The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RODESSA TAYLOR, DOCKET NUMBERS
Appellant, DA-0353-11-0113-B-3
DA-0353-11-0348-B-3
v.
UNITED STATES POSTAL SERVICE,
Agency. DATE: January 7, 2015
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Kathy Smith, De Soto, Texas, for the appellant.
Susan L. LaSalle, 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 petitions for review of the initial decisions which
dismissed her denial of restoration appeals 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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). For
the reasons that follow, we JOIN these appeals pursuant to 5 C.F.R.
§ 1201.36(a)(2), and after fully considering the filings in these appeals, 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 petitions for review.
Therefore, we DENY the petitions for review and AFFIRM the initial decisions,
which are now the Board’s final decisions in these appeals. 5 C.F.R.
§ 1201.113(b).
¶2 In a nonprecedential remand order, the Board previously remanded these
appeals to the administrative judge to conduct a jurisdictional hearing on the
appellant’s allegations that the agency arbitrarily and capriciously denied her
restoration on two separate occasions. Taylor v. U.S. Postal Service, MSPB
Docket Nos. DA-0353-11-0113-I-1 & DA-0353-11-0348-I-1, Remand Order at 2
(Aug. 22, 2012). In our prior order, the Board found that the appellant
nonfrivolously alleged that: (1) she suffered a compensable, work-related injury,
(2) she had recovered sufficiently to return to duty in a modified position, and
(3) the agency denied her requests for restoration when, pursuant to its National
Reassessment Process (NRP), the agency determined it no longer had necessary
work for the appellant to perform within her medical restrictions. See Remand
Order at 2, 8-10. The Board explained, moreover, that the appellant
nonfrivolously alleged that: (1) the denials of restoration were arbitrary and
capricious based on her assertions that necessary work was still available for her
to perform, (2) other employees were performing these tasks, and (3) the agency
3
discriminated against her on the basis of race and age in concluding there was no
work available. Remand Order at 9-10.
¶3 On remand, the administrative judge held a jurisdictional hearing and found
that the appellant failed to prove that her denials of restoration were arbitrary and
capricious. MSPB Docket No. DA-0353-11-0113-B-3 (0113-B-3), Remand
Appeal File (RAF), Tab 28, Remand Initial Decision (RID) at 5-8. 2 In reaching
his conclusion, the administrative judge agreed with the appellant that the tasks
she had previously performed in her modified assignment were necessary tasks,
but he found that those tasks were properly reassigned to other employees who
were underburdened and that the reassignment of those tasks did not result in the
incursion of additional overtime. RID at 7. The administrative judge based his
conclusions on the testimony of two agency officials whom he found to be
credible, and he determined that the agency properly consolidated and reassigned
the appellant’s modified job assignments without violating any other law, rule, or
agency regulation. RID at 7-8 (explaining that certain tasks were shifted to
different tours and that overall there was less work for employees to perform). In
dismissing the appellant’s appeals, the administrative judge also considered the
appellant’s allegations of race and age discrimination insofar as they weighed on
the jurisdictional analysis, and he found no evidence that the agency
discriminated against the appellant. RID at 8-10.
¶4 The appellant has filed petitions for review of the initial decisions arguing
that the administrative judge erred in denying certain exhibits prior to the
hearing, that he wrongly credited the testimony of the agency officials, and that
the evidence demonstrates that the agency acted in an arbitrary and capricious
manner when it determined there was no work available for the appellant to
2
The administrative judge issued separate initial decisions which contained almost
identical analysis. We cite to the remand initial decision in MSPB Docket No.
DA-0353-11-0113-B-3 for consistency.
4
perform. 0113-B-3, Petition for Review (PFR) File, Tab 1 at 2-4, 9. 3 The agency
has filed a response in opposition to the petitions for review, and the appellant
has filed a reply. PFR File, Tabs 4-5.
¶5 First, we find that joinder of these appeals pursuant to 5 C.F.R.
§ 1201.36(a)(2) is appropriate. As the Board previously explained in its Remand
Order, the appellant filed two separate restoration appeals alleging that the
agency acted in an arbitrary and capricious manner when it determined that it had
no work available for the appellant to perform within her medical restrictions in
September of 2010, and again in December of 2010. Remand Order at 8.
Because the issues addressed in both appeals involve the same witnesses and
evidence, and because the issues presented on review in both appeals are closely
related, we find that joinder of these cases on review is appropriate.
¶6 To establish jurisdiction over a restoration appeal
under 5 C.F.R. § 353.304(c), which applies to individuals who are partially
recovered from a compensable injury, the appellant must prove by preponderant
evidence: (1) absence due to a compensable injury; (2) sufficient recovery from
the injury to return to duty on a part-time basis or in a less physically demanding
position; (3) agency denial of a request for restoration; and (4) denial of
restoration rendered arbitrary and capricious by agency failure to perform its
obligations under 5 C.F.R. § 353.301(d). Corum v. U.S. Postal Service, 118
M.S.P.R. 288, ¶ 13 (2012). As an employee of the U.S. Postal Service, the
appellant can satisfy the third jurisdictional criteria by showing that the agency
3
The Board’s records reflect that it did not receive a copy of the appellant’s petition for
review in MSPB Docket No. DA-0353-11-0348-B-3 until March 7, 2014, a month after
the administrative judge’s initial decision became final. PFR File in MSPB Docket No.
DA-0353-11-0348-B-3, Tabs 1, 4. The appellant, however, has averred on review that
she mailed the petitions for review in both appeals to the Clerk of the Board together in
one package, and the agency does not challenge the timeliness of the appellant’s
petition for review in MSPB Docket No. DA-0353-11-0348-B-3. Under these
circumstances, we will accept the appellant’s petition for review in MSPB Docket No.
