Opinion

Dawn M Pullano v. United States Postal Service

Court: Merit Systems Protection Board
Filed: Sep 30, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.7%

finding that, when a court decides a case and applies a new legal rule to the parties before it, it must apply the same new legal rule to all pending cases, whether or not those cases involve events that occurred prior to the announcement of the new rule

How later courts described this case

finding that, when a court decides a case and applies a new legal rule to the parties before it, it must apply the same new legal rule to all pending cases, whether or not those cases involve events that occurred prior to the announcement of the new rule

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

DAWN M. PULLANO, DOCKET NUMBER

Appellant, CH-3443-21-0270-I-1

UNITED STATES POSTAL SERVICE, DATE: September 30, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Dawn M. Pullano , Oak Forest, Illinois, pro se.

Rebecca L. Stephenson , Esquire, Chicago, Illinois, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member

FINAL ORDER

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

dismissed her restoration 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 based on an

erroneous interpretation of statute or regulation or the erroneous application of

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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. We

VACATE the administrative judge’s findings that the appellant failed to

nonfrivolously allege that she recovered sufficiently to return to regular duty and

that the agency improperly denied her request for restoration based on lack of

available work within her restrictions, MODIFY the initial decision to supplement

the administrative judge’s jurisdictional analysis, and otherwise AFFIRM the

initial decision, still finding that the Board lacks jurisdiction over the appeal.

BACKGROUND

The appellant was employed as a City Carrier at the Mount Greenwood

Post Office in Chicago, Illinois. Initial Appeal File (IAF), Tab 1 at 17. In

January 2009, the appellant sustained an on-the-job injury that impacted the use

of her hands. IAF, Tab 12 at 4-5. In April 2009, the Office of Workers’

Compensation Programs (OWCP) accepted her claim for occupational disease

based on her January 2009 injury. Id. The appellant held modified limited-duty

assignments as a Lobby Greeter in February 2018, and a Customer Care

Representative in December 2018. Id. at 127-29. According to the appellant, the

agency withdrew its offer of a modified limited-duty assignment in July 2020 due

to lack of available work based on her existing medical restrictions, and she was

not offered a compatible position thereafter. IAF, Tab 1 at 8-9, Tab 12 at 2-3.

She indicated that the agency did not conduct a proper search of positions that

could comply with her medical restrictions. IAF, Tab 12 at 2-3.

The appellant filed the instant appeal with the Board, alleging that the

agency failed to restore her to duty in a position consistent with her medical

restrictions related to her on-the-job injury. IAF, Tab 1 at 8-9. In its initial

response to the appeal, the agency noted that the appellant’s OWCP file from the

Department of Labor was “highly relevant” to the case, but that the appellant had

not responded to its request to authorize the release of her file. IAF, Tab 5 at 6.

During a telephonic status conference, the appellant refused to authorize the

release of her OWCP file on the grounds that the entirety of her medical records

is not relevant. IAF, Tab 10 at 1. The administrative judge then issued an order

that apprised the appellant of the elements and burden of proving jurisdiction

over a restoration appeal, and ordered her to file evidence and argument on the

jurisdictional issue. IAF, Tab 11. The appellant responded that she sustained an

on-the-job injury and provided medical documentation but the agency took away

her modified assignment in July 2020. IAF, Tab 12 at 1-3. The appellant

submitted documents pertaining to her 2009 OWCP claim and subsequent

disciplinary actions taken against her by the agency, which resulted in her filing

several grievances. Id. at 4-129. The agency stated that, because the appellant

refused to provide updated medical information and authorize the release of her

OWCP file, the agency was unable to respond to the restoration claim. IAF,

Tabs 15, 17. The appellant responded that the entirety of her medical records is

not relevant and again refused to authorize the release of her OWCP file. IAF,

Tabs 16, 18.

Without holding the requested hearing, the administrative judge issued an

initial decision dismissing the appeal for lack of jurisdiction. IAF, Tab 20, Initial

Decision (ID) at 1, 7. Specifically, he found that the appellant failed to

nonfrivolously allege that she has recovered sufficiently to return to regular duty;

that the agency improperly denied her request for restoration based on lack of

available work within her restrictions; and that the denial was arbitrary and

capricious. ID at 5-6. He noted that, in the absence of jurisdiction, the Board

could not address the appellant’s discrimination claim. ID at 6-7.

The appellant has filed a petition for review of the initial decision. Petition

for Review (PFR) File, Tab 1. She argues that the agency should not have taken

her job away in July 2020, and that the agency did not provide work for her that

was within her medical restrictions. Id. at 4. She also argues that she should not

be expected to provide the agency with her medical records and that the agency

harassed her because of her on-the-job injury. Id. The agency has filed a

response, PFR File, Tab 3, to which the appellant has replied, 2 PFR File, Tab 4.

