Opinion

Claudia Marsh v. United States Postal Service

Court: Merit Systems Protection Board
Filed: Apr 16, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.8%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

CLAUDIA L. MARSH, DOCKET NUMBER

Appellant, SF-0353-21-0393-I-1

UNITED STATES POSTAL SERVICE, DATE: April 16, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Guillermo Mojarro , Corpus Christi, Texas, for the appellant.

Michael R. Tita , Esquire, St. Louis, Missouri, 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 her 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

BACKGROUND

The appellant is employed by the agency as a Clerk at the Hemet Post

Office in Hemet, California. Initial Appeal File (IAF), Tab 1 at 1. She suffered

injuries to her right shoulder on December 21, 2007, and September 12, 2012, for

which the Office of Workers’ Compensation Programs (OWCP) accepted her

claims. Id. at 8. In September 2014, the appellant’s treating physician indicated

that she could return to work with permanent and stationary restrictions of “[n]o

repetitive overhead reaching/lifting and [n]o lifting [greater than] 10lbs.” IAF,

Tab 5 at 7. In January 2016, the appellant accepted an offer of modified

assignment (OMA) as a Sales and Service Associate (SSA). Id. at 5-6. The SSA

position incorporated her permanent restrictions and included the following

duties: “Passport/Window/ECC; Nixies Room/ [illegible] Left Shelves/Returns;

2nd Notice and General Delivery; and Acct Cart/Clear Carriers/Throw Parcels

within Restrictions.” Id. The appellant worked as an SSA until May 14, 2021,

when she was assigned to work as a retail clerk at the front window. IAF, Tab 1

at 6, Tab 6 at 4-6, 13. She worked as a retail clerk until May 19, 2021, when she

submitted a request for leave under the Family and Medical Leave Act (FMLA) 2

In support of the request for FMLA leave, the appellant’s physician certified that she

is unable to perform her job functions citing “inability to concentrate, easily distracted,

and has remained off work since May 20, 2021. IAF, Tab 7 at 5, 12-15. The

appellant thereafter filed the instant restoration appeal and requested a hearing.

IAF, Tab 1.

In her initial appeal, the appellant argued that her 2016 OMA was a

restoration denial because the agency should have provided her with a

rehabilitation position rather than allowing her to accept the OMA. IAF, Tab 1

at 6, Tab 6 at 4-6. The appellant also argued that her subsequent May 14, 2021

“retail clerk” assignment was improper because it violated her medical

restrictions and that she was not provided advance notice of the assignment or

appeal rights. IAF, Tab 6 at 4-6, 13.

The administrative judge issued an order apprising the appellant of her

burden of proving jurisdiction over a restoration appeal and instructed her to file

evidence and argument on the issue. IAF, Tab 2 at 2-8. The appellant responded

to the show cause order. IAF, Tabs 4, 6. The agency filed a motion to dismiss

for lack of jurisdiction. IAF, Tab 7. Without holding the appellant’s requested

hearing, the administrative judge dismissed the appeal for lack of jurisdiction,

finding that she failed to make a nonfrivolous allegation that the agency denied

her request for restoration following a compensable injury. IAF, Tab 11, Initial

Decision (ID) at 1, 11. Specifically, he concluded that the agency had provided

the appellant with a modified assignment with restrictions and that she failed to

set forth sufficient evidence and argument that the agency’s restoration was so

unreasonable as to amount to a denial of restoration within the Board’s

jurisdiction. ID at 10. Thus, the administrative judge found that she failed to

make a nonfrivolous allegation that the agency denied her restoration or that the

agency’s actions were arbitrary and capricious. ID at 10-11.

The appellant has filed a petition for review. Petition for Review (PFR)

File, Tab 2. The agency has filed a response, PFR File, Tab 8, to which the

and tearful.” Id. at 13.

appellant has responded, PFR File, Tab 9. The appellant also filed a motion for

leave to submit additional evidence. PFR File, Tab 6.

DISCUSSION OF ARGUMENTS ON REVIEW

The appellant’s motion for leave to file additional evidence is denied.

