John P. Sanchez v. U.S. Postal Service
Appeal Type: Restoration to Duty
Decision Number: 2010 MSPB 121
Issuance Date: June 25, 2010
The appellant is a non-preference eligible Mail Processing Clerk who sustained a work-related injury in 1992, and thereafter worked in a series of limited duty assignments. In 2009, as part of its National Reassessment Process (NRP) Program, the agency reviewed the assignments of those performing limited duty to ensure that they are consistent with employees’ medical restrictions and contain only “operationally necessary tasks.” If a limited duty assignment does not meet these criteria, and if the supervisor or manager is unable to identify operationally necessary tasks available with the employee’s work restrictions, the employee will be sent home until such work becomes available or his medical restrictions change.
In April 2009, the agency issued the appellant a letter stating that, because there was no operationally necessary work within his medical restrictions available at his workplace, he should not report again for duty unless he was informed that such work had become available. The agency later expanded its search for alternative positions beyond his tour of duty and current facility, but still found that none were available. On appeal to the Board, the appellant contended that the agency improperly denied him restoration and failed to accommodate his medical condition, and that he had been constructively suspended.
Under 5 C.F.R. § 353.301(d), agencies must make efforts to restore partially recovered employees “in the local commuting area.” The local commuting area is the geographic area in which an individual lives and can reasonably be expected to travel back and forth daily to his usual duty station. The question of what constitutes a local commuting area is one of fact, which is ordinarily determined by factors such as common practice, the availability and cost of public transportation or the convenience and adequacy of highways, and the travel time required to go to and from work. Because the agency’s search for available work was apparently limited to a single district, whether the agency searched the entire commuting area remains an unanswered question of material fact, which must be explored on remand.
In response to the administrative judge’s order on timeliness, the appellant made unrebutted allegations that he failed to timely file because the agency did not notify him of his Board appeal rights when it discontinued his limited duty assignment. The record corroborates the appellant’s allegation inasmuch as the agency’s notice to the appellant regarding the discontinuation of his limited duty assignment does not provide notice of Board appeal rights. Because the agency was required by regulation to notify the appellant of his Board appeal rights when it discontinued his limited duty assignment, the untimeliness of the appeal may be excused if the agency failed to give the appellant the required notice and the appellant acted diligently in filing his appeal after he actually learned of his appeal rights.
‘National Reassessment Process’ Must Search Entire Commuting Area
MSPB remanded three more USPS cases yesterday, because the Postal Service’s job search under the National Reassessment Process was limited to installations within a single district and failed to include the entire commuting area as required by 5 C.F.R. § 353.301(d). Each decision cited Sanchez v. USPS, 2010 MSPB 121.