The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
VERNA LEWIS, DOCKET NUMBER
Appellant, NY-0752-13-0408-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: March 2, 2023
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Kavin L. Edwards, Esquire, New York, New York, for the appellant.
Donald Spector, Esquire, New York, New York, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member 2
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her appeal for lack of jurisdiction. For the reasons discussed below, we
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
Member Leavitt’s name is included in decisions on which the three -member Board
completed the voting process prior to his March 1, 2023 d eparture.
2
GRANT the appellant’s petition for review, VACATE the initial decision, and
REMAND the case to the regional office 3 for further adjudication in accordance
with this Remand Order.
BACKGROUND
¶2 On August 6, 2013, the appellant filed an appeal challenging a denial of
restoration and an alleged involuntary retirement, and she raised allegations of
disability discrimination. Initial Appeal File (IAF), Tab 1 at 2. Attached to her
appeal, she submitted a copy of a February 14, 2013 decision removing her from
her position, effective March 23, 2013, for inability to perform the essential
functions of her position. Id. at 44-45. She also attached a copy of a July 3, 2013
final agency decision (FAD) concerning her equal employment opportunity (EEO)
complaint in which she alleged that the agency’s removal action constituted
disability discrimination. Id. at 13-39.
¶3 The administrative judge issued a jurisdictional order informing the
appellant of her burden of establishing jurisdiction over her alleged involuntary
disability retirement. IAF, Tab 7. After allowing the parties an opportunity to
respond and holding a status conference, the administrative judge issued an order
finding that, because the agency had not processed the appellant’s separation as a
retirement, the appeal was not an involuntary disability retirement appeal but
rather a timely mixed-case appeal of the appellant’s removal for inability to
perform the essential functions of her position. IAF, Tab 15.
¶4 The case was subsequently reassigned to another administrative judge who,
after holding the requested hearing, issued an initial decision dismissing the
appeal for lack of jurisdiction. IAF, Tab 67, Initial Decision (ID). The
administrative judge characterized the appellant’s appeal as an involuntary
3
On March 23, 2016, this appeal was reassigned from the New York Field Office to the
Northeastern Regional Office. IAF, Tab 43.
3
disability retirement appeal and found that such a claim “fails” becaus e “[i]n this
case, we do not have the requisite retirement.” ID at 4 -5. The administrative
judge also addressed the appellant’s claims of improper restoration, constructive
suspension, and disability discrimination. Regarding the appellant’s alleged
improper restoration, he found that the appellant failed to establish Board
jurisdiction because it was undisputed that she had been restored to a part-time
position on or about April 4, 2005. ID at 2-3. The administrative judge found
that the appellant’s constructive suspension claim failed because there was no
evidence that the agency was unwilling to allow her to work in accordance with a
modified work assignment she accepted on August 5, 2005. ID at 3 -4. Finally,
the administrative judge found that the Board lacks jurisdiction over the
appellant’s allegations of disability discrimination prior to December 15, 2005,
because such claims had been resolved via a settlement agreement the appellant
had entered into with the agency on December 15, 2005. ID at 5.
¶5 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has opposed the appellant’s petition. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
¶6 The Board has held that an initial decision must identify all material issues
of fact and law, summarize the evidence, resolve issues of credibility, and i nclude
the administrative judge’s conclusions of law and his legal reasoning, as well as
the authorities on which that reasoning rests. Spithaler v. Office of Personnel
Management, 1 M.S.P.R. 587, 589 (1980); 5 C.F.R. § 1201.111(b). If any of
these items is missing or substantially incomplete, the Board will remand the
appeal to the administrative judge for modification. Miller v. U.S. Postal Service,
117 M.S.P.R. 557, ¶ 14 (2012). Based on our review of the record, we find that
the initial decision fails to meet this standard.
¶7 The record reflects that, at the beginning of the hearing, the administrative
judge identified for the record the issues in this appeal as whether the agency
4
properly separated the appellant effective March 23, 2013, by a letter of decision
dated February 14, 2013, and if not, was the agency’s failure because of the
appellant’s disability in violation of the Rehabilitation Act, 29 U.S.C. § 701.
IAF, Tab 64, Hearing Compact Disc (HCD) at 9:11 (statement of the
administrative judge). This is consistent with the administrative judge’s order
and summary of prehearing conference. IAF, Tab 58. However, the
administrative judge did not address the merits of the appellant’s removal in the
initial decision. Instead, he found that the Board lacks jurisdiction over the
appeal as an involuntary disability retirement appeal because the appellant had
not retired. ID at 5. The initial decision fails to acknowledge the prior Board
order finding jurisdiction over the appellant’s appeal as a mixed-case removal
appeal, IAF, Tab 15, or provide any indication that the order had been overruled
or modified. Accordingly, on remand, the administrative judge shall adjudicate
the merits of the appellant’s removal for inability to perform the essential
functions of her position. 4 The administrative judge shall also adjudicate the
appellant’s affirmative defense of disability discriminatio n.
