The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DANIEL A. THIBEAULT, DOCKET NUMBER
Appellant, SF-0752-13-0646-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: August 13, 2014
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Daniel A. Thibeault, El Cajon, California, pro se.
Sherilyn A. DeNinno, Esquire, San Diego, California, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his appeal for lack of jurisdiction. Generally, we grant petitions such
as this one only when: the initial decision contains erroneous findings of material
fact; the initial decision is based on an erroneous interpretation of statute or
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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regulation or the erroneous application of the law to the facts of the case; the
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. See 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, and based on the following points and
authorities, 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, 2 which is now the Board’s
final decision. 5 C.F.R. § 1201.113(b).
¶2 The agency employed the appellant as a mail handling machine operator
with a shift of 3:30 p.m. to midnight. Initial Appeal File (IAF), Tab 8 at 20. In
late 2012, the agency replaced the mail handling machines and, when the
appellant did not bid on another assignment, it gave him an assignment to a shift
that ran from 8:00 p.m. to 4:30 a.m. on a small parcel sorter. Id. at 19, 84. The
appellant objected to this assignment, claiming that he could not perform it
because he suffered from psoriatic arthritis that his doctor advised would be
exacerbated by his exposure to cold temperatures while traveling during the
coldest part of the day at 4:30 a.m. Id. at 50, 67-68, 83; IAF, Tab 39 at 42-43.
He requested as reasonable accommodation that he be given an assignment on a
different shift. IAF, Tab 8 at 52, 60-62. The agency did not offer such an
assignment. The appellant began using sick leave in January 2013 and then
retired when he exhausted his sick leave in June 2013. Id. at 20, 26-49.
2
After the close of the record on petition for review, the appellant filed a motion to
submit an additional pleading. Petition for Review (PFR) File, Tab 6. After review of
the appellant’s motion, we find that the appellant has not established a need for the
pleading, and we deny it.
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¶3 The appellant filed an appeal alleging that his sick leave constituted an
involuntary suspension and that his retirement was involuntary. IAF, Tab 1. The
administrative judge found that the appellant failed to prove that any assignment
that would have accommodated his disability was available to which the agency
could assign him without violating the collective bargaining agreement from the
time that he began using sick leave until his retirement. IAF, Tab 42, Initial
Decision (ID) at 5. Thus, the administrative judge found that the appellant failed
to prove that the agency’s failure to accommodate the appellant’s disability was a
wrongful act that caused him to take sick leave and that the agency did not
constructively suspend him. ID at 7. Regarding the appellant’s alleged
involuntary retirement, the administrative judge also found that the appellant
failed to prove that the agency took any wrongful action that rendered his
retirement involuntary. ID at 8. As with the alleged involuntary suspension, the
administrative judge found there was no position available prior to the appellant’s
retirement to which the agency could assign the appellant as an accommodation
without violating the collective bargaining agreement. ID at 8. The
administrative judge also found that, to the extent that the appellant retired out of
frustration with the agency’s handling of his equal employment opportunity
(EEO) complaints and grievances, he did not show that, because of the agency’s
actions, he lacked a meaningful choice of whether to continue working. ID at 9.
¶4 In his petition for review, the appellant alleges that he became aware “after
the final close” that the agency failed to comply with all of its rules. PFR File,
Tab 1. It appears that the appellant is asserting that, after the close of the record
below, he became aware that the agency violated a memorandum of
understanding regarding light-duty bidding involving employees who have
suffered a compensable injury when it failed to send him for a medical evaluation
of whether he could perform the duties of a small parcel sorter machine operator.
In addition to suffering from psoriatic arthritis, the appellant apparently suffered
a compensable injury, a herniated disc, in 2000. Id. at 5. The Board generally
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will not consider an argument raised for the first time in a petition for review
absent a showing that it is based on new and material evidence not previously
available despite the party’s due diligence. Banks v. Department of the Air
Force, 4 M.S.P.R. 268, 271 (1980). The appellant has made no such showing.
