Federal Disability Retirement and the U.S. Postal Service: Lack of Loyalty & Full of Shortsightedness
The following is an article from Attorney Robert R. McGill written exclusively for PostalReporter:
There was a time when the U.S. Postal Service worked in conjunction with the Department of Labor (under FECA/OWCP) to keep hard-working Postal employees who were injured on the job, with offers of modified duties to retain a productive workforce. It was a time when the USPS was forward-looking; when competition from other companies was of no concern, because the USPS had the most productive workforce and could compete with the best of them. Part of the reason why this was so was because of a conceptual paradigm which is fast disappearing: Loyalty.
Loyalty, as a working corporate model, requires a bilateral conceptual paradigm. By retaining injured workers and providing them with meaningful work in a modified environment and tools, the U.S. Postal Service was daily telling its people: You worked hard for us those many years; we will work with you and remain loyal.
Fast-forward to the present day. Postal Workers who for several years have worked under the Rehabilitation Job Offer Guidelines, are suddenly handed a letter which states: “Notice of No Work Available within the operational needs of the service.” The letter goes on to delineated the fact that such determination of unavailability of work is based upon a “comprehensive review” of the USPS operational needs and comparing them to the current medical documentation of the injured Postal Employee. What is missing in this “new” paradigm? Does this reflect an organization which looks to its competitors with a positive view to challenging them in the marketplace? Does it value its employees? Does it engender a desire on the part of its workforce to work harder, be more competitive, and to expend all efforts to the point of excellence? Or, does it act like a wounded animal, fearful of its own shadow, and trying to protect its executive-level benefits and perks?
In professional football, how many times have we seen the team try and protect its 3-point lead for the remainder of the game? What inevitably happens?
Under the National Reassessment Program (the “NRP”), the U.S. Postal Service is attempting to validate a methodical paradigm of cutting its workforce by going after everyone who is less than “fully productive”. By doing so, it has destroyed any sense of corporate unity and company loyalty.
The Postal Worker today who is subject to the NRP is left with limited choices. On the one hand, he or she can accept the determination of the U.S. Postal Service that “no work is available”, and go on to file for benefits under FECA/OWCP. However, the Postal Worker must recognize that OWCP is only a temporary system of monetary compensation. Another avenue which the Postal Worker needs to consider is to file for Federal Disability Retirement benefits under FERS or CSRS. While Federal Disability Retirement benefits do not pay as well as OWCP benefits (generally, 60% of the average of one’s highest-3 consecutive years the first year, then 40% every year thereafter, under FERS; a different calculation under CSRS), it provides for one benefit which FECA/OWCP does not: independence and separation from the government entity.
Loyalty is a dying concept. It was a concept which was alive and well when, once upon a time, companies took the long view, looked to the future, to its continuum of growth and prosperity, and sharing that vision of a bright future with its employees. For the essence of loyalty always encapsulated a sense of the long term – of “being in it together” through prosperous times, as well as challenging times. Of course, even during the primacy of the U.S. Postal Service, Federal Disability Retirement benefits were still there for Postal employees (and similarly for all Federal employees) who could no longer perform one or more of the essential elements of one’s job. The interesting thing, of course, is that many Postal employees continued to work at modified jobs offers by the U.S. Postal Service, because of their sense of loyalty and commitment.
Indeed, when the United States Court of Appeals for the Federal Circuit rendered its opinion in the case of Bracey v. Office of Personnel Management, 236 F.3d 1356 (Fed. Cir. 2001) — most Postal employees continued to work at their modified jobs, despite being eligible for Federal Disability Retirement benefits. Bracey is still the prevailing case addressing the issue of accommodations for Federal and Postal employees. It stands for the proposition that a Federal or Postal employee is eligible for Federal Disability Retirement benefits even if he or she works in a “light duty”, modified position which may include “an ad hoc set of light duties” and may even continue “to pay the employee at the same level as before.” (Bracey, 236 F.3d 1356, at p.1362). Thus, while some may argue that the primary reason why injured Postal employees continued to work at the U.S. Postal Service was because the jobs were “easy” and that they couldn’t find a better-paying job elsewhere, the truth of the matter is that the vast majority of Postal Workers continued to work under the Rehabilitation Job Offer Guidelines because of an overriding belief that it was a career worth pursuing.