DISCUSSION OF ARGUMENTS ON REVIEW

The Federal Employees’ Compensation Act (FECA) and the implementing

regulations of the Office of Personnel Management (OPM) at 5 C.F.R. part 353

provide, among other things, 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 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. OPM’s regulations require that

agencies “make every effort to restore in the local commuting area, according to

The appellant provided a copy of a December 23, 2020 decision on her Step B

grievance. PFR File, Tab 4 at 9-11. That document is already in the record, IAF, Tab 1

at 19-21, and thus, it is not new evidence, see Meier v. Department of the Interior,

3 M.S.P.R. 247, 256 (1980).

the circumstances in each case, an individual who has partially recovered from a

compensable injury and who is able to return to limited duty.” Kingsley,

123 M.S.P.R. 365, ¶ 10; 5 C.F.R. § 353.301(d). The Board has jurisdiction to

review whether an agency’s denial of restoration to a partially recovered

employee was arbitrary and capricious. Kingsley, 123 M.S.P.R. 365, ¶ 10;

5 C.F.R. § 353.304(c).

To establish jurisdiction over a claim of a denial of restoration as a

partially recovered employee, an appellant is required to make the following

nonfrivolous allegations: (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 obligations under 5 C.F.R. § 353.301(d).

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 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. Kingsley,

123 M.S.P.R. 365, ¶¶ 11-12; 5 C.F.R. § 1201.57(c)(4).

Here, it is undisputed that the appellant had an approved OWCP claim and

that she was absent from work due to an injury that impacted the use of her

hands. We find that the appellant nonfrivolously alleged the first element of her

partial restoration claim—that she was absent from her position due to a

compensable injury. The administrative judge found, however, that the appellant

failed to nonfrivolously allege that she recovered sufficiently to return to regular

duty; that the agency improperly denied her request for restoration based on lack

of available work within her restrictions; and that the denial was arbitrary and

capricious. ID at 6; IAF, Tab 12. For the following reasons, we vacate the

administrative judge’s findings that the appellant failed to nonfrivolously allege

that she recovered sufficiently to return to regular duty and that the agency

improperly denied her request for restoration based on lack of available work

within her restrictions, which rephrased the jurisdictional elements, and we find

instead that the appellant nonfrivolously alleged the second and third elements of

her partial restoration claim—that she recovered sufficiently to return to work in

a position with less demanding physical requirements than those previously

required of her, and that the agency denied her request for restoration. We affirm

the finding that the appellant failed to nonfrivolously allege the fourth element of

her partial restoration claim—that the denial was arbitrary and capricious.

The record reflects that, after OWCP approved her claim for a compensable

injury, the agency offered the appellant modified limited-duty assignments,

including Lobby Greeter in February 2018 and Customer Care Representative in

December 2018, both of which the appellant accepted. IAF, Tab 12 at 127-29.

However, the appellant indicates that the agency did not provide her with work

within her medical restrictions from July 2020 onward, even though she

expressed to the agency that she wished to return to work. PFR File, Tab 1 at 4;

IAF, Tab 1 at 8-9, Tab 12 at 2-3. In her jurisdictional response, the appellant

included a copy of a December 23, 2020 decision on her Step B grievance,

finding that the agency violated a section of the Employee and Labor Relations

Manual when it withdrew an offer of a modified limited-duty assignment. IAF,

Tab 12 at 72-75.

The Board has found that an agency’s rescission of a previously provided

restoration or the discontinuation of a limited-duty position may constitute an

appealable denial of restoration. Scott v. U.S. Postal Service, 118 M.S.P.R. 375,

¶ 9 (2012). Therefore, we find that the appellant has made a nonfrivolous

allegation that the agency denied her request for restoration when it discontinued

her former limited-duty assignment in July 2020.

However, regarding the fourth jurisdictional element, the mere fact that the

agency discontinued the appellant’s former limited-duty assignment does not

necessarily mean that it was acting arbitrarily and capriciously. See Paszko v.

U.S. Postal Service, 119 M.S.P.R. 207, ¶ 10 (2013). After the initial decision in

this appeal was issued, the Board issued a decision in Cronin v. U.S. Postal

Service, 2022 MSPB 13, which clarified when a denial of restoration may be

arbitrary and capricious. 3 The Board in Cronin held that, although agencies may

undertake restoration efforts beyond the minimum effort required by OPM under

5 C.F.R. § 353.301(d), an agency’s failure to comply with self-imposed

obligations cannot itself constitute a violation of 5 C.F.R. § 353.301(d) such that

a resulting denial of restoration would be rendered arbitrary and capricious for

purposes of establishing Board jurisdiction under 5 C.F.R. § 353.304(c). Cronin,

2022 MSPB 13, ¶ 20. Rather, as explained in Cronin, 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. See Cronin, 2022 MSPB 13, ¶ 20 (citing

Sanchez v. U.S. Postal Service, 114 M.S.P.R. 345, ¶ 12 (2010)).

