Opinion

Gregory Turner v. United States Postal Service

Court: Merit Systems Protection Board
Filed: Apr 8, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.8%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

GREGORY TURNER, DOCKET NUMBER

Appellant, AT-0353-16-0826-I-1

UNITED STATES POSTAL SERVICE, DATE: April 8, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Gregory Turner , Memphis, Tennessee, pro se.

Cynthia R. Allen , Memphis, Tennessee, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

FINAL ORDER

The appellant has filed a petition for review of the initial decision, which

dismissed this restoration appeal for lack of jurisdiction. Generally, we grant

petitions such as this one only in the following circumstances: 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 administrative judge’s rulings during either

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

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. 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). We FORWARD the appellant’s new restoration claim to the

Atlanta Regional Office for docketing as a separate appeal.

The appellant has filed several restoration appeals related to a compensable

injury he suffered in 2006. In one, from 2010, an administrative judge found that

the agency violated the appellant’s restoration rights as a partially recovered

employee. Turner v. U.S. Postal Service, MSPB Docket No. AT-0353-10-0960-

I-1 (0960 appeal), Initial Appeal File, Tab 39, Initial Decision. After the decision

became final in the 0960 appeal, the appellant filed a petition for enforcement.

Turner v. U.S. Postal Service, MSPB Docket No. AT-0353-10-0960-C-1,

Compliance File (0960 CF), Tab 1. The administrative judge denied his petition

for enforcement but docketed another appeal because the appellant appeared to

present a separate restoration claim. 0960 CF, Tab 11, Compliance Initial

Decision; Turner v. U.S. Postal Service, MSPB Docket No. AT-0353-14-0838-I-1

(0838 appeal), Initial Appeal File (0838 IAF), Tab 1. In the 0838 appeal, the

appellant alleged that, in September 2013, the agency improperly reduced the

hours of his modified assignment, but the administrative judge dismissed that

appeal for lack of jurisdiction. 0838 IAF, Tab 13, Initial Decision. After the

appellant filed a petition for review, the Board vacated the initial decision and

remanded for further adjudication. Turner v. U.S. Postal Service, MSPB Docket

No. AT-0353-14-0838-I-1, Remand Order (Sept. 28, 2015). On remand, the

administrative judge dismissed the case for failure to prosecute. Turner v. U.S.

Postal Service, MSPB Docket No. AT-0353-14-0838-B-1, Tab 16, Remand Initial

Decision.

During the adjudication of his 0838 appeal, the appellant filed another

appeal, pertaining to an alleged denial of restoration in December 2014.

Turner v. U.S. Postal Service, MSPB Docket No. AT-0752-15-0199-I-1

(0199 appeal), Initial Appeal File (0199 IAF), Tab 1. The administrative judge

similarly dismissed the 0199 appeal for failure to prosecute. 0199 IAF, Tab 32,

Initial Decision. After the appellant filed identical petitions for review of the

0838 appeal and 0199 appeal, the Board joined those appeals and affirmed the

administrative judge’s dismissals. Turner v. U.S. Postal Service, 123 M.S.P.R.

640 (2016), aff’d, 681 F. App’x 934 (Fed. Cir. 2017).

The appellant filed the instant restoration appeal in September 2016.

Turner v. U.S. Postal Service, MSPB Docket No. AT-0353-16-0826-I-1

(0826 appeal), Initial Appeal File (0826 IAF), Tab 1. He attached an

August 2016 letter from the agency, in which the agency requested he attend a

meeting and bring updated medical documentation reflecting his restrictions. Id.

at 7. The agency filed a motion to dismiss for lack of jurisdiction, with argument

and evidence that the appellant had not returned to work or attempted to return to

work since January 2015, when he last refused a limited-duty assignment.

0826 IAF, Tab 5 at 4-11. The agency also submitted a sworn declaration

indicating that the appellant did not attend the meeting scheduled in the

August 2016 letter. Id. at 14-15.

