Brenda A. Jakes v. Department of Defense ( 2016 )


Menu:
  •                            UNITED STATES OF AMERICA
    MERIT SYSTEMS PROTECTION BOARD
    BRENDA A. JAKES,                                DOCKET NUMBER
    Appellant,                        AT-0752-14-0614-B-1
    v.
    DEPARTMENT OF DEFENSE,                          DATE: January 12, 2016
    Agency.
    THIS ORDER IS NONPRECEDENTIAL 1
    Brenda A. Jakes, Phenix City, Alabama, pro se.
    Cheryl Smith, Esquire, Peachtree City, Georgia, for the agency.
    BEFORE
    Susan Tsui Grundmann, Chairman
    Mark A. Robbins, Member
    REMAND ORDER
    ¶1         The appellant has filed a petition for review of the remand initial decision,
    which dismissed her appeal with prejudice for failure to prosecute.           For the
    reasons discussed below, we GRANT the appellant’s petition for review,
    VACATE the remand initial decision, and REMAND the case to the regional
    office for further adjudication in accordance with this Order.
    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    A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
    BACKGROUND
    ¶2         The facts of this case are set forth more fully in the Board’s prior Remand
    Order. Jakes v. Department of Defense, Remand Order (Apr. 1, 2015) (Remand
    Order).   Briefly, the appellant was employed as a Custodial Worker with the
    Department of Defense Education Activity at Loyd Elementary School, Fort
    Benning, Georgia. Jakes v. Department of Defense, MSPB Docket No. AT-0752-
    14-0614-I-1, Initial Appeal File (IAF), Tab 5 at 43, 139. Effective February 25,
    2013, the agency removed the appellant from Federal service for physical
    inability to perform the essential functions of her position. 
    Id. at 39-40,
    139, 148.
    ¶3         The appellant filed a Board appeal, and the administrative judge issued an
    initial decision sustaining the agency’s removal action. IAF, Tab 1 at 18, Tab 11,
    Initial Decision. The appellant filed a petition for review of the initial decision,
    which culminated in the Remand Order. See Jakes v. Department of Defense,
    MSPB Docket No. AT-0752-14-0614-I-1, Petition for Review File, Tab 1;
    Remand Order. In pertinent part, the Board found that the appellant’s allegations
    below should have placed the administrative judge on notice that she was
    potentially alleging that the agency had violated her restoration rights. Remand
    Order, ¶¶ 18-19. The Board remanded the appeal for the administrative judge to
    provide   the   appellant   with   notice   regarding   the   jurisdictional   pleading
    requirements of a restoration appeal and an opportunity to submit evidence and
    argument on the issue of jurisdiction. 
    Id., ¶¶ 18-20.
    ¶4         On remand, the administrative judge provided detailed notice regarding
    what is necessary to establish jurisdiction over a restoration appeal as a fully
    recovered, partially recovered, or physically disqualified employee, and ordered
    the appellant to submit evidence and argument raising a nonfrivolous allegation
    of jurisdiction. Jakes v. Department of Defense, MSPB Docket No. AT-0752-14-
    0614-B-1, Remand File (RF), Tab 3. The appellant failed to respond to the order
    by the deadline established by the administrative judge.            RF, Tab 4 at 1.
    Subsequently, the administrative judge issued a second order, which informed the
    3
    appellant that he would dismiss the appeal with prejudice for failure to prosecute
    if she failed to respond to the prior order by May 11, 2015. 
    Id. at 1-2.
    ¶5           On May 7, 2015, the appellant electronically filed a new appeal form,
    attaching a pleading asserting that she underwent two surgical procedures and
    that her doctor had released her to perform “clerical duties only back in
    December 2014.” Remand Petition for Review (RPFR) File, Tab 1 at 1-5. She
    further asserted that the agency had not identified any positions that she was
    qualified to perform because she lacked “any administrative background.” 
    Id. at 5.
       Because the pleading was filed with a new appeal form, the Atlanta
    Regional Office did not immediately forward it to the administrative judge.