Additionally, the Board in Cronin clarified that claims of prohibited

discrimination or reprisal cannot serve as an “alternative means” of showing that

a denial of restoration was arbitrary and capricious. Cronin, 2022 MSPB 13,

¶ 21. The Board acknowledged that an agency’s failure to comply with section

353.301(d) may well be the result of prohibited discrimination or reprisal for

protected activity; however, whether that is so is immaterial to the question of

whether a denial of restoration is arbitrary and capricious for purposes of section

353.304(c). Id.

Because the Board issued Cronin while this appeal was pending, it is given retroactive

effect and applies to this appeal. See Reynoldsville Casket Co. v. Hyde, 514 U.S. 749,

752 (1995) (finding that, when a court decides a case and applies a new legal rule to the

parties before it, it must apply the same new legal rule to all pending cases, whether or

not those cases involve events that occurred prior to the announcement of the new rule).

On review, the appellant appears to be alleging that her denial of

restoration was arbitrary and capricious, and that the agency discriminated against

her based on disability. She claims that the agency representative should have

been able to obtain her medical information from the OWCP and that it was the

agency’s responsibility to locate a position that was within her medical

restrictions, which the agency failed to do. PFR File, Tab 1 at 4, Tab 4 at 5-6.

The agency explained, however, that, pursuant to an August 18, 2014

Memorandum of Understanding between the agency and the Department of Labor,

the agency may only obtain OWCP records for a restoration case if the appellant

executes a FECA release, which the appellant refused to do. IAF, Tab 5 at 5-6.

The agency may discontinue a modified assignment if the duties of that

assignment actually went away or if the agency needed to reassign them to

non-limited duty employees who would otherwise not have enough work to do.

Paszko, 119 M.S.P.R. 207, ¶ 10. According to the March 2, 2021 final agency

decision in the appellant’s equal employment opportunity (EEO) complaint, the

appellant was provided with modified limited-duty assignments as a Customer

Care Representative and Lobby Greeter, but the outbreak of COVID-19

eliminated the need for such positions throughout the agency. IAF, Tab 2

at 16-18. The agency was under no obligation to make work for the appellant or

to pay the appellant when there was not enough meaningful work for her to do.

See Fitzsimmons v. U.S. Postal Service, 99 M.S.P.R. 1, ¶ 11 (2005) (noting that

the appellant’s contention that she was informed no work was available upon

making request for restoration was not a nonfrivolous allegation that denial of

restoration was arbitrary and capricious). Furthermore, as the administrative

judge noted, the appellant was unwilling to allow the agency to obtain her OWCP

file in order to allow the agency to evaluate her current medical restrictions and

any potential compatible job vacancies. ID at 6. Therefore, even though the

agency was required to search throughout the entire local commuting area for

alternative assignments, and the appellant suggests that it did not, its failure to do

so does not necessarily render the denial of restoration arbitrary and capricious if

it has a sufficient explanation. See Paszko, 119 M.S.P.R. 207, ¶ 10. We

therefore find that the appellant has failed to nonfrivolously allege that the

agency’s discontinuation of her assignment was arbitrary and capricious.

In the absence of an otherwise appealable action, we lack jurisdiction to

address the appellant’s claim of disability discrimination. IAF, Tab 1 at 9,

Tab 12 at 2-3; see McDonnell v. Department of the Navy, 84 M.S.P.R. 380, ¶ 11

(1999) (finding that, in the absence of an otherwise appealable action, the Board

lacked jurisdiction to review the appellant’s claim of disability discrimination or

reprisal for EEO activity). Finally, the appellant’s claim that the administrative

judge was biased in favor of the agency and that he ruled against her due to her

failure to sign the FECA release is unavailing. 4 PFR File, Tab 4 at 5-6. The fact

that an administrative judge ruled against the appellant is insufficient evidence to

show bias. Coufal v. Department of Justice, 98 M.S.P.R. 31, ¶ 11 (2004).

Thus, we affirm the dismissal of this appeal for lack of jurisdiction.

NOTICE OF APPEAL RIGHTS 5

The initial decision, as supplemented by this Final Order, constitutes the

Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain

review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of

The Board has long held that, in making a claim of bias or prejudice against an

administrative judge, a party must overcome the presumption of honesty and integrity

that accompanies administrative adjudicators. Oliver v. Department of Transportation,

1 M.S.P.R. 382, 386 (1980). An administrative judge’s conduct during the course of a

Board proceeding warrants a new adjudication only if his comments or actions evidence

“a deep-seated favoritism or antagonism that would make fair judgment impossible.”

Bieber v. Department of the Army, 287 F.3d 1358, 1362-63 (Fed. Cir. 2002). The

appellant has not identified any conduct by the administrative judge that would reflect

antagonism or favoritism, nor has she raised any allegations that would support a

finding of bias. Thus, we find that the appellant has not overcome the presumption of

honesty and integrity that accompanies an administrative judge.

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.

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.

(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