U.S. Merit Systems Protection Board 
Case Report for August 3, 2012

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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:  Phan V. Tram
Agency:  United States Postal Service
Decision Number:  2012 MSPB 92
Docket Number:  SF-0353-09-0549-B-1
Issuance Date:  July 27, 2012
Appeal Type:  Restoration to Duty
Action Type:  After Recovery from Compensable Injury

Restoration to Duty - Partial Recovery from Compensable Injury
 - Remedies

    The agency petitioned for review of a remand initial decision that reversed its decision to deny the appellant restoration to duty after her partial recovery from a compensable injury.  The appellant is a Mail Processing Clerk who, after partially recovering from a work-related injury, returned to work in a modified assignment.  On April 9, 2009, the agency discontinued that assignment under its National Reassessment Process on the basis that there was no operationally necessary work available for her within her medical restrictions.  The administrative judge found that:  (1) The agency had not searched throughout the local commuting area for appropriate work at the time that it discontinued the appellant's modified assignment; and (2) although the agency eventually completed its job search after it discontinued the appellant's modified assignment and determined that there was no work available at that time, the April 9, 2009 denial of restoration was still arbitrary and capricious.  The judge ordered the agency to restore the appellant retroactively to April 9, 2009, and to award her appropriate back pay and benefits.  

Holdings:  The Board affirmed the initial decision insofar as it found that the agency arbitrarily and capriciously denied the appellant restoration, but modified the remedy provided:

1.  The purpose of a Board order canceling a wrongful action is to place the appellant as nearly as possible in the status quo ante, i.e., in the situation she would have been in had the action not occurred.

2.  The Board will not order the appellant restored to an assignment that was properly discontinued, nor will it order back pay based on such an assignment because that would put the appellant in a better position than if the wrongful action had not occurred.  

3.  Upon discontinuing the appellant's modified assignment, the agency was obligated to conduct a legally sufficient job search for an alternative assignment.  The record supports the judge's finding that the agency failed to conduct such a search in a timely manner and that the agency's action was arbitrary and capricious in that regard.  

4.  Where the denial of restoration was arbitrary and capricious for lack of a proper job search, the Board has found that the appropriate 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.  The appellant will be entitled to back pay only if the agency's retroactive job search uncovers available work to which it could have restored her.  



Appellant:  Paula Y. Scott
Agency:  United States Postal Service
Decision Number:  2012 MSPB 93
Docket Number:  PH-0353-10-0596-I-1
Issuance Date:  July 27, 2012
Appeal Type:  Restoration to Duty
Action Type:  After Recovery from Compensable Injury

Restoration to Duty - Partial Recovery from Compensable Injury
 - Remedies

    The appellant, a mail processing clerk, petitioned for review of an initial decision that denied her restoration claim on the merits.  After  partially recovering from a work-related injury, the appellant initially received a limited duty assignment consisting of 8 hours of work per day.  On November 11, 2008, she received a modified assignment that reduced her hours to 5 hours per day.  On August 6, 2009, she received a modified assignment that further reduced her hours to 2 hours per day.  On 3 subsequent occasions in 2009 and 2010, she received modified assignments consisting of 2 hours of work per day.  On July 28, 2010, the agency gave her a permanent rehabilitation modified position of 2 hours per day under its National Reassessment Process (NRP).  On appeal to the Board, the appellant asserted that the agency violated her restoration rights on November 11, 2008, August 6, 2009, and July 10, 2010.  She argued that the agency denied her restoration when it reduced her hours to 5 hours per day and then to 2 hours per day, even though there was work available and she was able to work 8 hours per day.  The administrative judge found that the appellant established jurisdiction by making nonfrivolous allegations with respect to all 3 claims.  On the merits, the judge found that the appellant did not prove her claims as to the 2008 and 2009 reduction in hours, finding that the circumstances were distinguishable from the line of cases under the NRP in which the Board held that a partial elimination of previously afforded limited duty amounted to a denial of restoration.  The judge concluded that the appellant was simply challenging the details or circumstances of her restoration.  The judge found that the July 2010 notification of a permanent rehabilitation position was not a denial of restoration because that action only changed the appellant's reporting time and not the number of hours per day of work.  

Holdings:  The Board reversed the initial decision, found that the appellant has shown that the agency arbitrarily and capriciously denied her restoration, and ordered the agency to conduct a proper job search:

1.  Although the judge correctly found
under then-existing precedent that the appellant established jurisdiction by making nonfrivolous allegations, the Board and its reviewing court have subsequently held that jurisdictional elements must be proved by preponderant evidence, and that an appellant who establishes jurisdiction over a partial recovery restoration appeal automatically prevails on the merits.  

