Bynum v. United States Postal Service , 382 F. App'x 934 ( 2010 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
JENNIFER C. BYNUM,
Petitioner,
v.
UNITED STATES POSTAL SERVICE,
Respondent.
__________________________
2010-3055
__________________________
Petition for review of the Merit Systems Protection
Board in case no. DC0752090322-I-1.
___________________________
Decided: June 14, 2010
___________________________
JENNIFER C. BYNUM, of Rocky Mount, North Carolina,
pro se.
ALICE L.A. COVINGTON, Appellate Counsel, Office of
the General Counsel, United States Postal Service, Office
of the General Counsel, of Washington, DC, for respon-
dent. With her on the brief were TONY WEST, Assistant
Attorney General, Commercial Litigation Branch, Civil
Division, United States Department of Justice, of Wash-
BYNUM v. USPS 2
ington, DC, and LORI DYM, Chief Counsel, Law
Department, Office of Labor Law, United States Postal
Service, of Washington, DC.
_________________________
Before NEWMAN, LINN, and DYK, Circuit Judges.
PER CURIAM.
Jennifer C. Bynum (“Bynum”) petitions for review of a
final order of the Merit Systems Protection Board (the
“MSPB” or “Board”) sustaining a decision of the United
States Postal Service (“Postal Service”). See Bynum v.
U.S. Postal Serv., 112 M.S.P.R. 403 (2009). We affirm.
BACKGROUND
Bynum was employed by the Postal Service as a Flat
Sorting Machine Operator. On August 3, 2003, she was
injured on duty. She received compensation for this
injury from the Department of Labor’s Office of Workers’
Compensation Programs (“OWCP”). On November 7,
2008, OWCP sent the Postal Service a letter indicating
that Bynum’s physicians found her “condition ha[d]
resolved” and she was “able to return to work with out
[sic] restrictions.” Resp’t’s App. 25. The Postal Service
sent a letter to Bynum on November 21, 2008, ordering
her to return to work or to present acceptable documenta-
tion to her supervisor as to why she was unable to work
and the expected duration of any incapacity.
Bynum failed to return to work. Instead, she asserts
she submitted medical documentation dated November
24, 2008, to the Postal Service stating that she should
“[l]imit lifting to no more than 10 lbs until Dec[.] 16,
2008.” Bynum, 112 M.S.P.R. at 412. The Postal Service
3 BYNUM v. USPS
sent Bynum another letter on December 11, 2008, again
ordering her to return to work and perform her duties on
December 12, 2008, or to return to work with medical
documentation. Bynum did not report to work on Decem-
ber 12th or supply further medical documentation.
The Postal Service sent Bynum a third letter on De-
cember 20, 2008, ordering her to report to work on De-
cember 23, 2008, for a pre-disciplinary interview
regarding her attendance situation and to bring any
available documentation to support her continued ab-
sence. The letter warned Bynum that failure to report
would result in appropriate disciplinary action, such as
removal. Again Bynum failed to report to work and did
not supply further medical documentation at that time.
On December 31, 2008, Bynum submitted documentation
dated December 29, 2008, to the Postal Service, indicating
she should “not lift anything over 20 lbs . . . indefinitely.”
Id. at 413.
On January 7, 2009, the Postal Service issued a notice
of removal to Bynum for failing to be regular in atten-
dance, failing to follow instructions, and absence without
leave. Bynum responded on January 16, 2009, by sending
a letter to her supervisor stating that the Postal Service
was required to give her a written, limited duty job offer
within her restrictions. The Postal Service did not meet
Bynum’s request, and Bynum’s removal became effective
on February 6, 2009.
Bynum appealed to the MSPB, asserting that she
should not have been removed and that the MSPB should
have restored her to duty. Thereafter, she also alleged
disability discrimination and retaliation. On February
18, 2009, an MSPB Administrative Judge (“AJ”) issued a
show cause order, directing Bynum to submit evidence
BYNUM v. USPS 4
and argument to establish that the Board had jurisdiction
over her removal and restoration claims. Jurisdiction
over removal claims filed by Postal Service employees is
limited to preference-eligible veterans, managers, super-
visors, or employees who engage in personnel work in
other than a purely non-confidential clerical capacity. 5
U.S.C. § 7511(a)(1)(B)(ii), (b)(8); 39 U.S.C. § 1005(a)(4)(A).
After Bynum and the Postal Service submitted evidence
responding to the order, the AJ concluded in an initial
decision dated April 24, 2009, that Bynum had not estab-
lished jurisdiction over either her removal or restoration
claims. The AJ further found that, absent an appealable
matter, there was no jurisdictional basis upon which to
address Bynum’s allegations of disability discrimination
and retaliation. The AJ noted that the appeal was based
on the written record because Bynum had not requested a
hearing.
On review, the full Board affirmed the AJ’s determi-
nation that the Board did not have jurisdiction over her
removal claim, finding that the record reflected that
Bynum did not fall into any of the employee categories as
to which jurisdiction existed. Moreover, the Board noted
that Bynum had not, on review, challenged the dismissal
of her removal claim. However, the Board disagreed with
the initial decision as to the restoration appeal. The
Board determined that Bynum had in fact established
jurisdiction over the restoration appeal because she made
nonfrivolous allegations that (1) her absence was due to a
compensable injury; (2) she recovered sufficiently to
return to duty in a less demanding position; (3) she re-
quested restoration but restoration had been denied; and
(4) the agency had acted arbitrarily and capriciously. See
Chen v. U.S. Postal Serv., 97 M.S.P.R. 527, 533 (2004).
