Filed: Sep. 09, 2016
Latest Update: Mar. 03, 2020
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD MONICA D. ALVAREZ, DOCKET NUMBER Appellant, SF-0353-16-0018-I-1 v. UNITED STATES POSTAL SERVICE, DATE: September 9, 2016 Agency. THIS FINAL ORDER IS NONPRECEDENTIAL 1 Guillermo Mojarro, Upland, California, for the appellant. Micah C. Yang, Long Beach, California, for the agency. BEFORE Susan Tsui Grundmann, Chairman Mark A. Robbins, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD MONICA D. ALVAREZ, DOCKET NUMBER Appellant, SF-0353-16-0018-I-1 v. UNITED STATES POSTAL SERVICE, DATE: September 9, 2016 Agency. THIS FINAL ORDER IS NONPRECEDENTIAL 1 Guillermo Mojarro, Upland, California, for the appellant. Micah C. Yang, Long Beach, California, for the agency. BEFORE Susan Tsui Grundmann, Chairman Mark A. Robbins, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed h..
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UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MONICA D. ALVAREZ, DOCKET NUMBER
Appellant, SF-0353-16-0018-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: September 9, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Guillermo Mojarro, Upland, California, for the appellant.
Micah C. Yang, Long Beach, California, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 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 when: 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
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
the facts of the case; the administrative judge’s rulings during either 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. See
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. Except as
expressly MODIFIED by this Final Order to correct the appellant’s jurisdictional
burden pursuant to 5 C.F.R. § 1201.57(b), we AFFIRM the initial decision.
¶2 The appellant was employed by the agency as a City Carrier in Canoga
Park, California. Initial Appeal File (IAF), Tab 13 at 40‑41. She suffered an
injury on February 16, 2010, which was accepted by the Office of Workers’
Compensation Programs (OWCP) for compensation. Id. at 4. In April 2010, she
began a period of continued absence from work due to the agency’s inability to
provide work within the medical restrictions related to this injury. Id.
¶3 As of April 2013, OWCP considered the appellant to be totally temporarily
disabled. Id. However, on April 29, 2013, her treating physician indicated that
she was capable of working with restrictions. Id. From May to June 2013, the
agency conducted a 50-mile radius search for work within the appellant’s
restrictions. IAF, Tab 11 at 32‑33, Tab 13 at 7-12, 22-37. As a result, in May
2013, the agency offered her a rehabilitation position as a Customer Care Agent
at its Los Angeles Customer Care Center (CCC). IAF, Tab 13 at 7, 13‑15. The
appellant then either failed or refused to report for the position. Id. at 4.
¶4 In July 2013, OWCP reviewed the position and found it suitable and within
the restrictions provided by the appellant’s treating physician. Id. at 4-5. The
appellant accepted the position on August 7, 2013, although she expressed “some
3
reservations” that the commute might cause injury. Id. at 21. The administrative
judge found, and the parties do not dispute, that the appellant worked in the CCC
position for approximately 40 hours per week until December 9, 2014. IAF, Tab
22, Initial Decision (ID) at 4; IAF, Tab 12. On that date, she alleged that she
suffered a new on-the-job injury and stopped working. IAF, Tab 11 at 76‑88,
Tab 14 at 8-9. However, OWCP did not accept the December 9, 2014 injury for
compensation. IAF, Tab 11 at 41, 44.
¶5 The appellant filed this appeal on October 5, 2015, claiming an improper
restoration since August 12, 2013, when she alleged the agency forced her to
work outside of her medical restrictions. IAF, Tab 1. She also alleged the
agency discriminated against her based on age and disability, failed to provide
reasonable accommodation for her disability, and retaliated against her for
requesting reasonable accommodation. IAF, Tab 1 at 4, Tab 15 at 4. The
administrative judge provided the appellant with notice regarding how to
establish jurisdiction over a restoration appeal under 5 C.F.R. part 353. IAF,
Tab 2; ID at 2-3.
¶6 Without holding a hearing, the administrative judge dismissed the appeal
for lack of jurisdiction, finding that the appellant failed to make nonfrivolous
allegations of Board jurisdiction under 5 C.F.R. part 353. 2 ID at 3-5.
2
The administrative judge erroneously referred to the appellant’s jurisdictional burden
as a preponderance of the evidence. However, as of the time this appeal was filed, the
appellant only was required to make nonfrivolous allegations to establish jurisdiction.
5 C.F.R. § 1201.57(a)(4), (b); see Hamilton v. U.S. Postal Service, 123 M.S.P.R. 404,
¶¶ 11-12 (2016). While the administrative judge may have erred in this regard, such
error was not prejudicial to the appellant’s substantive rights and thus is not a basis for
reversal. Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984).
Specifically, the administrative judge’s analysis reflects that, while she stated the
burden was preponderant evidence, she correctly applied the nonfrivolous allegation
standard and dismissed the appeal after finding that the appellant failed to make a
nonfrivolous allegation to support Board jurisdiction under 5 C.F.R. part 353.
