The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2023 MSPB 8
Docket No. DC-0752-11-0867-B-1
Rosemary Jenkins,
Appellant,
v.
United States Postal Service,
Agency.
February 27, 2023
Neil C. Bonney, Esquire, Virginia Beach, Virginia, for the appellant.
LaDonna L. Griffith-Lesesne, Esquire, Landover, Maryland, for the
agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
OPINION AND ORDER
¶1 The appellant has filed a petition for review and the agency has filed a cross
petition for review of the remand initial decision, which affirmed the agency’s
August 9, 2011 enforced leave action. For the reasons set forth below, we DENY
the appellant’s petition for review and the agency’s cross petition for review,
VACATE both the remand initial decision and the Board’s August 5, 2014
Remand Order in MSPB Docket No. DC-0752-11-0867-I-2, and DISMISS the
appeal. We FORWARD the matter to the Board’s Washington Regional Office
for docketing as a new appeal under 5 C.F.R. § 353.304(c).
2
BACKGROUND
¶2 Prior to her retirement, the appellant, a preference eligible, was a City
Carrier at the L.C. Page Station in Norfolk, Virginia. Jenkins v. U.S. Postal
Service, MSPB Docket No. DC-0752-11-0867-I-1, Initial Appeal File (IAF),
Tab 11 at 9. On September 13, 2004, she sustained a compensable work-related
injury to her right foot. IAF, Tab 6, Subtab 4g at 3. She underwent surgery in
June 2005, and returned to duty with restrictions. Id. On September 10, 2009,
the appellant again injured her right foot and subsequently entered a leave status.
Id. She filed a claim with the Office of Workers’ Compensation Programs
(OWCP) for recurrence of her 2004 injury, but OWCP denied her claim, and the
OWCP Branch of Hearing and Review affirmed that decision on November 29,
2010. Id. at 4-8.
¶3 On April 30, 2011, the appellant attempted to report for work but was
informed that there was no work available within her medical restrictions. She
then filed a Board appeal, under the name Rosemary Brocks, arguing that the
agency had constructively suspended her effective April 30, 2011. Brocks v.
U.S. Postal Service, MSPB Docket No. DC-0752-11-0628-I-1, Tab 1. The
administrative judge assigned to that case dismissed the appeal for lack of
jurisdiction, and the full Board affirmed that decision on petition for review.
Brocks v. U.S. Postal Service, MSPB Docket No. DC-0752-11-0628-I-1, Final
Order (Aug. 22, 2012).
¶4 Meanwhile, on June 21, 2011, the appellant provided the agency with a
CA-17 Duty Status Report, indicating that she was released to resume work, but
with medical restrictions limiting her to sedentary work only. IAF, Tab 6,
Subtab 4f. The agency conducted a search for light-duty work in Norfolk, but
without success. Hearing Transcript at 53 (testimony of proposing official),
80-82 (testimony of deciding official); Jenkins v. U.S. Postal Service, MSPB
Docket No. DC-0752-11-0867-B-1, Remand File (RF), Tab 10 at 11-12. On
July 8, 2011, the agency issued the appellant a Notice of Proposed Placement on
3
Enforced Leave, explaining that no work was available within her medical
restrictions. IAF, Tab 6, Subtab 4e. The appellant, who previously had been in a
leave without pay (LWOP) status, was placed on administrative leave for the
duration of the response period. Id., Subtab 4d. The appellant’s attorney
requested documentation concerning the proposed action and an extension of the
deadline for responding to the notice, but the agency denied his requests, stating
that the appellant’s union was her exclusive representative absent a waiver i n
writing. IAF, Tab 1 at 6-8. On August 3, 2011, the deciding official issued a
decision affirming the appellant’s placement on enforced leave. IAF, Tab 6,
Subtab 4c. The appellant was returned to LWOP status on August 9, 2011. Id.
at 1.
