The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARY D. DAVIS, DOCKET NUMBER
Appellant, PH-0353-10-0500-C-1
v.
UNITED STATES POSTAL SERVICE, DATE: February 25, 2015
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL 1
Paul A. Bureau, Nashua, New Hampshire, for the appellant.
Anna V. Crawford, Esquire, Windsor, Connecticut, 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, and the agency has filed a
cross petition for review of the compliance initial decision, which granted the
appellant’s petition for enforcement in this restoration appeal. Generally, we
grant petitions such as this one only when: the initial decision contains erroneous
1
A nonprecedential order is one that the Board has determined does not add
sign ificantly 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 Parties may cite nonprecedential orders,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
findings of material fact; the 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 petitioners have not established any
basis under section 1201.115 for granting the petition for review or the cross
petition for review. Therefore, we DENY the petition for review and the cross
petition for review. Except as expressly MODIFIED to clarify the search terms as
discussed herein, we AFFIRM the compliance initial decision.
BACKGROUND
¶2 The appellant filed an appeal alleging that the agency improperly denied her
request for restoration as a partially-recovered individual in April 2009 and
discriminated against her on the basis of her disability. MSPB Docket No.
PH-0353-10-0500-I-1, Initial Appeal File, Tab 1 at 4-8. On September 13, 2013,
following a lengthy procedural history, the Board (Member Robbins dissenting),
issued an Opinion and Order finding that the appellant had shown that the agency
violated her restoration rights but that she failed to establish her claim of
disability discrimination. Davis v. U.S. Postal Service, 120 M.S.P.R. 122,
¶¶ 12-13, 15-18 (2013) (located at MSPB Docket No. PH–0353–10–0500–B–1,
Remand File, Tab 1). As a result, the Board ordered the agency to conduct a
proper search for available tasks within the local commuting area retroactive to
April 2009, and to consider the appellant for any suitable assignments during that
time period consistent with its restoration obligations under the Employee and
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Labor Relations Manual (ELM). Davis, 120 M.S.P.R. 122, ¶ 19. The Board
ordered the agency to complete this action within 30 days and to pay any
appropriate back pay within 60 days. Id., ¶¶ 19-20.
¶3 On October 23, 2013, the appellant filed a petition for enforcement of the
Board’s Opinion and Order, MSPB Docket No. PH–0353–10–0500–C–1,
Compliance File (CF), Tab 1, which the administrative judge granted on March
10, 2014, CF, Tab 9, Compliance Initial Decision (CID). The administrative
judge found that the agency was required to conduct an appropriate search for
available tasks within the local commuting area for the period of time between
April and December 2009, when the appellant was approved for disability
retirement. CID at 6. In that regard, she found that the Board ordered a search
for available tasks, not positions, as alleged by the appellant. Id. She
additionally found that the agency failed to submit evidence to support its
contention that it had completed a legally sufficient search for tasks retroactive to
April 2009, and she rejected the agency’s argument that it only was required to
search for work through November 10, 2009, the date the agency maintained it
had completed an adequate search. CID at 6-7. As a result, the administrative
judge found the agency in noncompliance and ordered it to submit documentation
of the available tasks or work within the local commuting area that it searched for
retroactive to April 2009 and, if any tasks were found, to restore the appellant
with back pay and benefits. CID at 7-8.
¶4 On April 22, 2014, the agency moved for an extension of time to conduct
the search. MSPB Docket No. PH–0353–10–0500–X–1, Compliance Referral
File, Tab 1. The Office of the Clerk of the Board granted the extension until May
16, 2014. Compliance Referral File, Tab 2. On April 23, 2014, the appellant
filed a timely petition for review of the compliance initial decision. Petition for
Review (PFR) File, Tab 1. On review, the appellant alleges that the
administrative judge erroneously limited the agency’s obligations for conducting
the retroactive search to the period from April 2009 until her retirement in
4
December 2009, rather than from April 2009 until the present day. Id. at 5-8.
