The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
NAFEESAH A. MADYUN, DOCKET NUMBER
Appellant, AT-0353-18-0386-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: March 27, 2024
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
David Champion , Memphis, Tennessee, for the appellant.
Cynthia R. Allen , Memphis, Tennessee, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
REMAND ORDER
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 Atlanta Regional Office for further
adjudication in accordance with this Remand Order.
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
BACKGROUND
The agency employs the appellant as a City Mail Carrier. Initial Appeal
File (IAF), Tab 5 at 43. The appellant suffered a compensable injury on
February 24, 2014. Id. at 59. The Office of Workers’ Compensation Programs
(OWCP) determined that the accepted conditions for her traumatic injury were a
sprain of her right wrist and foot, neck, and right-hand carpal tunnel syndrome.
Id. On August 6, 2015, OWCP terminated the appellant’s wage loss benefits,
finding that her accepted medical conditions were no longer disabling. IAF,
Tab 5 at 54-56. OWCP permitted the appellant to continue to receive medical
benefits for carpal tunnel syndrome. IAF, Tab 5 at 43-58. The appellant
performed the duties of her position until January 25, 2018, when her doctor
completed a Form CA-17, Duty Status Report, specifying medical restrictions due
to her carpal tunnel syndrome. IAF, Tab 5 at 6, 45. The agency notified the
appellant that it had no work for her to perform within her new medical
restrictions and sent her home. ID at 3; IAF, Tab 5 at 5-6.
On March 14, and 21, 2018, the appellant filed two claims for OWCP
benefits for the period of February 3, 2018, to March 16, 2018, alleging disability
due to a worsening of the carpal tunnel syndrome. IAF, Tab 5 at 14. OWCP
notified the appellant on March 23, 2018, that additional evidence was needed to
establish that her disability between February 3, 2018, and March 16, 2018, was
due to her February 24, 2014 accepted injury because her physician had indicated
that her current carpal tunnel syndrome was due to the repetitive nature of her job
and had not connected the disability to the original work-related injury. Id. at 15.
On April 6, 2018, the appellant filed an appeal alleging that the agency
improperly denied her request for restoration as a partially recovered employee
and suspended her for more than 14 days beginning on January 25, 2018. IAF,
Tab 1 at 2. The appellant alleged that she had a recent claim for a compensable
injury that was accepted by OWCP, but the administrative judge rejected this
assertion as unsubstantiated and dismissed the appeal for lack of jurisdiction,
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without holding the hearing requested by the appellant. ID at 1, 3; IAF, Tab 4
at 1-2.
The administrative judge found that the appellant failed to prove that her
absence beginning on January 25, 2018, was connected to her compensable
traumatic injury. ID at 3. With respect to the appellant’s additional claims that
the agency suspended her and failed to afford her the procedures she was due
under 5 U.S.C. chapter 75, the administrative judge found that the Board did not
have jurisdiction over her appeal under chapter 75 because the non-preference
eligible appellant did not meet the statutory definition of an “employee” as set
forth in 5 U.S.C. § 7511(a)(1)(B). ID at 4. Based on her finding that the Board
lacked independent jurisdiction over the claims raised on appeal, the
administrative judge declined to adjudicate the appellant’s claim of disability
discrimination. Id.
The appellant filed a petition for review arguing that the Board has
jurisdiction over her appeal. Petition for Review (PFR) File, Tab 1. She submits
new evidence that OWCP accepted her recent carpal tunnel syndrome claim as
related to her compensable work injury and began paying her compensation
benefits effective January 26, 2018. IAF, Tab 1 at 15-16; PFR File, Tab 4
at 15-16. She asserts that the agency arbitrarily and capriciously denied her
work. She also reasserts her discrimination claim. Id. at 2. The agency has
responded in opposition, and the appellant has replied. PFR File, Tabs 6-7.
DISCUSSION OF ARGUMENTS ON REVIEW
The Federal Employees’ Compensation Act and the implementing
regulations of the Office of Personnel Management (OPM) at 5 C.F.R. part 353
provide, inter alia, that Federal employees who suffer compensable injuries enjoy
certain rights to be restored to their previous or comparable positions. 5 U.S.C.
