The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BETTINA BUTTS-BOLER, DOCKET NUMBER
Appellant, SF-0353-15-0371-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: March 22, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Guillermo Mojarro, Upland, California, for the appellant.
Micah C. Yang, Esquire, Long Beach, California, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed the appeal 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 interpretation of statute or
regulation or the erroneous application of the law to the facts of the case; the
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
administrative 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, 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).
BACKGROUND
¶2 The appellant is a Customer Care Agent. The primary duty of this position
is answering the telephone and dealing with callers. The appellant claims that she
could not endure customer calls pertaining to employees or postal inspection
because such calls caused her undue stress and that such calls comprised about
95% of the calls that she had to field. Initial Appeal File (IAF), Tab 25,
Attachment. The appellant filed an appeal alleging that the agency improperly
failed to restore her following her partial recovery from a compensatory injury.
She argued that the agency denied her restoration rights when it determined that it
had no work within her restrictions and sent her home on October 10, 2014. IAF,
Tab 1. The appellant was absent from October 10, 2014, until she again reported
for duty on March 2, 2015, and was cleared by her physician to return to her
duties full time effective March 31, 2015. IAF, Tab 13 at 46.
¶3 The administrative judge found that the appellant’s absence was due to an
emotional condition that, while aggravated by her job, was not due to a
job-related injury or illness, and the appellant conceded that she never applied for
or received Office of Workers’ Compensation Programs (OWCP) benefits for that
condition. IAF, Tab 30, Initial Decision (ID) at 5. He also found that the
3
appellant did not show that she had a compensable injury and did not show that
she was an employee with restorations rights. Therefore, he found that the
appellant did not meet the jurisdictional requirements for filing a restoration
appeal. ID at 5.
¶4 In her petition for review, the appellant states that she suffered an injury
that was accepted as job-related by OWCP in September or October 2013 and that
she is receiving medical monetary benefits for it. She states that her work-related
injury is a different condition from the emotional one that caused her to be absent
beginning on October 10, 2014. Petition for Review (PFR) File, Tab 1. Relying
on the Board’s nonprecedential decision in Hubbard v. U.S. Postal Service,
MSPB Docket No. AT-0353-13-7341-I-1, Final Order (Nov. 25, 2014), she
contends, as she did below, that, under the Employee and Labor Relations Manual
(ELM) § 546.622, her emotional condition is a concurrent disability that is not
caused by or related to the original job injury that, nonetheless, the postal
physician or occupational health nurse administrator should review to determine
if it might prevent the appellant from performing the phone answering duties of a
Customer Care Agent. PFR File, Tab 1 at 5-8; IAF, Tab 27.
ANALYSIS AND FINDINGS
¶5 As the administrative judge correctly determined, when an individual
partially recovers from a compensable injury and is able to return to limited duty,
agencies must make every effort to restore the individual in the local commuting
area. 5 C.F.R. § 353.301(d); ID at 2. “Partially recovered” means an injured
employee who, though not ready to resume the full range of her regular duties,
has recovered sufficiently to return to part time or light duty or to another
position with less demanding physical requirements. Ordinarily, it is expected
that a partially recovered employee will fully recover eventually. 5 C.F.R.
§ 353.102; see, e.g., Smith v. U.S. Postal Service, 81 M.S.P.R. 92, 96 (1999).
4
¶6 An employee is “physically disqualified” for purposes of Part 353 where:
(1) (i) For medical reasons the employee is unable to perform the
duties of the position formerly held or an equivalent one, or
(ii) There is a medical reason to restrict the individual from
some or all essential duties because of possible incapacitation .
. . or risk of health impairment . . .; and
(2) The condition is considered permanent with little likelihood for
improvement or recovery.
5 C.F.R. § 353.102; ID at 2. An individual who is physically disqualified from
her former position or an equivalent one because of a compensable injury has
certain agency-wide rights for a 1-year period after her eligibility for
compensation begins. 5 C.F.R. § 353.301(c). After 1 year, such an individual is
entitled to the rights accorded fully or partially recovered individuals,
as applicable.
