S.P.R. 444 (1999), where the Board required that an employee prove four factors to establish that he was constructively suspended:  (1) He was absent because of circumstances beyond his control; (2) he informed the agency that, but for those circumstances, he was ready, willing, and able to work; (3) the agency was bound by agency policy, rule, regulation, contractual provision, or other authority to offer assistance to the employee with the circumstances beyond his control; and (4) the agency failed to offer such assistance.  The judge found that the appellant proved Board jurisdiction under the first two Hollingsworth factors.  He found that the second two factors should not be applied to this appeal, stating his view that "this aspect of the test unduly burdens the appellant and fails to give appropriate credence to the employer-employee relationship," and "ostensibly permits a tenant activity to have unfettered disciplinary authority, not subject to review," which is "against public policy."  Based on these findings, the judge found that the appellant proved that he was constructively suspended, and he reversed the agency's action.  

Holdings:  The Board granted the agency's petition for review, vacated the initial decision, and dismissed the appeal for lack of jurisdiction:

1.  The administrative judge should have applied all four factors of the
 Hollingsworth decision.  An administrative judge is bound by Board precedent and is not free to substitute his views for Board law.

2.  The appellant did not satisfy the second Hollingsworth factor, in that he did not show that he was ready, willing, and able to work.  Although the appellant's attorney stated that the agency had denied the appellant's request to return to work, a representative's statements in a pleading are not evidence, and the record contains no evidence of such a request.  Indeed, the Navy official's June 10 order instructed the appellant to submit a request to modify or terminate the order if he believed that any compelling reason existed that he believed would be sufficient, but the appellant presented no evidence showing that he contacted either the Navy official or his employing agency.  

3.  Regarding factors three and four, neither the appellant nor the administrative judge cited any evidence establishing that the appellant asked the agency to help him seek a limited bar, that the agency was required to help him, and that it refused to do so.





COURT DECISIONS


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

McDonald v. Office of Personnel Management, No. 2012-3072 (July 12, 2012) (MSPB Docket No. CH-0831-11-0436-I-1) (affirming the Board's decision, which affirmed OPM's determination that McDonald was not entitled to a survivor annuity)

Croal-Manuel v. Merit Systems Protection Board, No. 2012-3070 (July 12, 2012) (MSPB Docket No. AT-0752-11-0612-I-1 ) (affirming the Board's decision, which dismissed the appellant's claim of an involuntary retirement for lack of jurisdiction)


U.S. Merit Systems Protection Board | Case Reports