Opinion

Alfredo Ortiz v. United States Postal Service

Court: Merit Systems Protection Board
Filed: Jul 12, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.3%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ALFREDO ORTIZ, DOCKET NUMBER

Appellant, DA-0752-19-0337-I-1

UNITED STATES POSTAL SERVICE, DATE: July 12, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Jose Menchaca , San Antonio, Texas, for the appellant.

Austin D. Black , Esquire, and Richard G. Saliba , Esquire, Dallas, Texas,

for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member*

*Member Kerner did not participate in the adjudication of this appeal.

FINAL ORDER

The appellant has filed a petition for review of the initial decision, which

dismissed his constructive suspension appeal for lack of jurisdiction. Generally,

we grant petitions such as this one only in the following circumstances: the

initial decision contains erroneous findings of material fact; the initial decision is

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

based on an erroneous interpretation of statute or regulation or the erroneous

application of the law to the facts of the case; the administrative judge’s rulings

during either the course of the appeal or the initial decision were not consistent

with required procedures or involved an abuse of discretion, and the resulting

error affected the outcome of the case; or new and material evidence or legal

argument is available that, despite the petitioner’s due diligence, was not

available when the record closed. Title 5 of the Code of Federal Regulations,

section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this

appeal, we conclude that the petitioner has not established any basis under section

1201.115 for granting the petition for review. Therefore, we DENY the petition

for review and AFFIRM the initial decision, which is now the Board’s final

decision. 5 C.F.R. § 1201.113(b).

As correctly explained in the initial decision, to establish the Board’s

jurisdiction in a constructive suspension appeal, an appellant must prove, among

other things, that he lacked a meaningful choice in the matter and it was the

agency’s wrongful actions that deprived him of that choice. Initial Appeal File

(IAF), Tab 16, Initial Decision (ID) at 5; see Thomas v. Department of the Navy,

123 M.S.P.R. 628, ¶9 (2016); Bean v. U.S. Postal Service, 120 M.S.P.R. 397, ¶ 8

(2013); see also 5 C.F.R. § 1201.56(b)(2)(i)(A) (providing that the appellant has

the burden of proof regarding jurisdictional issues). 2 In such an appeal, an

appellant is entitled to a jurisdictional hearing if he makes a nonfrivolous

allegation 3 of Board jurisdiction. ID at 4; see Thomas, 123 M.S.P.R. 628, ¶ 11.

For the reasons described in the initial decision, we agree with the

administrative judge’s finding that the appellant failed to make a nonfrivolous

The appellant does not dispute, and we discern no reason to disturb, the administrative

judge’s finding that the appellant has adverse-action appeal rights under 5 U.S.C.

chapter 75 because he is a preference-eligible Postal Service employee who has

completed 1 year of current continuous service in the same position. ID at 3-4; see

Henderson v. U.S. Postal Service, 95 M.S.P.R. 454, ¶ 4 (2004).

A nonfrivolous allegation is an assertion that, if proven, could establish the matter at

issue. 5 C.F.R. § 1201.4(s).

allegation of the Board’s jurisdiction over the appealed matter as a constructive

suspension. ID at 5-6. Specifically, she found that, although he nonfrivolously

alleged that he lacked a meaningful choice as to his absence, he failed to

nonfrivolously allege that his absence was due to the agency’s wrongful actions.

Id.; see Romero v. U.S. Postal Service, 121 M.S.P.R. 606, ¶ 9 (2014) (concluding

that the Board lacked jurisdiction over the constructive suspension appeal

because, although the agency’s decision not to return the appellant to work with

medical restrictions deprived him of a meaningful choice in the matter, the

agency did not act improperly in refusing to allow him to return to work) .

On petition for review, the appellant argues that the Board has jurisdiction

over this constructive suspension appeal because he was forced to use sick leave

for more than 14 days, citing Rutherford v. U.S. Postal Service, 112 M.S.P.R. 570

(2009), overruled by Abbott v. U.S. Postal Service, 121 M.S.P.R. 294 (2014).

Petition for Review (PFR) File, Tab 1 at 3. In Rutherford, the Board found that

the appellant made a nonfrivolous allegation of jurisdiction over a constructive

suspension appeal that concerned the agency’s termination of her light-duty

assignment and subsequent enforced leave action. Rutherford, 112 M.S.P.R. 570,

¶¶ 2, 8-9, 15. The Board overruled Rutherford in Abbott, which clarified that an

agency’s placement of an employee on enforced leave for more than 14 days

constitutes an appealable suspension within the Board’s jurisdiction that should

not be adjudicated using the jurisdictional framework for constructive

suspensions. Abbott, 121 M.S.P.R. 294, ¶¶ 9-10.