¶8 Regarding the appellant’s improper restoration and constructive suspension
claims, prior to holding a hearing, the record was not developed as to the nature
of these claims or whether the appellant had raised nonfrivolous allegations of
Board jurisdiction entitling her to a hearing. Further, despite holding a hearing,
the initial decision fails to explain the factual background surrounding these
claims, including the relevant time periods for which the appellant contends she
4
A Postal Service employee has a right to appeal an adverse action to the Board if she
(1) is a preference eligible, a management or supervisory employee, or an employee
engaged in personnel work in other than a purely nonconfidential clerical capacity, and
(2) has completed 1-year of current continuous service in the same or similar position.
39 U.S.C. § 1005(a)(4)(A); 5 U.S.C. § 7511(a)(1)(B)(ii); Clark v. U.S. Postal Service,
118 M.S.P.R. 527, ¶ 7 (2012). Although the order finding jurisdiction did not address
this issue, the record appears to reflect that, at the time of her removal, the appellant
had been employed as a Supervisor, Customer Service, since 1986. IAF, Tab 1 at 1, 19,
47-49, Tab 48 at 12, HCD (testimony of the appellant).
5
was constructively suspended and denied restoration. Also unclear in the initial
decision is whether the administrative judge’s finding that such claims “fail”
refers to jurisdictional determinations versus the merits of such claims. ID at 3-4.
¶9 On review, the appellant appears to argue that following a recurrence of her
compensable injury on June 8, 2006, she was constructively suspended after the
agency failed to accommodate her by providing ergonomic equipment or
reassigning her. PFR File, Tab 1 at 6-13. She contends that during this time she
was required to use sick and annual leave against her will and placed on leave
without pay. Id. at 6, 12. She also appears to contend that she was effectively
denied restoration because the agency failed to provide her with requested
ergonomic equipment when it restored her on or about April 4, 2005. Id. at 6.
However, because the record was not developed, on remand, the administrative
judge should clarify the nature of the appellant’s restoration and constructive
suspension claims, including the relevant time periods. 5 The administrative judge
shall also consider the appellant’s allegations of disability discrimination in
connection with her alleged constructive suspension and denial of restoration. 6
5
Although the exact nature of the appellant’s claims is somewhat unclear, in some
contexts, when the facts could give rise to both a constructive suspension claim
and a restoration claim, the Board has found that the constructive suspension
claim should be subsumed into the restoration claim. Kinglee v. U.S. Postal
Service, 114 M.S.P.R. 473 , ¶¶ 19-22 (2010). In a similar vein, when facts give
rise to both an enforced leave and restoration claim, the enforced leave claim is
subsumed into the restoration claim. Jenkins v. U.S. Postal Service , 2023 MSPB
8, ¶ 12.
6
The administrative judge found that the Board lacks jurisdiction to consid er the
appellant’s claims of discrimination prior to December 15, 2005 , based on a settlement
agreement she entered into on that date, resolving an October 13, 2005 informal EEO
complaint. ID at 5. The appellant’s informal EEO complaint, however, does not appear
to be related to her discrimination claims at issue in this appeal. IAF, Tab 12 at 51-56.
According to the agency, this complaint concerned “working conditions,” and not the
appellant’s request for ergonomic equipment or reasonable accommodation . Id. at 10.
According to the appellant, the earlier discrimination claims concerned the disrespectful
manner in which an agency representative spoke with her and the agency’s failure to
pay her on September 5, 2005. PFR File, Tab 1 at 14.
6
See, e.g., Desjardin v. U.S. Postal Service, 2023 MSPB 6, ¶ 21 (outlining the
manner in which to adjudicate a claim of discrimination in a restoration appeal);
Bean v. U.S. Postal Service, 120 M.S.P.R. 397, ¶¶ 8, 14-15 (2013) (explaining
that various fact patterns may give rise to an appealable constructive suspension,
including a situation in which an appellant claims that he was compelled to take
leave because the agency improperly failed to accommodate his medical
condition); Foley v. U.S. Postal Service, 90 M.S.P.R. 206, ¶ 6 (2001) (stating that
a claim that restoration was effectively denied may involve allegations that a
partially recovered appellant is incapable of performing the job duties of the
position to which he was restored).
¶10 Finally, in assessing the appellant’s restoration appeal, the administrative
judge applied the nonfrivolous jurisdictional standard set forth in the Board’s
revised regulation, 5 C.F.R. § 1201.57(a)(4), (b), which is applicable to
restoration appeals filed on or after March 30, 2015. ID at 2-3; see Kingsley v.
U.S. Postal Service, 123 M.S.P.R. 365, ¶ 10 (2016). However, because the
appellant filed her Board appeal on August 6, 2013, prior to the effective date of
the Board’s revised regulation, she was required to make nonfrivolous allegations
of jurisdiction to obtain a jurisdictional hearing at which she was required to
prove jurisdiction by preponderant evidence. Bledsoe v. Merit Systems Protection
Board, 659 F.3d 1097, 1102-04 (Fed. Cir. 2011). Accordingly, on remand, the
administrative judge shall assess the appellant’s restoration claim under the
preponderant evidence standard.
7
ORDER
¶11 For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.