Loyalty was still a paradigm which Postal Workers believed in. With the implementation of the National Reassessment Program, in conjunction with the deep economic recession which the country is undergoing presently, Postal employees should not feel that filing for Federal Disability Retirement benefits is an act of “disloyalty”. Loyalty, in order for it to retain its meaningful paradigm, must at its core reflect a bilateral proposition. By initiating and implementing the National Reassessment Program, the U.S. Postal Service has abrogated its core pledge of loyalty. As such, the U.S. Postal Worker is left with a unilateral avenue of loyalty – one which must now be viewed with a singular focus: not upon the best interests of the organization that once was – that competitive entity called the U.S. Postal Service; no, rather, that singular focus must be concentrated upon the best interests of the individual Postal Worker. Federal Disability Retirement is an avenue which allows for independence and a foundation of income; it is something to be considered.
Attorney Robert R. McGill specializes in securing Federal Disability Retirement benefits for Federal and Postal workers under both FERS and CSRS. He represents Federal and Postal employees from all across the United States, from the West Coast to the East, and every state in between, as well as Alaska, Hawaii, Puerto Rico, Europe, Japan, etc. For more information about his legal services, please visit his OPM Disability Retirement and U.S. Postal Service Disability Retirement websites.
© 2010 PostalReporter.com – This article may not be reproduced without express written consent.
Union Urges Affected Postal Workers To Complete NRP Questionnaire
APWU Web News Article 068-2010, July 15, 2010
To strengthen the fight against the Postal Service’s harsh National Reassessment Program (NRP), the APWU is encouraging limited-duty and permanent-rehabilitation employees to complete a questionnaire sponsored by a law firm that has filed a class-action complaint against the USPS. The complaint alleges that the NRP discriminates against disabled employees.
The NRP, which was initiated nationwide in 2006, “is part of an aggressive campaign by the Postal Service to reduce costs by denying work to injured employees,” said APWU President William Burrus. “The union has fought the program every step of the way,” he said.
The program has wreaked havoc on affected workers, said Human Relations Director Sue Carney. “Thousands of light-duty and permanent-rehabilitation employees have felt its effects through mandatory NRP interviews or work-status meetings.
“Some received new full-day or partial-day job offers; some were told no work was available; others had their existing job offers renewed, while still more have only experienced Phase 1 of the NRP process. Many more are anxiously awaiting a determination,” she said.
USPS Notifies Members of the ‘Class’
An administrative judge for the Equal Employment Opportunities Commission (EEOC) certified the class-action complaint on May 30, 2008, in the case of Sandra McConnell et al v. United States Postal Service [PDF], which alleges that the USPS discriminated against injured workers on the basis of disability when it implemented the NRP. The complaint charges that the NRP fails to provide reasonable accommodation; creates a hostile work environment; wrongfully discloses medical information, and has an adverse impact on disabled workers.
After certifying the case as a “class action,” the judge ordered the Postal Service to notify all potential class members of the complaint. The USPS did so in letters dated July 1, 2010, which it sent to limited-duty and permanent rehabilitation employees. The letter said that workers are members of the class if they “are or were a permanent rehabilitation or limited duty employee of the Postal Service who was subjected to the NRP between May 5, 2006, and the present.”
The APWU encourages all current and former rehab and limited-duty employees who were subjected to any portion of the NRP to complete the questionnaire, whether or not they received a notice from the USPS that they may be members of the “class.” This will help ensure that the attorneys representing the workers are aware of all potential class members — including those that may have been overlooked by the Postal Service, Carney said.
Legal Rights
In accordance with the judge’s order, the USPS letters also notified employees of their legal rights. Potential class members were advised that they are not required to take any action at this time in order to remain a part of the class, or to preserve their right to make a future claim. The notice says that if the administrative judge rules that the Postal Service discriminated against them, they will be notified and given the opportunity to seek any and all remedies provided by law.
The case will determine the rights of class members; any decision will be binding. The EEOC does not allow class members to “opt out” of the class or to choose not to be bound by the decision in the case. If McConnell, the lead complainant, and the USPS choose to settle the case, all class members would be notified of the terms and given an opportunity to object or challenge the settlement.
The parties are currently engaged in the discovery process. Once this process is complete, the administrative judge will set a trial date. The APWU continues to communicate with the lead attorneys and will keep our members apprised of developments as warranted. In the interim, Carney encouraged members to check the NRP Class Action Web site for updates.
Vigorous Protests
In addition to supporting the class-action complaint, the APWU has vigorously protested the program in other forums, she said. “We have filed three Step 4 disputes through the grievance-arbitration procedure , and provided extensive guidance to union members and local and state organizations about how best to fight these attacks.
In addition to pursuing remedies through the Collective Bargaining Agreement, the union has provided information to union members on how to seek justice through OWCP (Office of Workers Compensation), ECAB (Employee Compensation Appeals Board) MSPB (Merit Systems Protection Board), and EEOC, as well as how to file claims for Unemployment Compensation.
