The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
VANESSA REDUS, DOCKET NUMBER
Appellant, AT-0353-17-0132-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: April 19, 2023
Agency.
THIS ORDER IS NONPRECEDENTIAL *
Vanessa Redus, Cordova, Tennessee, pro se.
Sandra W. Bowens, Esquire, Memphis, Tennessee, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her restoration appeal for lack of jurisdiction. For the reasons
discussed below, we GRANT the appellant’s petition for review , VACATE the
initial decision, and REMAND the case to the regional office for further
adjudication in accordance with this Remand Order.
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
BACKGROUND
¶2 The agency employs the appellant as a Mail Processing Clerk. Initial
Appeal File (IAF), Tab 1 at 1, Tab 5 at 8. She suffered compensable injuries in
2003 and 2005. IAF, Tab 5 at 9; Petition for Review (PFR) File, Tab 1 at 3. On
July 6, 2015, her doctor completed a Form CA-17 (Duty Status Report) that
cleared her to resume work within certain medical restrictions. IAF, Tab 5 at 3.
She forwarded the form to the agency’s Injury Compensation Specialist, seeking
restoration as a partially recovered employee. Id. at 1. The agency offered the
appellant a modified limited duty assignment dated October 1, 2015, but she
declined it because she claimed that the physical requirements of the modified
assignment were outside her medical restrictions. IAF, Tab 10 at 1, 6. The
appellant alleged that she submitted additional Forms CA-17 to the Injury
Compensation Specialist in the subsequent months. IAF, Tab 5 at 1, 4 -7. As a
result of a Form CA-17 dated January 12, 2017, the agency offered her a different
modified limited duty assignment on January 18, 2017, which she accepted. IAF,
Tab 10 at 1, 4-5; PFR File, Tab 1 at 1.
¶3 On November 21, 2016, the appellant filed an appeal alleging that the
agency improperly denied her request for restoration as a partially recovered
employee beginning in July 2015 and that the agency discriminated against her
based on her disability. IAF, Tab 1. Without holding the requested hearing, the
administrative judge issued an initial decision dismissing the appeal for lack of
jurisdiction. IAF, Tab 19, Initial Decision (ID). She found that the appellant
made nonfrivolous allegations that she was absent from work due to a
compensable injury and that she recovered sufficiently to return to duty on a
part-time basis or in a position with less demanding physical requirements than
those previously required of her. ID at 7. She found, however, that the appellant
failed to nonfrivolously allege that the agency denied her request for restoration
because she did not prove that the October 2015 modified assignment offer was
outside her medical restrictions. ID at 8. She then found that, even if the
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appellant had nonfrivolously alleged a denial of restoration , she failed to
nonfrivolously allege that the denial was arbitrary and capricious because she
admitted that she did not appear for investigative interviews regarding her
extended absence. ID at 8-9. She further found that the Board lacked jurisdiction
to consider the appellant’s disability discrimination claim in the absence of an
otherwise appealable action. ID at 9.
¶4 The appellant has filed a petition for review. PFR File, Tab 1. The agency
has responded in opposition. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
¶5 The Board has jurisdiction to review whether an agency’s denial of
restoration to a partially recovered employee was arbitrary and capricious.
Bledsoe v. Merit Systems Protection Board, 659 F.3d 1097, 1103–04 (Fed. Cir.
2011), modified in part by regulation as stated in Kingsley v. U.S. Postal Service ,
123 M.S.P.R. 365, ¶ 10 (2016); 5 C.F.R. § 353.304(c). To establish jurisdiction
and obtain a hearing on the merits, an appellant must make the following
nonfrivolous allegations: (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. Kingsley,
123 M.S.P.R. 365, ¶ 11; 5 C.F.R. § 1201.57(a)(4), (b).
¶6 While this appeal was pending on review, the Board issued a decision
clarifying the jurisdictional standard in partial restoration appeals. Cronin v. U.S.
Postal Service, 2022 MSPB 13. In Cronin, the Board found that a denial of
restoration is arbitrary and capricious if—and only if—the agency failed to meet
its obligations under 5 C.F.R. § 353.301(d). Id., ¶ 20. The Board explicitly
overruled Latham v. U.S. Postal Service, 117 M.S.P.R. 400 (2012), and its
progeny to the extent such precedent held that a denial of restoration may be
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arbitrary and capricious based on an agency’s failure to comply with its
self-imposed restoration obligations, such as those provided in the agency’s
Employee and Labor Relations Manual. Id. Accordingly, to establish jurisdiction
under the fourth jurisdictional element, an appellant must 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. Id.
¶7 Here, the parties did not have the benefit of the Board’s decision in Cronin
during the proceedings below, and we are unable to determine whether the
appellant met her jurisdictional burden based on the record before us. Therefore,
we remand the case to the regional office to allow the parties an opportunity to
submit evidence and argument supporting their positions under the clarified
jurisdictional standard. We advise the parties that, under Cronin, an offer of a
modified limited duty assignment—even one within an employee’s medical
restrictions—without evidence that the agency conducted a proper search for
vacant positions within the local commuting area does not meet the minimum
requirement of 5 C.F.R. § 353.301(d). Cronin, 2022 MSPB 13, ¶ 20.
¶8 Should the appellant establish jurisdiction over her appeal on remand, the
administrative judge must adjudicate the appellant’s disability discrimination
claim. See Desjardin v. U.S. Postal Service, 2023 MSPB 6, ¶¶ 20-21.
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ORDER
¶9 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.