DA-0353-11-0348-B-3 as timely filed.
5
completely eliminated previously provided limited-duty work pursuant to the
NRP. See Penna v. U.S. Postal Service, 118 M.S.P.R. 355, ¶ 7 (2012). The
appellant can establish the fourth jurisdictional element—that such an elimination
of work was arbitrary and capricious—by showing, inter alia, that her modified
assignments were not eliminated, but rather were transferred to other employees
who had sufficient work or who were required to work overtime to perform the
transferred assignments. Id., ¶ 11; see Bennett v. U.S. Postal Service, 118
M.S.P.R. 271, ¶¶ 11-12 (2012).
¶7 We agree with the administrative judge that the appellant has failed to
establish that the agency acted arbitrarily and capriciously in denying her requests
for restoration. We have reviewed the administrative judge’s initial decision,
along with the submissions below, and we concur with the administrative judge
that there is no evidence in the record that the agency’s transfer of the appellant’s
assignments to other employees resulted in additional overtime expenses or that
the employees who assumed the appellant’s responsibilities were not
underburdened. RID at 6-7. We further defer to the administrative judge’s
credibility determinations supporting these findings which are based on the
testimony of the agency’s witnesses and their demeanor. RID at 6; see McNeil v.
Department of Justice, 117 M.S.P.R. 533, ¶ 11 (2012).
¶8 To the extent that the appellant challenges the manner in which the agency
conducted its reassignment of necessary tasks among its employees, we have
found that an employee’s generic challenge to the agency’s NRP fails to establish
an arbitrary and capricious denial of restoration. Latham v. U.S. Postal
Service, 117 M.S.P.R. 400, ¶ 65 (2012). We find, moreover, that the appellant
has cited to no specific agency regulation or policy which the agency violated in
reassigning necessary tasks among its underburdened employees. RID at 6-7; see
0113-B-3, RAF, Tab 12 at 13-15 (the appellant’s argument that she could have
performed tasks assigned to other limited-duty employees). Rather, we agree that
the agency followed its internal policies in consolidating tasks and conducting a
6
search for necessary work within the appellant’s work location and local
commuting area which were within her medical restrictions. RID at 7; PFR File,
Tab 4 at 14, 16 (explaining that work had been consolidated on a later tour and
that employees on that tour were given first priority to the assignment of work
under the Employee and Labor Relations Manual); see Remand Order at 9
(finding that the agency’s search for work within the local commuting area was
adequate).
¶9 We have also considered the appellant’s argument that the administrative
judge wrongly denied several exhibits prior to the hearing, and we find that the
administrative judge did not abuse his discretion in denying the proffered
exhibits. Guerrero v. Department of Veterans Affairs, 105 M.S.P.R. 617, ¶ 20
(2007); PFR File, Tab 1 at 2-3 (the appellant’s listing of exhibits which she
argues should have been admitted). We have reviewed the appellant’s exhibits,
moreover, and we agree with the administrative judge that they are not relevant to
the matters in dispute concerning the agency’s actions in September and
December 2010. 4
¶10 Finally, we agree with the administrative judge that there is no evidence of
race or age discrimination in the record which would assist the appellant in
establishing jurisdiction over her restoration appeals. RID at 8-10. 5 The record
4
We find unpersuasive the appellant’s argument that the agency erred in assigning
work to other employees in the months and years following the agency’s determinations
that it had no work available for the appellant to perform in September and December
2010 within her medical restrictions. See PFR File, Tab 1 at 2 (arguing, for example,
that evidence should have been admitted that the agency posted full-time positions
between September 2010 and November 2012). We note, moreover, that there is no
evidence in the record that the appellant could have performed any of these full-time
positions, and that the appellant was subsequently returned to duty in a modified
assignment in September 2013. PFR File, Tab 1 at 22.
5
Although the administrative judge found that the appellant failed to prove her claims
of race and age-based discrimination by a preponderance of the evidence, the
administrative judge’s finding that the appellant failed to establish jurisdiction over her
denial of restoration appeals meant that the Board also lacked jurisdiction to adjudicate
her race and age discrimination claims on their merits. The administrative judge,
7
reflects that the agency considered both the appellant’s medical restrictions and
those of other employees who sustained on-the-job injuries in searching for work
both within the appellant’s work location and the local commuting area, and we
agree that there is no evidence of racial or age-based discrimination which would
render the agency’s determination that it had no work for the appellant to perform
arbitrary and capricious. See Davis v. U.S. Postal Service, 119 M.S.P.R. 22, ¶ 7
(2012). To the contrary, we concur with the administrative judge that the
evidence demonstrates that other employees who had less-restrictive medical
limitations were assigned modified responsibilities and tasks which the appellant
could not have performed, and that the agency followed its internal procedures in
assigning work to other employees before assigning such work to the appellant.
RID at 9-10 (explaining that over 70 employees, including the appellant, were
reassessed under the NRP); PFR File, Tab 4 at 19-24 (comparing employees’
restrictions and the assignments provided to employees).
¶11 Accordingly, we agree with the administrative judge’s initial decisions that
the appellant failed to establish that her denials of restoration were arbitrary and
capricious. We therefore DENY the appellant’s petitions for review and AFFIRM
the jurisdictional dismissals of her appeals.
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
rather, only had to consider the appellant’s claims of race and age discrimination
insofar as they factored into the jurisdictional analysis over her restoration appeal. See
Penna, 118 M.S.P.R. 355, ¶ 13 n.6.
8
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
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.