James Latham, et al. v. U. S. Postal Service, 2012 MSPB 20 (02/24/12)

By: Attorneys Steven E. Brown and Daniel M. Goodkin

910 Hampshire Road, Suite G, Westlake Village, CA 91361

www.federal-law.com

Under the Federal Employees Compensation Act, Federal employees who are injured on the job but who recover to the point where they can resume part time or light duty are entitled to be restored to duty. 5 U.S.C. §8151. OPM’s regulations require agencies to “[M]ake 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. At a minimum, this would mean treating these employees substantially the same as other handicapped individuals under the Rehabilitation Act of 1973, as amended.” 5 C.F.R. §353.301(d). If such an employee requests restoration and it is denied, or if the employee is returned to work in a modified capacity and then has that work taken away, that employee may appeal the denial or discontinuation of work to the MSPB if they can prove 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 or discontinued the modified assignment; (4) the denial was arbitrary and capricious. Bledsoe v. MSPB, 659 F.3d 1097, 1104 (Fed. Cir. 2011).

The Latham case focused on the last requirement for jurisdiction – that is, whether an Agency’s violation of its own internal guidelines about providing modified duty to such an employee constitutes arbitrary and capricious action, where that Agency’s internal rules require more than the minimum stated in the OPM regulation. OPM’s regulation had previously been interpreted as only requiring an agency to conduct a search to see if a vacant, funded position existed for the partially recovered employee; once that search was completed, if no vacant and funded positions were identified, the agency could then deny restoration. The Postal Service ELM goes further than OPM’s general requirement as interpreted above, by requiring that it offer modified assignments when work is available, regardless of whether the offered duties constitute an established (vacant and funded) position ELM §546.222; EL-505 §11.7.

In the Latham decision, the Board clarified the law with this ruling: “[W]e find that, under the ELM and the EL-505, the agency may discontinue a modified assignment consisting of tasks within an employee’s medical restrictions only where the duties of that assignment no longer need to be performed by anyone or those duties need to be transferred to other employees in order to provide them with sufficient work.” (Latham, ¶31). In Latham, the Board ruled that if the Postal Service violates the section of its ELM that relates to modified duty, this can be considered “arbitrary and capricious” in a particular case, given appropriate facts, such that MSPB has jurisdiction over the dispute and may award remedies for violation of an injured employee’s job restoration rights, including back pay and reasonable attorney fees.

Latham’s case

The Board found that this appellant established that the modified duties he was performing before they were withdrawn under NRP had not “gone away.” The record showed that the duties that the Postal Service took away from Mr. Latham were performed by other employees. Therefore, the Postal Service had not taken away Mr. Latham’s modified duty position because the work he was performing was not necessary; rather, it simply assigned those duties to other employees. The Board also noted that there was no evidence that the employees to whom Mr. Latham’s work was assigned otherwise lacked sufficient work. The Board also deemed it as immaterial that the work duties Mr. Latham was performing did not constitute “essential functions” of an established position. Therefore, it determined that the Postal Service’s revocation of Mr. Latham’s modified duty was arbitrary and capricious. The Board ordered Mr. Latham retroactively restored to his former modified assignment with back pay.

Turner’s case

The Board’s findings in Ms. Turner’s case were identical to those involving Mr. Latham. It found that the work duties performed by Ms. Turner had been given to other employees and that there was no showing that those employees to whom her work had been reassigned lacked sufficient work beforehand. The revocation of her light duty position was found to be arbitrary and capricious, and thus a violation of her restoration rights. The Board ordered Ms. Turner retroactively restored to her former modified assignment with back pay.

Reaves’ case

The facts of this case appear to be similar to those in Latham and Turner; however, Ms. Reaves did not offer any evidence that the work she was doing in her modified assignment had been assumed by other employees or had otherwise “not gone away.” Therefore, the Board determined that Reaves had not proved that the revocation of her light duty position was arbitrary and capricious

Lundy’s case

In this case, Ms. Lundy identified particular tasks within her medical restrictions that she alleged were available to perform. As with the previous cases, the Board found that the Postal Service was obligated to provide her with work in the form of a modified duty assignment as long as it was available and within her medical restrictions, regardless of whether it comprised the essential functions of any established position. Therefore, the Board determined that she had at least made a non-frivolous allegation that her restoration rights had been violated, and was entitled to a jurisdictional hearing at which she would have to prove that such work was indeed available for her. Her case was remanded for a jurisdictional hearing.

Albright’s case

The Board found that Ms. Albright had submitted sufficient factual information showing that her work duties continued to be done by other employees and had “not gone away.” Her case was also remanded for a jurisdictional hearing.

What this all means

The Board has now established that – specifically in Postal Service cases – the employer may not eliminate a modified duty position for a partially recovered employee with a compensable injury where the employee can show that the work done in the modified position has not “gone away”, as shown by the facts. The Board found that since the Postal Service’s ELM requires it to offer modified assignments to such employees when work is available regardless of whether the duties constitute an established position, the Postal Service’s failure to do so constitutes an arbitrary and capricious denial of restoration rights triggering a right of review by the Board.