In the appellant’s motion, she is seeking leave to submit “[an] OWCP

approval letter, a declaration created by [her] on February 5, 2022 related to her

OWCP case . . . [,] and a pleading which she has submitted to the Board in a

different appeal.” PFR File, Tab 6 at 3. According to the appellant, the instant

appeal relates to her 2007 and 2012 OWCP claims for shoulder injuries. IAF,

Tab 1 at 6, 8, Tab 6 at 12-13. She specifies in her motion that the OWCP

approval letter and the declaration she wishes to submit is related to a foot injury

that occurred on May 22, 2021. 3 Id. Although the availability of the evidence

she seeks to submit may postdate the close of the record and therefore may be

considered new, the appellant has failed to explain how this evidence is related or

material to the 2007 and 2012 OWCP claims at issue here. See Avansino v. U.S.

Postal Service, 3 M.S.P.R. 211, 214 (1980); see also Russo v. Veterans

Administration, 3 M.S.P.R. 345, 349 (1980). She also failed to explain how this

evidence would warrant an outcome different from that of the initial decision.

See Russo, 3 M.S.P.R. 345, 349. Accordingly, the appellant’s motion for leave to

submit additional evidence is denied.

The appellant has failed to nonfrivolously allege the Board’s jurisdiction over her

restoration claim.

The Federal Employees’ Compensation Act and the implementing

regulations of the Office of Personnel Management (OPM) at 5 C.F.R. part 353

The appellant has another appeal pending before the Board challenging the agency’s

alleged failure to restore her following the May 22, 2021 injury. Marsh v. U.S. Postal

Service, MSPB Docket No. SF-0353-22-0200-I-1, Appeal File (0200 AF), Tab 2. The

evidence that she wishes to submit is part of the record in that appeal. 0200 AF, Tab 7

at 16-19, 38-39. On July 21, 2022, the administrative judge issued an initial decision

dismissing that appeal for lack of jurisdiction. 0200 AF, Tab 19. The appellant has filed

a petition for review of that decision.

provide, amongst other things, employees who suffer compensable injuries enjoy

certain rights to be restored to their previous or comparable positions. Kingsley

v. U.S. Postal Service, 123 M.S.P.R. 365, ¶ 9 (2016); see 5 U.S.C. § 8151(b).

Under OPM’s regulations, such employees have different substantive rights based

on 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; 5 C.F.R. § 353.301. Partially recovered employees 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. OPM’s regulations require that agencies “make every effort to restore

in the local commuting area, according to the circumstances in each case, an

individual who has partially recovered from a compensable injury and who is able

to return to limited duty.” Kingsley, 123 M.S.P.R. 365, ¶ 10; 5 C.F.R.

§ 353.301(d). The Board has jurisdiction to review whether an agency’s denial of

restoration to a partially recovered employee was arbitrary and capricious.

Kingsley, 123 M.S.P.R. 365, ¶ 10; 5 C.F.R. § 353.304(c).

To establish Board jurisdiction over a restoration claim as a partially

recovered employee, the appellant must make nonfrivolous allegations that:

(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.” Hamilton v. U.S. Postal Service,

123 M.S.P.R. 404, ¶ 12 (2016); 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 by a preponderance of the evidence. Kingsley,

123 M.S.P.R. 365, ¶¶ 11-12; 5 C.F.R. § 1201.57(c)(4). As the administrative

judge correctly found, it is undisputed that the appellant satisfies the first two

criteria. 4 ID at 7.

On review, the appellant challenges the administrative judge’s

determination that the Board lacks jurisdiction over her appeal. PFR File, Tab 2

at 5-6. Specifically, she argues that the agency violated her restoration rights by

“not properly reinstat[ing] [her] into a position within her medical restrictions.”

Id. at 5. We are not persuaded. A partially recovered employee may not appeal

the details or circumstances of her restoration; she may appeal to the Board only

for a determination of whether the agency acted arbitrarily and capriciously in

denying restoration. Kingsley, 123 M.S.P.R. 365, ¶ 13. Nevertheless, under

certain circumstances, a restoration may be deemed so unreasonable as to amount

to a denial of restoration within the Board’s jurisdiction. For example, a claim

that restoration effectively was denied may involve allegations that a partially

recovered appellant is incapable of performing the job duties of the position to

which she was restored. Id.

