UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JACK FERRELL, DOCKET NUMBER
Appellant, SF-0353-14-0344-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: July 21, 2016
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Guillermo Mojarro, Upland, California, for the appellant.
Scott L. Zielinski, Esquire, Long Beach, California, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his restoration appeal for lack of jurisdiction. For the reasons
discussed below, we GRANT the appellant’s petition for review, VACATE the
initial decision, and REMAND the case to the regional office for further
adjudication in accordance with this Order.
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
BACKGROUND
¶2 The appellant, a nonpreference-eligible Laborer Custodial, filed an appeal
alleging that the agency violated his restoration rights as an employee who has
partially recovered from a work-related injury. 2 The Office of Workers’
Compensation Programs (OWCP) approved the appellant’s claim for benefits for
an on-the-job injury he sustained in February 2000. He did not return to the
workplace following his injury, remaining in a leave without pay status. On or
about December 16, 2013, the appellant requested a limited-duty assignment at
the agency’s Los Angeles Customer Call Center (LACCC). He and his supervisor
(H.R.) 3 discussed the request the following day. The supervisor said he referred
the matter to an employee (K.F.) charged with conducting job searches for
employees with job-related disabilities. On or about February 6, 2014, the
appellant asked that his return-to-work request be forwarded to the U.S. Postal
Service’s District Reasonable Accommodation Committee, which assesses the
reasonable accommodation needs of U.S. Postal Service employees. H.R. and
K.F. conducted work searches for the appellant in March 2014, relying on his
February 2014 OWCP Duty Status Report as to the relevant medical restrictions.
They said that their searches were unsuccessful in finding work within the
appellant’s medical restrictions within the local commuting area.
¶3 In the initial decision dismissing the appeal for lack of jurisdiction, the
administrative judge found that the appellant failed to make a nonfrivolous
allegation that the agency arbitrarily and capriciously denied him restoration.
Among other things, the administrative judge found no indication that the
agency’s job search was geographically or otherwise inadequate. IAF, Tab 39,
Initial Decision at 7.
2
The information in this paragraph is taken from the initial decision and is not
in dispute.
3
Initials are used for the names of supervisors and other employees.
3
¶4 In his petition for review, the appellant argues, as he did below, that there
was work available within his medical restrictions at the LACCC. Petition for
Review (PFR) File, Tab 1. 4 The agency filed a timely response, to which the
appellant filed a timely reply. PFR File, Tabs 3‑4.
ANALYSIS
The appellant made nonfrivolous allegations of Board jurisdiction over a
partial‑recovery restoration appeal.
¶5 An individual who has partially recovered from a compensable injury may
appeal to the Board for a determination whether the agency has denied restoration
arbitrarily and capriciously. Paszko v. U.S. Postal Service, 119 M.S.P.R. 207, ¶ 8
(2013); 5 C.F.R. § 353.304(c). Under the rules applicable to this appeal,
establishing jurisdiction in a partial-recovery restoration case requires an
appellant to prove by preponderant evidence that: (1) he was absent from his
position due to a compensable injury; (2) he 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 him; (3) the agency
denied his request for restoration; and (4) the denial was arbitrary and capricious.
4
In support of this contention, the appellant adduced a declaration made under penalty
of perjury from a postal manager (J.M.) in another appeal, which states that the LACCC
is a work location that falls under the purview of the U.S. Postal Service headquarters
and is not under the purview of the various Districts, and that searches for work for
limited-duty employees at the LACCC are done separately from the work searches done
for the Districts. PFR File, Tab 1 at 10. The agency argued that the Board should
reject this evidence because, among other reasons, the appellant failed to show that it
was unavailable despite his due diligence during the regional office proceeding. PFR
File, Tab 3 at 6-7. We need not determine whether this evidence is new and material in
light of our finding that the appellant made nonfrivolous allegations of jurisdiction
during the regional office proceeding. The administrative judge will consider J.M.’s
declaration in the remand proceeding.
4
See Bledsoe v. Merit Systems Protection Board, 659 F.3d 1097, 1102 (Fed. Cir.
2011); Hamilton v. U.S. Postal Service, 123 M.S.P.R. 404, ¶¶ 11-12 (2016). 5
¶6 Throughout this proceeding, the gravamen of the appellant’s complaint has
been that the agency has refused to provide him available work at the LACCC.