The administrative judge dismissed the 0826 appeal, without a hearing, for

lack of jurisdiction. 0826 IAF, Tab 10, Initial Decision (0826 ID). The appellant

has filed a petition for review. Turner v. U.S. Postal Service, MSPB Docket

No. AT-0353-16-0826-I-1, Petition for Review (0826 PFR) File, Tab 1.

The agency has filed a response, and the appellant has replied. 0826 PFR File,

Tabs 3-4. 2

To establish Board jurisdiction over a restoration claim as a partially

recovered employee, an appellant must make nonfrivolous allegations that: (1) he

was absent from his position due to a compensable injury; (2) he 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 him; (3) the agency denied his request for restoration; and (4) the

denial was arbitrary and capricious. Cronin v. U.S. Postal Service, 2022 MSPB

13, ¶ 12. The agency does not appear to dispute that the first two prongs of the

appellant’s jurisdictional burden are satisfied in the case before us. 0826 IAF,

Tab 5 at 10-11. Therefore, this decision will focus on the third and fourth prongs

of that burden.

In June 2014, the appellant underwent an independent medical evaluation

with an orthopedist. That physician concluded that, because of his compensable

injury, the appellant was permanently limited to working 6 hours per day;

bending and stooping 1 hour per day; and pushing, pulling, and lifting no more

than 25 pounds, for 1 hour per day. 0199 IAF, Tab 8 at 22; 0826 IAF, Tab 9

at 14-17. In November 2014, the Office of Workers’ Compensation Programs

(OWCP) notified the appellant that it was terminating his wage compensation for

refusing suitable work. 3 0826 IAF, Tab 5 at 82-84. In doing so, the OWCP

While the appellant’s petition for review was pending in this 0826 appeal, he filed

another appeal, alleging that the agency again denied him restoration. Turner v. U.S.

Postal Service, MSPB Docket No. AT-0353-17-0732-I-1 (0732 appeal), Initial Appeal

File (0732 IAF), Tab 1, Tab 9 at 8. The administrative judge presiding over the

0732 appeal also dismissed the case for lack of jurisdiction, without holding the

requested hearing. 0732 IAF, Tab 12, Initial Decision. The appellant filed a petition

for review in the 0732 appeal, which we will address in a separate order. Turner v. U.S.

Postal Service, MSPB Docket No. AT-0353-17-0732-I-1, Petition for Review File,

Tab 1.

The termination of OWCP benefits does not preclude an appellant from presenting a

valid restoration claim. See Artis v. U.S. Postal Service, 88 M.S.P.R. 309, ¶¶ 7, 9

(2001) (remanding for further adjudication to determine whether the appellant requested

concluded that an offer of modified assignment from July 2014 was consistent

with the aforementioned medical evaluation and recommended limitations. 4 Id.

Soon after the OWCP notified the appellant that it was terminating his

wage compensation for refusing suitable work, the appellant seems to have

accepted a modified assignment, at least for a brief period. 0826 IAF, Tab 5

at 81. However, that offer did not include the 25-pound weight restriction, and so

the appellant filed a grievance. Id.; Turner v. U.S. Postal Service, MSPB Docket

No. AT-0353-17-0732-I-1, Initial Appeal File (0732 IAF), Tab 9 at 15-19.

Ultimately, the grievance was resolved in the appellant’s favor, concluding that

the modified position offered on November 26, 2014, was improper because it did

not include the 25-pound lifting, pushing, and pulling limitations. 0732 IAF,

Tab 9 at 15-19.

