The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ERIC J. CHETLIN, DOCKET NUMBER
Appellant, DA-0752-14-0332-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: December 15, 2014
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL *
Exkano Phillipson, and Larry Guerrero, Houston, Texas, for the appellant.
Eric B. Fryda, Esquire, Dallas, Texas, 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
sustained the appellant’s removal. Generally, we grant petitions such as this one
only when: the initial decision contains erroneous findings of material fact; the
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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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initial decision is based on an erroneous 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).
¶2 Effective December 7, 2012, the agency removed the appellant for inability
to perform the essential functions of his mail handler position. Initial Appeal File
(IAF), Tab 11 at 114-16. The appellant sustained a compensable back injury in
1999, and the agency provided a modified work assignment. Id. at 83. In
April 2010, the agency offered the appellant a new modified assignment, which
he did not accept. Id. at 83-84. A March 26, 2012 Work Capacity Evaluation
identified the appellant’s restrictions and indicated that they were permanent. Id.
at 139. The agency subsequently conducted an unsuccessful search for available
work within the appellant’s medical restrictions. Id. at 145-47. The appellant
failed to appear for an August 1, 2012 meeting with the District Reasonable
Accommodation Committee (DRAC) and, on October 12, 2012, DRAC informed
the appellant that no reasonable accommodation was available. Id. at 126, 145.
In the November 7, 2012 notice proposing to remove the appellant for inability to
perform the duties of his position, the agency stated, inter alia, that the appellant
had been continuously absent from duty since April 2010, and he was on the
periodic rolls of the Office of Workers’ Compensation Programs (OWCP) for
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more than 1 year. Id. at 120. The agency also informed the appellant of the
deadline for filing an application with the Office of Personnel Management for
disability or optional retirement. Id.
¶3 The appellant filed an equal employment opportunity (EEO) complaint
challenging his removal. See IAF, Tab 11 at 12, 21. After he received the final
agency decision on his EEO complaint, he filed a timely appeal with the Board.
IAF, Tab 1, Tab 29, Initial Decision (ID) at 2 n.1. After holding a hearing, the
administrative judge affirmed the agency’s removal decision finding that the
agency proved the charge by preponderant evidence. ID at 2, 15. The
administrative judge found that the appellant had medical restrictions that
prevented him from performing the essential functions of his position at the time
of his removal, and he had not demonstrated, clearly and unambiguously, that he
had recovered during the pendency of his appeal and he was able to perform the
essential functions of his position. ID at 12-15. The administrative judge further
found that the removal was reasonable and the appellant failed to prove his
affirmative defenses of disability discrimination, retaliation for protected EEO
and union activity, and harmful procedural error. ID at 15-21.
¶4 The appellant filed a petition for review of the initial decision, asking the
Board to vacate the initial decision pursuant to his proposed settlement
agreement. Petition for Review (PFR) File, Tab 1. The purpose of the settlement
agreement proposed by the appellant was to restore him to the rolls of his
employer, effective June 28, 2013, so that he could apply for disability
retirement. Id. at 2; Tab 6 at 8. The agency filed a response in opposition to the
appellant’s petition for review. PFR File, Tab 5. The appellant replied, arguing
in pertinent part that his petition met the Board’s review criteria because the
initial decision introduced new and material evidence that was not available when
the record closed despite his due diligence. PFR File, Tab 6 at 7. Specifically,
the appellant contends that the initial decision that affirmed his removal was new
and material evidence because it overruled “OWCP/DOL’s June 27 th , 2013
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decision” stating that he had fully recovered and could return to full duty. PFR
File, Tab 6 at 7.
¶5 The Board will not grant a petition for review based on new evidence absent
a showing that it is of sufficient weight to warrant an outcome different from that
of the initial decision. Russo v. Veterans Administration, 3 M.S.P.R. 345, 349
(1980). Although the appellant argues that, before the initial decision was issued,
he was unaware that his medical condition had no foreseeable end and required
long-term recovery and rehabilitation, he does not explain how this warrants an
outcome different from that of the initial decision. PFR File, Tab 6 at 7.
Moreover, the appellant has not shown that the administrative judge made
erroneous findings of fact, erroneously interpreted statute or regulation, or
misapplied the law to the facts. Thus, we discern no reason to disturb the
administrative judge’s finding that the agency proved the charge of inability to
perform. ID at 12-15; see Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 106
(1997) (finding no reason to disturb the administrative judge’s findings where the
administrative judge considered the evidence as a whole, drew appropriate
inferences, and made reasoned conclusions); see also Broughton v. Department of
Health & Human Services, 33 M.S.P.R. 357, 359 (1987) (same). We therefore
DENY the appellant’s petition for review.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request further review of this final decision.
Discrimination Claims: Administrative Review
You may request review of this final decision on your discrimination
claims by the Equal Employment Opportunity Commission (EEOC). See Title 5
of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you
submit your request by regular U.S. mail, the address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
5
P.O. Box 77960
Washington, D.C. 20013
If you submit your request 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, NE
Suite 5SW12G
Washington, D.C. 20507
You should send your request to EEOC no later than 30 calendar days after
your receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.
Discrimination and Other Claims: Judicial Action
If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate United States
district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with
the district court no later than 30 calendar days after your receipt of this order. If
you have a representative in this case, and your representative receives this order
before you do, then you must file with the district court no later than 30 calendar
days after receipt by your representative. If you choose to file, be very careful to
file on time. 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
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prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and
29 U.S.C. § 794a.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.