See, e.g., IAF, Tabs 1, 4; PFR File, Tab 1. The appellant’s allegations in this
regard have been specific and detailed, namely, that: the agency has allowed
hundreds of other injured employees from all working crafts to receive
rehabilitation job assignments as customer care agents in the LACCC; the agency
is mandated to allow 30% of the workforce at the call centers to be composed of
injured employees who are allowed to work in rehabilitation job assignments as
customer care agents; the agency has arbitrarily and capriciously chosen the
injured to work in rehabilitation job assignments as customer care agents in that
the agency does not have a written method for choosing the injured to work in
these positions, but leaves the matter to the unfettered discretion of certain
supervisors; supervisor C.C. arbitrarily assigned a rehabilitation job to R.J.—who
has medical restrictions similar to those of the appellant—after R.J. was separated
from the U.S. Postal Service in 2012; C.C. attempted to arbitrarily assign A.M. a
rehabilitation job at the LACCC even after A.M. declined the position several
times; 6 and the agency has had 14 vacant rehabilitation job assignments in the
LACCC since about January 2013. IAF, Tab 4 at 6-8. 7
5
For appeals filed on or after March 30, 2015, establishing jurisdiction requires only
that an appellant make nonfrivolous allegations as to these four elements. Hamilton,
123 M.S.P.R. 404, ¶¶ 11-12; 80 Fed. Reg. 4489 (2015) (codified at 5 C.F.R.
§ 1201.57(a)(4), (b)). The difference in burdens of proof makes little practical
difference in this case, as the administrative judge denied the appellant a jurisdictional
hearing on the basis that he failed to make nonfrivolous allegations of jurisdiction.
6
The appellant adduced a declaration from A.M. in which he requested that the agency
provide the appellant the position at the LACCC, which he claims the agency has been
improperly holding for him. IAF, Tab 22 at 4-7.
7
The appellant propounded numerous discovery requests to the agency concerning the
availability of rehabilitation assignments at the LACCC. IAF, Tab 14 at 10-16. In a
5
¶7 Although both H.R. and K.F. certified that they searched for work for the
appellant within his medical restrictions, they did not state whether their searches
included the LACCC. IAF, Tab 23 at 9, 80. The agency’s response to the appeal
similarly did not address the appellant’s allegations about the availability of work
at the LACCC. IAF, Tab 5. Under these circumstances, we conclude that the
appellant has made nonfrivolous allegations that work was available within his
medical restrictions at the LACCC and that the agency acted arbitrarily and
capriciously in refusing him such work. Accordingly, we find that the appellant
has made nonfrivolous allegations of jurisdiction over his restoration claim and is
entitled to a jurisdictional hearing on that claim.
The agency’s obligation to make efforts to restore the appellant to employment as
an individual who has partially recovered from a compensable injury ended on
April 29, 2014, when he fully recovered from his work-related injury.
¶8 On April 29, 2014, OWCP determined, effective that date, that the appellant
had fully recovered from his work-related injury. IAF, Tab 29 at 8-11. Such
determinations are “final and conclusive for all purposes and with respect to all
questions of law and fact,” 5 U.S.C. § 8128(b)(1), and are therefore binding on
the Board, As’Salaam v. U.S. Postal Service, 85 M.S.P.R. 76, ¶ 15 (2000). An
OWCP determination that an employee has fully recovered from his compensable
injury terminates any entitlement to restoration rights as a partially recovered
employee. Id.
¶9 Any restoration rights the appellant might have had after April 29, 2014,
would be under 5 C.F.R. § 353.301(b), i.e., priority consideration on the agency’s
reemployment list, with appeal rights under 5 C.F.R. § 302.501, which requires
him to present factual information that he was denied restoration rights because
of the employment of another person. If the appellant believes his restoration
rights as an employee who has fully recovered from a compensable injury after
motion to compel, he asserted that the agency refused to provide appropriate responses
to these discovery requests. Id. at 4-5; IAF, Tab 15 at 62‑114.
6
1 year have been violated, then he should file a new appeal under 5 C.F.R.
§§ 353.301(b), 302.501.
ORDER
¶10 For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order. Because the
jurisdictional issues are synonymous with the merits issues, see Latham v. U.S.
Postal Service, 117 M.S.P.R. 400, ¶ 10 n.9 (2012), the administrative judge will
admit evidence on the appellant’s contention that he was subjected to disability
discrimination. In addition, the administrative judge will permit the parties to
engage in additional discovery, and will reconsider and address the appellant’s
previously filed motion to compel discovery.
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.