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by Shaw, Bransford & Roth, P.C.
July 27, 2010
A mail processing clerk was not entitled to back pay because he was not "ready, willing, or able to work" due to an incapacitating illness or injury, the Federal Circuit ruled last week. The case began in April 2008, when the U.S. Postal Service placed the clerk on administrative leave pending a fitness for duty examination. The clerk was examined by two physicians and a psychologist, all of whom expressed concerns about his mental condition. In May 2008, the Postal Service informed the clerk that he was not fit to return to work and gave him three options: resign, apply for disability retirement, or retire if eligible. The following month, the Postal Service informed the clerk that if he did not select one of the three options, then his administrative leave status would be terminated and the Postal Service would propose his removal. The clerk subsequently was placed on leave without pay on June 14, 2008.
The clerk appealed to the U.S. Merit Systems Protection Board, alleging that he had been constructively removed. The Board determined that the Postal Service did not provide the clerk with the procedural protections required by statute and the U.S. Constitution prior to suspending him. The Board reversed the suspension and ordered the Postal Service to retroactively restore the clerk's pay and benefits effective June 14, 2008. While the clerk's case was pending before the Board, the Postal Service took steps to correct any due process violation. On November 7, 2008, the Postal Service proposed that the clerk be placed on enforced leave based on a medical condition rendering him unfit for duty. The clerk responded on November 24, 2008. After this period for notice and response, the Postal Service placed the clerk on enforced leave effective December 14, 2008.
The Postal Service did not pay the clerk any back pay for the period after June 14, 2008. On January 21, 2009, the Postal Service sent the clerk a letter informing him that he was not entitled to back pay because he was not ready, willing, and able to work during the period in question. The Postal Service asserted that it was in full compliance with the Board's order.
The clerk subsequently filed a petition for enforcement seeking back pay. The Board, however, determined that "the undisputed evidence here, bolstered by [the clerk's] own admissions in worker's compensation claim forms and a disability insurance form, shows that he was not ready, willing and able to work from June 14, 2008, to present." Thus, the Board denied the clerk's petition for enforcement, prompting him to appeal to the Federal Circuit.
In its decision, the Federal Circuit stated that an employee affected by an unjustified or unwarranted personnel action that resulted in the withdrawal or reduction in pay is entitled to back pay that "the employee normally would have earned or received during the period if the personnel action had not occurred, less any amounts earned by the employee through other employment during that period." The basic principle of back pay, the appeals court explained, is that the employee should be "made whole." Accordingly, OPM issued a regulation instructing that when computing the amount of back pay, an agency may not include pay for "any period during which an employee was not ready, willing, and able to perform his or her duties because of an incapacitating illness or injury." The Federal Circuit explained that OPM's regulation reflects the desire to make the employee whole while avoiding overcompensating the employee when it is clear that the employee would not have been able to work even in the absence of the wrongful personnel action.
In this case, the Federal Circuit stated, substantial evidence supported the Board's conclusion that the clerk was not ready, willing, or able to work due to an incapacitating illness or injury. Two doctors determined that the clerk was not fit to return to work because of his mental condition, while another found that he was unable to work because of his physical ailments. The clerk himself admitted on an insurance claim that he was "continuously and totally disabled and unable to perform substantially all of his occupational duties from April 17, 2008, to the present," the Federal Circuit noted. Thus, the Federal Circuit concluded that the Board properly declined to grant the clerk's petition for enforcement because he was not ready, willing, and able to work during the relevant time frame.
Lastly, the appeals court noted that while the administrative judge (AJ) in her prior opinion ordered the Postal Service to give the clerk back pay, in her second decision (the one currently under review), the AJ determined that the amount of back pay actually owed to the clerk was zero. Thus, effectively, the AJ determined that the clerk was not entitled to back pay, the Federal Circuit stated.
Accordingly, the Federal Circuit ruled in favor of the Postal Service, concluding that the clerk was not entitled to back pay.
The case is Eisele v. United States Postal Service, U.S. Court of Appeals for the Federal Circuit, No. 2010-3002, July 22, 2010.
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