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
04-3286
ALAN DANIELS,
Petitioner,
v.
UNITED STATES POSTAL SERVICE,
Respondent.
___________________________
DECIDED: January 6, 2005
___________________________
Before RADER, Circuit Judge, ARCHER, Senior Circuit Judge, and DYK, Circuit Judge.
PER CURIAM.
Petitioner Alan Daniels (“Daniels”) petitions for review of the final decision of the
Merit Systems Protection Board (the “Board”), upholding his removal by respondent, the
United States Postal Service (“USPS”). Daniels v. USPS, No. CH-0752020701-I-1
(M.S.P.B. Mar. 18, 2004). We affirm.
BACKGROUND
Daniels was employed by the USPS as a letter carrier. In 1997, he injured his
right knee at work and received benefits from the Office of Workers Compensation
Programs (“OWCP”). He returned to USPS employment in May 1999, in a limited duty
position with carrier duties and clerk craft duties. In August 2000, he accepted a
schedule award and thereafter, in June 2001, Daniels ceased receiving compensation
from OWCP.
In November 2001, the USPS sought to reassign Daniels to a modified position
consisting of only clerk craft duties. The agency offered Daniels this new position in a
letter dated November 13, 2001. Daniels refused to even read this letter. He
complained that the modified position had not been certified by the OWCP as within his
physical limitations. USPS then sought an OWCP ruling on the suitability of the
modified position. OWCP refused to make any ruling on suitability, stating that,
because Daniels was no longer in receipt of compensation, it was OWCP policy not to
make suitability determinations in such circumstances. (Resp’t App. at 41.)
After OWCP’s refusal to rule on the suitability of the modified position, the USPS
again offered Daniels the modified position on December 5, 2001. The USPS advised
Daniels that, if he did not accept the modified position, he could either take annual leave
or leave without pay, but he could no longer continue his prior assignment. Daniels
elected to take leave without pay.
In the meantime, Daniels filed a notice of recurrence with the OWCP on
November 16, 2001, claiming that he had to seek treatment for his left knee. OWCP
denied his claim for compensation, finding that there was no evidence either of a
recurrent disability or of any causal relationship between Daniels’ claimed disability and
the prior injury to his right knee. This OWCP determination was made on March 18,
2002.
The USPS then issued a letter on March 26, 2002, instructing Daniels “to
immediately report to work, accepting the job offer that was presented . . . in November
2001, or provide . . . acceptable medical documentation” to substantiate his absence.
(Resp’t App. at 34 (emphasis omitted).) The USPS further warned that failure to comply
04-3286 2
would result in Daniels being charged as being absent without official leave (“AWOL”)
and action would be taken to remove him from the USPS. Daniels failed to respond to
this letter.
The agency thereafter, on May 28, 2002, proposed Daniels’ removal on a charge
of being AWOL. Daniels did not make any written reply to the proposed removal but
met with the deciding official, where he stated his continued refusal to accept the
modified position until his claims had been adjudicated by the OWCP. The deciding
official found that Daniels had no pending claims before OWCP, that he was AWOL,
and that his removal promoted the efficiency of the service. The removal therefore
became effective on July 12, 2002.
Daniels appealed his removal to the Board. The administrative judge found that
Daniels had been AWOL; that his removal promoted the efficiency of the service; and
that the penalty was reasonable. The administrative judge also dismissed Daniels’
claim that he was not obliged to accept the modified position until a OWCP suitability
determination had been made, finding that the agency had no obligation to clear the
assignment of new duties with OWCP after Daniels accepted the schedule award.
(Resp’t App. at 9.) The administrative judge therefore upheld the removal. The full
Board affirmed.
Daniels petitions for review in this court. We have jurisdiction pursuant to 28
U.S.C. § 1295(a)(9).
DISCUSSION
The Board’s decision must be affirmed unless it is found to be arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law; obtained
04-3286 3
without procedures required by law, rule or regulation; or unsupported by substantial
evidence. 5 U.S.C. § 7703(c) (2000); Carreon v. Office of Pers. Mgmt., 321 F.3d 1128,
1130 (Fed. Cir. 2003).
I
The core of Daniels’ argument is that the agency never secured an OWCP ruling
on the suitability of the modified position, and that he could not be compelled to accept
the modified position without such a ruling. In effect, Daniels is arguing that he was
separated because of compensable injury and that he is being deprived of his
restoration rights under 5 U.S.C. § 8151.
We held in New v. Dep’t of Veterans Affairs, 142 F.3d 1259, 1265 (Fed. Cir.
1998), that “when an agency removes an employee who has a compensable injury
solely for refusal to return to work in the absence of a suitability determination by the
OWCP, a sufficient nexus exists between the compensable injury” to give the employee
restoration rights. However, “[s]uch nexus . . . depends upon the employee’s continuing
compensable injury at the time of . . . removal.” Id. Once the employee ceases
receiving compensation, OWCP no longer has any role to play. Thereafter, for an
employee to prove that he was discharged because of compensable injury, the
employee must establish the unsuitability of the offered position through medical
evidence. See Walley v. Dep’t of Veterans Affairs, 279 F.3d 1010, 1018-20 (Fed. Cir.
2002) (employee bears burden of proving that absence was due to compensable injury).
Daniels has not presented any evidence that the position was unsuitable.
04-3286 4
II
Daniels argues that there were a number of procedural defects in his removal.
We conclude that none of his contentions has merit.
Daniels contends that the decision on proposed removal erroneously stated that:
“According to the Office of Workers Compensation the job offer presented to you was
within your restrictions.” (Resp’t App. at 22.) Any error by the agency in making the
quoted statement is irrelevant. As explained above, because Daniels was no longer
receiving compensation, there was no need for any OWCP suitability determination to
effect his removal. Rather, as the Board found, the agency needed only show that
Daniels was absent as charged and that the decision to deny leave was appropriate.
(Resp’t App. at 8.) The Board found both elements proved, and its finding is supported
by substantial evidence. There is no basis to disturb the Board’s decision in this
respect.
Daniels also contends that the Board found two different dates for his alleged
absence. He points out that the administrative judge found “the agency charged
[Daniels] with AWOL for each day he was absent from April 7, 2002 to the date of the
proposal notice, May 28, 2002,” but then concluded that “the agency appropriately
charged him with AWOL from April 7 to June 28, 2002.” (Resp’t App. at 8-9.) Though
the seeming confusion in the Board’s findings is regrettable, it is also irrelevant. Daniels
cannot point to a different result whether his AWOL period ended on May 28 or June 28.
The Board found that the removal was reasonable compared to other employees who
were removed for being AWOL for two weeks, nineteen days, or twenty days. The
Board’s findings are supported by substantial evidence.
04-3286 5
Lastly, Daniels argues that the agency’s refusal to allow him to continue his old
assignment after December 5, 2001, constituted a constructive suspension that would
have permitted him to appeal to the Board. This argument has no significance since no
such appeal was taken.
CONCLUSION
For the foregoing reasons, the decision of the Board is affirmed.
COSTS
No costs.
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