So if the Postal Service takes away a modified duty position from an employee who has partially recovered from a compensable injury (under FECA), and the employee can show that (1) the tasks he was performing are still being performed by other employees, (2) those other employees did not lack sufficient work prior to absorbing the injured employee’s duties, and (3) the reassignment of that work does not violate any other law, rule or regulation – then denial or withdrawal of that modified duty will constitute a denial of restoration rights (Latham, ¶33). This can be shown in a number of ways, such as: (1) another employee was hired or assigned to perform the injured employee’s former duties; (2) other employees who are being paid overtime are now performing those duties; (3) supervisors now perform both those duties and their previous duties, which had kept them busy all day. The Board’s decision as to whether withdrawal of the injured employee’s modified duty position was arbitrary and capricious will depend of the facts in each case. To the extent that NRP is still a reality at the Postal Service – or any other similar USPS program might be – it may run afoul of this newly-clarified legal right.

With regard to cases involving employees of federal Agencies – i.e. not the Postal Service – this decision means that those employees also have the same right to pursue appeals to the Board for improper withdrawal of their modified-duty jobs in similar fact situations. This will depend on whether those agencies have violated internal policies that state the employer must do more than the minimum required by the OPM regulation – such as to make every effort to place or accommodate the employee in a “position” (whether a vacant funded one or not) following partial recovery from an industrial injury.

J.N. and DHS

Work Comp Central article re FECA 07-14-11

Following hearings in April and May 2011 held by two different Committees in the House of Representatives, staffers for one of the committees is reportedly working on a piece of legislation to be proposed after the July 4th holiday that would reform the system of workers’ compensation for federal employees (known ass “FECA”).

Earlier this year, OWCP unveiled its “FIERA” [Federal Injured Employees' Reemployment Act] proposal, which would effect many changes in the law including an overall decrease in workers’ compensation benefits. OWCP’s proposal, however, met with opposition from federal unions and some members of Congress at the hearings. At this point, there is an effort to create a bipartisan reform bill that reportedly will differ from OWCP’s proposal.

QUICK SUMMARY OF OWCP’S FIERA PROPOSAL PACKAGE

Vocational rehabilitation – can start six months after an injury, even if the employee is not yet considered permanently disabled. Increases maintenance allowance paid to workers in rehab by 50%. Allows OWCP to reimburse employers who hire a previously injured federal worker for up to three years, and allows OWCP to reimburse federal agencies that reemploy injured workers after they suffer a recurrence of disability.

Total disability rates for new injuries payable at 70% of wages for all employees instead of at the current 66-2/3% or 75% of wages (for employees with dependents).

Total disability rates, for new injuries or periods of disability, reduced from 75% or 66-2/3% of wages to 50% of wages after the employee reaches Social Security retirement age and has been receiving benefits for at least a year.

Schedule award benefits payable at 70% of wages for all employees instead of at 66-2/3% or 75% of wages. All awards to be calculated on the pay rate of a GS-11 step 3 employee regardless of the injured employee’s actual wages. Awards to be paid in a lump sum, and also may be paid while employee is receiving wage-loss benefits.

Schedule awards for disfigurement increased from maximum of $3,500.00 to maximum of $50,000.00, for new injuries, with this maximum adjusted yearly for cost-of-living increases.
Requires all disabled claimants receiving benefits for total or partial disability to report earnings, but eliminates this requirement, and the requirement to participate in vocational rehabilitation, after employee’s benefits are reduced due to reaching Social Security retirement age.

Death benefits payable at a maximum of 70% of deceased employee’s wages for all dependents, reduced from current 75% maximum. Adds domestic partners as eligible survivors.

Continuation of Pay [COP] to be recouped by OWCP from third party settlements and credited to federal employing agency that paid it – currently COP cannot be recouped. 45-day period of COP increased to 135 days for employees injured in a zone of armed conflict, and COP for those employees is available for both traumatic and occupational disease claims.

Burial expense reimbursement maximum increased from $800.00 to $6,000.00 for new death claims.

Adds physicians’ assistants and nurse practitioners to the list of recognized medical providers.

Requires employees who have retired to permanently elect to receive either OWCP benefits or retirement (CSRS or FERS) benefits within a reasonable time after retiring.

Imposes a new sanction (suspension of benefits) against employees who fail to cooperate with OWCP field nurses.

Allows new automatic matching of FECA recipients to those receiving earnings per Social Security records to eliminate improper payments.

Allows reimbursement of claims administration expenses to be paid from the Employees’ Compensation Fund and requires federal agencies to pay their fair share of these costs back to OWCP.

MAIN CRITICISMS THAT HAVE BEEN VOICED ABOUT OWCP’S FIERA PROPOSALS

Total disability benefits should not be reduced from 75% to 70% for employees with dependents, as those employees have higher living expenses.

Schedule award benefits should not be calculated on the pay rate of a GS-11 step 3 employee, as that would drastically reduce awards for higher-paid employees.

Death benefits should not be reduced from current maximum of 75% of deceased employee’s wages for all dependents to a maximum of 70%, since some deceased employees have several dependents and the number of such claims is relatively small.

Employees who have retired should not be required to permanently elect to receive either OWCP benefits or retirement (CSRS or FERS) benefits, since some of them retired early on disability retirement while their OWCP claim was not yet even decided, and they should not lose the much higher OWCP benefit if and when it is granted.

CURRENT STATUS

Our office will continue to monitor any legislative proposals that are being discussed, and will be voicing our comments on how such changes might affect injured workers.

© 2011 by Steven E. Brown, A Professional Law Corporation – all rights reserved.

