U.S. Merit Systems Protection Board 
Case Report for February 22, 2013

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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.


Appellant:  Elizabeth J. Paszko
Agency:  United States Postal Service
Decision Number:  2013 MSPB 14
Docket Number:  CH-0353-10-0636-I-2
Issuance Date:  February 15, 2013
Appeal Type:  Restoration to Duty
Action Type:  After Recovery from Compensable Injury

Restoration to Duty - Partial Recovery from Compensable Injury
 - Jurisdiction

    The appellant petitioned for review of an initial decision that dismissed her appeal for lack of jurisdiction.  After partially recovering from a compensable injury she suffered in 2002, the appellant was assigned to limited duty.  As of April 2010, she worked at limited duty tasks for 6 hours per day.  On April 27, 2010, pursuant to its National Reassessment Process, the agency discontinued that assignment and offered her a new limited duty position, although a full 6 hours of work every day was not guaranteed.  After the appellant refused the offer on the ground that it was inconsistent with her medical restrictions, the agency requested a suitability ruling from the Office of Workers' Compensation Programs (OWCP), and OWCP found that the offer was unsuitable because it identified no specific work hours and depended on a daily determination as to how many hours of work were available.  The appellant also saw a referee physician at OWCP's direction.  The referee physician determined that the job offer was within the appellant's work restrictions with the exception of a few specific tasks, and OWCP requested that the agency make a new job offer consistent with the referee's findings.  On August 11, 2010, the agency made the appellant another offer that excluded some of the duties set forth in the previous offer that the referee physician said should be eliminated.  The 6 hours of daily work in this job offer were again conditioned on the agency's daily assessment of work availability.  The appellant rejected this offer on the basis that the assignment exceeded her medical restrictions.  On appeal to the Board, the administrative judge dismissed for lack of jurisdiction without a hearing, finding that, because the appellant rejected a suitable offer of employment, the agency had not denied her request for restoration.  The judge did not reach the appellant's claim of disability discrimination.  

Holdings:  The Board granted the appellant's petition for review and remanded the appeal for a jurisdictional hearing:

1.  An individual who has partially recovered from a compensable injury may appeal to the Board for a determination of whether the agency acted arbitrarily and capriciously in denying restoration.  

2. The appellant is entitled to a jurisdictional hearing regarding the April 27, 2010 job offer.

a. The April 27 job offer constituted a denial of restoration.  OWCP made a determination that the duties of that job exceeded the appellant's medical restrictions, and the Board is bound by OWCP's determination.  Because the job offer was outside the appellant's medical restrictions, it was tantamount to a denial of restoration.

b. The mere fact that the agency discontinued the appellant's former modified assignment without offering her another assignment within her medical restrictions does not necessarily mean that it was acting arbitrarily and capriciously.  The appellant has made a nonfrivolous allegation in this regard, which entitles her to a jurisdictional hearing.  

3.  If the judge finds that the April 27 denial was not arbitrary and capricious, he should consider whether the August 11 job offer constituted another denial of restoration and, if so, whether such denial was arbitrary and capricious.

a. In determining whether the August 11 job offer was valid, the judge should first determine whether OWCP made a suitability ruling on the offer on the basis of the appellant's medical restrictions.  If it did, that determination is binding on the Board.  If OWCP determined that the offer was unsuitable because of the limited number and uncertainty of work hours, that determination would not be binding on the Board.  

b.  If the judge finds that the August 11 job offer was invalid, and therefore a denial of restoration, the judge needs to determine whether the denial was arbitrary and capricious.

4.  The Board lacks jurisdiction over the appellant's claim of disability discrimination per se in the absence of an otherwise appealable action.  The judge should consider the appellant's claim of disability discrimination to the extent that it bears on the issue whether a denial of restoration was arbitrary and capricious.  If the judge finds jurisdiction over the appeal, he shall adjudicate the appellant's discrimination claim.  

Appellant:  Francis A. Mithen
Agency:  Department of Veterans Affairs
Decision Number:  2013 MSPB 15
Docket Number:  CH-1221-11-0498-W-1
Issuance Date:  February 19, 2013
Appeal Type:  Individual Right of Action (IRA)

Whistleblower Protection Act
 - Protected Disclosure - Abuse of Authority
 - Clear and Convincing Evidence

    The appellant petitioned for review of an initial decision that denied his request for corrective action in this IRA appeal.  The appellant has been a full-time employee at a Veterans Administration Medical Center (VAMC) and the Saint Louis University (SLU), a VAMC affiliate.  He was the Chief of Neurology at the VAMC and performed collateral duties as VAMC Residency Program Coordinator for Neurology.  In September 2010, an SLU official wrote letters to VAMC officials informing them of complaints by medical residents against the appellant.  The agency convened an Administrative Investigative Board (AIB) to look into the complaints.  The AIB report issued in January 2011 concluded, among other things, that communications and interactions between the appellant and some residents were generally poor.  In March 2011, the VAMC Executive Board approved a reorganization in which the appellant's position was changed and the "new" position advertized for applicants.  On March 24, 2011, the appellant's supervisors met with him to discuss the AIB recommendations.  The appellant was advised that the agency would not propose any disciplinary action as a result of the AIB investigation, but that he was to have no interaction with medical residents or students.  On April 5, 2011, the agency notified the appellant that he was being detailed to a staff neurologist position and relieved him of any responsibility related to the Neurology Residency Program.  

     The appellant filed an IRA appeal alleging that the agency indefinitely detailed him in retaliation for a March 25, 2011 memorandum he wrote to the Human Resources Manager in which he alleged that an SLU official, who was not a federal employee, had improper influence, including a veto power, over the selection of the Chief of Neurology position at the VAMC.  Following a hearing, the administrative judge found that the appellant failed to show that he made a protected disclosure.  The judge further found that, assuming that the appellant did make a protected disclosure, he met his burden to show that the disclosure was a contributing factor in the detail, which was a covered personnel action, but that the agency proved by clear and convincing evidence that it would have taken the same action in the absence of the protected disclosure.  

Holdings:  The Board granted the appellant's petition for review, vacated the initial decision's findings concerning protected disclosure and clear and convincing evidence, affirmed the initial decision's finding concerning contributing factor, and remanded for further adjudication:

1. The Board agreed with the appellant that a disclosure that a nonfederal employee (a Saint Louis University official) had veto power over the selection of an individual for a federal government position would constitute a protected disclosure of an abuse of authority.  The Board could not determine whether the appellant proved by preponderant evidence that he made such a protected disclosure because the judge failed to make necessary credibility determinations.  Remand was therefore necessary.

2.  Remand of the clear and convincing evidence issue was similarly required for credibility determinations required in light of the Federal Circuit's recent decision in Whitmore v. Department of Labor, 680 F.3d 1353 (Fed. Cir. 2012).  

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