2.  The appellant established by preponderant evidence that the agency denied her restoration in November 2008, August 2009, and July 2010.  

a.  An agency's partial elimination of previously afforded limited duty constitutes a rescission of a previously provided restoration, and therefore an appealable denial of restoration.  Although a previous decision left open the question of whether affording part-time restoration in circumstances other than reducing hours under the agency's NRP constitutes a denial of restoration, the Board found no reason to distinguish the 2008 and 2009 reductions in hours because they occurred outside of the NRP.  Here, the record reflects that the appellant was capable of working 8 hours each day.  Accordingly, she established that the agency denied her restoration in 2008, and again in 2009, when it reduced her hours to 5 hours per day, and then to 2 hours per day.

b.  Although the July 2010 action did not further reduce the appellant's work hours, it nevertheless constituted a third denial of restoration because it formalized the appellant's 2-hour workday schedule.

3.  The appellant established by preponderant evidence that all 3 denials of restoration were arbitrary and capricious.

a.  An appellant can demonstrate that the agency's denial of restoration was arbitrary and capricious if the record establishes that the agency did not examine the entire local commuting area in determining the available work within the appellant's medical restrictions.  

b.  There is no indication in the record that the agency conducted a search for work within the appellant's medical restrictions in the entire local commuting area in 2008 or 2009; the agency limited its search for tasks for the appellant to her own facility.  The agency's denials in 2008 and 2009 were therefore arbitrary and capricious.  

c.  With respect to the July 2010 denial of restoration, the agency did search the entire local commuting area, but its search was limited to 2 hours of work per day rather than a search for tasks that could provide the appellant a 40-hour workweek.  This improper search was an arbitrary and capricious denial of restoration.  

4.  As in the Tram appeal, the proper remedy is to order the agency to conduct a proper search retroactive to November 2008, and to consider the appellant for any suitable assignments available during that time period consistent with its restoration obligations.  



Appellant:  Leonard J. Reid
Agency:  Department of the Navy
Decision Number:  2012 MSPB 94
Docket Number:  PH-0752-09-0357-I-2
Issuance Date:  August 1, 2012
Appeal Type:  Adverse Action by Agency
Action Type:  Reduction in Grade

Penalty - Disparate Penalties - Mitigation

    The agency petitioned for review of an initial decision that mitigated the agency's penalty of demotion to a letter of reprimand.   The appellant worked as a Supervisory Police Officer at a Naval Engineering Station.  The agency demoted him to a nonsupervisory Police Officer position based on four sustained charges (out of 5 charges):  (1) failure to conduct pepper spray contamination training in accordance with established policy by (a) spraying the trainee with his eyes open rather than closed, (b) not providing independent medical personnel on the scene, and (c) not establishing and affording the trainee the specified 5 separate engagement stations during the training exercise; (2) failure to properly investigate and initiate corrective action regarding mistreatment of the pepper spray contamination training after the training exercise; (3) falsely certifying that the trainee completed training requirements; and (5) falsely reporting time in the weapons log book.  Following a hearing, the administrative judge found that the agency proved charges (1), (3), and (5), but not charge (2).  In mitigating the penalty to a letter of reprimand, the judge found that the agency exhibited disparate treatment of the appellant when compared to others who had conducted pepper spray contamination training in a similar manner.  

Holdings:  The Board affirmed the initial decision as modified, still mitigating the penalty of demotion to a letter of reprimand:

1.  The judge properly sustained charge (1) alleging that the appellant failed to conduct pepper spray contamination training in accordance with established training policy.  The Board agreed with the judge's determination that the agency did not prove specification (a) (that the appellant failing to follow proper procedure by spraying the trainee with his eyes open).

2.  The judge properly did not sustain charge (2) alleging that the appellant failed to investigate post-training mistreatment of the trainee.  

3.  The agency proved charge (3) - that the appellant falsely certified the trainee's completion of the pepper spray contamination training requirements.  The Board disagreed with the judge's determination that minor variations and errors in training were generally condoned and that the agency did not give fair warning that such behavior would no longer be acceptable are relevant to whether the charge could be sustained.  These considerations are relevant only when analyzing the reasonableness of the penalty.  

4.  The agency proved charge (5) -
that the appellant falsely recorded the time he withdrew his weapon from the weapons safe.  In recording the log out time for his weapon as 1800 hours, the appellant intended to reflect that he was at the station with weapon in hand more than 20 minutes before he even arrived at the station.  As with charge (3), to the extent that it was common practice among officers to record the time the shift started in the weapons log book, such practice is not exculpatory of the appellant's actions but is rather a mitigating cirumstance in evaluating the penalty.  

5.  The appellant failed to establish his claim of disparate penalties.  

a.  To establish disparate penalties, the appellant must show that the charges and the circumstances surrounding the charged behavior are substantially similar.  When an employee raises an allegation of disparate penalties in comparison to specified employees, the agency must prove a legitimate reason for the difference in treatment before the penalty can be upheld.

b.  The judge found that the agency treated the appellant disparately compared to two specific employees.  The Board found, however, that neither comparator was similarly situated to the appellant, as the similar behavior related only to the first charge. There was no evidence that either comparator was similarly situated with respect to the other sustained charges.