• EEO Complaint

If you have been subject to the NRP since May 5, 2006 and were or are a permanent rehab or limited duty employee of the Postal Service, then you are likely already considered part of the McConnell class action law suit filed against the Postal Service because of the NRP. The Office of Federal Operations (OFO) defined the class as “all permanent rehabilitation employees and limited duty employees at the agency who have been subjected to the NRP from May 5, 2006, to the present, allegedly in violation of the Rehabilitation Act of 1973.”

For details of the McConnell class action, visit the website established by the attorneys representing the class, Thomas & Solomon LLP, at the following website http://www.nrpclassaction.com/.

We recommend that employees subject to the NRP still file an individual EEO complaint upon receipt of your NRP letter as many employees have issues that fall outside of the class action complaint, or they might not be members of the class. There is some question about whether the OFO’s definition of the class as including employees from “May 5, 2006, to the present..” means that employees subject to the NRP after the date of the OFO order (July 14, 2010) are automatically included in the class. Logically, they should be, but it is not clear. Worst case, the Administrative Judge handling your individual complaint will determine that you fall under the class action.

• Retirement

Retirement does not preclude participating in the McConnell class nor does it preclude any of the other options that will be discussed below.

Immediate “Regular” Retirement

An employee with the requisite age and years of service may simply opt to begin receiving his or her retirement. Please visit the Office of Personnel Management website for further details about the Federal Employees Retirement System (FERS) (http://www.opm.gov/retire/pre/fers/eligibility.asp) and the Civil Service Retirement System (CSRS) (http://www.opm.gov/retire/pre/csrs/eligibility.asp) age and years eligibility information.  Check with your HR department if you are unclear as to how many years of service you need based on your age.

Disability Retirement

If you do not meet the age and years requirements for immediate retirement under FERS or CSRS, you may still be eligible to begin receiving your retirement pension if your injury prevents you from rendering useful and efficient service in your position of record. Temporary or light duty positions that are composed of duties of various different positions within the Postal Service are typically not considered an employee’s position of record. Even if an employee has been working in a light duty position for years (even decades), his or her position of record is usually the position he or she was working when the injury that necessitated the light/modified duty occurred.  For example, if a letter carrier suffers a knee injury and can no longer deliver mail because of a medical condition, that letter carrier is likely to be eligible to retire on disability regardless of whether he or she has been working light or modified duty.  Further details about the type of evidence required to receive disability retirement, please review this article http://www.federal-law.com/medical-evidence-for-disability-retirement

• FECA claims

 Existing FECA claim

A detailed discussion of the rights of a worker who has an accepted FECA claim is contained http://www.federal-law.com/national-reassessment-process-at-the-postal-service. Briefly, an employee with an accepted FECA claim who is working light or modified duty because of the employee’s accepted industrial condition will be entitled to wage loss compensation if OWCP has not yet made a Loss of Wage Earning Capacity (LWEC) determination for that employee.

An LWEC determination establishes the amount of wages that an employee has lost based because of the employee’s work related injury. OWCP typically establishes LWEC by comparing the amount of money that an employee made pre-injury with what the employee is currently earning in the employee’s present position. Often, the Postal Service will continue paying an employee working light or modified duty at the same rate the employee was receiving on the date of injury, in which case the LWEC will be zero. The Employee Compensation Appeals Board (ECAB) has determined that in such a case, the termination of the light or modified duty position does not constitute a recurrence and therefore does not entitle the employee to begin receiving wage los compensation if the employee has an LWEC in place. (see K.R., ECAB Docket No 09-415 Feb 4, 2010) http://www.dol.gov/ecab/decisions/2010/Feb/09-0415.htm

However, there are several reasons why an LWEC determination can be overturned. One is if the employee’s medical condition has worsened. This can be shown through objective medical evidence showing a material worsening of the medical condition and corresponding decrease in the employees’ functioning, and/or if the LWEC was made on the basis of “makeshift” or “odd-lot” positions. For more details regarding what constitutes a makeshift or odd-lot position, please see the ECAB’s decision in A.J., ECAB Docket No. 10-619 June 29, 2010 (http://www.dol.gov/ecab/decisions/2010/Jun/10-0619P.htm). LWECs based on such positions are invalid. Please note that an employee can argue that the employee’s LWEC was made in error or that the employee’s medical condition has gotten worse even if the LWEC was established many years ago.  

New FECA claim

Some injured workers subject to the NRP have never filed FECA claims. The reasoning we have heard is that they were given light duty and did not want to jeopardize employment by filing a FECA claim. The general rule is that a claim must be filed within 3 years of the injury or within 3 years of the date of last exposure to the injurious condition or within 3 years of when the employee knew or should have known that the employee had a work related injury. This last issue often arises in cases of asbestosis where the condition is sometimes not discovered for decades after the last exposure.

An exception to the general rule is a situation in which the employee has disclosed the injury to his or her supervisor and has indicated that he or she feels that the injury is work related. If the injury and belief that the injury is work-related was disclosed to the employer within the 3 year period, a claim may be filed with OWCP even if the 3 year period has now passed. For example, we had an employee, a federal law enforcement officer, who had a heart attack in the late 1980s. His supervisor came and visited him at the hospital and our client told him he felt it was related to a high speed chase he was involved in earlier in the day. He recovered from the injury and went back to work. He did not file a claim at that time. Nearly 20 years later, he was still having issues with his heart and contacted our office. He obtained a statement from his supervisor at the time indicating that he was aware of the condition and that our client had stated he felt it was work related. We filed a new claim and it was accepted. So, it is not necessarily too late to file a new claim even if the 3 years have passed.