5 BYNUM v. USPS
On the merits of Bynum’s restoration appeal, the
Board concluded that Bynum had failed to show that the
Postal Service’s denial of Bynum’s request for restoration
was arbitrary or capricious. The Board explained that
Bynum had “presented no evidence to show that she
complied with the agency’s repeated instructions to report
to the work site with clear documentation of her medical
restrictions.” Bynum, 112 M.S.P.R. at 413.
Bynum timely appealed to this court, and we have ju-
risdiction over Bynum’s appeal pursuant to 28 U.S.C.
§ 1295(a)(9).
DISCUSSION
We must sustain a decision of the Board unless it is
“found to be (1) arbitrary, capricious, an abuse of discre-
tion, or otherwise not in accordance with law; (2) obtained
without procedures required by law, rule, or regulation
having been followed; [or] (3) unsupported by substantial
evidence.” Jacobs v. Dep’t of Justice, 35 F.3d 1543, 1545
(Fed. Cir. 1994) (citing 5 U.S.C. § 7703(c)).
Bynum contends that the agency’s action violated her
rights under the Rehabilitation Act. See 29 U.S.C. § 794.
In order to prevail on her restoration claim, Bynum must
establish (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; (3) the Postal Service
denied her request for restoration; and (4) the denial was
arbitrary and capricious. See Chen, 97 M.S.P.R. at 533.
Removing an employee solely because she insists on
compliance with the Rehabilitation Act is a violation of
the statute. See Walley v. Dep’t of Veterans Affairs, 279
BYNUM v. USPS 6
F.3d 1010, 1016-18 (Fed. Cir. 2002); see also New v. Dep’t
of Veterans Affairs, 142 F.3d 1259, 1264-65 (Fed. Cir.
1998).
Bynum’s primary contention is that the Board erred
in failing to find that the Postal Service acted arbitrarily
and capriciously in denying her request for restoration
because the agency was obligated “to accommodate [her]
physical limitations or make every effort to restore [her]
to a position within [her] medical restrictions or within
[her] local commuting area.” Pet’r’s Br. Attach. at 1.
More specifically, she complains that she was required to
report for work in the absence of an OWCP suitability
determination and asserts that she “did not return to full
duty because [she] was afraid [her] health was endan-
gered due to [her] medical restrictions.” Id. She contends
that, pursuant to New, an employee may decline to follow
agency instructions that would put the employee in a
clearly dangerous position.
We agree with the Board that the agency’s decision to
remove Bynum was not arbitrary or capricious. While it
is true that the OWCP did not make a suitability deter-
mination with respect to Bynum, we held in Walley that
“the absence of an OWCP suitability determination is not
a necessary predicate to the employee’s obligation to
return to work.” 279 F.3d at 1021. Rather, “an employee
[must] return to work if the accommodations offered by
the agency correspond to the recommendations of the
attending physician.” Id. Although the OWCP regula-
tions considered in the Walley decision have since been
revised, these principles were re-codified in the revised
agency regulations. For example, 20 C.F.R. § 10.515(b)
states:
7 BYNUM v. USPS
If an employee cannot return to the job held at the
time of injury due to partial disability from the ef-
fects of the work-related injury, but has recovered
enough to perform some time of work, he or she
must seek work. In the alternative, the employee
must accept suitable work offered to him or her.
(Emphasis added). In accordance with the agency’s
current regulations and consistent with our earlier hold-
ings in New and Walley, we hold that Bynum was obli-
gated to accept work from the Postal Service that
complied with her physician’s instructions.
Here the only restriction imposed on Bynum by the
November 24, 2008, medical documentation that Bynum
submitted to the Postal Service was that she “[l]imit
lifting to no more than 10 lbs until Dec[.] 16, 2008.”
Bynum, 112 M.S.P.R. at 412. While the Postal Service
erred in ordering Bynum to report for work on December
12, 2008, without recognizing that restriction, that re-
striction had expired by December 23, 2008, when Bynum
was again ordered to report for work. Hence, the Postal
Service’s order to report to work on December 23, 2008,
was not contrary to the instructions of Bynum’s physician
at that time. Moreover, the order was coupled with an
invitation for Bynum to “bring any documentation to
substantiate [her] unscheduled absences.” Resp’t’s App.
29. When Bynum failed to return to work on December
23, 2008, or to supply medical documentation supporting
her need for restricted duties, the agency was entitled to
discharge her. The fact that thereafter she submitted a
physician’s document dated December 29, 2008, concern-
ing restrictions on her duties is irrelevant to the question
of discipline for her failure to appear on December 23,
2008.
BYNUM v. USPS 8
Bynum also contests the Board’s failure to grant her a
hearing. It is the responsibility of a petitioner, however,
to request a hearing if one is desired. Spezzaferro v. Fed.
Aviation Admin., 807 F.2d 169, 174 (Fed. Cir. 1986).
Instead of requesting a hearing, in Bynum’s appeal to the
Board, she checked the box indicating “no” to the question
of whether she wanted to have a hearing. Bynum was not
entitled to a hearing because she did not request one.
Finally, Bynum urges that the Board erred by failing
to address her claim of retaliation. The government
responds that, to the extent Bynum seeks to raise a claim
of retaliation, that claim is not properly before the Fed-
eral Circuit because Bynum did not adequately raise it
before the full Board. We agree with the government. A
party cannot raise a claim on appeal that was not prop-
erly raised before the Board. See Sanders v. U.S. Postal
Serv., 801 F.2d 1328, 1331-32 (Fed. Cir. 1986).
We therefore affirm the decision of the Board.
AFFIRMED
COSTS
No costs.