§ 8151(b); Kingsley v. U.S. Postal Service, 123 M.S.P.R. 365, ¶ 9 (2016). Under
OPM’s regulations, such employees have different substantive rights based on
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whether they have fully recovered, partially recovered, or are physically
disqualified from their former or equivalent positions. Kingsley, 123 M.S.P.R.
365, ¶ 9 (quoting 5 C.F.R. § 353.301). Partially recovered employees, like the
appellant, are those who, “though not ready to resume the full range” of duties,
have “recovered sufficiently to return to part-time or light duty or to another
position with less demanding physical requirements.” Kingsley, 123 M.S.P.R.
365, ¶ 9; 5 C.F.R. § 353.102.
To establish jurisdiction over a claim of denial of restoration as a partially
recovered employee, an appellant is required to make nonfrivolous allegations 2 of
the following: (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. Kingsley, 123 M.S.P.R. 365, ¶ 11;
5 C.F.R. § 1201.57(a)(4), (b). Once an appellant establishes jurisdiction, she is
entitled to a hearing at which she must prove the merits of her restoration appeal,
i.e., all four of the above elements, by a preponderance of the evidence. 3
Kingsley, 123 M.S.P.R. 365, ¶¶ 11-12; 5 C.F.R. § 1201.57(c)(4).
The administrative judge dismissed this appeal for lack of jurisdiction
based on her finding that the appellant failed to establish that she was absent from
duty due to her compensable injury. ID at 3. However, because the appellant
filed her appeal after March 30, 2015, the effective date of the current version of
the Board’s regulation at 5 C.F.R. § 1201.57(a) applied to her restoration claim.
Kingsley, 123 M.S.P.R. 365, ¶ 10. Under section 1201.57(a), she is only required
to make nonfrivolous allegations that, if proven, could establish the jurisdictional
2
A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
issue. 5 C.F.R. § 1201.4(s).
3
A preponderance of the evidence is the degree of relevant evidence that a reasonable
person, considering the record as a whole, would accept as sufficient to find that a
contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).
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criteria. Kingsley, 123 M.S.P.R. 365, ¶ 11; see 5 C.F.R. § 1201.4(s). Thus, the
administrative judge erred in requiring the appellant to prove jurisdiction by
preponderant evidence. ID at 24 n.1.
We find it unnecessary here to determine if the administrative judge’s error
was harmful in light of the appellant’s new evidence of jurisdiction presented on
review. Pirkkala v. Department of Justice, 123 M.S.P.R. 288, ¶ 5 (2016)
(observing that the Board will consider evidence submitted for the first time on
review if it is relevant to jurisdiction). T he appellant submits Department of
Labor (DOL) Benefit Statements showing that OWCP began paying her wage
compensation benefits effective January 26, 2018. PFR File, Tab 1 at 15-16.
DOL issued the checks referenced in the Benefit Statement on the same date as
the initial decision in this appeal, and the appellant asserts that this evidence was
not available before the record closed below. 4 Id. at 1-2, 15-16; see 5 C.F.R.
§ 1201.115(d) (providing that the Board may grant a petition for review based on
the presentation of material evidence that was not previously available despite
due diligence). Considering this new and material evidence, we find that the
appellant has nonfrivolously alleged that her absence from work is due to her
work-related medical condition. PFR File, Tab 1 at 2; see Simonton v. U.S.
Postal Service, 85 M.S.P.R. 189, ¶¶ 11-12 (2000) (finding that the determination
of whether an individual suffers from a compensable medical condition is within
the exclusive purview of OWCP and neither the employing agency nor the Board
has the authority to make such a determination).