• MSPB Restoration claim

 A detailed discussion of the merits of filing a restoration claim are discussed in detail in this article NRP – MSPB litigation regarding restoration rights for USPS workers (http://www.federal-law.com/nrp-%E2%80%93-mspb-litigation-regarding-restoration-rights-for-usps-workers). Summarized briefly, an MSPB appeal of a Postal Service action sending home an industrially injured worker under NRP may serve as the basis of a successful case on the following grounds:

1. The agency must show that it did a search for a vacant, funded position that the appellant could perform, not just at his duty station, but within his general commuting area as well. Otherwise, the regulation’s requirements have not been met and the case should be set for hearing (see Irma Urena, Docket No. SF-0353-09-0650-I-1, December 14, 2009).

2. If the employee can show that there were vacant, funded positions that were available that he could do at the time he was removed, an MSPB Judge may find a violation of restoration rights.

However, cases that have been successful on the first ground do not necessarily lead to the employee being returned to a position within the USPS. The USPS just has to do a wider search after the case has been remanded. There is no guarantee that a wider search will find a position for the injured worker. So, although an employee may win at MSPB, it may ultimately turn out to be a hollow victory.

Summary

As you can see, there are many options available to injured workers targeted by the NRP. None of the options listed above is mutually exclusive. That is, one can file a FECA claim, disability retirement claim, EEOC claim and restoration claim at the same time. Please contact our office if you have questions about or require assistance with any of the above options. We will be happy to arrange for a consultation where we can review your specific situation and discuss which options are the best for you.

NELA conference powerpoint 2010w

Addtnl & Alt Remedies for Disabled EEO Compainants & MSPB Appellants

The more complicated question is what happens to your wage loss benefits. Most people are surprised to know that wage loss benefits are not automatically forfeit by a termination for cause or resignation.

The key factor in determining whether you will continue to receive or start to receive wage loss after resignation/termination is *why* you are no longer earning wages. If you can show, through competent medical evidence, that you were not capable of earning wages regardless of whether you had resigned or been terminated, you will retain your right to benefits.

What benefits you receive, if any, will depend on a variety of factors including whether you are working at the time of your resignation/termination, what type of employment you held at the time of termination (full time/part time/ modified duty), whether OWCP has established your loss of wage earning capacity, whether there is light duty available to you, whether the position you are working in has been found suitable by OWCP, etc..

Before making any decision with regard to whether to resign or whether to fight a proposed termination make sure to consult with an attorney knowledgeable in matters relating specifically to federal employees.

TERMINATIONS OR REDUCTION IN HOURS

• What if you have been away from work for a year and your agency terminates you for medical unavailability?

This is a very common scenario. A client will get a letter from the employing agency proposing to terminate him/her for being medically unavailable. The typical first reaction is panic that such removal will negatively impact receipt of OWCP benefits. Relax – it will not. In fact, a removal for medical reasons, assuming your medical condition is related to your work injury, is solid proof that you have lost wages due to your injury. It also shows that the agency does not have light duty available for you.

You should also be sure to look into applying for FERS or CSRS disability retirement as a removal for medical reasons will typically entitle you to a presumption of disability under FERS and CSRS.

• What if you are currently disabled and your agency removes you for cause?

If you are on leave without pay and collecting workers compensation due to a work-related medical condition that renders you disabled, and your agency decides to terminate you for cause (such as poor performance, insubordination, failure to provide medical updates, failure to follow leave procedures, etc.), you will continue to be entitled to wage-loss. The reason is that your medical condition is causing you to be unable to work, regardless of whether or not your employer held a position for you. An injured worker does not need to be employed by the federal government to be eligible for wage-loss. Again, the focus is on why you are not working. If you are not working solely because you were terminated for cause, you do not get wage loss. If you are not working because you are physically or psychologically unable to work due to a work-related injury, you can get wage loss. There are provisions that prohibit employees convicted of certain crimes, such as fraud, from receiving wage loss. So, if you have been terminated because you were found guilty of a crime you may not be eligible for wage loss benefits.

• What if you are working part time and receiving wage loss for the rest of the day that you are not working?

The Employees Compensation Appeals Board addressed this specifically in Janice J. Green, Docket No. 96-874 ECAB (1998). In that case, the claimant was removed for cause while she was working 4 hours per day and collecting 4 hours of OWCP wage-loss compensation. When she was terminated for cause, OWCP cut off all of her wage-loss benefits. She appealed. The ECAB overturned OWCP’s decision and determined that the claimant continued to be entitled to the 4 hours per day of wage-loss compensation, because she was unable to work for those four hours regardless of whether she had been removed or not.

RESIGNATIONS

• What if you resign employment?

It is rarely advisable to simply resign from federal employment. There are a variety of reasons for this including the impact it may have on your disability retirement, EEO and MSPB rights. Further, resigning places your health insurance in jeopardy as unless OWCP or OPM begin paying you, your group policy will expire. Every situation is different and you should always consult with an attorney that is knowledgeable about federal employment law before resigning your employment.

That said, with regard to your OWCP wage loss benefits, if you can prove through competent medical evidence that you were totally disabled prior to your resignation, or that you requested light duty and your agency notified you that none was available within your restrictions, you may continue to be entitled to wage-loss benefits even if you resign. At minimum, you should make sure that your SF-50 says that you are resigning for medical reasons.