¶5 Also on August 9, 2011, the appellant filed the instant Board appeal,
arguing that the agency constructively suspended her, discriminated against her
on the basis of her disability, and deprived her of her statutory rights by not
properly affording her the opportunity to respond to the notice of proposed
placement on enforced leave. IAF, Tab 1 at 1-2. On September 19, 2011, while
the appeal was still pending in the regional office, OWCP issued a
reconsideration decision 1 vacating its November 29, 2010 decision and finding,
based on the appellant’s newly submitted medical evidence, that her
September 10, 2009 injury was a recurrence of her 2004 injury and therefore
compensable. IAF, Tab 10 at 4-6. On October 3, 2012, the appellant separated
from the Federal service on disability retirement. Jenkins v. U.S. Postal Service,
MSPB Docket No. DC-0752-11-0867-I-2, Appeal File (I-2 AF), Tab 13 at 23.
Her appeal was later dismissed without prejudice so that the parties could pursue
a possible settlement, and the appeal was subsequently refiled. IAF, Tab 31;
I-2 AF, Tab 1. On February 19, 2013, following a hearing, the administrative
1
The OWCP decision was addressed to Rosemary A. Brocks of Norfolk, Virginia. IAF,
Tab 10 at 4.
4
judge issued an initial decision dismissing the appeal for lack of jurisdiction,
finding that the appellant had failed to establish that she was constructively
suspended. I-2 AF, Tab 15, Initial Decision. The appellant filed a petition for
review. Jenkins v. U.S. Postal Service, MSPB Docket No. DC-0752-11-0867-I-2,
Petition for Review File, Tab 1.
¶6 While the appellant’s petition for review of that decision was pending, the
Board issued its decision in Abbott v. U.S. Postal Service, 121 M.S.P.R. 294
(2014), clarifying that placement on enforced leave for more than 14 days
constitutes an ordinary adverse action within the Board’s jurisdiction and that an
appeal of such an action should not be adjudicated as a constructive suspension
claim. Id., ¶¶ 9-10. By order dated August 5, 2014, the Board remanded the
appeal for adjudication on the merits, finding that it had jurisdiction over the
appellant’s placement in an enforced leave status. Jenkins v. U.S. Postal Service,
MSPB Docket No. DC-0752-11-0867-I-2, Remand Order, ¶¶ 1, 3, 7 (Aug. 5,
2014). The Board also found that the appellant had not been denied due process
and that her procedural objections to the enforced leave action should be
adjudicated under a harmful error standard. Id., ¶¶ 5-6. The Board further
directed the administrative judge to consider “the possible effect” of OWCP’s
reconsideration decision. Id., ¶ 7.
¶7 On remand, the administrative judge issued a new initial decision sustaining
the August 9, 2011 enforced leave action. 2 RF, Tab 28, Remand Initial Decision
(RID). The administrative judge first found that the agency had properly brought
an indefinite suspension action with a determinable condition subsequent, i.e., the
provision of medical documentation supporting the appellant’s return to duty.
RID at 6. He further found that the agency proved its charge that the appellant
was physically unable to perform the duties of her position and that the charge
2
On remand, the appellant waived her right to a hearing. RF, Tab 21 at 3.
5
had a self-evident nexus to the efficiency of the service. RID at 6-7. As to the
reasonableness of the penalty, the administrative judge found that assigning the
appellant work within her medical restrictions was not a reasonable alternative to
the suspension, because no such work was available. RID at 7 -11. In so finding,
the administrative judge noted that during the period following OWCP’s
September 19, 2011 reconsideration decision, the agency apparently had not
complied with its self-imposed rules concerning reassigning employees with
compensable injuries. RID at 10-11. Specifically, the agency had restricted its
search to vacant, funded positions, whereas it was obliged under section 546 of
the Employee and Labor Relations Manual to search for available duties
regardless of whether those duties comprised the essential functions of a n
established position. RID at 9-10. However, the administrative judge found “no
reason to conclude that a proper search would likely have uncovered available
duties within the appellant’s medical restrictions.” RID at 10 -11.