    RPFR File, Tab 2 at 1. On May 15, 2015, the administrative judge, who was
    unaware of the appellant’s May 7 th filing, issued a remand initial decision
    dismissing her appeal with prejudice for failure to prosecute. 2           RF, Tab 5,
    Remand Initial Decision.
    ¶6           Approximately 3 weeks later, the Clerk of the Board informed the appellant
    that her May 7, 2015 pleading had not been forwarded to the administrative judge
    prior to the issuance of the initial decision and that the Board would docket the
    pleading as a petition for review of the initial decision. RPFR File, Tabs 2-3.
    Thereafter, the appellant filed a supplement to the petition for review, which
    included, among other things, a November 3, 2014 functional capacity evaluation
    (FCE) 3 indicating that the appellant had reached maximum medical improvement
    and was restricted to sedentary work. RPFR File, Tab 4 at 24-36. The agency
    responded to the petition for review, arguing that the appellant failed to raise a
    2
    After the initial decision was issued, the appellant resubmitted her May 7, 2015
    pleading by facsimile, accompanied by copies of the administrative judge’s orders and
    medical documentation. RF, Tab 7.
    3
    Although the FCE is dated November 3, 2014, it was signed by the appellant’s
    physician on November 14, 2014. RPFR File, Tab 4 at 24, 28. Other documents in the
    record alternatively refer to the FCE as being issued on November 3, 2014 and
    November 14, 2014. Compare RPFR File, Tab 5 at 57, with 
    id. at 64.
                                                                                                    4
    nonfrivolous allegation of jurisdiction over a restoration appeal and submitting a
    considerable volume of evidence that was not included in the record below.
    RPFR File, Tab 5.
    DISCUSSION OF ARGUMENTS ON REVIEW
    ¶7           We find that, because the pro se appellant made a good faith effort to
    comply with the administrative judge’s second order, which the administrative
    judge was unaware of until after the remand initial decision had been issued, the
    appeal should not have been dismissed with prejudice for failure to prosecute. 4
    Although she erroneously filed her response as a new appeal, unbeknownst to the
    administrative judge, the appellant made an effort to comply with his second
    order. RPFR File, Tab 1. The severe sanction of dismissal with prejudice for
    failure to prosecute an appeal should not be imposed where a pro se appellant
    appears to be confused by Board proceedings, or has made incomplete responses
    to Board orders, but has not exhibited bad faith or evidenced any intent to
    abandon her appeal.        Chandler v. Department of the Navy, 87 M.S.P.R. 369,
    ¶ 6 (2000); Wright v. Department of the Treasury, 53 M.S.P.R. 244, 249 (1992). 5
    Accordingly, we find that dismissal for failure to prosecute was not warranted
    under the circumstances of this case.
    ¶8           Because we find that the appeal should not have been dismissed for failure
    to prosecute, we must address the issue of the Board’s jurisdiction over the
    appeal. See Bledsoe v. Merit Systems Protection Board, 
    659 F.3d 1097
    , 1102
    (Fed. Cir. 2011) (discussing the two-step process for establishing Board
    jurisdiction over restoration appeals). 6 The issue of jurisdiction is always before
    4
    On review, neither party addressed this issue. See RPFR File, Tabs 4-5.
    5
    Furthermore, although the appellant failed to respond to the administrative judge’s
    first order, failure to obey a single order ordinarily does not justify dismissal for failure
    to prosecute. See Chandler, 87 M.S.P.R. 369, ¶ 6.
    6
    Under Bledsoe, the U.S. Court of Appeals for the Federal Circuit held that to establish
    jurisdiction over a restoration appeal as a partially recovered individual, the appellant
    5
    the Board and may be raised by either party or sua sponte by the Board at any
    time during a Board proceeding.          Lovoy v. Department of Health & Human
    Services, 94 M.S.P.R. 571, ¶ 30 (2003). For the following reasons, we find that
    the documents submitted by the agency in the first instance on review raise
    questions regarding the Board’s jurisdiction that cannot be resolved based upon
    the   current     record.         See    Baldwin     v.     Department            of   Veterans
    Affairs, 109 M.S.P.R. 392, ¶¶ 11, 32 (2008) (holding that the Board may consider
    the agency’s documentary submissions in determining whether an appellant has
    made a nonfrivolous allegation of Board jurisdiction).