• What if you were off of work on total disability, return to work in some capacity and then resign?

In this situation, unless you can show your level of disability increased since you returned, or your job duties changed in a significant way, OWCP may determine that you have abandoned suitable employment and invoke a penalty provision of the FECA which means you forfeit your entitlement to wage loss and a schedule award permanently. Obviously, you want to avoid that.

A better approach, in most cases, is to get a good medical report from your physician explaining why you cannot continue working at your current job duties. You then stop going into work and submit the medical report explaining why you cannot work that job at your agency. That gives the agency the opportunity to further modify your position to allow you to continue working, or tell you that no further accommodation is possible. In either case, you will not be stuck without an income as a result of resigning from what OWCP considers to be suitable employment.

• What if you are working full time, full duty and resign?

If you resign for reasons other than that competent medical evidence shows you are totally disabled from all work, then your wage-loss benefits will likely be terminated. The reason is that you were fully employed and capable of earning wages at the time of your resignation. Therefore, the reason you are not earning wages is because of your resignation and not because of your medical condition. OWCP only pays wage loss for inability to work – not for unwillingness to continue working.

• What if you are disabled from your position but not disabled from all work?

Many doctors will state your level of disability only as it relates to your full duty position. It may be clear to your doctor that you will never be able to return to working your regular job. It is important to understand that OWCP does not consider you totally disabled unless you are either unable to work at all in any capacity or you are unable to do your regular job and your agency has no light duty available. Therefore, if you are unable to work at your regular job you must still give your agency the opportunity to provide you with light duty. If you resign without providing your agency with that opportunity, OWCP may delay or refuse to pay you wage loss until your agency confirms that there was no light duty available.

If you apply for disability retirement, one of the questions your agency is asked is whether you can be accommodated. If they answer no, this may be enough to show that no light duty was available. However, because of different ways the term “accommodated” is interpreted by OWCP, OPM and EEOC, we still recommend that you ask separately, in writing, whether there is any light duty available for you before making any decision regarding your employment status.

Do not put yourself in the position where you have resigned and your agency notifies OWCP that is has light duty. Your agency does not have an obligation to take you back just because OWCP will not pay your wage loss.

CONCLUSION

As you can see from the examples above, getting terminated or resigning can have a major effect on your receipt of wage loss compensation from OWCP. Make sure to discuss your situation with someone who is experienced in handling OWCP cases before making any decisions. A misstep could very well cost you your entitlement to wage loss compensation and/or a schedule award.

——-
The above article was prepared by Daniel M. Goodkin, an associate attorney at the firm of Steven E. Brown, A Professional Law Corporation, Westlake Village, CA. Mr. Brown and his firm’s attorneys have more than 40 years of collective experience representing federal employees, with emphasis on wrongful termination, workers’ compensation, retirement issues and discrimination complaints. Mr. Brown has lectured before various groups on these and related topics for the past several years. The firm’s website, www.federal-law.com, contains materials developed for some of these talks, as well as other educational materials developed by attorney Brown as an aid to his clients and members of the public. The firm is located at 910 Hampshire Road, Suite G, Westlake Village, CA 91361, and can be reached at 805-496-9777 (voice), 805-496-6368 (fax), or sbrownesq@federal-law.com.

A union official recently asked us about whether a non-preference eligible, non-managerial U. S. Postal Service employee can file an MSPB appeal to challenge the Postal Service’s actions such as sending an employee home with no hours under NRP. The following is an excerpt from a lengthier response provided to that official.

In Brehmer v. USPS, 106 MSPR 463 (2007) the MSPB ruled “We find that the rescission of restoration rights that were previously granted may constitute a denial of restoration within the meaning of 5 C.F.R. §353.304(c).” In other words, if a Postal employee is working limited duty because of an accepted industrial injury, and the Postal Service sends him or her home on the grounds that it no longer has any productive work for that employee, this can in theory be a violation of the employee’s right to be restored to his or her job after partial recovery from an industrial injury.

Getting MSPB to actually find such a violation of restoration rights in the context of NRP, however, may be difficult.

To establish MSPB jurisdiction over a restoration appeal as a partially recovered employee, the appellant must allege facts that would show, if proven, that: (1) he was absent from his position due to a compensable (work-related) 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 agency’s denial of restoration was “arbitrary and capricious.” See Chen v. U.S. Postal Service, 97 M.S.P.R. 527 (2004).

To date, no MSPB judge has ever found that an employee’s hours being reduced or eliminated under NRP violated that employee’s restoration rights. The point on which every reported NRP case so far was rejected, either on a jurisdictional basis or after a hearing, was the 4th prong above – i.e., proving that the action taken was “arbitrary and capricious.”

Cases dismissed for lack of jurisdiction

Patricia L. Luna, 109 LRP 67863 (August 21, 2009) – MSPB Judge Grace B. Carter dismissed a claim by a non-preference eligible postal employee whose position had been eliminated by the NRP, finding that the Appellant had established the first three prongs as discussed above but not the fourth. Judge Carter stated: “Nowhere in her voluminous submissions has the appellant suggested that she could perform any vacant, funded, and operationally necessary position, other than the now-defunct modified position of lobby director. … [T]he appellant must do more than request work, or assert that she was sent home and not given duties.”