6.  A letter of reprimand is the maximum reasonable penalty.

a.  When not all of the charges are sustained, the Board will consider carefully whether the sustained charges merit the penalty imposed by the agency.  The Board may mitigate the agency's penalty to the maximum reasonable penalty so long as the agency has not indicated that it desires that a lesser penalty be imposed on fewer charges.  (There was no such indication in this case.)

b.  While falsification is serious misconduct, the Board has repeatedly held that there is no per se rule as to the penalty to be imposed in cases involving falsification.

c.  Regarding charges (1) and (3), the appellant's actions in failing to provide the 5 fighting stations, but still certifying that the trainee completed the training, constituted a common practice, and therefore the appellant's certification that the trainee completed the training constituted only a technical falsification.  

d. Regarding charge (5), the evidence similarly shows that it was common for officers to record the start time of the shift as the time that the officer logged out his weapon.

e.  Other factors weighing heavily in favor of a lesser penalty include the following:  The appellant is a long-time employee with more than 18 years of federal service; he was a good police officer who was promoted relatively quickly in his career; he had no prior disciplinary record; and he admitted the errors he had made and was truthful regarding his conduct throughout the course of the proceedings.  

     In a separate opinion, Member Robbins concurred in the result, but expressed his concern that the decision will be viewed as precedent for the proposition that, whenever an agency has permitted imperfection or inconsistency in the management or conduct of program responsibilities, it will be seen as requiring mitigation of an otherwise proper penalty.  


COURT DECISIONS

Petitioner:  Jane L. Gallo
Respondent:  Department of Transportation
Tribunal:  U.S. Court of Appeals for the Federal Circuit
Docket Number:  2011-3094
Issuance Date:  August 1, 2012

Restoration to Duty
 - Full Recovery After More than 1 Year
Interpretation of Statutes and Regulations

    Gallo experienced a compensable job-related injury in January 1995 while serving as an air traffic control specialist (ATCS).  She returned to that position in a light-duty status two months later.  When she later lost her medical certification to continue as an operational ATCS, she applied for and was assigned to a "non-operational" position as an automation specialist, a position at the same grade and step but which did not provide the same retirement service credit or other benefits.  She received workers' compensation benefits for the entire period during which she served as an automation specialist.  Gallo fully recovered from her compensable injury in 2000 and requested resoration under 5 U.S.C. 8151(b)(2), which provides the right to priority consideration for restoration to the "former or equivalent position" for federal employees who have overcome a compensable injury "within a period of more than one year after the date of commencement of compensation."  She received an appointment as a supervisory ATCS.  

     The issue was whether her salary as a supervisory ATCS should take into account pay increases that had been granted exclusively to operational ATCS employees during the period when Gallo was working as an automation specialist.  The Board held, 116 M.S.P.R. 1 (2011), that she did not satisfy the requirement of 5 U.S.C. 8151(a), which provides:  "In the event the individual resumes employment with the Federal Government, the entire time during which the employee was receiving compensation under this chapter shall be credited to the employee for the purposes of within-grade step increases, retention purposes, and other rights and benefits based upon length of service."  The Board held that Gallo failed to state a claim because, based on Gallo's continued employment with the federal government, Gallo did not "resume employment with the Federal Government" as required for rights and benefits under section 8151(a).  In the alternative, the Board held that "even if [Gallo] had resumed employment with the Federal Government, she would not be entitled to the relief she seeks" because "the benefits she seeks are not based upon length of service."  

Holdings:  The court reversed the Board's decision with respect to the statutory interpretation of "resumes employment with the Federal Government," and remanded for determination of the "rights and benefits based on length of service" to which Gallo is entitled:

1.  Physical separation from the federal government is not required to "resume[] employment with the Federal Government" within the meaning of section 8151(a).  Because Gallo was undisputedly separated from her appointment as an ATCS, and because she received compensation during the entire period of her "separation," she qualified for restoration benefits "based on length of service" under section 8151(a).

a.  The language of section 8151(a) is ambiguous.  It may be reasonable to interpret the statute to require physical separation based on the presence of the modifier "with the Federal Goverment," modifying "resumes employment."  On the other hand, it is just as reasonable to conclude that Congress included the phrase "with the Federal Government" simply to indicate that section 8151(a) applies only to federal employees who resume employment with the federal government -- i.e., not elsewhere, such as the private sector or state government.  

b.  The legislative history and OPM's regulations support the latter interpretation as the correct one.

2.  When Gallo was restored to her ATCS position, and later promoted, she was entitled to her creditable service time towards the equivalent of within grade step increases in the AT pay system, based on creditable service time.  She was not entitled to position specific promotions (i.e., promotions not based solely on creditable service time) which fall outside of her benefits based on "length of service" with the federal government generally.  The court remanded the case to the Board with specific instructions in this regard.  


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