She further argues that the administrative judge erred in relieving the agency of
the obligation to look for available positions in addition to available tasks. Id. at
5. The agency has filed a cross petition for review, arguing that it is not
obligated to retroactively search for available work after November 10, 2009, and
that it would satisfy its compliance obligations by paying appropriate back pay
for the period from April to November 10, 2009. PFR File, Tab 7. Further, the
agency claims that it has not had an opportunity to comply with the compliance
initial decision because the appellant filed this petition for review. Id. at 6. The
appellant has filed a response to the agency’s cross petition for review. PFR File,
Tab 13.
DISCUSSION OF ARGUMENTS ON REVIEW
¶5 In its September 13, 2013 Opinion and Order, the Board ordered the agency
to conduct a proper search for available tasks within the local commuting area
retroactive to April 2009, and to consider the appellant for any suitable
assignments during that time period consistent with its restoration obligations
under ELM § 546 and EL–505, chapters 7 and 11. Davis, 120 M.S.P.R. 122, ¶ 19.
The primary question on review is whether the administrative judge properly
defined “that time period” when she found that the agency’s obligations to
conduct the search covered the period of time between April 2009, when the
agency denied the appellant’s request for restoration, and December 2009, when
the appellant was approved for disability retirement. CID at 6; PFR File, Tabs 1,
7. For the reasons discussed below, we believe that the administrative judge
reasonably defined the period of time within which the agency was required to
conduct a retroactive search based on the specific facts and circumstances of the
case and that neither the appellant nor the agency has set forth any basis to
disturb this finding.
¶6 In her petition for review, the appellant argues that the administrative judge
erred in relieving the agency of its obligation to search for available tasks after
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she was approved for disability retirement. PFR File, Tab 1 at 4-6. She claims
that her right to restoration under the ELM is ongoing and that her Board appeal
constitutes a continuing request for restoration. Id. at 6-8. She argues therefore
that, pursuant to the Board’s order, the agency is obligated to perform its search
from April 2009 through the present day. Id. We find the appellant’s arguments
unpersuasive.
¶7 In determining the proper remedy in this appeal, the Board held that, in
cases where the denial of restoration was arbitrary and capricious for lack of a
proper job search, the appropriate remedy is for the agency to conduct an
appropriate search within the local commuting area “retroactive to . . . the date of
the appellant’s request for restoration, and to consider her for any suitable
vacancies.” Davis, 120 M.S.P.R. 122, ¶ 14. The Board noted that this remedy
would suffice to correct the wrongful action and substitute it with a correct one
based on an appropriate search, but would not put the appellant in a better
position than the one she was in before the wrongful action occurred because it
left open the possibility that the agency might still be unable to find appropriate
tasks available as of April 2009. Id. Thus, the denial of restoration under
consideration in this appeal is the denial that took place in April 2009 when the
appellant bid on a “non-cons” Mail Handler position and the agency denied her
request for reasonable accommodation in that position. See id., ¶¶ 7, 12, 14.
Therefore, even if the agency had a continuing obligation to make every effort to
restore the appellant after her retirement as alleged by the appellant, any alleged
denials of restoration that occurred after the April 2009 time period are not at
issue in this appeal. See, e.g., Tram v U.S. Postal Service, 120 M.S.P.R. 208,
¶¶ 9-10 (2013) (the Board rejected the appellant’s claim that she was entitled to
back pay from April 2009 through January 2013 because the denial of restoration
at issue took place in April 2009 and because the agency established that there
was no work available within the appellant’s restrictions during the April 2009
time period, which, in this case, was April 9, 2009, through December 24, 2009,
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when the agency performed a proper search). Given that the appellant was
approved for disability retirement in December 2009, we find the administrative
judge’s finding regarding the relevant time period for conducting the retroactive
search reasonable under the circumstances. 2 CID at 6.