¶8 The administrative judge further found that the appellant failed to prove her
disability discrimination claim based on a failure to accommodate, because there
was no evidence of a reasonable accommodation that would have allowed her to
perform the essential functions of her Letter Carrier position or any other vacant,
funded position within the agency. RID at 11. As to the appellant’s procedural
objections, the administrative judge found that the agency erred in not permitting
the appellant’s attorney to act as her representative in response to the proposal of
enforced leave, but that this error was neither harmful nor in violation of her due
process rights. RID at 12-14. In addition, he found that the agency had not
improperly withheld materials on which it relied in proposing her placement on
enforced leave. RID at 14-15.
¶9 The administrative judge also observed that, in light of OWCP’s
reconsideration decision, the appellant might be able to establish jurisdiction over
a claim that she was improperly denied restoration as a partially recovered
employee under 5 C.F.R. § 353.301. RID at 15-16. However, he found that the
6
case was distinguishable from Kinglee v. U.S. Postal Service, 114 M.S.P.R. 473,
¶¶ 19-22 (2010), in which the Board held that a constructive suspension claim
brought by a partially recovered employee was subsumed in his restoration claim.
RID at 16-18. The administrative judge noted that the parties had not had an
opportunity to develop the record under a restoration theory, but advised the
appellant that she was not precluded from filing a separate restoration appeal.
RID at 17.
¶10 On petition for review, the appellant contests the administrative judge’s
findings on the charge and harmful error defense, and contends that the agency
should be sanctioned for failing to preserve documents concerning its
accommodation efforts. Jenkins v. U.S. Postal Service, MSPB Docket
No. DC-0752-11-0867-B-1, Remand Petition for Review (RPFR) File, Tab 1
at 6-23. She further argues that the administrative judge erred in declining to rule
on her claim that the agency denied her restoration rights as a partially recovered
employee. Id. at 23-24. On cross petition for review, the agency contends that
the administrative judge erred in finding that the appellant was entitled to be
represented by an attorney prior to the Board proceedings. RPFR File, Tab 7
at 8-10. The appellant has responded to the agency’s cross petition for review.
RPFR File, Tab 9.
ANALYSIS
¶11 Pursuant to congressional authority, the Office of Personnel Management
(OPM) has promulgated a comprehensive scheme that identifies the rights and
remedies for individuals who partially or fully recover from compensable
injuries. Kinglee, 114 M.S.P.R. 473, ¶ 22; 5 C.F.R. part 353; see 5 U.S.C.
§ 8151. As relevant here, 5 C.F.R. § 353.301(d) provides that an agency “must
make every effort to restore in the local commuting area, according to the
circumstances of each case, an individual who has partially recovered from a
compensable injury and who is able to return to limited duty.” OPM’s
7
regulations further provide that a partially recovered employee may appeal to the
Board for a determination of whether the agency has acted arbitrarily and
capriciously in denying restoration. 3 5 C.F.R. § 353.304(c).
¶12 When an agency fails to assign work to a partially recovered employee and
requires her absence from duty, the employee may not contest the agency’s action
as a suspension, because her rights and remedies are subsumed in the restoration
process. Bohannon v. U.S. Postal Service, 115 M.S.P.R. 629, ¶ 11 (2011);
Kinglee, 114 M.S.P.R. 473, ¶¶ 16-22. As we explained in Kinglee, 114 M.S.P.R.
473, ¶ 22, this holding is consistent with the principle of excluding other avenues
of relief where a comprehensive scheme exists regarding the rights and remedies
at issue. Although the appellants in Kinglee and Bohannon attempted to raise
constructive suspension claims, we find this principle applies equally to cases
such as this one, in which the agency’s denial of restoration is couched as an
enforced leave action.