FYI: National Reassessment Process EEO Class Action Lawsuit Website
A class action complaint for injured on duty postal employees was certified by an EEOC Administrative Judge (AJ) on May 30,2008.
In the case of (Read article from February 17, 2009) Sandra McConnell, et al. v. United States Postal Service an AJ decision certified the following class:
All permanent rehabilitation employees and limited duty employees at the U.S. Postal Service who have been subjected to the National Reassessment Process (NRP) from May 5, 2006 to present, allegedly in violation of the Rehabilitation Act of 1973.
The EEO class action charges:
- The NRP fails to provide class members with reasonable accommodations
- The NRP wrongfully discloses the medical information of class members
- The NRP creates a hostile workplace environment for class members
- The NRP has an adverse impact on class members.
The attorneys for Sandra McConnell ..et.al created a website to answer all questions postal employees may have regarding this case. At this website you can find the following:
Background
NRP Class Action: Representing Workers Affected by the USPS National Reassessment Process
McConnell v. U.S. Postal Service, EEOC Case No. 520-2008-00053X
Fill Out the NRP Class Action Questionnaire
The U.S. Postal Service is rolling out the National Reassessment Process (NRP) in USPS districts across nation. The NRP reviews all injured-on-duty employees serving in limited duty and/or rehabilitation positions.
In 2006, Sandra McConnell was reviewed under the NRP in the USPS Western New York District. Ms. McConnell had been working in a rehabilitation modified carrier position for over eight years. However, after the NRP review, Ms. McConnell was stripped of her modified position and ordered to go home with “no work available.”
Ms. McConnell filed a class action discrimination complaint under the Rehabilitation Act on behalf of all USPS workers affected by the NRP. The disability discrimination class action was certified by the EEOC Administrative Judge in 2008. After the USPS appealed that decision, the EEOC again granted certification of the class action in 2010. To view the class certification
notice click here.
What You Should Do
If you are affected by the NRP, you should do the following:
Fill out the NRP Class Action Questionnaire by clicking here
With respect to the claims covered in the class definition, you do not need to do anything now to preserve your right to make a claim later. If you have any claims that may not be covered by the class definition, these claims must be processed by you with an EEO Counselor within 45 days of the action complained of.
Current Status of the Case
The class action was remanded to the EEOC Administrative Judge. The parties are engaging in discovery. After the discovery process is completed, the Administrative Judge will set a date for trial.
Check for updates on the case status here.
Fill Out the NRP Class Action Questionnaire
National Reassessment Process website
MSPB: USPS National Reassessment Process Has Procedural Flaws
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.
Jul 01, 2010 2010 MSPB 124Patricia L. Luna U.S. Postal Service
Jul 01, 2010 2010 MSPB 125 Adelaido Vazquez U.S. Postal Service
Jul 01, 2010 2010 MSPB 126 Lydia T. Chang U.S. Postal Service
APWU: Unemployment Compensation And The National Reassessment Process
Injured employees who undergo the National Reassessment Process (NRP) and are told by the Postal Service either that there is only partial day work available or that there is no work available, should consider filing for unemployment compensation. This temporary financial assistance can serve as an important monetary bridge during the time that an employee is waiting for his or her OWCP compensation to be processed.
This program is formally known as the Unemployment Compensation for Federal Employee’s Program, and is administered by the states under separate agreements with the U.S. Secretary of Labor. A Postal Service employee’s entitlement to this benefit is determined by each state’s employment security laws and varies according to the individual state rules and to the employee’s wage and separation history.
An injured employee whose work hours have been reduced or eliminated by the NRP should ask the Postal Service to provide them with a SF 8, Notice to Former Employee About Unemployment Insurance. Don’t be misled by the phrase “former employee.” The SF 8 is also used for current employees who have had their work hours reduced or eliminated. The complete instructions can be found in Chapter 550, “Unemployment Compensation” in the Employee and Labor Relations Manual.
Health and Resource Management personnel at Postal Service headquarters have assured us that the SF 8 will be made available to injured employees who receive “Partial Day Work” or “Complete Day No Work” letters. However, the employee must ask for the form. It will not be provided automatically.
Injured employees who are provided work only on an intermittent basis are issued an SF 8 only for the first time in each calendar year when they are placed in a non-pay status. However, an SF 8 is issued each time to any employee who is, or will be, placed in a non-pay status for seven or more consecutive calendar days.
To facilitate the processing of a claim for unemployment compensation, an employee should take with them the SF 8; the most recent SF 50, Notification of Personnel Action; Social Security card; W-2 form; and a recent paycheck stub showing earnings and leave balance. Additional information can be found at the Web site of the Department of Labor.