Nonfrivolous allegations of Board jurisdiction are allegations of fact, that if proven,
could establish a prima facie case that the Board has jurisdiction over the matter at
4
Specifically, the administrative judge found that the agency had provided the
appellant with a position at the CCC that the OWCP found suitable and within the
restrictions caused by the appellant’s accepted injury. ID at 4. Thus, the
administrative judge found that the appellant failed to make a nonfrivolous
allegation that the agency denied her restoration or that the agency’s actions were
arbitrary and capricious. ID at 5. Regarding the appellant’s discrimination and
reprisal claims, the administrative judge found that, within the context of the
jurisdictional issue, the appellant failed to make a nonfrivolous allegation that the
agency’s actions were arbitrary due to prohibited discrimination or reprisal. ID
at 5. Because she dismissed the appeal for lack of jurisdiction, the administrative
judge did not address the timeliness of the appeal.
¶7 The Federal Employees’ Compensation Act and the implementing
regulations of the Office of Personnel Management (OPM) at 5 C.F.R. part 353
provide, inter alia, that Federal employees who suffer compensable injuries enjoy
certain rights to be restored to their previous or comparable positions. 5 U.S.C.
§ 8151(b); Kingsley v. U.S. Postal Service, 123 M.S.P.R. 365, ¶ 9(2016); 5 C.F.R.
§ 353.301. 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, like the appellant, are those who, “though not ready to resume the full
range” of duties, have “recovered sufficiently to return to part‑time or light duty
or to another position with less demanding physical requirements.”
Kingsley, 123 M.S.P.R. 365, ¶ 9; 5 C.F.R. § 353.102.
¶8 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
issue. Coleman v. Department of the Army, 106 M.S.P.R. 436, ¶ 9 (2007); 5 C.F.R.
§ 1201.4(s).
5
who has partially recovered from a compensable injury and who is able to return
to limited duty.” 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. Bledsoe v. Merit Systems Protection Board, 659 F.3d
1097, 1103-04 (Fed. Cir. 2011), modified in party by regulation as stated in
Kingsley, 123 M.S.P.R. 365, ¶ 10; 5 C.F.R. § 353.304(c). Thus, to establish
jurisdiction over her claim that she was denied restoration as a partially recovered
employee, the appellant was required to 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. Kingsley, 123 M.S.P.R. 365,
¶ 11; 5 C.F.R. § 1201.57(a)(4), (b). As the administrative judge correctly found,
it is undisputed that the appellant satisfies the first two criteria. ID at 3.
¶9 Here, the appellant argues on review that the administrative judge
improperly found that the limited-duty job offer of a Customer Care Agent at the
Los Angeles CCC was within her medical restrictions. Petition for Review (PFR)
File, Tab 1 at 5. While the appellant fails to identify how the position at the CCC
was outside of her medical restrictions, or explain how the administrative judge
erred in finding so, we have nevertheless considered her argument. We agree
with the administrative judge that the appellant failed to nonfrivolously allege
that the offer of the CCC position was either a denial of restoration or was
arbitrary and capricious. ID at 4; see Hamilton v. U.S. Postal
Service, 123 M.S.P.R. 404, ¶ 15 (2016) (declining to find a denial of restoration
when the appellant offered no evidence or argument to establish that a job offer
was not in compliance with her physical limitations).
¶10 A partially recovered employee “may not appeal the details or
circumstances of her restoration”; she may appeal to the Board only for a
6
determination of whether the agency acted arbitrarily and capriciously in denying
restoration. Kingsley, 123 M.S.P.R. 365, ¶ 13; 5 C.F.R. § 353.304(c).
Nevertheless, under certain circumstances, a restoration may be deemed so
unreasonable as to amount to a denial of restoration within the Board’s
jurisdiction. Kingsley, 123 M.S.P.R. 365, ¶ 13. For example, a claim that
restoration was effectively 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.
¶11 Here, OWCP specifically determined that the agency’s offer of a
limited-duty assignment as a Customer Care Agent was suitable and did not
exceed her medical work restrictions as noted by her physician. IAF, Tab 13 at 4
‑5. Determinations on the suitability of an offered position are within the
exclusive domain of OWCP. OWCP, not the employing agency and not the
Board, possesses the requisite expertise to evaluate whether a position is suitable
in light of the employee’s particular medical condition. Hamilton v. U.S. Postal
Service, 123 M.S.P.R. 404, ¶ 14 (2016). Further, the record reflects that after the
appellant was restored to the Customer Care Agent position she consistently
worked approximately 40 hours a week until she suffered a nonjob-related injury
on December 9, 2014, and stopped working. IAF, Tab 11 at 27-28, Tab 12.
