MSPB Finds No Wrongful Actions by Agency in Depriving Employee of Choice to Return to Work
A Postal Service Customer Services Supervisor was absent from his position, starting in October 2012, due to chronic headaches. On January 23, 2013, the employee filed a Board appeal, which claimed that although he had been released to return to work as early as December 24, 2012, he had not been returned to work by the Agency. An MSPB administrative judge dismissed the employee’s Board appeal for lack of jurisdiction because at the time of the appeal’s filing, the employee had not been cleared to work in his previously assigned duties, and because the administrative judge believed that the agency had met its burden to show that no work was available within his medical restrictions. Also, the administrative judge found that, subsequent to the filing of the appeal, the Agency convened a district reasonable accommodations committee (“DRAC”) meeting to offer the employee other, non-supervisory work that was consistent with his restrictions, which the employee declined, and that the employee had only initially provided a brief note stating that he needed hearing protection and a 12-hour cap on his daily hours, with receipt of medical documentation delayed until the end of March 2013. At that point, the administrative judge noted, the Agency returned him to work “within a reasonable time.” Concluding that the employee had failed to meet his jurisdictional burden to establish that an appealable suspension had occurred, the administrative judge dismissed the appeal. The employee appealed to the full Board. On September 24, 2014, the Merit Systems Protection Board affirmed the initial decision as modified by its own opinion.