OWCP will pay injured employees wage loss compensation even if they are receiving unemployment compensation. OWCP does not consider this situation to be a prohibited dual payment. However, virtually every state’s unemployment compensation regulations do consider this to be a dual payment, and would expect to be reimbursed for the unemployment compensation that was paid during the same period of time that a person received OWCP wage loss compensation.
Additional information
From the Employee and Labor Relations Manual (ELM)
553.12 SF 8, Notice to Former Employee About Unemployment Insurance
SF 8 explains an employee’s eligibility for unemployment compensation and describes the steps to be taken in filing a claim. Personnel offices complete SF 8 by entering at top of form the employee’s name, Social Security number, and pay location. In item 3 personnel offices enter #732 on the extreme right side and then enter the address of the Eagan ASC:
PAYROLL PROCESSING/UNEMPLOYMENT
USPS EAGAN ASC
2825 LONE OAK PKWY
EAGAN MN 55121–9635
SF 8 is issued promptly to the employee by the separating personnel office so that he or she does not lose unemployment compensation benefits to which he or she may be entitled. An individual whose work or tours of duty are on an intermittent basis is issued an SF 8 only the first time in each calendar year that he or she is placed in a nonpay status. However, a completed SF 8 is issued to an employee each time the employee:
- Separates from the Postal Service for any reason.
- Transfers to another federal agency.
- Is (or will be) placed in a nonpay status for 7 or more consecutive calendar days.
SF 8 is issued on the employee’s last workday. The date is to be noted in the remarks section of PS Form 50.
USPS Statement for Response to Media Inquiries Only Regarding the National Reassessment Process
The non-tax supported U.S. Postal Service views the safety and well being of its employees as its top priority. In situations where employees have been injured on the job, we make every attempt to provide necessary work that meets their physical limitations until they are able to return to their regular work assignment.
These jobs are referred to as limited duty or rehabilitative duty assignments and often involve sorting mail by hand.
Two issues have virtually eliminated these positions — advancements in mail sorting technology and the dramatic decline in mail volume as a result of the downturn in the economy. Mail volume peaked nationwide in 2006 with 212 billion pieces as contrasted with 175 billion pieces in 2009.
The National Reassessment Process (NRP), launched nationwide by the Postal Service in October of 2006, reviews assignments of injured ON THE JOB workers to ensure they are performing duties that fit the operational needs of the U.S. Postal Service. If necessary work is unavailable, employees are advised of their right to file for compensation with the Office of Workers Compensation Programs (OWCP) under the U.S. Department of Labor.
Employees who obtain injury compensation benefits from the OWCP may participate in the OWCP Vocational Rehabilitation program for placement in a new job with other federal agencies or private sector employment.
If NRP affected employees obtain a new non-postal job paying less than what they made at the Postal Service, they receive the difference through the Department of Labor which forwards the cost to the Postal Service.
The decision to pay employee compensation or to participate in the Vocational Rehabilitation program rests with the OWCP.
The U.S. Postal Service has worked closely with the OWCP and the U.S. Department of Labor in administering the NRP.
The NRP matter remains in continuing litigation. To ensure the integrity of that legal process, and in keeping with its employee personnel rules and privacy statutes, the U.S. Postal Service cannot comment on any specific NRP situation or NRP-affected employee.
source: U.S. Postal Service via KCNC TV Denver
Update: EEO Class Action For Postal Employees Placed Under National Reassessment Process
A class action complaint for injured on duty postal employees was certified by an EEOC Administrative Judge (AJ) on May 30,2008.
In the case of (Read article from February 17, 2009) Sandra McConnell, et al. v. United States Postal Service an AJ decision certified the following class:
All permanent rehabilitation employees and limited duty employees at the U.S. Postal Service who have been subjected to the National Reassessment Process (NRP) from May 5, 2006 to present, allegedly in violation of the Rehabilitation Act of 1973. The AJ certification decision recited evidence that the goal of NRP was to assign work to
employees who had an approved compensable injury as determined by the Department of Labor.
According to the decision, Phase 1 of NRP consisted largely of reviewing the files and medical records of all these employees; where needed requesting updated medical documentation from the employee; and verifying that current work actually being performed matched the current job offer. According to the decision, Phase 2 consisted largely of canvassing facilities to identify work necessary for operations and functions, attempting to match the employee with the necessary work, and if none is found, notifying the employee that no work was available.
