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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In denying the Agent’s initial application, OPM had stated that he had failed to show he was injured before he was placed on administrative leave. The Board ruled that the Office of Personnel Management  (OPM) should have considered whether the injured worker became disabled at any period during his employment, up to and including the period of time that he was on administrative leave.

The employee had introduced uncontested medical evidence showing that he had several herniated discs.  The Board found that the claimant had “presented an overwhelming body of consistent and competent medical evidence that corroborate[d] his subjective complaints, and [established] that his medical condition [was] incompatible with either useful and efficient service or retention in his former position” (Henderson v. OPM, Docket No. AT-844E-08-0071-I-1, August 4, 2008 at p.14).

The Board therefore directed OPM to approve the disability retirement application.

The full decision can be viewed here: decision-8-4-08