David Hunt, 109 LRP 75995 (September 10, 2009) – MSPB Judge Gerard C. Dasey dismissed a claim by a non-preference eligible postal employee whose position was eliminated under the NRP, for lack of jurisdiction. Judge Dasey found that the first three prongs, as discussed above, were met. However, he found that the Appellant had not established ‘arbitrary and capricious.’ He stated: “I find that this claim by the appellant falls short of an allegation that the agency s decision to send him home was arbitrary and capricious. The agency provided evidence that it has experienced a substantial reduction in workload due to various marketplace factors resulting in the need to eliminate 100 million work hours this [fiscal] year. … The appellant has not refuted any of this information. I find that the undisputed business and financial difficulties experienced by the agency further undermine the appellant s claim that decisions made pursuant to the NRP are arbitrary and capricious exercises of the agency s personnel authorities. The agency has also submitted evidence that the review of the appellant s limited duty assignment and the search for other operationally necessary work for his area were done according to the procedures required by the NRP. … The appellant did not refute that evidence. To the extent the appellant has argued that some of the tasks performed by him on his limited duty assignment are still performed by others, that does not constitute a non-frivolous allegation that the agency s decision to send him home was arbitrary or capricious.

Jaime Calderon, 109 LRP 72554 (September 24, 2009) and Robbie P. Jackson 109 LRP 76365 (September 24, 2009) – MSPB Judge Franklin Kang found that the appellants in these two cases, both of whom were non-preference eligible postal employees, had failed to provide facts that would show that there was work for him that consisted of operationally necessary tasks within his restrictions. The USPS had stated that the NRP was necessary due to the reduction in workload and that it was unable to identify enough available operationally necessary tasks within the appellant’s medical restrictions to continue his limited duty position. Judge Kang ruled that the appellant: “… does not provide facts that would show, if proven, that his supervisor untruly stated the positions did not exist, or that agency officials untruly stated they were unable to identify any available operationally necessary tasks within the appellant’s medical restrictions.” [citing Hogarty v. US Postal Service, 101 M.S.P.R. at 380 - appellant failed to make a non-frivolous allegation that agency officials untruly stated that no positions within her medical restrictions were available within a particular time period].

Cases remanded (back to the Judge) for further development

The Brehmer case, above, was not an NRP case. The MSPB Judge, in his initial decision, had found that the Board lacked jurisdiction over the restoration claim and so did not address whether the denial of restoration was ‘arbitrary or capricious.’ The case was remanded for that purpose and also to consider claims of constructive termination and suspension.

Douglas Gilbert v. Department of Justice, 100 MSPR 375 (November 9, 2005) – In this non-NRP case, the appellant met his burden of non-frivolously alleging ‘arbitrary and capricious’ behavior by his agency in denying his restoration, when he asserted that the agency had hired, and continued to hire, less qualified employees in positions for which he was qualified, and when appellant submitted vacancy announcements during the relevant period of time for a position within his commuting area.

Both the Brehmer and Gilbert cases settled after appeals resulted in the cases being sent back to the Judge for further proceedings.

Case denied after hearing

Angelita E. Casis v. USPS, 109 LRP 72652 (October 2, 2009) – MSPB Judge Glen D. Williams denied the appeal after a hearing. The reason this case went to a hearing is that the Appellant identified several positions that she felt she was qualified to perform, including a specific bid position she felt she should have been awarded. At hearing, the USPS proved that the clerk positions that the Appellant had identified at a different station, Sylmar, were awarded to employees who already worked at the Sylmar office who had, “superior claims to positions within their facility to the appellant’s claim.” With regard to the specific bid position the Appellant identified, mail processing clerk, the USPS was able to prove that it required physical activity beyond the Appellant’s capabilities. They further proved that no reasonable accommodation could be made to allow her to do the full duties of that position.

How can you win one of these cases?

It appears to be a losing argument at MSPB for the appellant to claim that the tasks being performed before work hours were reduced were operationally necessary. MSPB judges have accepted that the NRP is necessary due to reduced workload.

A general allegation that the NRP process is arbitrary and capricious has been similarly ineffective. In Elfreda M. Barachina v. USPS, Docket No. SF-0353-09-0554-I-1 (December 14, 2009), the Board specifically discussed a 2002 APWU Arbitration Decision as follows: “In her response, appellant argued that the NRP 2 process was inconsistent with a 2002 arbitration decision in which the arbitrator interpreted provisions of the agency’s Employee and Labor Relations Manual and collective bargaining agreement with the American Postal Workers Union, and found that limited duty rehabilitation assignments were not created for the purpose of meeting the agency’s operational needs. … We agree with the AJ that the appellant’s challenge to the NRP 2 process in general does not constitute a non-frivolous allegation that the agency acted arbitrarily and capriciously in her particular case.”

An MSPB appeal of a Postal Service action sending home an industrially injured worker under NRP may serve as the basis of a successful case on the following grounds:

1. The agency must show that it did a search for a vacant, funded position that the appellant could perform, not just at his duty station, but within his general commuting area as well. Otherwise, the regulation’s requirements have not been met and the case should be set for hearing (see Irma Urena, Docket No. SF-0353-09-0650-I-1, December 14, 2009).

2. If the employee can show that there were vacant, funded positions that were available that he could do at the time he was removed, an MSPB Judge may find a violation of restoration rights.