Class members argued one or more of the following complaints:
1. NRP is a systemic attempt to abolish reasonable accommodations agency wide.
2. The agency’s alleged facially non-discriminatory policy is being applied in a discriminatory manner.
3. The process constitutes denial(s) of reasonable accommodation.
4. The process constitutes discrimination based on disability (physical/mental).
5. The process constitutes unlawful harassment and hostile work environment based on disability (physical/mental).
6. The agency unlawfully modified or terminated each person’s approved disability accommodations without cause.
7. The agency made its reassignment decisions improperly by, inter alia, failing to engage in the interactive process.
8. The agency applied the program discriminatorily both with regard to each individual and how the process was applied.
9. The agency’s actions are retaliatory for the individual’s protected conduct, in reporting injuries, filing worker’s compensation, and/or prior EEO activity.
10. The agency’s conduct violated its procedures and OWCP’s regulations and blatant failure to follow the agency’s own regulations is presumed to be motivated by retaliation and/or discrimination.
The Postal Service filed an appeal from the certification decision.
Recently EEOC agreed with the AJ’s determination that the class should be defined as all permanent rehabilitation employees and limited duty employees at the agency who have been subjected to the NRP since 2006. Therefore, the EEOC reversed the Postal Service’s order rejecting the class and ordered them to notify potential class members.
2010 PostalReporter.com All rights reserved. This article may not be reproduced without express written consent from PostalReporter.com
Postal Mail Handlers Union Signs Settlement On National Reassessment Program
The National Office of the NPMHU recently signed a settlement with USPS management concerning the National Reassessment Program (NRP), which is being used by the Postal Service to re-evaluate all limited duty and rehabilitation positions held by mail handlers and other postal employees who have been injured on the job.
Throughout the negotiations, the NPMHU has held the position that the Postal Service’s use of the term “necessary work” in the NRP unduly and unreasonably restricts the types of duties and assignments that must be made available to mail handlers and other employees injured on the job. We are pleased to report that the settlement reached by the National parties deals directly with this issue. In particular, the settlement has three major components:
First, the settlement addresses the NPMHU’s contention that the Postal Service has been using the NRP to implement a new “necessary work” standard for the creation and continuation of limited duty and rehabilitation assignments. The parties have agreed that “[t]he NRP has not redefined or changed the Postal Service’s obligation to provide limited duty or rehabilitation assignments for injured employees.” The parties also have agreed that ELM Section 546 “has not
been amended and remains applicable to all pending grievances.” It is important
to note that ELM Section 546.142 refers repeatedly to “adequate work” and “adequate work available” as the governing standard.
Second, the settlement deals with the Union’s contention that the Postal Service was using the NRP to develop new criteria for assigning limited duty.Again, the parties agreed that “[t]he Postal Service has not developed new criteria for assigning limited duty,” and that “[i]njured employees will continue to be assigned limited duty, in accordance with the requirements of ELM 546 and 5 C.F.R, Part 353.”
Third, the settlement specifically addresses the potential impact of the NRP on employees assigned light duty under Article 13 of the National Agreement. On this issue, the parties agreed that “[e]mployees on existing non-workers’ compensation light duty assignments made pursuant to Article 13 . . . will not normally be displaced solely to make new limited duty or rehabilitation assignments unless required by law or regulation.”
The parties further agreed that all grievances concerning the NRP, which have been held pending the outcome of this National-level dispute, will be processed through the appropriate grievance and arbitration procedure. If you have a question about NRP implementation, you should contact your Local Union representatives.
APWU National Officer Prevails In MSPB Case On USPS Reassessment Program
OPM’s regulations provide the following restoration rights to a partially recovered employee:
“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.”
Other cases recently decided by MSPB involving injured Postal employees :
USPS Supervisor Distribution Operations in the Bay Valley District.
Glenn L. Smith, attorney argued this case
http://www.mspb.gov/netsearch/viewdocs.aspx?docnumber=462686&version=463916&application=ACROBAT
Elfreda M. Barachina v. United States Postal Service, Pro Se, Mail Processing Clerk at the Pasadena Processing and Distribution Center (P&DC). http://www.mspb.gov/netsearch/viewdocs.aspx?docnumber=462995&version=464217&application=ACROBAT
UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD
2009 MSPB 228
Docket No. SF-0353-09-0650-I-1
Irma Urena,
Appellant,
v.
United States Postal Service,
Agency.
December 14, 2009
Omar Gonzalez, Burlingame, California, for the appellant. (APWU Western Region Coordinator)
Joshua T. Klipp, Esquire, San Francisco, California, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman Anne M. Wagner, Vice Chairman Mary M. Rose, Member
OPINION AND ORDER
The appellant timely petitions for review of an initial decision (ID) that dismissed her restoration rights appeal for lack of jurisdiction. For the reasons discussed below, we GRANT her petition under 5 C.F.R. § 1201.115(d)(2), REVERSE the ID, and REMAND the case for further adjudication consistent with this Opinion and Order.