¶13 The Board also has held that when, as in this case, OWCP reverses a
previous ruling that an employee’s injury was not compensable, restoration rights
are conferred retroactively. See Welber v. U.S. Postal Service, 62 M.S.P.R. 98,
103-04 (1994) (reopening a restoration appeal when the Board’s decision in the
agency’s favor was predicated on OWCP’s denying the appellant’s claim for
3
To establish jurisdiction under 5 C.F.R. § 353.304(c), an appellant must, inter alia,
make a nonfrivolous allegation that the agency failed to comply with the minimum
requirement of 5 C.F.R. § 353.301(d), i.e., to search within the local commuting area
for vacant positions to which it can restore a partially recovered employee and to
consider her for any such vacancies. Cronin v. U.S. Postal Service, 2022 MSPB 13,
¶ 20. Although an agency may undertake restoration efforts beyond the minimum effort
required by OPM under 5 C.F.R. § 353.301(d), an agency’s failure to comply with its
self-imposed obligations cannot itself constitute a violation of 5 C.F.R. § 353.301(d),
such that a resulting denial of restoration would be rendered “arbitrary and capricious”
for purposes of establishing Board jurisdiction under 5 C.F.R. § 353.304(c). Cronin,
2022 MSPB 13, ¶ 20. Moreover, an appellant’s claim of prohibited discrimination or
reprisal for protected activity is immaterial to the question of whether a denial of
restoration was arbitrary and capricious for purposes of section 353.304(c) . Id., ¶ 21.
8
compensation, and OWCP subsequently reversed its earlier decision, thus
entitling him to restoration rights during the period at issue). We therefore
conclude that, upon the appellant’s partial recovery from her September 10, 2009
injury, she acquired restoration rights under 5 C.F.R. § 353.301(d). From that
point forward, her rights and remedies concerning her attempted return to duty
were subsumed under the restoration process. See Bohannon, 115 M.S.P.R. 629,
¶ 11; Kinglee, 114 M.S.P.R. 473, ¶¶ 16-22. Hence, if the appellant believes that,
subsequent to September 10, 2009, the agency arbitrarily and capriciously denied
her restoration as a partially recovered employee, her exclusive avenue of remedy
is an appeal under 5 C.F.R. § 353.304(c). See 5 U.S.C. § 8151.
¶14 Because this time frame encompasses the period during which the appellant
was in enforced leave status, we DISMISS her chapter 75 appeal. Given this
disposition, we do not reach the parties’ remaining arguments on review. While
the appellant has expressed her wish to pursue a restoration claim, the parties
have not had an opportunity to fully develop the record on that issue.
Accordingly, rather than adjudicate a restoration claim at this time, we
FORWARD the matter to the Board’s regional office for docketing as a new
appeal under 5 C.F.R. § 353.304(c). 4
4
In the unique circumstances of this case, we deem the appeal to be timely filed. To
the extent we may have suggested in the decision in Brocks v. U.S. Postal Service,
MSPB Docket No. DC-0752-11-0628-I-1, Final Order (Aug. 22, 2012), that the
appellant cannot establish jurisdiction over a restoration claim, any such statement is
without preclusive effect, as we did not rely on it in dismissing the constructive
suspension claim at issue in that appeal. See Hau v. Department of Homeland Security,
123 M.S.P.R. 620, ¶ 13 (2016) (observing that collateral estoppel applies when, inter
alia, the issue decided in a prior action was necessary to the resulting judgment), aff’d
sub nom. Bryant v. Merit Systems Protection Board, 878 F.3d 1320 (Fed. Cir. 2017).
9
ORDER
¶15 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 (5 C.F.R.
§ 1201.113).
NOTICE OF APPEAL RIGHTS 5
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal ri ghts, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one t o review your case, you
should contact that forum for more information.
(1) Judicial review in general. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
5
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
10
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit 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, 10, 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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination. This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims—by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
11
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. 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.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC 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 a request for review to the EEOC 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, N.E.
Suite 5SW12G
Washington, D.C. 20507
12
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction. 6 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit 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, 10, and 11.
6
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
13
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 websi te at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD:
/s/
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.