Peggy A. Cooper v. United States Postal Service

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

PEGGY A. COOPER, DOCKET NUMBER

Appellant, SF-0353-14-0098-I-1

v.

UNITED STATES POSTAL SERVICE, DATE: February 25, 2015

Agency.

THIS FINAL ORDER IS NO NPRECEDENTIAL 1

Guillermo Mojarro, Upland, California, for the appellant.

Kristen L. Walsh, Esquire, San Francisco, 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 for lack of jurisdiction her appeal alleging that the agency failed to

restore her to duty after partial recovery from a compensable injury. Generally,

we grant petitions such as this one only when: the initial decision contains

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

erroneous 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 petitioner has not established any

basis under section 1201.115 for granting the petition for review. Therefore, we

DENY the petition for review. Except as expressly modified by this Final Order,

we AFFIRM the initial decision.

¶2 The issues in the appeal before the Board originated with an earlier appeal,

Cooper v. U.S. Postal Service, SF-0353-11-0316-I-1, Initial Decision (May 13,

2011) (hereinafter Cooper I). The appellant was an unassigned regular full-time

employee at the San Bernardino Processing and Distribution Center (SBP&DC) in

San Bernardino, California. Cooper I at 2. Because she had suffered a

compensable injury in 2004, she was offered and accepted a limited-duty position

in the manual letters section effective January 5, 2010. Id. Her job there was

abolished effective September 24, 2010, owing to lack of mail volume, and she

was reassigned to a Mail Processing Clerk, PS-6 position, the duties of which

were physically arduous and potentially included moving heavy containers of

mail. Id.

¶3 The appellant had permanent and stationary medical restrictions, primarily

related to her ankle. Id. These restrictions were documented in

December 2010. Id. The agency conducted a search for work within her

restrictions across all shifts and crafts within the processing center, within and

outside of the San Diego District and throughout the 50-mile radius Local

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Commuting Area (LCA), but found no operationally necessary tasks that she

could perform within her restrictions. Id. On December 23, 2010, the agency

issued a Complete Day No Work Available letter, directing her to leave for the

remainder of her workday and not report back unless she was contacted. Id. at 2-

3. The administrative judge found that she failed to make a nonfrivolous

allegation that the agency’s action constituted an arbitrary and capricious failure

to restore her to duty. 2 Id. at 6.

¶4 The appellant submitted updated medical documentation in February 2012,

after the agency so requested. Initial Appeal File (IAF), Tab 7 at 116-18. She

was allowed to return to work in February 2013 after the agency reviewed her

medical restrictions and identified work within those restrictions pursuant to the

National Return to Work Project. Id. at 7, 21-23. She nevertheless filed the

instant appeal asserting that the agency improperly denied her request for

restoration as a partially-recovered employee. IAF, Tab 1. She premises her

assertion upon a May 30, 2013 final agency decision finding that the agency

did not discriminate against her based on age or disability when she was not

permitted to return to work for nearly a year after her submission of updated

medical information. 3 See id., Attachment (Att.). The administrative judge

issued a jurisdictional order to which she responded. IAF, Tabs 4, 6.

¶5 The administrative judge found that the appellant established three of the

four elements required for the Board to take jurisdiction over her appeal. IAF,

Tab 12, Initial Decision (ID) at 4-5. He found that she was absent from her

position due to a compensable injury and had recovered sufficiently to return to

2

The initial decision is the Board’s final decision in Cooper I , as the appellant did not

file a petition for review by the finality date.

3

The administrative judge interpreted the appeal as including an implicit claim of

disability discrim ination. See IAF, Tab 12, Initial Decision at 3, 7 & n.2. Absent a

findin g of Board jurisdiction, however, the Board lacks the authority to adjudicate a

disability discrimination claim. See Wren v. Department of the Army, 2 M.S.P.R. 1, 2

(1980) (5 U.S.C. § 2302(b) is not an independent source of Board jurisdiction), aff’d,

681 F.2d 867, 871-73 (D.C. Cir. 1982).

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duty on a part-time basis or to work in a position with physical requirements that

were less demanding than the requirements of her previous positions. ID at 4-

5. He further found that she showed that the agency denied her request for

restoration when it did not perform a search for available jobs when she first

updated her medical documentation in February 2012. ID at 5. As for the fourth

element, the administrative judge found that the appellant failed to allege that the

agency’s denial of her request for restoration had been arbitrary and capricious.