BACKGROUND
At the time this matter arose, the appellant was a PS-06 Mail Processing Clerk on limited duty at the agency’s Los Angeles Processing and Distribution Center (LA P&DC). On April 29, 2009, the appellant’s supervisor issued a letter directing her to leave work that day and not to return until contacted. The letter stated it was based on a determination, as part of the agency’s National Reassessment Process (NRP),1 that there were no operationally necessary tasks meeting the appellant’s medical restrictions within her regular hours of duty at her facility.
The evidence of record shows that the appellant had compensable work-related injuries, i.e., both right and left carpal tunnel syndrome and right rotator cuff syndrome. Id., The injuries resulted in restrictions on lifting, pushing and pulling, repetitive use of both hands, and reaching above the shoulder. The appellant had achieved maximum medical improvement, and her conditions were deemed permanent and stationary. Since 2006,3 the appellant had been working in a limited duty assignment, handling check out and return of equipment such as scanners and radios and ensuring the proper operation of the equipment.
The appellant appealed her placement off work, alleging a violation of her right to restoration to duty after partial recovery from compensable injuries and disability discrimination based on the denial of reasonable accommodation.
1 The NRP is a nationwide agency initiative to provide updated and operationally necessary job offers for limited duty employees who have reached maximum medical improvement.
2 The letter states that there were no such tasks “or you have refused to accept available operationally necessary tasks.” IAF, Tab 5, Subtab 4F. The agency does not assert, and there is no record evidence, that the appellant refused any assignment.
3 The dates of her injuries were March 25, 1993 (right carpal tunnel), July 21, 1997 (left carpal tunnel) and September 4, 2007 (rotator cuff).
She asserted that the agency’s action was arbitrary and capricious because the agency failed to do a proper search for productive work for her, including within the local commuting area. The AJ found that the appellant did not support this assertion with facts and so did not make a nonfrivolous allegation of violation of her restoration rights. The AJ also held that the appellant’s assertions that the agency failed to follow NRP procedures correctly or comply with obligations under the collective bargaining agreement (CBA) and Employee and Labor Relations Manual (ELM) did not constitute nonfrivolous allegations that the agency’s action was arbitrary and capricious. Id. Therefore, the AJ dismissed the appeal for lack of Board jurisdiction. ID at 8. The AJ also held that in the absence of jurisdiction over the restoration appeal, the Board had no authority to address the appellant’s disability discrimination claim.
The appellant has filed a petition for review (PFR) in which she challenges the AJ’s finding that she did not make a nonfrivolous allegation of violation of her restoration rights. She cites the agency’s response to the appeal, which stated only that it conducted a search for tasks she could perform at her worksite. The appellant asserts that the agency failed to provide her with necessary information in discovery and that the AJ failed to rule on the agency’s motion for a stay of discovery prior to issuing the ID. Id. The appellant also reiterates her arguments on appeal that the agency did not correctly follow NRP procedures or comply with its obligations under the CBA and ELM, and did not provide reasonable accommodation. Id. The agency has responded in opposition to the PFR. Id.,
ANALYSIS
The Federal Employees Compensation Act and the Office of Personnel Management’s (OPM’s) implementing regulations provide that federal employees who experience on-the-job compensable injuries have certain rights to be restored to employment. 5 U.S.C. § 8151; Tat v. U.S. Postal Service, 109 M.S.P.R. 562, ¶ 9 (2008); 5 C.F.R. part 353. Employees of the U.S. Postal Service are among those with rights to restoration. See Chen v. U.S. Postal Service, 97 M.S.P.R. 527, ¶ 12 (2004); 5 C.F.R. § 353.102. The nature of an employee’s restoration rights depends on the extent and timing of recovery from a compensable injury. 5 U.S.C. § 8151; Delalat v. Department of the Air Force, 103 M.S.P.R. 448, ¶ 15 (2006); 5 C.F.R. § 353.301 (setting forth restoration rights for those who are fully recovered within or after 1 year, who are physically disqualified, or who are partially recovered).
OPM’s regulations define a physically disqualified employee in pertinent part as someone who, for medical reasons, is unable to perform the duties of the position formerly held or an equivalent one, and whose condition is considered permanent with little likelihood for improvement or recovery. 5 C.F.R. § 353.102; see Kravitz v. Department of the Navy, 104 M.S.P.R. 483, ¶ 4 (2007). A physically disqualified employee has agencywide rights to placement in a position of the same status and pay for 1 year from the time eligibility for injury compensation begins. 5 C.F.R. § 353.301(c). After 1 year, the employee’s restoration rights are equivalent to those of someone who is fully or partially recovered, as applicable.