4
For the first time on review, the appellant also submits additional documents that
predate the initial decision on appeal. PFR File, Tab 1 at 14-19. Because the appellant
has not shown that these documents were unavailable below despite her due diligence,
we decline to consider them for the first time on review. Avansino v. U.S. Postal
Service, 3 M.S.P.R. 211, 214 (1980) (providing that, under 5 C.F.R. § 1201.115, the
Board generally will not consider evidence submitted for the first time with the petition
for review absent a showing that it was unavailable before the record was closed despite
the party’s due diligence). Moreover, contrary to the appellant’s argument on review,
the administrative judge informed the appellant and her representative of the date that
the record closed on appeal. PFR File, Tab 1 at 1; IAF, Tab 2 at 2, 18.
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We also find that the appellant has nonfrivolously alleged that 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. IAF, Tab 1 at 3, Tab 4 at 1-2; PFR File, Tab 4 at 2-4. The
agency file includes CA-17 forms completed by the appellant’s physician
releasing her to perform work subject to specific medical restrictions due to her
carpal tunnel syndrome. IAF, Tab 5 at 44-45. We further find that the appellant
has nonfrivolously alleged that the agency denied her request for restoration. The
agency does not dispute the appellant’s allegation that the agency ordered her to
stay home because of her medical restrictions on or about January 25, 2018, and
denied her request for restoration. IAF, Tab 4 at 1-2; Tab 5 at 5-7, 41; PFR File,
Tab 4 at 8.
Finally, we find that the appellant has made a nonfrivolous allegation that
the denial of restoration was arbitrary and capricious. T o 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. Cronin v. U.S. Postal Service, 2022 MSPB 13, ¶ 20.
Here, the appellant asserts that the agency failed to properly search the local
commuting area for vacant positions within her medical restrictions. PFR File,
Tab 4 at 8-13. In response, the agency asserted that on April 17, 2018, it
searched for work within the appellant’s restrictions within commuting distance,
no work was found due to the appellant’s “onerous” restrictions, and the search
was ongoing. IAF, Tab 5 at 6. Although the agency file includes documentation
reflecting that a search was performed, the appellant alleges that the job search
was improper and that there is work within her restrictions at her duty station.
IAF, Tab 5 at 30-42; PFR File, Tab 4 at 8-13.
7
For example, the appellant alleges that the agency did not search the entire
commuting area because there are no search results for White Station and Mallory
Station, the search forms for 10 other locations are unsigned, and some of the
limited-duty facility search forms submitted by the agency are blank. PFR File,
Tab 4 at 9-10; IAF, Tab 5 at 30-40. The appellant also alleges that the agency’s
search was improper because it arbitrarily used a 4-hour lifting restriction for the
job search although she was able to lift for 4-8 hours per her February 28, 2017
CA-17 Duty Status Report. PFR File, Tab 4 at 9-11; IAF, Tab 5 at 41, 44. Based
on the foregoing, we find that the appellant has made nonfrivolous allegations
that, if proven, could establish that the agency failed to comply with the minimum
requirement of 5 C.F.R. § 353.301(d) by searching within the local commuting
area for vacant positions to which it could restore her to work as a partially
recovered employee.
Because we find that the appellant has established jurisdiction over her
appeal, she is entitled to a hearing at which she must prove the merits of her
restoration appeal by preponderant evidence. Kingsley, 123 M.S.P.R. 365,
¶¶ 11-12; 5 C.F.R. § 1201.57(c)(4). Accordingly, we remand the case to the
regional office to allow the parties an opportunity to submit evidence and
argument on the merits of this restoration appeal. On remand, the administrative
judge also must adjudicate the appellant’s disability discrimination claim after
providing her with notice of the applicable burdens and elements of proof and
affording the parties an opportunity to present evidence and argument on this
issue. IAF, Tab 1 at 2; PFR File, Tab 1 at 2, Tab 4 at 6; see Desjardin v. U.S.
Postal Service, 2023 MSPB 6, ¶¶ 20-21 (finding that the Board is required to
adjudicate claims of discrimination and retaliation in restoration appeals once the
appellant has established that the challenged action is within the Board’s
jurisdiction and clarifying the analytical framework applicable to such claims).
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ORDER
For the reasons discussed above, we remand this case to the Atlanta
Regional Office for further adjudication in accordance with this remand order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.