For the following reasons, we find Rutherford factually distinguishable

from the instant appeal. Here, unlike in Rutherford, the agency did not terminate

a light-duty assignment that the appellant had been performing or subject him to

an enforced leave action. Cf. Rutherford, 112 M.S.P.R. 570, ¶¶ 2, 8. Instead, the

appellant sought to return to work with medical restrictions after being absent on

approved leave to recover from an off-the-job injury. ID at 2; IAF, Tab 1 at 6,

Tab 7 at 15, Tab 14. Under the circumstances of this appeal, we find that the

administrative judge properly adjudicated the appealed matter as an alleged

constructive suspension and found the enforced leave analysis inapposite. ID

at 4 n.1; see Romero, 121 M.S.P.R. 606, ¶ 8. Moreover, the appellant’s argument

that he was forced to take leave when he sought to return to work and was

prevented from doing so for more than 14 days does not render the matter an

appealable suspension under Abbott rather than a constructive suspension under

Bean. See Romero, 121 M.S.P.R. 606, ¶ 9 n.2 (rejecting such an argument in a

constructive suspension appeal).

The appellant further argues on review that the agency wrongly required

him to submit additional medical documentation and refused to return him to

work. PFR File, Tab 1 at 3. When an employee voluntarily takes leave, an

agency may properly refuse to allow him to resume working if he does not satisfy

the agency’s conditions for returning to work. Rosario-Fabregas v. Merit

Systems Protection Board, 833 F.3d 1342, 1347 (Fed. Cir. 2016). In those

circumstances, the agency’s refusal to allow the employee to return to work does

not amount to a constructive suspension. Id.

In finding that the appellant failed to nonfrivolously allege that his absence

was due to a wrongful agency action, the administrative judge relied on

sections 865.1 and 865.3 of the agency’s Employee and Labor Relations Manual

(ELM). ID at 6; IAF, Tab 11 at 14-15. The appellant does not dispute that he is

covered by such ELM sections. PFR File, Tab 1. Among other things,

ELM sections 865.1 and 865.3 provide that management can require employees

who have been absent for medical reasons to submit detailed medical

documentation in order to clear their return to work when management has a

reasonable belief, based upon reliable and objective information, that the

employee may not be able to perform the essential functions of his position. IAF,

Tab 11 at 14-15. ELM section 865.1 further provides that the decision to clear an

employee to return to work rests with management. Id. at 14.

As discussed in the initial decision, when the appellant initially sought to

return to work after recovering from an off-the-job injury, he gave the agency a

physician’s note certifying that he was restricted from lifting more than

25 pounds. ID at 2; IAF, Tab 1 at 6, Tab 7 at 15. The agency did not allow him

to return to work, but his supervisor told him what medical documentation he

needed to obtain from his physician for clearance to return to work. ID at 2; IAF,

Tab 8 at 3. The appellant subsequently gave the agency a Work Restriction

Evaluation Form in which his physician again certified that he was restricted from

lifting more than 25 pounds. ID at 2; IAF, Tab 7 at 16. The job description for

the appellant’s City Carrier position states that an incumbent “[m]ay be required

to carry mail weighing up to 35 pounds in shoulder satchels or other equipment

and to load or unload container[s] of mail weighing up to 70 pounds.” ID at 5;

IAF, Tab 7 at 31. The administrative judge found that the physician’s

certifications, on their face, indicated the appellant could not perform the

essential functions of his City Carrier position. ID at 6. The appellant does not

challenge this finding on review, and we discern no reason to disturb it.

Importantly, he does not dispute that, based on the City Carrier job description

and his physician’s certifications, his position required him to lift more weight

than his medical restrictions allowed. IAF, Tab 7 at 15-16, 31. After considering

the circumstances of this appeal and the ELM sections described above, we find

that the appellant has failed to make a nonfrivolous allegation that the agency

acted improperly in requiring him to submit more detailed medical documentation

and in deciding not to clear his return to work.

