The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DEBBIE J. COLES-MITCHELL, DOCKET NUMBER
Appellant, CH-0353-10-0831-C-2
v.
UNITED STATES POSTAL SERVICE, DATE: December 3, 2014
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Debbie J. Coles-Mitchell, Southfield, Michigan, pro se.
Deborah L. Lisy, Esquire, Chicago, Illinois, 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 compliance initial
decision, which denied the petition for enforcement. 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
interpretation of statute or 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, which is now the
Board’s final decision. 5 C.F.R. § 1201.113(b).
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 In Coles v. U.S. Postal Service, 118 M.S.P.R. 249, ¶¶ 1, 3-4 (2012), the
Board affirmed the administrative judge’s decision that the agency arbitrarily and
capriciously denied the appellant restoration following partial recovery from a
compensable injury. The Board ordered the agency to restore the appellant to her
former modified assignment, effective May 26, 2010. Id., ¶¶ 18-19. The Board
also directed the agency to “otherwise adhere to its restoration obligations as set
forth under its own rules and 5 C.F.R. § 351.301(d).” Id., ¶ 19.
¶3 The appellant filed a first petition for enforcement alleging that the agency
failed to properly calculate her back pay, and the administrative judge found the
agency in noncompliance. Coles-Mitchell v. U.S. Postal Service, MSPB Docket
No. CH-0353-10-0831-C-1, Initial Decision (Jan. 14, 2013). On referral to the
Board, the agency presented evidence of compliance and, noting that the
appellant did not respond to the agency’s submission showing its compliance, the
Board dismissed the petition for enforcement. Coles-Mitchell v. U.S. Postal
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Service, MSPB Docket No. CH-0353-10-0831-X-1, Final Order (Aug. 16, 2013).
Neither party filed an appeal from that decision.
¶4 More than 4 months later, the appellant filed a second petition for
enforcement, alleging that the agency’s April 2013 rehabilitation assignment offer
as a Customer Care Agent did not comply with the Board’s order. Coles-Mitchell
v. U.S. Postal Service, MSPB Docket No. CH-0353-10-0831-C-2, Compliance
(C-2) File, Tab 1. The agency argued that it complied with the Board’s order and
that the second petition for enforcement was untimely filed and was barred by res
judicata. C-2 File, Tab 5.
¶5 The administrative judge issued a compliance initial decision in which he
found that: (1) the second petition for enforcement was timely; (2) the appellant
was not precluded by res judicata from filing the second petition for enforcement;
and (3) the agency proved that it complied with the Board’s order. C-2 File,
Tab 15, Compliance Initial Decision (CID). With respect to the third issue, the
administrative judge credited the agency’s evidence that the Detroit Priority Mail
Center (PMC), where the appellant used to perform limited duty as a Small Parcel
Bundle Sorter (SBS), was closed when the appellant was ready to return to duty
in May 2013, and he found that the agency had a compelling reason to place the
appellant in a different position than she held prior to the Board’s order. CID
at 9. The administrative judge examined the salary, duties, and responsibilities of
the two positions, and he found that the positions were “substantially equivalent.”
CID at 9, 11-12. The administrative judge also rejected the appellant’s assertion
that she was coerced to accept the Customer Care Agent position. CID at 13. He
further found that the agency met its burden to return the appellant as nearly as
possible to the status quo ante by placing her in the Customer Care Agent
position, and he denied the petition for enforcement. CID at 14.
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¶6 The appellant filed a petition for review, and the agency filed a response.
Petition for Review (PFR) File, Tabs 1, 3. 2 The appellant appears to argue on
review that: (1) the Detroit PMC is open seasonally and her former position is
still available; (2) she was forced to work outside of her restrictions; and (3) the
Customer Care Agent position is not substantially equivalent to her former
position. PFR File, Tab 1. 3 These arguments constitute mere disagreement with
the administrative judge’s findings and do not warrant full review of the record
by the Board. See Weaver v. Department of the Navy, 2 M.S.P.R. 129, 133-34
(1980). Nevertheless, we have considered her arguments, but we do not find
them persuasive.
¶7 As noted by the administrative judge, to remedy its wrongful action, the
agency is required to restore the appellant as nearly as possible to the status quo
ante. CID at 8; see Kerr v. National Endowment for the Arts, 726 F.2d 730, 733
(Fed. Cir. 1984). Following the Board’s order, the appellant’s physician had
apparently restricted her from working because of her medical condition, and she
was unable to work. See CID at 2-3. The record reflects that, in April 2013, the
agency made the appellant a rehabilitation assignment offer for a full-time
Customer Care Agent position, the appellant’s doctor released her to return to
duty, and she accepted the offer in May 2013. See C-2 File, Tab 12 at 29-30, 34.
2
The agency did not file a cross petition for review challenging the administrative
judge’s conclusion that the petition for enforcement was timely filed and/or that the
petition for enforcement was not barred by res judicata. We affirm the administrative
judge’s decision in this regard.
3
The appellant filed a submission below in which she appeared to assert that premiums
for her health insurance were withheld both from her Office of Workers’ Compensation
Programs payments and her back pay award for the same period. See C-2 File, Tab 7.