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His employer had offered him a temporary light duty assignment which his doctors had stated was outside of his physical capabilities. OWCP made an informal determination that he could do the job and cut off his benefits.

The ECAB ruled that before terminating wage loss benefits, OWCP has to find the offered light duty position suitable. It must then give adequate notice to the claimant of its finding and give him an opportunity to respond. It did none of those things in this case.

Therefore, the Board overturned the Office’s decision stating, “[t]he Office did not follow proper procedures to determine that the modified job offered to appellant was suitable.” It further stated, “The notice and termination decision in this case appear as abberations to established Office procedures and the well-defined precedent of the Board.”

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FEDERAL WORKERS’ COMPENSATION LITIGATION GROUP SEMINAR, LOS ANGELES, CALIFORNIA 06/11-12/05

ADVERSE ACTION MERIT SYSTEMS PROTECTION BOARD APPEALS

Basic outline of jurisdiction

            Federal employees [1] who are given serious discipline [2] are entitled to appeal those personnel actions to the U. S. Merit Systems Protection Board.  This Board was created in 1978 as part of the Civil Service Reform Act.  In any such appeal, the Agency has the burden of proof to show that its action was justified. [3]

Basic outline of procedure

            An employee is first given a notice of proposed adverse action, with due process rights to respond orally and/or in writing within a given period (usually 15 days).  Thereafter, a final decision letter will be issued, providing the employee his/her right to file an MSPB appeal within 30 days of the effective date of the decision.

            MSPB provides usable electronic forms online at www.mspb.gov.  A printed form is attached to these materials.  The appeal can be filed several different ways, including via internet.  Once MSPB receives the appeal, an Administrative Judge [AJ] will be assigned and an Acknowledgment Order will be issued by that AJ within two or three days.  This order should be read very carefully, as it will contain various time limits within which the parties must complete pre-hearing actions.  These may actions include: (1) Agency preparation of the Agency Response File, including a narrative response to the appeal, (2) pre-hearing discovery, (3) motions to dismiss, (4) any special jurisdictional showing required by the AJ.   

            The MSPB appeals process is very quick, and is sometimes referred to as the “rocket docket”.  The entire process, through hearing and decision, takes 120 days.  In individual cases, more time can be arranged by stipulation of the parties or through agreement by the AJ, but 120 days is the standard processing time.  Because time is so short, a representative must be prepared to move quickly to send out discovery requests, familiarize him/herself with the facts of the case, and identify any legal issues that will require research or briefing.  For example, if an AJ feels there is a legal issue that s/he will have to rule on, s/he will probably ask the parties to brief it within a very short time period.  

            Discovery at MSPB is problematic since most AJs do not want to get heavily involved in motions to compel.  The power to compel discovery responses is much more limited than in federal court, since time is so short; the parties are encouraged to resolve all such disputes informally.  Of course, Agencies tend to take advantage of this situation by refusing to provide responses to any request they see as out of the ordinary, or which for tactical reasons they do not want to respond to substantively.  Therefore if an essential document must be produced, a question must be answered, or a witness deposition must be accomplished, etc. it is advisable to begin the process immediately.

            Hearings in these cases are often very contentious, and the Appellant’s represent-tative must be prepared to confront dissembling witnesses and agency representatives who hide documents, try to intimidate witnesses before the hearing, etc.  Some agencies utilized HR legal staff as representatives for these cases, while others use personnel specialists or other individuals with little legal training but lots of agency experience. 

            If the matter proceeds to hearing, the AJ will issue a detailed Initial Decision with his/her rulings and instructions to the parties about possible appeals.  

Attorney fees and expenses

A successful appeal will entitle the Appellant/employee to reasonable attorney fees and litigation expenses, for which a petition for fees must be filed.  After the agency opposes the fee petition and the Appellant replies, the AJ issues an order regarding fees and expenses.

DISCRIMINATION COMPLAINTS

Basic outline of jurisdiction

            Federal employees who feel they have been discriminated against on the basis of race, sex, age, national origin, skin color, religion, disability, or reprisal for prior EEO [Equal Employment Opportunity] activity are protected from such discrimination by various laws including Title VII of the Civil Rights Act of 1964 as amended, the Rehabilitation Act of 1973 as amended, and the Age Discrimination in Employment Act of 1967 as amended.  These comments are limited to Title VII and Rehab Act complaints.

Basic outline of procedure – complaint pending at Agency level

            A federal employee who wishes to initiate a discrimination complaint must first, within 45 days of the event seen as discriminatory, “request EEO counseling”.  Such counseling is provided by his/her employing agency.  This request is accomplished by calling, writing or speaking to someone who is logically connected to the EEO process at the employing agency and stating “I want EEO counseling” or any words so indicating.  The agency then provides an EEO counselor who interviews the employee and any relevant supervisory personnel in what is supposed to be an attempt to informally resolve the complaint.  Very few complaints are resolved at this stage.

            If informal counseling does not resolve the complaint, within 30 days of the request for counseling the employee is given written notice of his/her right to file a formal EEO complaint within a 15-day window.  The filing of a complaint is almost always accomplished by filing a form provided by the employer, which includes information about where to file it, etc.  If the employer does not timely complete counseling or does not provide a form, the employee can simply write stating his desire to file a formal complaint.  Agencies frequently either do not complete informal counseling within the timeframe required or ask the employee to waive the time limit to allow for “mediation”, more time to gather information, etc.; such requests should nearly always be rejected by the employee as delaying tactics. 