A partially recovered employee is one who cannot resume the full range of regular duties but has recovered sufficiently to return to part-time or light duty or to another position with less demanding physical requirements. 5 C.F.R. § 353.102. OPM’s regulations provide the following restoration rights to a partially recovered employee:
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). See Delalat, 103 M.S.P.R. 448, ¶ 17; Gilbert v. Department of Justice, 100 M.S.P.R. 375, ¶ 15 (2005).
Board appeal rights in restoration cases derive from OPM’s regulations. Foley v. U.S. Postal Service, 105 M.S.P.R. 307, ¶ 10 (2007); 5 C.F.R. § 353.304. The regulations provide that a partially recovered employee may appeal to the Board only for a determination of whether the agency is acting in an “arbitrary and capricious” way in denying restoration. Zysk v. U.S. Postal Service, 108 M.S.P.R. 520, ¶ 6 (2008); Delalat, 103 M.S.P.R. 448, ¶ 17; 5 C.F.R. § 353.304(c). An individual who has been restored to duty may not challenge the details or circumstances of the restoration. Foley v. U.S. Postal Service, 90 M.S.P.R. 206, ¶ 6 (2001). The Board has held, however, that an agency’s rescission of a previously provided restoration may be an appealable denial of restoration. Brehmer v. U.S. Postal Service, 106 M.S.P.R. 463, ¶ 9 (2007); see Foley, 90 M.S.P.R. 206, ¶ 6 (under appropriate circumstances, a restoration may be so unreasonable as to be deemed a denial of restoration, as when a person is unable to perform the duties of the job to which he is restored).
To establish Board jurisdiction over a restoration claim as a partially recovered employee, the appellant must make nonfrivolous allegations that the agency violated her restoration rights. Chen, 97 M.S.P.R. 527, ¶ 12. To do so, she must allege facts that would show, if proven, that: (1) She was absent from her position due to a compensable injury; (2) she 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 her; (3) the agency denied her request for restoration; and (4) the denial was arbitrary and capricious. Barrett v. U.S. Postal Service, 107 M.S.P.R. 688, ¶ 5 (2008); Gilbert, 100 M.S.P.R. 375, ¶ 16; Chen, 97 M.S.P.R. 527, ¶ 13.
The AJ correctly held that the appellant met prongs (1)-(3) above. Whether there is Board jurisdiction turns on whether the appellant made a nonfrivolous allegation that the agency’s action was arbitrary and capricious. We find that she did so. The AJ held that the appellant failed to provide any facts in support of her assertion that the agency did not conduct a search for restoration for her within the local commuting area. Facts without support do not constitute nonfrivolous allegations. See Riojas v. U.S. Postal Service, 88 M.S.P.R. 230, ¶ 3 (2001) (citing Briscoe v. Department of Veterans Affairs, 55 F.3d 1571, 1573 (Fed. Cir. 1995)). In this case, however, the agency’s own evidence corroborates the appellant’s assertion. See Ferdon v. United States Postal Service, 60 M.S.P.R. 325, 329 (1994) (in determining whether the appellant has made a nonfrivolous allegation, an AJ may consider the agency’s documentary submissions).
The April 29, 2009, letter directing the appellant to leave work and not to return until further notice states as follows:
[A] search for operationally necessary tasks meeting your medical restrictions within your regular hours of duty (tour) and this office/ facility was completed. Based on this search, we were unable to identify any available operationally necessary tasks within your medical restrictions[.]
Attached to the letter is a document titled “National Reassessment Process, Phase 2, Limited Duty; Priority for Assignment Worksheet, Steps 1-2, within regular schedule (tour) and current facility.” Id. It is filled out for the appellant, at the LA P&DC, tour 3, and signed by the appellant’s supervisor. Id. It states as follows:
I have made every reasonable effort to search for and identify operationally necessary tasks for this employee within their current medical restrictions; within their craft; within their regular schedule (tour) and within their current facility. I have been unable to identify adequate available operationally necessary tasks for this employee within these requirements. Id. The form also makes the same statement with regard to a search outside the appellant’s craft.
The agency’s documents state only that it searched within the appellant’s facility, the LA P & DC, and not within her commuting area, as required by OPM regulations. See 5 C.F.R. § 353.301(d) (agencies must make every effort to restore in the local commuting area). This supports the appellant’s allegation in her appeal that the agency conducted only a limited search, contrary to the regulatory requirement. Accordingly, we find that the appellant’s assertion, supported by the agency’s documentary submission, constitutes a nonfrivolous allegation that the agency’s action in rescinding her limited duty assignment was arbitrary and capricious.