The administrative judge docketed a separate claim of noncompliance regarding this
assertion. C-2 File, Tab 9 at 1; see Coles-Mitchell v. U.S. Postal Service, MSPB
Docket No. CH-0353-10-0831-C-3. To the extent that the appellant discusses this
allegation on review, PFR File, Tab 1 at 15-16, this issue is not before Board in this
matter.
5
Since June 3, 2013, however, the appellant has been off work due to a
compensable injury. See, e.g., id. at 18, 35-36.
¶8 The record also reflects that, at the time the appellant accepted the
Customer Care Agent position, the duties of that position were within her
then existing medical restrictions. Compare id. at 31-32 (job description), with
id. at 34 (April 26, 2013 doctor’s note indicating that the appellant is released to
work on May 6, 2013, with the following restrictions: no lifting over 10 pounds,
only a chair with a back, may work over 40 hours per week). That the appellant’s
medical condition may have worsened after she began working in the Customer
Care Agent position, see, e.g., C-2 File, Tab 6, Exhibit 4, Tab 12 at 35-36, and
her concomitant assertion that the Customer Care Agent position no longer falls
within her current medical restrictions, PFR File, Tab 1 at 8-9, has no bearing on
the issue before us, namely whether the agency’s offer of the Customer Care
Agent position to the appellant when she was cleared to return to duty in
May 2013, constitutes compliance with the Board’s order.
¶9 Regarding the appellant’s assertion that the Detroit PMC is open seasonally,
the record reflects that the administrative judge carefully considered the evidence,
both from this matter and the appellant’s first petition for enforcement, which
included an agency declaration indicating that the Detroit PMC closed in
August 2012, and he noted that the appellant did not provide such a sworn
statement. See CID at 9. We discern no error with his conclusion that, based on
this evidence, it was more likely than not that the Detroit PMC was closed when
the appellant returned to work in May 2013. See CID at 9. The administrative
judge further noted that, even if the Detroit PMC were operational for part of the
year, this fact did not warrant a different outcome because the Board’s order
called for a full-time year-round position and a position in a location only opened
seasonally would not comport with that order. See CID at 9 n.5. We discern no
error with his analysis in this regard.
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¶10 Regarding her assertion that the Customer Care Agent position is not
substantially equivalent to her former modified assignment, the appellant does not
appear to challenge the administrative judge’s conclusion that the salary for the
two positions was “identical,” although the salary for the Customer Care Agent
position was augmented in late 2013, due to apparent craft and cost of living
increases. See CID at 9-10. The administrative judge also examined whether the
duties and responsibilities between the limited-duty SBS position and the
Customer Care Agent position were substantially equivalent in scope and status.
See CID at 10-11 (citing Tubesing v. Department of Health & Human
Services, 115 M.S.P.R. 327, ¶ 7 (2010)). The appellant does not appear to dispute
the administrative judge’s characterization that the duties of the limited duty SBS
position included “numerous Clerk duties” such as: answering phones; making
calls; making holiday schedules; typing letters; obtaining mail from other
stations, and separating, labeling, and dispatching such mail; and inputting
information into the computer. CID at 10. Nor does she appear to dispute his
discussion of the documentary evidence in the record, which shows that the duties
of the Customer Care Agent position centered around receiving, classifying, and
processing customer inquiries over the telephone. See CID at 10-11; see also C-2
File, Tab 12 at 29-32 (rehabilitation assignment offer and Customer Care Agent
job description).
¶11 Rather, the appellant appears to object to the administrative judge’s
conclusion that “answering the phone” is “the same” in the Customer Care Agent
position as in her former position. PFR File, Tab 1 at 9. This is a
mischaracterization of the administrative judge’s analysis. The administrative
judge acknowledged that the appellant’s prior position “included some mail
sorting” while the Customer Care Agent position did not involve any mail
handling, and he noted that the two positions had different purposes. See CID
at 11. The administrative judge considered the fact that the agency was ordered
to return her to duty as an individual who was partially recovered from a
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compensable injury, and he determined that the agency should be afforded more
leeway because the appellant had only been performing a “hodge podge” of duties
in the former position. CID at 11-12. Noting that there was an “overlap of the
general type of duties” between the two positions, and acknowledging that the
agency had difficulty finding a position within the appellant’s restrictions within
her local commuting area, the administrative judge concluded that the two
positions were substantially equivalent. CID at 12. Although this case presents a
close call, the initial decision reflects the administrative judge’s careful
consideration of the evidence and the relevant case law, and we affirm his
conclusion that the positions are substantially equivalent.
¶12 The appellant also appears to contend that “hand casing”—one of the tasks
that she once performed in her former position—is still being done and that other
people are performing this work. PFR File, Tab 1 at 3. Although her petition for
review is made “under penalty of perjury,” she does not indicate that there is such
full-time work available, nor does she identify who is performing that work.
Such nonspecific, conclusory assertions are insufficient to rebut the agency’s
evidence of compliance. See Tubesing v. Department of Health & Human
Services, 112 M.S.P.R. 393, ¶ 13 (2009).
¶13 Based on our review of the record, we agree with the administrative judge
that the agency’s offer of the Customer Care Agent position in April 2013,
complied with the Board’s order, and thus, the administrative judge properly
denied the appellant’s petition for enforcement.
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:
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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).
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
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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.