In addition, we agree with the administrative judge’s finding that, absent an

otherwise appealable action, the Board lacks jurisdiction over the appellant’s

claims of prohibited personnel practices and harmful procedural errors. PFR File,

Tab 1 at 3; ID at 6-7; see Wren v. Department of the Army, 2 M.S.P.R. 1, 2

(1980), aff’d, 681 F.2d 867, 871-73 (D.C. Cir. 1982). Although we have

considered such claims to the extent they bear on the jurisdictional issue, for the

reasons discussed above and in the initial decision, we find that the appellant has

failed to make a nonfrivolous allegation that any wrongful agency action

precipitated his absence. Cf. Rosario-Fabregas v. Department of the Army ,

122 M.S.P.R. 468, ¶ 20 (2015) (considering the appellant’s discrimination and

reprisal claims to the extent they related to the jurisdictional issue in a

constructive suspension appeal), aff’d, 833 F.3d 1342 (Fed. Cir. 2016). Because

the appellant has failed to meet his jurisdictional burden, we decline to address

his due process claim. PFR File, Tab 1 at 3; cf. Abbott, 121 M.S.P.R. 294, ¶ 8

(observing that, if an appellant establishes jurisdiction over a constructive

suspension, the Board will reverse the agency’s action on due process grounds

without proceeding to the merits).

The appellant’s remaining argument that he was not made part of the

telephonic status conference does not provide a basis to disturb the initial

decision. PFR File, Tab 1 at 3. In particular, he argues that he was not able to

ask questions at the status conference, which harmed his ability to obtain a

settlement or to convince the administrative judge to hold a hearing. Id. The

appellant has failed to explain how his inability to attend the status conference

constitutes an adjudicatory error, especially when the record reflects that his

representative was in attendance. IAF, Tab 10 at 1. Moreover, in the

Acknowledgment Order, the administrative judge informed the parties of the

settlement process and told them that they could contact her to seek clarification.

IAF, Tab 2 at 1, 7, 13-14. Further, in the Order and Summary of Telephonic

Status Conference, she updated them on the status of settlement discussions and

apprised them of what was required to obtain a hearing. IAF, Tab 10 at 1, 5-6.

Thus, we find that the appellant has failed to show that his substantive rights were

harmed by his inability to ask questions at the status conference. See Panter v.

Department of the Air Force, 22 M.S.P.R. 281, 282 (1984) (finding that an

adjudicatory error that is not prejudicial to a party’s substantive rights provides

no basis for reversal of an initial decision).

Accordingly, we affirm the initial decision dismissing this appeal for lack

of jurisdiction. 4

NOTICE OF APPEAL RIGHTS 5

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By

statute, the nature of your claims determines the time limit for seeking such

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).

Although we offer the following summary of available appeal rights, the Merit

Systems Protection Board does not provide legal advice on which option is most

appropriate for your situation and the rights described below do not represent a

statement of how courts will rule regarding which cases fall within their

jurisdiction. If you wish to seek review of this final decision, you should

immediately review the law applicable to your claims and carefully follow all

filing time limits and requirements. Failure to file within the applicable time

limit may result in the dismissal of your case by your chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

The appellant does not dispute, and we discern no reason to disturb, the administrative

judge’s findings that the Board lacks jurisdiction over the appealed matter as a negative

suitability determination or an alleged violation of his restoration rights under the

Federal Employees’ Compensation Act (FECA). ID at 6 n.5; see, e.g., Hamilton v.

U.S. Postal Service, 123 M.S.P.R. 404, ¶¶ 9, 14 (2016) (finding that the appellant had

no restoration rights under FECA based on a medical condition that was not

job-related); see also, e.g., Besemer v. U.S. Postal Service, 77 M.S.P.R. 260, 263 n.2

(1998) (finding that an appellant who was a Postal Service employee had no right to

appeal an alleged suitability determination based, in part, on the fact that Postal Service

positions are in the excepted service).

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

(1) Judicial review in general . As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination . This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims —by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on

race, color, religion, sex, national origin, or a disabling condition, you may be

entitled to representation by a court-appointed lawyer and to waiver of any

requirement of prepayment of fees, costs, or other security. See 42 U.S.C.

§ 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012 . This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in

section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)

(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either

with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of

competent jurisdiction. 6 The court of appeals must receive your petition for

review within 60 days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expired on

December 27, 2017. The All Circuit Review Act, signed into law by the President on

July 7, 2018, permanently allows appellants to file petitions for judicial review of

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,

132 Stat. 1510.