All of the submissions in support of his assertion were available before the close
of the record. See PFR File, Tab 1 (letters to the appellant dated in the years
2000 and 2008). In any event, the agency’s failure to send the appellant for a
medical evaluation of whether he had recovered sufficiently from his herniated
disc compensable injury to be able to perform the duties of a small parcel sorter
operator is not probative of whether a position was available from January to
July 2013 on a shift that would accommodate his disability. Thus, such evidence
is not relevant to whether the agency wrongfully failed to assign the appellant to
a position as accommodation of his disability. The evidence of agency error
submitted on petition for review is not of sufficient weight to warrant an outcome
different from that of the initial decision. See Russo v. Veterans Administration,
3 M.S.P.R. 345, 349 (1980).
¶5 The appellant also asserts that the administrative judge erred in not
allowing the appellant to submit the statement of a resolution specialist who was
trying to resolve the appellant’s EEO complaint regarding his assignment to the
small parcel sorter machine operator position with a shift from 8:00 p.m. to
4:30 a.m. PFR File, Tab 1 at 2. The appellant asserts that the resolution
specialist would have established that the appellant sought to work from
8:00 p.m. to 12:30 a.m., but the agency would not allow him to work a part-time
position. Id. The record shows that the administrative judge denied the
appellant’s motion to compel discovery regarding the resolution specialist,
finding that the appellant had not adequately explained how information from the
resolution specialist would relate to the issues in the appeal. IAF, Tab 29 at 2.
By the appellant’s admission, the resolution specialist was working on seeking to
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have the agency make the small parcel sorter machine operator position a part-
time position for the appellant.
¶6 Making the small parcel sorter machine operator position a part-time
position would have required that the agency create a new position because the
small parcel sorter machine operator position was full-time. It is well-established
that the Rehabilitation Act imposes no obligation on the agency to create
modified work assignments or to create a new position for an employee in order
to provide reasonable accommodation. Bennett v. U.S. Postal Service,
118 M.S.P.R. 271, ¶ 10 (2012); Gonzalez–Acosta v. Department of Veterans
Affairs, 113 M.S.P.R. 277, ¶ 11 (2010). The agency was not required to create a
part-time small parcel sorter machine operator position to accommodate the
appellant’s disability. The agency’s refusal to create a part-time position for the
appellant, the information that the appellant sought through the discovery of the
resolutions specialist’s efforts to resolve the appellant’s EEO complaint,
would not have established an improper or wrongful act that caused the appellant
to take sick leave. Thus, it would not have been sufficient evidence for the
appellant to establish jurisdiction over his constructive suspension claim. See
Bean v. U.S. Postal Service, 120 M.S.P.R. 397, ¶¶ 9-11 (2013) (finding that
certain employee-initiated absences may be appealable as constructive
suspensions where the appellant shows that: (1) he lacked a meaningful choice;
and (2) the absence was caused by the agency’s improper actions). To the extent
that the administrative judge erred in denying the appellant’s motion to compel
information regarding the resolutions specialist’s efforts to resolve the appellant’s
EEO complaint, his error did not harm the appellant’s substantive rights and
provides no basis to reverse the initial decision. See Panter v. Department of the
Air Force, 22 M.S.P.R. 281, 282 (1984).
¶7 Finally, the appellant contends that the administrative judge erred in finding
that the agency did not commit an improper act that caused his retirement by
failing to accommodate his disability by assigning him to one of several full-time
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mail-handler positions posted in September 2013 on the non-overnight shift. In
his petition, the appellant contends that these mail-handler positions were the
subject of a grievance as early as November 2012 and that his seniority would
have entitled him to one of these positions. PFR File, Tab 1 at 19. However, the
appellant has presented no evidence to show that this grievance was resolved
before he retired and that the mail-handler positions were available for
assignment prior to his retirement. Consequently, he failed to show that the
agency’s failure to offer him one of these positions as an accommodation was a
wrongful act by the agency that caused his retirement. As a result, we find that
the administrative judge properly found that the agency committed no wrongful
act by failing to offer the appellant one of the mail-handler positions that became
available for assignment after the appellant’s retirement. See Bean, 120 M.S.P.R.
397, ¶¶ 9-11.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the
United States Court of Appeals for the Federal Circuit. You must submit your
request to the court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar days
after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27,
2012). If you choose to file, be very careful to file on time. The court has held
that normally it does not have the authority to waive this statutory deadline and
that filings that do not comply with the deadline must be dismissed. See Pinat v.
Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
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If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the
United States Code, at our website, http://www.mspb.gov/appeals/uscode/htm.
Additional information 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, and 11.
If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.