The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANNA E REYES, DOCKET NUMBER
Appellant, SF-0353-19-0204-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: July 30, 2024
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Guillermo Mojarro , Corpus Christi, Texas, for the appellant.
Jessica Villegas , Esquire, San Francisco, California, for the agency.
Philip R. Ingram , Esquire, San Diego, California, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her restoration appeal for lack of jurisdiction. For the reasons
discussed below, we GRANT the appellant’s petition for review and REMAND
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
the case to the Western Regional Office for further adjudication in accordance
with this Remand Order.
BACKGROUND
¶2 The agency employed the appellant as a Mail Processing Clerk at the
Industry, California Processing and Distribution Center (Industry P&DC). Initial
Appeal File (IAF), Tab 1 at 1, Tab 6 at 155. She suffered several compensable
injuries, the most recent of which occurred in October 2013. IAF, Tab 5 at 19,
24-26. She returned to duty from that injury on or about May 14, 2018, and
subsequently served in a series of limited duty modified job assignments. IAF,
Tab 5 at 19, Tab 6 at 156, 159, 162. On January 30, 2019, the agency offered the
appellant a new limited duty modified job assignment at the Industry P&DC,
which she initially accepted. IAF, Tab 1 at 20. The next day, the appellant
rejected the offer, asserting that it was outside her medical restrictions. Id. at 11.
¶3 The appellant timely filed this appeal alleging that the agency improperly
denied her request for restoration as a partially recovered employee and
discriminated against her based on her disability. IAF, Tab 1. The administrative
judge issued an initial decision dismissing the appeal for lack of jurisdiction.
IAF, Tab 13, Initial Decision (ID). He further found that, absent an otherwise
appealable action, the Board lacks jurisdiction over the appellant’s allegations of
disability discrimination and reprisal. ID at 6.
¶4 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 3. The agency has filed a response. Id., Tab 5. On April 17, 2020, the
appellant filed a motion to submit an additional pleading, i.e., a March 27, 2020
decision of the Office of Workers’ Compensation Programs (OWCP) finding that
the modified work position that the agency offered her was outside her medical
restrictions. PFR File, Tab 8 at 3. The Acting Clerk of the Board granted the
appellant’s motion. PFR File, Tab 10. The appellant submitted her evidence,
arguing that OWCP’s finding shows that the agency’s modified job offer was not
3
a proper offer of restoration. PFR File, Tab 11 at 4, 8-12. The agency filed a
response, arguing that the appellant’s new evidence does not show that the
administrative judge erred in dismissing the appeal. PFR File, Tab 12 at 4, 6-7.
DISCUSSION OF ARGUMENTS ON REVIEW
¶5 The Federal Employees’ Compensation Act and the implementing
regulations of the Office of Personnel Management (OPM) at 5 C.F.R. part 353
provide, inter alia, that Federal employees who suffer compensable injuries enjoy
certain rights to be restored to their previous or comparable positions. Kingsley
v. U.S. Postal Service, 123 M.S.P.R. 365, ¶ 9 (2016); see 5 U.S.C. § 8151(b).
Under OPM’s regulations, such employees have different substantive rights based
on whether they have fully recovered, partially recovered, or are physically
disqualified from their former or equivalent positions. Kingsley, 123 M.S.P.R.
365, ¶ 9; 5 C.F.R. § 353.301. Partially recovered employees, like the appellant,
are those who, “though not ready to resume the full range” of duties, have
“recovered sufficiently to return to part-time or light duty or to another position
with less demanding physical requirements.” Kingsley, 123 M.S.P.R. 365, ¶ 9;
5 C.F.R. § 353.102.
¶6 To establish jurisdiction over a claim of denial of restoration as a partially
recovered employee, an appellant is required to make nonfrivolous allegations of
the following: (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 because of the agency’s failure to
perform its obligation under 5 C.F.R. § 353.301(d). 2 Cronin v. U.S. Postal
Service, 2022 MSPB 13, ¶ 12; Hamilton v. U.S. Postal Service, 123 M.S.P.R. 404,
¶ 12 (2016); 5 C.F.R. § 1201.57(a)(4), (b). Once an appellant establishes
2
A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
issue. 5 C.F.R. § 1201.4(s).