In January 2015, the agency extended another offer of modified

assignment. 0826 IAF, Tab 6 at 19. The assignment required no more than

6 hours of work per day; bending and stooping 1 hour per day; and pushing,

pulling, and lifting no more than 25 pounds, for 1 hour per day. Id. That

January 2015 offer is consistent with the June 2014 medical evaluation, which the

OWCP relied on in rendering its earlier determination regarding the refusal of

suitable work. Compare 0826 IAF, Tab 6 at 19, with 0199 IAF, Tab 8 at 21; 0826

IAF, Tab 9 at 14-17. It also is consistent with the aforementioned grievance

decision. Compare 0826 IAF, Tab 6 at 19, with 0732 IAF, Tab 9 at 15-19.

Although the appellant declined the January 2015 offer, the agency explicitly

noted that the offer would remain available if he chose to return. 0826 IAF,

Tab 6 at 18.

restoration prior to her proposed removal for excessive absenteeism, including the

period after the termination of her OWCP benefits).

The OWCP notification described the suitable work as being offered on July 11, 2014.

0826 IAF, Tab 5 at 83. It appears that this is in reference to an offer of

modified assignment, which includes a signature from the appellant’s supervisor on

July 11, 2014, but reflects July 12, 2014, as the date offered. 0199 IAF, Tab 8 at 21.

In the 0826 appeal currently before us, the agency argued that the appellant

failed to nonfrivolously allege that he requested or was denied restoration.

0826 IAF, Tab 5 at 10-11. For the reasons described in the initial decision for the

0826 appeal, we agree. 0826 ID at 2-4. The appellant filed the 0826 appeal after

the agency sent him a letter in August 2016, requesting his attendance at a

meeting concerning restoration. 0826 IAF, Tab 1 at 7. However, the record

suggests that the agency’s January 2015 offer of modified assignment was still

available. The appellant does not appear to argue otherwise, and there is no basis

for construing the August 2016 letter as a denial of restoration.

On review, the appellant has presented no basis for disturbing the initial

decision in the 0826 appeal. However, the appellant’s petition contains two

letters to the agency, dated November 20 and 26, 2016, respectively. 0826 PFR

File, Tab 1 at 5-6. In those letters, which predate the initial decision by nearly

3 months but were not submitted below, the appellant asserted that he was ill the

day of his scheduled meeting with the agency, and he requested rescheduling to

consider any available work. Compare 0826 ID, with 0826 PFR File, Tab 1

at 5-6. The appellant argues that the agency failed to respond to his letters, and

that its failure places the 0826 appeal within the Board’s jurisdiction. 0826 PFR

File, Tab 1 at 4.

Although the November 2016 letters appear immaterial to the period

addressed in this 0826 appeal, they do warrant consideration as a subsequent

restoration claim. The agency has conceded as much in its response, without

explaining whether or why it failed to answer the appellant’s letters. 0826 PFR

File, Tab 3 at 5-6.

For these reasons, we affirm the initial decision, dismissing this

0826 appeal for lack of jurisdiction. We forward the appellant’s November 2016

letters to the regional office for docketing as a separate restoration appeal.

The administrative judge assigned to this newly docketed restoration appeal

should provide the appellant with an opportunity to establish timeliness 5 and

jurisdiction, specific to the period surrounding his November 2016 letters to the

agency. 6

NOTICE OF APPEAL RIGHTS 7

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 rights, 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 to review your case, you

should contact that forum for more information.

The appellant’s belated submission of the November 2016 letters, in February 2017,

along with his extensive history of filing restoration appeals, calls into question whether

he was diligent in raising this matter. See Sanchez v. U.S. Postal Service, 114 M.S.P.R.

345, ¶¶ 22-24 (2010) (discussing the appellant’s timeliness burden in a restoration case

when it was not apparent the agency notified her of her appeal rights); 5 C.F.R. §

353.104 (requiring an agency denying restoration to provide notice of appeal rights, but

further requiring an employee to “exercise due diligence in ascertaining” those rights

regardless of such notice).

The regional office may wish to join this appeal with the appellant’s 0732 appeal,

which we are remanding in a separate order.

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.

(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

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. 420 (2017). If you have a representative in this case,

and your representative receives this decision before 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

(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. 8 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

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.