ID at 6. The administrative judge thus dismissed the appeal for lack of

jurisdiction. ID at 8.

¶6 The administrative judge erroneously cited Chen v. U.S. Postal

Service, 97 M.S.P.R. 527, ¶ 13 (2004), as the standard that the appellant had to

meet to establish the Board’s jurisdiction. ID at 4. Chen, which required an

appellant to make a nonfrivolous allegation of the jurisdictional elements, was

overruled by Latham v. U.S. Postal Service, 117 M.S.P.R. 400 (2012). Under

Latham, an appellant must prove the same jurisdictional elements by

preponderant evidence. She must prove that: (1) she was absent from her

position due to a compensable injury; (2) she recovered sufficiently to return to

duty on a part-time basis or to return to work in a position with less demanding

physical requirements than those previously required of her; (3) the agency

denied her request for restoration; and (4) the denial was arbitrary and capricious

because of the agency’s failure to perform its obligations under 5 C.F.R.

§ 353.301(d). Latham, 117 M.S.P.R. 400, ¶ 10. An appellant who establishes the

Board’s jurisdiction over her appeal automatically prevails on the merits. Id.,

¶ 10 n.9.

¶7 In the order to show cause, the administrative judge also erroneously cited

Chen and other cases that have been overruled with respect to the jurisdictional

standard. IAF, Tab 4 at 3. His mistakes, however, are not reversible error in this

case. The agency set forth the Latham standard in its response to the show-cause

order, which would have cured the defect in that order. IAF, Tab 7 at 10-11; see

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Parker v. Department of Housing & Urban Development, 106 M.S.P.R. 329, ¶ 8

(2007) (an administrative judge’s failure to provide an appellant with proper

Burgess notice may be cured if the agency’s pleadings contain the notice that was

lacking in the acknowledgment order or later show-cause orders); see also

Burgess v. Merit Systems Protection Board, 758 F.2d 641, 643-44 (Fed. Cir.

1985) (an appellant must receive explicit information on what is required to

establish an appealable jurisdictional issue). Additionally, because we agree with

the administrative judge’s finding that the appellant failed to raise a nonfrivolous

allegation that the agency’s denial of restoration was arbitrary and capricious, see

ID at 6-7, we also conclude that she was not entitled to a hearing during which

she would have had opportunity to prove jurisdiction by preponderant evidence,

see Richards v. U.S. Postal Service, 118 M.S.P.R. 242, ¶ 4 (2012). Accordingly,

while we must correct the errors in the initial decision, correction of the errors

does not alter the outcome of the appeal, and neither party’s substantive rights

were affected. See Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282

(1984).

¶8 On review, the appellant argues that the agency acted arbitrarily and

capriciously by violating agency-specific restoration rules. Petition for Review

(PFR) File, Tab 3 at 5; see Latham, 117 M.S.P.R. 400, ¶ 16 (an agency’s failure

to adhere to its substantive restoration obligations under 5 C.F.R. § 353.301(d),

including any restoration obligations that it has voluntarily adopted, is per se

“arbitrary and capricious” within the meaning of 5 C.F.R. § 353.304(c)).

Specifically, she argues that the agency allowed non-career employees to work in

job assignments within her medical restrictions that should have been available to

her after February 2012. PFR File, Tab 3 at 6-7. She additionally argues that

certain non-career employees were placed in “fully funded supervisor[y] positions

throughout the United States since before February 2012 and ongoing” at the

SBP&DC, where she had been assigned, and in other locations. Id. at 7-8. She

also asserts that the agency denied her reasonable accommodation of her medical

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condition by failing to assign her to a rehabilitation position as a Customer Care

Agent in one of the agency’s call centers. Id. at 8-12. She further asserts that the

agency discriminated against her based on disability. 4 Id. at 13-14.

¶9 The appellant has raised these arguments for the first time on review. The

complaint that she presented before the administrative judge was of a general

nature. Her appeal form lacks any narrative explaining why she believes the

agency improperly denied her restoration request between February 2012 and

February 2013, although, with her appeal form, she submitted the May 30, 2013

final agency decision finding that the agency did not discriminate against her in

doing so. See IAF, Tab 1, Att. Her response to the show-cause order states that

from February 22, 2012, until January 2013, the agency “disregarded her

requests” to return to work. IAF, Tab 6 at 4. The response further states that the

work offered to her between January 25, 2013, and February 9, 2013, “was so

unreasonable as to amount to a denial of restoration.” Id. at 5. She alleged no

specific facts and submitted no documentary evidence supporting her assertions.

