Latham et al. raise the following legal issues: (1) May a denial of restoration be “arbitrary and capricious” within the meaning of 5 C.F.R. § 353.304(c) solely for being in violation of the U.S. Postal Service’s own internal rules; and (2) what is the extent of the agency’s restoration obligation under its own internal rules, i.e., under what circumstances do the agency’s rules require it to offer a given task to a given partially recovered employee as modified work? The Board requested and received an advisory opinion from the Office of Personnel Management (OPM) in this matter. See 5 U.S.C. § 1204(e)(1)(A). The Board also invited and received amicus curiae briefs.
Here are excerpts from the 73-page MSPB decision surrounding NRP cases of five Postal Employees (James C. Latham, Ruby N. Turner, Arleather Reaves, Cynthia E. Lundy, and Marcella Albright). I have sanitized portions of the decision for easier reading. Some of the paragraphs may be out of sequence:
These appeals present the question of whether the agency’s own internal rules regarding the return to duty in modified assignments of compensably injured individuals are enforceable by the Board in a restoration appeal under 5 C.F.R. § 353.304(c). For the reasons set forth below, we answer in the affirmative. Read more
Filed under: mspb, nrp, postal, postal news, press releases, usps
On Tuesday, December 13, 2011, MSPB will hear oral arguments in the matters of James C. Latham v. U.S. Postal Service, MSPB Docket Number DA-0353-10-0408-I-1; Ruby N. Turner v. U.S. Postal Service, MSPB Docket Number SF-0353-10-0329-I-1; Arleather Reaves v. U.S. Postal Service, MSPB Docket Number CH-0353-10-0823-I-1; Cynthia E. Lundy v. U.S. Postal Service, MSPB Docket Number AT-0353-11-0369-I-1; and Marcella Albright v. U.S. Postal Service, MSPB Docket Number DC-0752-11-0196-I-1 (Latham et al.). The proceedings will take place at 10:00 a.m. at the United States Court of Appeals for the Federal Circuit, Room 201, 717 Madison Place, N.W., Washington, D.C. See 76 FR 73691, November 29, 2011.
Latham et al. raise the following legal issues: (1) May a denial of restoration be “arbitrary and capricious” within the meaning of 5 C.F.R. § 353.304(c) solely for being in violation of the U.S. Postal Service’s own internal rules; and (2) what is the extent of the agency’s restoration obligation under its own internal rules, i.e., under what circumstances do the agency’s rules require it to offer a given task to a given partially recovered employee as modified work? The Board requested and received an advisory opinion from the Office of Personnel Management (OPM) in this matter. See 5 U.S.C. § 1204(e)(1)(A). The Board also invited and received amicus curiae briefs. See 76 FR 44373, July 25, 2011.
The parties and the two amici curiae who asked to participate in oral argument will be allotted time to present oral argument in this matter. The briefs submitted by the parties and the amici curiae, as well as OPM’s advisory opinion, are available for viewing on MSPB’s website at http://www.mspb.gov/oralarguments/. The MSPB will also make a recording of the oral argument available on its website. The public is welcome to attend this hearing for the sole purpose of observation. Persons with disabilities who require reasonable accommodation to participate in this event should direct the request to the MSPB Director of Equal Employment Opportunity at (202) 254-4405 and V/TDD users should call via relay. All requests should be made at least one week in advance.
This is the third time that MSPB has conducted an oral argument in the past 15 months after not hearing oral arguments for over 20 years. The MSPB continues to utilize oral argument in appeals like Latham et al. that present issues of special significance because of their broad potential impact on the Federal civil service and merit systems.
The U.S. Merit Systems Protection Board (MSPB) is an independent, quasi‐judicial agency that protects Federal merit systems and the rights of individuals within those systems. The MSPB also conducts studies of the civil service and other merit systems in the Executive Branch.
source: Merit System Protection Board
From the Merit System Protection Board:
The EAS-16 Postmaster in Diamond, Ohio, alleged that the USPS placed her on enforced leave due to its failure to reassign her to another post office. The administrative judge gave the Postmaster notice of the burden to establish jurisdiction over an enforced leave claim in two situations, where an agency places an employee on forced leave to inquire into her ability to perform and where an employee who is absent for medical reasons asks to return. Read more
The Merit Systems Protection Board (MSPB) issued the following press release:
The U.S. Merit Systems Protection Board (MSPB or the Board) began posting on its website nonprecedential orders issued on or after October 1, 2011. Nonprecedential decisions were not previously on the MSPB website.
A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Although parties may cite nonprecedential orders, such orders have no precedential value. The Board and administrative judges also are not required to follow or distinguish them in any future decisions. By 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).