¶8 In its cross petition for review, the agency noted that it was prepared to
provide back pay to the appellant for the time period between April and
November 10, 2009, to comply with the Board’s order. PFR File, Tab 7 at 5. It
argues, however, that it is not liable to provide back pay to the appellant beyond
November 10, 2009, because it contends that it conducted a proper search for
tasks on that date and that payment beyond that date would place the appellant in
a better position than the one she was in before the April 2009 denial of
restoration. Id. at 11-12. We similarly find the agency’s arguments
unpersuasive.
¶9 In the compliance initial decision, the administrative judge found that the
agency’s evidence was insufficient to show that it conducted a legally sufficient
search for available tasks retroactive to April 2009. CID at 6. On review, the
agency does not acknowledge the administrative judge’s finding in this regard
and thus has not attempted to explain why it believes the administrative judge’s
finding was erroneous. In any event, we have reviewed the record and agree with
the administrative judge’s finding that the agency failed to submit sufficient
evidence to support its contention that it had completed a proper search on
November 10, 2009. CID at 6-7; CF, Tab 7. Had the agency conducted a legally
sufficient search on November 10, 2009, we would agree that it would have
2
The appellant also argues that her acceptance of a disability retirement should not
preclude her from exercising her right to restoration. PFR File, Tab 1 at 7-8. We agree.
See Burke v. U.S. Postal Service, 46 M.S.P.R. 683, 686 (1991) (an appellant’s election
of disability retirement benefits does not preclude him from seeking restoration under
5 U.S.C. § 8151 and 5 C.F.R. Part 353), overruled on other grounds by Hall v.
Department of the Navy, 94 M.S.P.R. 262 (2003). Nevertheless, we find that nothing in
the Board’s orders in this appeal in any way prevented the appellant from exercising her
right to request restoration after retiring from the agency effective December 28, 2009.
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fulfilled its requirement to conduct a proper search during the April 2009 time
period. See Tram, 120 M.S.P.R. 208, ¶¶ 9-10. However, in the absence of a
proper search completed prior to December 28, 2009, the administrative judge’s
conclusion that the agency was required to search for available tasks from April
2009 through the date of the appellant’s retirement in order to comply with the
Board’s order was reasonable under the circumstances, and the agency has shown
no basis to disturb it. CID at 6.
¶10 In the compliance initial decision, the administrative judge found that the
Board ordered a retroactive search for available tasks but not available positions.
CID at 6. In her petition for review, the appellant correctly argues that a proper
search should include a search for available tasks and positions. PFR File, Tab 1
at 5; see Latham v. U.S. Postal Service, 117 M.S.P.R. 400, ¶¶ 12, 26 (2012). We
therefore modify the compliance initial decision accordingly. 3
ORDER
¶11 We ORDER the agency to submit to the Clerk of the Board within 30 days
of the date of this decision documentation of the available tasks and positions
within the local commuting area that it searched for retroactive to the April 2009
time period; that is, between April and December 28, 2009. If the agency’s
retroactive search uncovers available work to which it could have restored the
appellant, the agency is ORDERED in accordance with the Board’s September 13,
2013 Order to pay the appellant the correct amount of back pay, interest on back
pay, and other benefits under the Postal Service Regulations and to submit
documentation of any payments to the Clerk of the Board no later than 60 days
after the date of this decision. The agency must serve all parties with copies of
its submissions. If the agency has not fully complied, it must show cause why
3
In her petition for review, the appellant appears to argue for the first time that the
agency forced her to take disability retirement. PFR File, Tab 1 at 7. To the extent the
appellant argues that her retirement was involuntary, she may file a separate appeal on
that basis with the regional office.
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sanctions, pursuant to 5 U.S.C. § 1204(a)(2) and (e)(2)(A) and 5 C.F.R.
§ 1201.183, should not be imposed.
NOTICE TO THE APPELLANT
You may respond to the agency’s evidence of compliance within 15 days of
the date of service of that evidence. If you do not respond, the Board will assume
you are satisfied and will dismiss the petition for enforcement as moot.
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
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.
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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
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.