The appellant has therefore met all four prongs of the test for Board jurisdiction and is entitled to a hearing on the merits of her appeal. See Tat, 109 M.S.P.R. 562, ¶ 19; Foley, 105 M.S.P.R. 307, ¶ 11. Because the Board has jurisdiction over the appeal, the AJ must also adjudicate the appellant’s disability discrimination claim. Barrett, 107 M.S.P.R. 688, ¶ 8.
Finally, in finding jurisdiction and remanding for a hearing, we do not rely on the appellant’s arguments on PFR regarding violation of NRP procedures, the CBA and the ELM. We discern no reason to disturb the AJ’s findings that these allegations were unsupported and thus insufficient to constitute nonfrivolous allegations of Board jurisdiction. In addition, we find it unnecessary to address the appellant’s arguments on PFR regarding the agency’s failure to provide complete discovery responses. Any outstanding discovery matters can be addressed during proceedings on remand.
ORDER
Accordingly, we remand the appeal to the Western Regional Office for adjudication of the merits of the appellant’s restoration appeal consistent with this Opinion and Order.
FOR THE BOARD:
______________________________ William D. Spencer Clerk of the Board Washington, D.C.
GAO: USPS National Reassessment Program For Injured Employees Needs Improvement
Why GAO Did This Study
The Program for Reassessing Work Provided to Injured Employees Is Under Way, but Actions Are Needed to Improve Program Management
Highlights of GAO-10-78, a report to congressional requesters
Between 50,000 and 60,000 United States Postal Service (Service) employees, or 7 to 8 percent of the Service’s workforce, occupied a modified work assignment during fiscal year 2008. The Service must provide these assignments to employees with workplace injuries if work is available to perform within their medical restrictions. Historically, the Service has returned employees to work as soon as possible, partly to reduce its costs for workers’ compensation. In 2006, the Service initiated a program, the National Reassessment Process, to ensure that modified work assignments are medically suitable and necessary to carry out the Service’s mission. This requested report addresses (1) the goal of the program, (2) how it is being implemented, and (3) the program’s status and outcomes. To perform its work, GAO analyzed data and documentation, visited four districts selected to illustrate a range of conditions, and interviewed Service officials.
What GAO Recommends
GAO recommends that the Service establish program completion timelines, track and measure outcomes, and disclose limitations of its reported cost savings. The Service agreed with GAO’s third recommendation and disagreed with the other two. While GAO modified one recommendation in response to the Service’s comments, GAO retained all three to encourage program completion, accountability, and transparency.
The goal of the National Reassessment Process is to ensure that all employees in modified work assignments are performing work that is both suitable to their medical restrictions and necessary to the Service’s mission. Among other things, the program aims to eliminate what Service officials call “make–work” assignments which, over time, occurred when factors such as increasing automation and declining mail volumes reduced the amount of manual, sedentary, and useful work available for these employees to perform. The number of employees reassessed under the program is not readily available nationwide because the Service does not aggregate district data. However, on September 30, 2008, there were 31,044 employees in modified work assignments, all of whom may have been reassessed under the program.
What GAO Found
The program is being implemented in three phases in the Service’s 74 districts. In Phase 1, the Service ensures that all employee medical records are current, and categorizes the employees based on their medical status. In Phases 2 and 3, the Service attempts to find each employee medically suitable and necessary work. If successful, the Service provides these employees with modified work assignments. However, when suitable work is not available, employees become eligible for wage loss compensation (workers’ compensation). Specifically, because employees in Phase 2 have reached their maximum medical improvement, they are not expected to return to work for the Service and, thus, may receive workers’ compensation indefinitely, whereas Phase 3 employees are eligible for workers’ compensation for only the number of hours they cannot work for the Service. Initially, the Service implemented each phase of the program sequentially; however, in July 2009, it began allowing some districts to conduct Phases 2 and 3 concurrently to expedite the program’s completion. The Service has not established milestones for completing the program, but, according to Service officials, they expect the program to be fully implemented by September 30, 2010.
After 3 years, none of the Service’s districts had completely implemented the program, and implementation in most is far from complete. Available data on employee outcomes are limited and preliminary because implementation is ongoing, and the Service does not track employees who receive medically suitable and necessary work—the goal of the program. The Service achieves program cost savings when, for example, employees return to full duty, retire, resign, or perform modified work assignments. However, when suitable work is not available, some employee outcomes could increase the Service’s short- and long-term costs for workers’ compensation. For the year ending June 30, 2009, workers’ compensation costs totaled about $1.1 billion and, in 2008, the Service estimated that its future liability for these costs totaled about $8 billion. The Service reported to the Congress that the program saved $146 million in fiscal year 2008. However, the Service did not disclose that these reported savings reflect neither the Service’s total gross savings nor its net savings, nor any other limitations in its cost estimation methodology.
see full report: http://www.gao.gov/new.items/d1078.pdf