The Board’s nonprecedential and precedential decisions are both now found on our website at www.mspb.gov under the “MSPB Decisions” tab. The MSPB will eventually make nonprecedential orders issued before October 1 available on its website.
Chairman Susan Tsui Grundmann commented, “The Board began issuing nonprecedential decisions to provide the parties more information about the reasons for our decisions. Furthering our goal to be as open and transparent as possible, we are making nonprecedential decisions available to the public.”
A former California Postal Manager is attempting to circumvent the seniority provisions of the APWU National Agreement.
The Postal Manager filed an appeal of the agency’s action removing her from the position of EAS-19 Manager Customer Services effective January 18, 2009. The parties entered into a settlement agreement disposing of the appeal, and the administrative judge entered the agreement into the record for the purposes of enforcement by the Board.
The appellant petitioned for review of a compliance decision that denied her petition for enforcement of the parties’ settlement agreement. The underlying appeal was resolved by a settlement agreement in which the removal was “retroactively converted to a voluntary downgrade” to a particular position at a particular postal facility, “with Sunday and Tuesday off, and 8:00 A.M. – 5:00 P.M. reporting time.”
At issue was whether the agreement provided for a full-time position, as the appellant claimed, or a part-time flexible position, with irregular hours and at different positions, as the agency claimed. The agency also claimed that the appellant’s construction of the agreement would require it to violate the applicable collective bargaining agreement (CBA).
In finding that the agency was in compliance with its obligations under the settlement agreement, the administrative judge determined that a part-time flexible Clerk will work on an anticipated schedule, subject to change, and that despite the agreement’s terms used to describe the specific work schedule for the position and the appellant’s understanding of those terms, the settlement agreement is unambiguous. The judge further found that, to the extent that the agency could be found not to be in compliance with the position assignment terms of the settlement agreement, the agency had shown good cause for its failure to comply due to the provisions of the CBA and because the agency had offered the appellant other full-time positions, which she had declined to accept.
The Board granted the appellant’s petition for review, vacated the initial decision in part, and remanded the appeal to the regional office for further adjudication:
1. In construing the terms of a settlement agreement, the words of the agreement are of paramount importance. The Board has no authority to unilaterally modify the terms of the parties’ settlement agreement, or to read a nonexistent term into an agreement that is unambiguous.
2. The clear, specific, and unambiguous terms of the agreement provide that the appellant would be placed in a full-time position with a specific schedule and duty station.
a. The fact that the agreement does not use the terms part-time flexible or full-time regular does not mean that the agreement was ambiguous regarding the nature of the position specified in the agreement.
b. The settlement agreement describes a specific position, at a specific location, with specific duty hours providing for 8-hour days, and 2 specific days off per week. The plain meaning of these terms is that the appellant would be working a full-time position with a specific work schedule at the South Downey facility.
c. The agency’s asserted interpretation would violate the general rule of contract interpretation that terms of a contract should not be interpreted so as to render them ineffective or superfluous. The agency’s interpretation would render the terms providing for particular duty hours and days off ineffective and superfluous.
3. Because the agency’s obligation to downgrade the appellant to a full-time Clerk position was a matter of vital importance to the contract, its violation of that obligation constituted a material breach of the contract.
4. The Board has generally declined to order an agency to do something that would violate the terms of a collective bargaining agreement. Whether honoring the terms of the agreement in this case would require such a violation is inconclusive based on the present record. On remand, the administrative judge will determine whether specific performance is an available remedy for the appellant, keeping in mind that a Board order of specific performance need not mirror the performance contemplated by the settlement agreement; rather it should be drawn so as best to effectuate the purposes for which the contract was made and upon such terms as justice requires.
The appellant was employed by the agency as a Building Equipment Mechanic at the agency’s Miami, Florida, Processing and Distribution Center.
The appellant petitioned for review of an initial decision that affirmed his removal on a charge of improper conduct, i.e., possessing and consuming an illicit substance (marijuana) while attending a training course in Norman, OK. The appellant was 1 of 5 USPS employees who the agency’s Office of Inspector General found had used marijuana on the grounds of the hotel at the training facility.
Following a hearing, the administrative judge sustained the charge, found that there was a nexus between the charge and the efficiency of the service, and found that the penalty of removal, “while harsh,” was not unreasonable. Regarding the appellant’s contention that he was treated disparately compared to 3 other individuals who participated in the same incident and were allegedly not removed, the administrative judge stated that he was required to review the penalty without reference to the comparators because they were not similarly situated to the appellant, in that they were not employed at the same work facility.
The Board granted the appellant’s petition for review, affirmed the initial decision insofar as it sustained the charge of improper conduct, and remanded the case to the regional office for further proceedings on the appropriateness of the penalty:
1. To establish disparate penalties, an appellant must show that the charges and the circumstances surrounding the charged behavior are substantially similar. If he does so, the agency must prove a legitimate reason for the difference in treatment.