4
jurisdiction, she is entitled to a hearing at which she must prove the merits of her
restoration appeal, i.e., all four of the above elements, by a preponderance of the
evidence. 3 Kingsley, 123 M.S.P.R. 365, ¶¶ 11-12; 5 C.F.R. § 1201.57(c)(4).
However, under appropriate circumstances, a restoration may be deemed so
unreasonable as to amount to a denial of restoration within the Board’s
jurisdiction. Kingsley, 123 M.S.P.R. 365, ¶ 13. For example, a claim that
restoration was effectively denied may involve allegations that a partially
recovered appellant is incapable of performing the job duties of the position to
which she was restored. Id. To make a nonfrivolous showing of Board
jurisdiction over an appeal on that basis, an appellant must present specific,
independent evidence corroborating her allegations. Jones v. U.S. Postal Service,
86 M.S.P.R. 464, ¶ 5 (2000).
¶7 As to the first two prongs of the test set forth above, the administrative
judge found it undisputed that (1) the appellant was absent from her position due
to a compensable injury and that (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. ID at 4. We agree.
¶8 Turning to the third prong, the administrative judge found that the
appellant’s bare assertion that the agency’s January 30, 2019 modified job offer
exceeded her medical restrictions did not constitute a nonfrivolous allegation that
the agency effectively denied her request for restoration. ID at 4-6. As noted
above, after the close of the record on review, the appellant submitted a
March 27, 2020 OWCP decision, issued well after the close of the record below,
in which it found that the agency’s modified job offer was unsuitable because it
exceeded her medical restrictions. PFR File, Tab 11 at 8-12. The Board is bound
by OWCP’s suitability determination. Paszko v. U.S. Postal Service,
119 M.S.P.R. 207, ¶ 9 (2013). We find, therefore, that OWCP’s decision is new
3
A preponderance of the evidence is the degree of relevant evidence that a reasonable
person, considering the record as a whole, would accept as sufficient to find that a
contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).
5
and material evidence. We further find that the agency’s January 30, 2019
limited-duty job offer was outside of the appellant’s medical restrictions and was
tantamount to a denial of restoration. See Paszko, 119 M.S.P.R. 207, ¶ 9. The
appellant has nonfrivolously alleged that the agency denied her request for
restoration. Jones, 86 M.S.P.R. 464, ¶ 5.
¶9 Although we find that the appellant has satisfied the first, second, and third
jurisdictional requirements in this partial restoration appeal, we are unable to
make a determination about the fourth jurisdictional element on the existing
record. 4 After the initial decision in this appeal was issued, the Board issued its
decision in Cronin, 2022 MSPB 13, which clarified when a denial of restoration
may be arbitrary and capricious. 5 In Cronin, the Board explained that, in
considering the fourth jurisdictional element, the issue before the Board is limited
to whether the agency failed to comply with the minimum requirement of
5 C.F.R. § 353.301(d), i.e., to search within the local commuting area for vacant
positions to which it can restore a partially recovered employee and to consider
her for any such vacancies. Cronin, 2022 MSPB 13, ¶ 20. The Board in Cronin
further held that, contrary to its prior suggestion in Latham v. U.S. Postal Service,
117 M.S.P.R. 400, (2012), superseded in part by regulation on other grounds as
stated in Kingsley, 123 M.S.P.R. 365, ¶ 10, claims of prohibited discrimination or
reprisal cannot serve as an “alternative means” of showing that a denial of
restoration was arbitrary and capricious. Id.,¶ 21.
¶10 Because the existing record is devoid of evidence or argument regarding
whether the agency’s denial of restoration was arbitrary and capricious, we
remand the matter to the regional office to provide the parties notice and an
4
Although the administrative judge stated at the end of the initial decision that the
appellant failed to nonfrivolously allege that the agency arbitrarily and capriciously
denied her restoration, we do not view this as a finding on the fourth element of the
appellant’s burden. ID at 7. Rather, this is a restatement of the overall burden.
5
Because the Board issued Cronin while this appeal was pending, it is given retroactive
effect and applies to this appeal. See Desjardin v. U.S. Postal Service, 2023 MSPB 6,
¶ 18 n.8.
6
opportunity to further develop the record. If the appellant makes a nonfrivolous
allegation regarding the fourth jurisdictional element, she is entitled to the
hearing she requested on the merits of her claim.
ORDER
¶11 For the reasons discussed above, we REMAND this case to the Western
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.