shaw bransford & roth case law update

Failure to Object to Scope of Appeal Barred Adjudication of Unreasonable Post-Restoration Position

A Postal Service employee appealing the agency’s failure to restore her to a position after she was injured and gained new medical restrictions argued that the position she was restored to was so unreasonable as to be an effective denial of her restoration, but her appeal was limited to the time period before she was restored.

On May 25, 2016, the Merit Systems Protection Board affirmed the administrative judge’s decision to deny the employee’s restoration appeal.

The employee suffered injuries in 2005 and 2012, and was granted a limited-duty assignment in March 2012. But in June 2012, her medical restrictions increased, and the agency conducted a search for a new position that would fit the new restrictions. After searching the 50-mile commuting area, the agency informed the employee that there was no available work. In November 2012, the employee provided new restrictions to the agency, and the agency again searched the area, unsuccessfully, for work. Subsequently, the agency expanded its search, and located a rehabilitation position at the Los Angeles Customer Care Center. The employee was granted that position, where she served from March 2013 until March 2015, when she was removed.

The employee appealed, alleging that her removal was improper, that the agency denied her restoration following her removal, and that the agency discriminated against her based on disability and age when they denied her a reasonable accommodation. The administrative judge clarified that the employee was not appealing her removal, but that she had made a nonfrivolous allegation that the agency denied her request for restoration during the timeframe between June 2012, when the employee first sought restoration, and March 2013, when she was granted a rehabilitation position at the Los Angeles Customer Care Center. This timeframe was reiterated in a written prehearing conference order, and was not challenged by the employee.

The administrative judge found that although the agency had denied the employee restoration during that timeframe, it had conducted adequate searches for available work within the employee’s medical restrictions. The administrative judge rejected the employee’s other arguments, including her reasonable accommodation claim, and found that the agency did not act arbitrarily and capriciously in denying restoration during the set timeframe. The employee appealed to the full Board, and argued that the position that the Agency offered her in January 2013 was so unreasonable as to amount to a denial of restoration.

As the Board noted, although a partially recovered employee “may not appeal the details or circumstances of her restoration,” and may “appeal to the Board only for a determination of whether the agency acted arbitrarily and capriciously in denying restoration,” a restoration “may be deemed so unreasonable as to amount to a denial of restoration.” If the employee is incapable of performing the job duties of the position to which she was restored, the restoration may be deemed to amount to a denial of restoration.

In this case, the employee testified that at first, the manager at her new position let injured employees “get up to stretch and walk around the cubicles,” that policy changed, making it so that the position failed to meet her medical restrictions. However, because the scope of the case had been limited by the administrative judge in the status and prehearing conference order without objection to the period between June 2012 and March 11, 2013 (the day the employee began her new position), the Board declined to adjudicate for the first time on review the agency’s actions after the employee began work at the rehabilitation position.

For the above stated and other reasons, the Merit Systems Protection Board denied the employee’s petition for review and affirmed the administrative judge’s initial decision.

Read the full case: Kingsley v. United States Postal Service


This case law update was written by Conor D. Dirks, associate attorney, Shaw Bransford & Roth, PC.

For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.

Posted in Case Law Update

Tags: MSPB, Merit Systems Protection Board, case law update, conor d dirks, conor dirks, USPS



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