¶7 A partially recovered employee may appeal to the Board for a determination
of whether the agency is acting arbitrarily and capriciously in denying
restoration. 5 C.F.R. § 353.304(c). Further, to establish jurisdiction over such an
appeal, an appellant must prove by preponderant evidence 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
agency’s denial was arbitrary and capricious. 2 Bledsoe v. Merit Systems
Protection Board, 659 F.3d 1097, 1104 (Fed. Cir. 2011); Latham v. U.S. Postal
Service, 117 M.S.P.R. 400, ¶ 10 (2012); ID at 2-3. If the appellant makes
nonfrivolous allegations of jurisdiction as to all four elements of the jurisdictional
2
Effective March 30, 2015, the Board amended its regulations concerning the burden of
proof for establishing jurisdiction over restoration appeals filed under 5 C.F.R.
§ 353.304. 5 C.F.R. § 1201.57(a)(4) (2015). The amended regulations do not apply to
the instant appeal, however, because they apply only to appeals filed on or after
March 30, 2015. 80 Fed. Reg. 4489, 4489 (Jan. 28, 2015).
5
standard, then she is entitled to a jurisdictional hearing. Bledsoe, 659 F.3d
at 1102.
¶8 Here, we agree with the administrative judge that the appellant was not
absent from her position due to a compensable injury. We find that, since the
appellant has failed to nonfrivolously satisfy the first jurisdictional element under
Bledsoe and Latham, she cannot establish Board jurisdiction. Thus, whether the
appellant requested restoration or whether the agency acted arbitrarily and
capriciously is not relevant, as she has failed to show that she was off work due to
a compensable injury.
¶9 Even if OWCP had not determined that the appellant’s emotional condition
was a work-related injury, however, the agency would not have been free to
ignore that condition if it were reassigning her from one set of limited duties to
another. The agency’s ELM recognizes that an individual who is referred for
reassignment or reemployment consideration by OWCP may have some degree of
concurrent disability that is not caused by or related to the original job injury or
disability. IAF, Tab 14 at 10. The ELM also states that the agency physician or
occupational health nurse should carefully evaluate all concurrent disabilities and
include their potential impact in their recommendation for reassignment or
reemployment to the appointing official. Id. Thus, under some circumstances,
the agency might have been obligated to consider the appellant’s emotional
condition in any limited-duty assignments it offered her. See
Latham, 117 M.S.P.R. 400, ¶¶ 12–13, 30–34 (finding that an agency must comply
with its own rules, including ELM provisions, when it provides additional
benefits or protections to a partially recovered individual).
¶10 In the instant appeal, the appellant testified that she was reassigned to the
call center phone duties as a new set of limited duties. In other words, the
appellant testified that the Customer Care Agent position constituted a set of
limited duties to which she was assigned due to the compensable injury
recognized by OWCP in 2013. Hearing Compact Diskette. The appellant also
6
asserts that she suffered from an emotional condition before she was assigned to
the Customer Care Agency position with call center phone duties. However, the
appellant failed to show that any agency employee who had a responsibility for
reassigning her to a new set of limited duties due to her compensable injury was
aware of the emotional condition or that the emotional condition was recorded in
agency documents, such that an agency employee reassigning the appellant
should have been aware of the condition. We find that, under these
circumstances, the appellant did not establish that the agency was obligated to
consider her emotional condition in any limited-duty reassignments that it offered
her. Therefore, the appellant’s argument that the agency was required to follow
ELM § 546.622 and thus not reassign her to phone duties, and her reliance on an
unpublished and nonprecedential Board decision (Hubbard), are unavailing. We
find that the administrative judge correctly dismissed the appeal for lack
of jurisdiction.
¶11 Finally, we find that the administrative judge properly did not reach the
merits of the appellant’s claims of disability and age discrimination; the Board
lacks jurisdiction over such claims absent an otherwise appealable action.
Latham, 117 M.S.P.R. 400, ¶ 58; Wren v. Department of the Army, 2 M.S.P.R. 1,
2 (1980), aff’d, 681 F.2d 867, 871-73 (D.C. Cir. 1982).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the U.S.
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
7
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 an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website
at http://www.mspb.gov/probono for information regarding pro bono
representation for Merit Systems Protection Board appellants before the Federal
Circuit. 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.
8