2. In the past, whether an appellant and a comparator were in the same work unit was an outcome determinative factor; if they were not, the Board would not find a disparate penalty. In Lewis v. Department of Veterans Affairs, 113 M.S.P.R. 657 (2010), the Board stated that there must be enough similarity between both the nature of the misconduct and other factors to lead a reasonable person to conclude that the agency treated similarly-situated employees differently, but that the Board will not have hard and fast rules regarding the “outcome determinative” nature of these factors.
3. Here, there appears to be substantial similarity in the conduct in which the appellant and the comparators participated. The record is not fully developed, however, as to the circumstances of the discipline imposed on the comparators and why different chains of command or other factors might justify different penalties. A remand is therefore necessary.
Filed under: legal cases, mspb, postal, postal supervisors, removals, usps
The following is a modified version of the MSPB case:
Based on the results of an investigation, USPS removed the appellant from his position as EAS-17 Supervisor, Distribution Operations, on a charge of failure to follow instructions – unauthorized purchases on his government credit card. USPS listed three specifications: (1) using his assigned government credit card for personal reasons; (2) unacceptable conduct – receiving night differential to which he was not entitled; and (3) unacceptable conduct – falsification of PS Form 1261 (non-transactor report). On review, the deciding USPS official found that the “charges” were sustained but that removal was too severe, and he mitigated the penalty to a reduction in grade and pay to the position of Mailhandler, Level 4.
On appeal, the Supervisor challenged the action and alleged that it was in retaliation for his protected equal employment opportunity (EEO) activity. During adjudication, the MSPB administrative judge notified the parties that she construed the proposal notice as consisting of three separate charges with one specification under each charge, and neither party noted any objection.
Following a hearing, the MSPB administrative judge issued an initial decision in which she found charge (1) sustained. Although she found that the Supervisor’s use of his government credit card to buy pizzas for his subordinates was appropriate, she found that his other uses (twelve cash advances, seven gasoline purchases, and two car rentals over a 5-month period, all personal expenses) were not. The MSPB administrative judge further found that charges (2) and (3) were not sustained. She found that discipline for the sustained charge promoted the efficiency of the service, and that the Supervisor did not support his claim that the action was taken in retaliation for his prior protected EEO activity. Based on the single sustained charge, the administrative judge found that the reduction in grade and pay was within the limits of reasonableness. Read more
Filed under: Injured On Duty, mspb, nrp, postal, postal news, usps
More MSPB cases filed by Postal Workers were remanded during the month of October. The cases were remanded 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.
The Office of Personnel Management’s (OPM’s) regulations provide:
Agencies must make every effort to restore in the local commuting area, according to the circumstances in each case, an individual who has partially recovered from a compensable injury and who is able to return to limited duty. At a minimum, this would mean treating these employees substantially the same as other handicapped individuals under the Rehabilitation Act of 1973, as amended. 5 C.F.R. § 353.301(d).
The Board has interpreted this regulation as requiring agencies to search within the local commuting area for vacant positions to which an agency can restore a partially recovered employee and to consider her for any such vacancies. Sanchez v. U.S. Postal Service, 114 M.S.P.R. 345, ¶ 12 (2010); see Sapp v. U.S. Postal Service, 73 M.S.P.R. 189, 193-94 (1997); see also Urena v. U.S. Postal Service, 113 M.S.P.R. 6, ¶ 13 (2009) (evidence that the agency failed to search the local commuting area as required by 5 C.F.R. § 353.301(d) rendered nonfrivolous the appellant’s allegation that the agency acted arbitrarily and capriciously in denying restoration).
“For restoration rights purposes, 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.” Hicks v. U.S. Postal Service, 83 M.S.P.R. 599, ¶ 9 (1999). It includes any population center, or two or more neighboring ones, and the surrounding localities. Sapp, 73 M.S.P.R. at 193. The question of what constitutes a local commuting area is one of fact. The extent of a commuting area ordinarily is 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. Sanchez, 114 M.S.P.R. 345, ¶ 13.
Summary of MSPB cases on National Reassessment Process:
Appellant: Blanca G. Patino
Agency: United States Postal Service
Decision Number: 2010 MSPB 210
Docket Number: SF-0353-10-0183-I-1
Issuance Date: October 29, 2010
Appeal Type: Restoration to Duty
Action Type: Denial After Partial Recovery from Compensable Injury
In June 2009, the agency’s Bay-Valley District began implementation of Phase 2 of the National Reassessment Program (NRP). Under the NRP, the agency seeks to identify operationally necessary work for employees with compensable injuries. The Bay-Valley District undertook to identify operationally necessary tasks and assess employees on limited duty assignments for modified work assignments. On November 18, 2009, pursuant to the NRP, the agency provided the appellant a modified assignment as a Sales Associate for 3 hours a day. Starting December 17, 2009, the agency assigned the appellant to work 8 hours a day as a lobby host for the holiday season. *
The appellant filed an appeal alleging that the agency’s provision of only 3 hours of work was a rescission of her restoration to duty after a compensable injury and denial of reasonable accommodation. The agency filed a Motion to Dismiss the appeal for lack of jurisdiction. The administrative judge issued an initial decision granting the agency’s motion.