¶12 To the extent the appellant may be asserting that she was not restored to
duty after December 9, 2014, her claim of injury was not accepted by OWCP,
and, thus, she was not entitled to restoration based on that injury. IAF, Tab 11 at
41-45; see Hamilton, 123 M.S.P.R. 404, ¶ 14 (finding that an appellant had no
restoration rights for a condition that OWCP determined was not job‑related).
¶13 The appellant also argues that the administrative judge erred in failing to
find that the agency discriminated against her when it failed to properly restore
her. PFR File, Tab 1. The Board lacks jurisdiction over discrimination and
retaliation claims per se in the absence of an otherwise appealable action.
7
Latham v. U.S. Postal Service, 117 M.S.P.R. 400, ¶ 58 (2012), modified by
regulation on other grounds as stated in Kingsley, 123 M.S.P.R. 365, ¶ 10.
Rather, such claims should be considered to the extent that they pertain to the
jurisdictional issue. Id., ¶ 58 & n.27. The administrative judge properly
considered these claims but found that they did not affect the jurisdictional
analysis. ID at 5. Because on review the appellant has not identified any
evidence or provided any argument to support her claim that the agency’s actions
were arbitrary and capricious due to prohibited discrimination or reprisal, we find
no adjudicatory error. Weaver v. Department of the Navy, 2 M.S.P.R. 129, 133
(1980) (finding that before the Board will undertake a complete review of the
record, the petitioning party must explain why the challenged factual
determination is incorrect, and identify the specific evidence in the record which
demonstrates the error), review denied, 669 F.2d 613 (9th Cir. 1982) (per curiam);
Tines v. Department of the Air Force, 56 M.S.P.R. 90, 92 (1992) (finding that a
petition for review must contain sufficient specificity to enable the Board to
ascertain whether there is a serious evidentiary challenge justifying a complete
review of the record).
¶14 The appellant also contends that the administrative judge identified the
incorrect timeframe during which the appellant alleged she was denied
restoration. PFR File, Tab 1 at 5. However, the appellant’s initial appeal, her
petition for review, and the initial decision all identify the appellant’s denial of
restoration as allegedly beginning on August 12, 2013. ID at 1; PFR File, Tab 1
at 5; IAF, Tab 1 at 4. Therefore, we discern no error.
¶15 The appellant further argues that there is no indication that the
administrative judge reviewed all of the evidence. PFR File, Tab 1 at 4.
However, the administrative judge’s failure to mention all of the evidence of
record does not mean that she did not consider it in reaching her decision.
Marques v. Department of Health & Human Services, 22 M.S.P.R. 129, 132
(1984), aff’d, 776 F.2d 1062 (Fed. Cir. 1985) (Table).
8
¶16 On review, the appellant alleges that the administrative judge “made
improper determinations regarding the [a]gency's [f]ailure to provide the
[a]ppellant with her requested discovery.” PFR File, Tab 1 at 5. 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. PFR File, Tab 1 at 5; 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 & Human Services, 119 M.S.P.R. 355, ¶ 18, aff’d per curiam,
544 F. App’x 976 (2013). Here, both parties filed motions to compel, which the
administrative judge denied. IAF, Tabs 16, 18; ID at 5 n.3. Although the
appellant failed to provide the agency’s discovery responses with her motion to
compel, the agency provided the responses with its opposition. IAF, Tab 16,
Tab 17 at 18-72. In reviewing those responses, it appears that the agency
generally provided specific information in response to the appellant’s requests.
For example, in response to an interrogatory regarding why she was not
“reinstated,” the agency explained that she was offered a “rehabilitation position”
at the CCC, which she accepted. IAF, Tab 17 at 28. As another example, when
asked why she was not offered a position in the agency’s Sierra Coastal district,
the agency responded that no work was located for her in that district during the
relevant timeframe. Id. at 29. Notwithstanding what appear to be generally
sufficient responses, the appellant moved to compel concerning all of her
25 interrogatories and 30 requests for production. IAF, Tab 16 at 12‑31. The
appellant has failed to show how the information she requested might have
supported a finding of jurisdiction and therefore has failed to establish an abuse
of discretion. See Jones, 119 M.S.P.R. 355, ¶ 18 (declining to find that an
administrative judge abused his discretion in denying an appellant’s motions to
compel because the appellant failed to show how the information he requested in
9
discovery would have affected the administrative judge’s findings as to the merits
of his claims).
¶17 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 TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You have the right to
request review of this final decision by the U.S. Court of Appeals for the Federal
Circuit. You must submit your request to the court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar days
after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27,
2012). If you choose to file, be very careful to file on time. The court has held
that normally it does not have the authority to waive this statutory deadline and
that filings that do not comply with the deadline must be dismissed. See Pinat v.
Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
title 5 of the U.S. Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. Dec. 27,
2012). You may read this law as well as other sections of the U.S. Code, at our
website, http://www.mspb.gov/appeals/uscode.htm. Additional information 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, and 11.
10
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 Merit Systems Protection Board neither endorses the services
provided by any attorney nor warrants that any attorney will accept representation
in a given case.
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.