Here, the appellant accepted a modified assignment as an SSA in 2016.

IAF, Tab 1 at 6, Tab 5 at 5-6, Tab 6 at 13. The administrative judge found that

the appellant offered no evidence or argument to establish that this job offer was

not in compliance with her physical limitations. ID at 9-10. The appellant also

conceded below that in the SSA position “[she] had been working safely, on a

desk in an office for about the last five years, and, were [sic] [she] could perform

her assigned duties within her medical restriction.” IAF, Tab 4 at 4. Thus, we

agree with the administrative judge’s finding that the appellant failed to

nonfrivolously allege that the offer was so unreasonable as to amount to a denial

of restoration within the Board’s jurisdiction. ID at 8.

The administrative judge found that the appellant suffered compensable injuries in

2007 and 2012. ID at 7. He further found it undisputed that “the appellant recovered

sufficiently to return to duty . . . and accepted the 2016 [SSA position] with restrictions

effective January 30, 2016, and continued to perform the [SSA] duties from a desk until

May 14, 2021.” ID at 7; IAF, Tab 5 at 5-6, Tab 6 at 13, 25, Tab 7 at 4-5.

The appellant also appears to allege on review that the agency has not

allowed her to return to work after improperly reassigning her to a retail clerk

position in May 2021. PFR File, Tab 2 at 5-6. The Board has found that an

agency’s rescission of a previously provided restoration or the discontinuation of

a limited duty position may constitute an appealable denial of restoration. See

Sanchez v. U.S. Postal Service, 114 M.S.P.R. 345, ¶ 11 (2010). The

administrative judge found unavailing the appellant’s argument that performing

her tasks at the window, rather than at a desk inside an office, constituted a denial

of restoration. ID at 9. He also found little evidence that her absence that started

in May 2021 was related to an OWCP compensable injury. ID at 10. We agree.

A compensable injury is defined as one that is accepted by OWCP as

job-related and for which medical or monetary benefits are payable from the

Employees’ Compensation Fund. Frye v. U.S. Postal Service, 102 M.S.P.R. 695,

¶ 9 (2006). The determination of whether an individual suffers from a

compensable medical condition is within the exclusive purview of OWCP.

Simonton v. U.S. Postal Service, 85 M.S.P.R. 189, ¶ 11 (2000). The record below

is devoid of evidence that the appellant’s absence beginning in May 2021 was

related to her right shoulder injuries. IAF, Tab 6. Instead, the record reflects that

she submitted an FMLA request to the agency with supporting documentation

from her medical providers detailing mental and physical restrictions which

appear to be unrelated to her compensable injuries. IAF, Tab 6 at 24, 26-31,

Tab 7 at 11-15. As the agency argued below, the medical evidence supports a

finding that the appellant’s absence is related to her FMLA request. IAF, Tab 6

at 24, 26-31, Tab 7 at 5, 11-15.

Lastly, the appellant asserts that the administrative judge erred in denying

her motion to compel discovery responses because “[he] was mistaken as the

[a]gency’s response to the propounded discovery was due by July 27, 2021 and

not by not [sic] July 21, 2021.” PFR File, Tab 2 at 5-6. However, she fails to

identify any specific items that she was unable to obtain in discovery or how

those items would have enabled her to meet her jurisdictional burden of proof.

Id.; see 5 C.F.R. § 1201.72(a). The Board will not find reversible error in an

administrative judge’s discovery rulings absent an abuse of discretion that

prejudiced the appellant’s substantive rights. Jones v. Department of Health and

Human Services, 119 M.S.P.R. 355, ¶ 18, aff’d per curiam, 544 F. App’x 976

(Fed. Cir, 2013). Consequently, the appellant has failed to establish that the

administrative judge abused his discretion in denying her discovery motion.

Accordingly, we find that the administrative judge correctly found that the

appellant was not entitled to a hearing and properly dismissed the appeal for lack

of jurisdiction.

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 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.

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. 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

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.