¶10 The Board generally will not consider an argument relating to jurisdiction

that is 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. See Vazquez v. U.S. Postal Service, 114 M.S.P.R. 264, ¶ 8 (2010);

Hammond v. Department of Veterans Affairs, 98 M.S.P.R. 359, ¶ 6 n.* (2005).

The appellant submitted several documents with her petition for review. Most of

these documents pre-date the close of the record on December 17, 2013, see IAF,

Tab 4 at 4; see, e.g., PFR File, Tab 3 at 21-22, 33-42, Tab 5 at 4-22, and some of

4

The appellant additionally argues that “there was no real business reason for the

discontinuation of [her] lim ited duty position.” PFR File, Tab 3 at 6. As with her other

arguments on review, she did not raise this issue before the administrative judge.

Furthermore, to the extent that she may be reasserting the issues in Cooper I , this issue

is barred under the doctrine of collateral estoppel. See Coats v. U.S. Postal Service,

111 M.S.P.R. 268, ¶ 8 (2009) (dismissal for lack of jurisd iction will generally preclude

a second action in the same forum under the doctrine of collateral estoppel, which

would preclude relitigation of the same jurisdictional issue).

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the documents are undated, see, e.g., PFR File, Tab 3 at 17, 29-32. She has not

explained why she could not obtain these documents before the record closed.

She has likewise not explained why she could not obtain the three March 2014

declarations that she submitted with the petition for review. See PFR File, Tab 3

at 23-28. These declarations were given by Distribution and Mail Processing

Clerks who were employed at the SBP&DC while this appeal was pending before

the administrative judge. 5 Id.

¶11 Even if the appellant had advanced these arguments before the

administrative judge, her appeal would be unavailing. Despite her rather general

allegations, the administrative judge examined considerable documentation from

the agency that was relevant to her claim before he concluded that she failed to

nonfrivolously allege that the agency improperly denied her restoration request.

See ID at 4-6; IAF, Tab 7 at 21-205, Tab 8 at 4-186. Moreover, some of her

arguments on review reflect a fundamental misunderstanding of the agency’s

obligations. For example, regarding her assertion that the agency should have

assigned her to one of its call centers in a distant location if a local position

had not been available, see PFR File, Tab 3 at 8, 10-12, the agency was only

required to search for vacant, funded position within her medical restrictions and

within the 50-mile LCA, see Davis v. U.S. Postal Service, 120 M.S.P.R. 122, ¶ 5

(2013); 5 C.F.R. § 353.301(d); see also Employee and Labor Relations Manual

§ 438.11(b).

¶12 Finally, the appellant asserts that the administrative judge erred when he

dismissed the appeal without ruling on her second motion to compel discovery

from the agency. PFR File, Tab 5 at 5, Tab 8 at 3; see IAF, Tabs 9-11. An

administrative judge has broad discretion in ruling on discovery matters, and,

absent a showing of abuse of discretion, the Board will not find reversible error in

5

The declarants assert that they served with other persons, including non-career

employees, who were performing duties that were within the appellant’s medical

restrictions. See PFR File, Tab 3 at 23-28.

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such rulings. Vaughn v. Department of the Treasury, 119 M.S.P.R. 605, ¶ 15

(2013). Here, we find no abuse of discretion. The administrative judge properly

denied the appellant’s only motion to compel. ID at 8 n.3. The appellant

contends that her reply to the agency’s response to her motion to compel was a

second motion to compel, see PFR File, Tab 8 at 3, but that pleading was not

another motion. The appellant captioned the pleading as a “Reply to the

Agency’s Response regarding Appellant’s 1st Motion to Compel Discovery.”

IAF, Tab 11 at 4. The pleading itself is in the nature of a reply and repeatedly

references her motion and the agency’s response. Id. at 4-8. Her argument is

unavailing. For all of the reasons addressed herein, we thus affirm the initial

decision dismissing her appeal for lack of jurisdiction.

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

The initial decision, as supplemented by this Final Order, constitutes the

Board's final decision in this matter. 5 C.F.R. § 1201.113. You have the right to

request the United States Court of Appeals for the Federal Circuit to review this

final decision. 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.