The appellant has filed a petition for review. Petition for Review (PFR) . She asserts that the administrative judge misstated her physical restrictions, did not consider the relevancy of the collective bargaining agreement, and erroneously found that the agency’s action was not arbitrary and capricious because she had been doing the same work since 2007. She further contends that the agency failed to search for work within a 50-mile radius and directed the offices to which it sent search requests to respond negatively
Although the initial decision states that “the agency submitted evidence that it searched for available work within the appellant’s medical restrictions in her commuting area,” it does not define the local commuting area relevant in the appellant’s restoration claim. Therefore, we are remanding the appeal for supplemental proceedings and issuance of a new initial decision. See Mubdi v. U.S. Postal Service, 114 M.S.P.R. 559, ¶ 12 (2010). On remand, the administrative judge shall oversee further development of the record by the parties on this issue, including an opportunity for discovery by the parties and a hearing. Id.; see Sanchez, 114 M.S.P.R. 345, ¶ 15; Sapp, 73 M.S.P.R. at 193-94 (remanding the appeal for further development of the record on what constituted the local commuting area and whether the agency’s job search properly encompassed that area). Read more
The MSPB denied restoration to a postal supervisor in part because he was drawing workers’ compensation. ECAB ruled he was entitled to draw workers’ compensation because the Postal Service wouldn’t restore him to duty in the local commuting area where he lived. The appellant had a psychological condition related to derogatory comments that Rochester P&DC employees had made about his fiancée. His only work restriction was that he must work in a congenial environment away from the Rochester P&DC.
The appellant was an EAS-17 Supervisor of Distribution Operations at the agency’s Rochester, New York Processing and Distribution Center (P&DC). On December 14, 2002, the appellant began suffering from a psychological condition related to derogatory comments that Rochester P&DC employees had made about his fiancée. The appellant absented himself from work, and the Office of Workers’ Compensation Programs (OWCP) ruled the condition compensable. The appellant moved to Fort Myers, Florida, in early 2004. It is undisputed that the appellant is capable of performing the full range of duties of his position in a location other than the Rochester P&DC; the only work restriction that the appellant has is that he must work in a congenial environment away from the Rochester P&DC.
On February 3, 2004, the agency offered the appellant an EAS-17 Supervisor of District Operations position at the Utica, New York P&DC. The appellant declined the job offer and OWCP terminated his benefits. The appellant appealed the decision to the Employees’ Compensation Appeals Board (ECAB), which reversed OWCP’s decision and reinstated the appellant’s benefits. The ECAB found that the agency was aware that the appellant was in the process of relocating to Fort Myers when it offered him the position in Utica, and that the agency was therefore obligated to find him suitable employment in the Fort Myers area, if possible.
We acknowledge a disparity between OPM’s restoration regulations at 5 C.F.R. § 353.301(d) and the Department of Labor’s (DOL) regulations at 20 C.F.R. § 10.508 regarding a compensably injured employee’s return to work. As explained above, 5 C.F.R. § 353.301(d) requires an agency only to attempt to restore a partially recovered individual within the former local commuting area. However, as the ECAB found in the appellant’s workers’ compensation appeal, 20 C.F.R. § 10.508 states that “[i]f possible, the employer should offer suitable reemployment in the location where the employee currently resides.”
Paul Dean vs US Postal ServiceRestoration MSPB vs OWCP2010 MSPB 187
From the Merit Systems Protection Board:
The [MSPB] Board’s regulations allow parties wide discretion in choosing their representatives, subject only to disqualification for conflict of interest or position. Apart from those bases for disqualification, the appellant’s choice of representative is personal to her, and she may choose to be represented by an attorney or a non-attorney, at her discretion. Notwithstanding the choice, however, she remains responsible for the actions or inactions of her chosen representative and cannot avoid the consequences of her choice. Thus, any inexperience with legal matters and unfamiliarity with Board procedures on Szeredy’s part similarly do not warrant waiving the filing deadline. In that regard, the appellant has not asserted that she actively monitored her appeal, but that Szeredy thwarted her diligent efforts to pursue her appeal. Thus, she is responsible for any errors by [Debby] Szeredy in failing to file a timely PFR[petition for review].
Debby Szeredy is a candidate for APWU Clerk Division Director.