            The Agency has 180 days after the filing of a formal complaint to complete an investigation of the complaint’s allegations and to issue a Report of Investigation [ROI] containing all information gathered during the investigation.  This will normally include affidavits from the complainant and witnesses, relevant documents, etc. 

Basic outline of procedure – complaint before EEOC

            If the complaint is not resolved during the formal (investigation) stage, the employee then has the right to file a request for a hearing at the Equal Employment Opportunity Commission [EEOC].  In discrimination cases brought by federal employees, EEOC conducts hearings, as opposed to issuing a “right to sue” letter allowing the employee to sue – as is the procedure for private sector employees.  The hearing is requested by simply sending a letter to the local EEOC office, with a copy to the agency, so stating.  If the Agency has completed its investigation within the 180-day  period, its letter transmitting the ROI to the employee will include instructions on how and where to request an EEOC hearing (among other options).  

            After requesting an EEOC hearing, the employee and his/her representative should begin preparing for the administrative litigation even before EEOC issues its Acknowledgment Order notifying the parties of procedural deadlines.  The Order will provide that discovery must be completed within 90 days, motions for summary judgment (§109(g) motions) must be filed within 15 days thereafter, etc.  Any issues rejected and not investigated by the Agency can be revived at this point by filing an opposition to partial dismissal of complaint, on which the AJ will then rule.

            Procedure before EEOC, while not quite a lightning-fast as MSPB procedure, is nevertheless quite rapid and requires prompt and thorough action by the representative.  For example, short timeframes are given for filing motions to compel, and must be met or the failure to respond to discovery is waived.

            Assuming the case survives the Agency §109(g) motion, prior to hearing the AJ will conduct one or more pre-trial conferences (mostly telephonic) in which issues will be specifically identified and eliminated, witnesses will be approved or eliminated, and all documents to be presented at the hearing will be exchanged and identified.  The ROI’s contents are already part of the hearing record and need not be separately identified or produced.  

            At the hearing, the only evidence allowed will be evidence relevant to the specific issues identified.  Closing statements are usually requested either orally at the end of the hearing or later by phone, or in writing within timeframes specified by the AJ.  After all statements have been submitted, the record closes and the AJ begins the process of rendering a decision.  This may take several months.  Often the AJ will advise the parties either in writing or by phone of his/her intention to rule in a particular way, and invite settlement discussions, attorney fee petitions, etc. at that time. 

Basic outline of procedure – after EEOC decision

            If the AJ’s ruling is against the employee in whole or in part, the employee retains the right to file an administrative appeal to the EEOC’s Office of Federal Operations [OFO] and/or to the federal court system.  

RELATIONSHIP BETWEEN MSPB AND EEOC JURISDICTION

            This topic is extremely complex and is beyond the scope of a brief discussion.  Suffice it to say that where an allegation of discrimination is made in connection with a challenge to a personnel action that is within the jurisdiction of MSPB, whichever agency acquires jurisdiction first will have the authority to make an initial decision on all issues raised.  That decision, however, will be subject to review by the other agency regarding issues within its primary jurisdiction in appropriate circumstances.

DISABILITY RETIREMENT

General provisions:

Federal employees who become disabled from performing their regular job, whether or not due to on-the-job injuries, may be eligible for disability retirement. This “early-out” for disability is a program administered by the U.S. Office of Personnel Management, and is available under both retirement systems (CSRS and FERS) set up for federal employees.  Federal regulations set out the requirements for a successful disability retirement application, but each case depends on its specific facts and the evidence presented.

Time for applying:

With certain exceptions, an application for disability retirement must be received by OPM while the employee is still working for the federal government or within one year after employment ends. Specific medical information must be provided to OPM by the applicant. If the applicant is mentally incompetent, the time for filing may be extended.  If the employee stops working but remains on the payroll, for example receiving administrative leave, sick leave, annual leave, or leave without pay [4], the time for filing does not begin to run. 

Relationship to discrimination cases:

Employees who have suffered discrimination typically consider disability retirement programs in two situations:  (1) they are being discriminated against, either because of a disability or for some other reason, suffer a work stoppage and must replace lost income, and/or (2) they become emotionally disabled on a long-term basis because of illegal discrimination and lose the ability to work.  

Strategy:

In cases where there appears to be a long-term disability (likely to last one year or more after the disability retirement application is filed), consider discussing with the client the possibility of filing an application.   EEO settlements can include provisions that the agency will not contest the application and will state on its portions of the forms that the employee’s disability is too severe for it to reasonably accommodate.  In mental disability cases, consider asking the client’s doctor about the advisability of retirement.  Determine whether the client’s doctor(s) have already been recommending retirement. 

The retirement benefit, once won, lasts a lifetime and can only be terminated if either (1) the employee fully recovers, i.e. becomes able once again to perform the full-time, full-duty requirements of the last federal position held, or (2) the employee earns, in any one calendar year, more than 80% of the current pay of the last federal position held.   

[2]  Removal, suspension of more than 14 days, demotion, reduction in grade and/or pay, furlough of more than 30 days, etc.  See 5 CFR §1201.3.

[3]  The Agency’s burden of proof varies, depending on whether the action is based on Chapter 75 (preponderance of the evidence burden) or on Chapter 43 (substantial evidence burden).

[4]  (whether or not receiving workers’ compensation at times when on LWOP)