NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
is not citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
06-3087
PAULA K. LUA,
Petitioner,
v.
UNITED STATES POSTAL SERVICE,
Respondent.
___________________________
DECIDED: May 18, 2006
___________________________
Before SCHALL, Circuit Judge, ARCHER, Senior Circuit Judge, and DYK, Circuit
Judge.
PER CURIAM.
Paula K. Lua seeks review of the decision of the Merit Systems Protection Board
(“Board”), which dismissed for lack of jurisdiction her appeal from the United States
Postal Service’s denial of restoration. We affirm.
BACKGROUND
Lua was employed as a Mail Handler by the United States Postal Service (“the
agency”). Lua suffered a work-related injury and as a result, in 1993, the Office of
Workers’ Compensation Programs (“OWCP”) accepted Lua’s compensation claim. Lua
was then placed in a rehabilitation position as a letter repairer consistent with her
physical restrictions.
In December of 1999, Lua was involved in some problematic incidents. First, on
December 23, Lua left work to take a co-worker to the hospital, without “clocking out”
and without filling out the appropriate leave forms, despite being asked to do so. Then,
on December 28, during a meeting about the December 23 incident, Lua failed to follow
instructions, interrupted the meeting by praying on the floor, yelled, and “slammed” a
notebook on the table which slid across the table and struck another employee.
Finally, while being escorted by postal police from the December 28 meeting, Lua made
threatening remarks to a postal police officer. On March 3, 2000, the agency issued a
notice of emergency suspension and thirty day notice of removal. The removal notice
contained three charges based on the aforementioned incidents. On April 8, 2000, the
agency terminated Lua. Lua challenged her termination but that appeal was dismissed
by the Board.
On September 20, 2000, Lua’s OWCP claim for depression, which had been
pending for some time, was accepted. However, further treatment for Lua’s condition
was denied because OWCP determined that there was “no longer any evidence of a
connection between the condition and factors of federal employment.” App. at 5.
On February 14, 2005, Lua filed a petition with the Board alleging that the agency
violated her restoration rights when it refused to restore her to her former position. She
alleged that she had fully recovered from a compensable injury (the depression) and
that the agency had removed her based on that injury. In an initial decision, the
Administrative Judge (“AJ”) dismissed the appeal for lack of jurisdiction. The AJ
characterized the only issue as being whether Lua “has made a nonfrivolous allegation
that her separation was ‘solely attributable’ to her major depression.” App. at 8.
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The AJ found that the three December incidents were intervening actions that
formed the basis of the agency’s three charges which led to the termination, and that
Lua was not terminated solely because of a compensable injury. The AJ also found that
“[e]ven assuming that [Lua’s] condition contributed to, or even caused, the behavior that
led to her termination, as the appellant appears to be arguing, it cannot be said that no
cause aside from her compensable injury led to her termination.” Id. The AJ thus
dismissed the appeal for lack of jurisdiction. The full Board denied review. This petition
for review followed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
DISCUSSION
We must affirm the Board’s decision unless it is found to be arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance with law; obtained without
procedures required by law, rule or regulation; or unsupported by substantial evidence.
5 U.S.C. § 7703(c) (2000); Butterbaugh v. Dep’t of Justice, 336 F.3d 1332, 1336 (Fed.
Cir. 2003).
The Board has jurisdiction over a restoration appeal when the petitioner proves
by a preponderance of the evidence that (1) she suffered a compensable injury; (2) that
her OWCP benefits were terminated because she fully recovered from the injury; and
(3) that her separation was substantially related to her injury. See 5 U.S.C. § 8151(b)
(2000); 5 C.F.R. § 353.103(b) (2005).
It is the third prong—whether the separation was “substantially related” to her
compensable injury—that is in dispute here. To establish that the separation was
“substantially related” to the compensable injury, the petitioner must establish that no
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cause aside from the compensable injury caused the termination. New v. Dep’t of
Veterans Affairs, 142 F.3d 1259, 1264 (Fed. Cir. 1998).
The AJ properly found that Lua failed to establish that no cause aside from her
compensable injury caused the termination. Lua’s intervening conduct provided the
agency with a sufficient basis for its termination action. We note that we are skeptical
that the AJ is correct in stating that “[e]ven assuming that [Lua’s] condition contributed
to, or even caused, the behavior that led to her termination . . . it cannot be said that no
cause aside from her compensable injury led to her termination.” App. at 8. However,
there is no medical evidence in the record suggesting the conclusion that Lua’s
depression, or the medication she was taking to combat the depression, caused her
misconduct. Williams v. United States Postal Serv., 967 F.2d 577, 578-79 (Fed. Cir.
1992) (finding that this court may affirm a Board’s decision on grounds other than those
relied upon by the Board). For the forgoing reasons, we affirm the Board’s decision.
No costs.
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