    ¶9         The    Federal    Employees’      Compensation       Act   and        its   corresponding
    regulations at 5 C.F.R. part 353 provide that Federal employees who suffer
    on-the-job compensable injuries enjoy certain rights to be restored to their
    previous or comparable positions. 5 U.S.C. §§ 8101-8152, 8191-8193; Tat v. U.S.
    Postal Service, 109 M.S.P.R. 562, ¶ 9 (2008); 5 C.F.R. § 353.103(b).                     In the
    present case, it is undisputed that the appellant suffered a compensable injury and
    that her separation from Federal service was a result of her compensable injury.
    See   RPFR      File,   Tab   5   at    10;   see   also    Mims       v.     Social   Security
    Administration, 120 M.S.P.R. 213, ¶ 20 (2013) (listing among the jurisdictional
    requirements for a claim of denial of restoration following partial recovery that
    the appellant was absent from his position due to a compensable injury, he
    recovered sufficiently to perform modified work, and his request to return was
    denied); 5 C.F.R. § 353.301(c) (explaining the restoration rights of physically
    must prove by preponderant evidence: (1) absence due to a compensable injury;
    (2) sufficient recovery from the injury to return to duty on a part time basis or in a less
    physically demanding position; (3) agency denial of a request for restoration; and
    (4) denial of restoration rendered arbitrary and capricious. 
    Bledsoe, 659 F.3d at 1104
    ;
    see Latham v. U.S. Postal Service, 117 M.S.P.R. 400, ¶ 10 (2012). Under the new
    standard set forth in 5 C.F.R. § 1201.57, an appellant must make nonfrivolous
    allegations with regard to the substantive jurisdictional elements. However, the new
    “nonfrivolous allegation” standard applies only in cases filed on or after March 30,
    2015, 80 Fed. Reg. 4489-01, 4489-01 (Jan. 28, 2015) (codified at 5 C.F.R. § 1201.57),
    and is therefore inapplicable to this appeal.
    6
    disqualified individuals). The record reflects that the appellant received Office of
    Workers’ Compensation Programs (OWCP) compensation benefits for her
    shoulder injuries and that she was removed for physical inability to perform her
    Custodial Worker position as the result of those injuries. IAF, Tab 5 at 39-40,
    148-49, Tab 6 at 35; RPFR File, Tab 5 at 14, 20; see King v. Department of the
    Navy, 90 M.S.P.R. 341, ¶ 6 (2001) (finding that a compensable injury is a medical
    condition accepted by OWCP to be job-related and for which medical or monetary
    benefits are payable from the Employees’ Compensation Fund).
    ¶10        However, under regulations issued by the Office of Personnel Management,
    the appellant’s right to file a restoration appeal with the Board differs depending
    on the extent and timing of her recovery from her compensable injury. See Dean
    v. U.S. Postal Service, 115 M.S.P.R. 56, ¶ 9 (2010). In the case of a partially
    recovered employee, i.e., one who cannot resume the full range of regular duties
    but has recovered sufficiently to return to part-time or light duty or to another
    position with less demanding physical requirements, 7 an agency must make every
    effort to restore the individual to a position within her medical restrictions and
    within the local commuting area. Mubdi v. U.S. Postal Service, 114 M.S.P.R.
    559, ¶ 7 (2010); 5 C.F.R. §§ 353.102, 353.301(d).           A partially recovered
    employee may appeal to the Board only for a determination of whether the agency
    was arbitrary and capricious in denying restoration.        Urena v. U.S. Postal
    Service, 113 M.S.P.R. 6, ¶ 9 (2009); 5 C.F.R. § 353.304(c).
    ¶11        In contrast, a physically disqualified employee is one who for medical
    reasons is unable to perform the duties of her former or an equivalent position,
    and whose condition is considered permanent with little likelihood for
    improvement or recovery.       5 C.F.R. § 353.102.      A physically disqualified
    employee has agencywide rights to placement, as near as possible, in a position of
    the same status and pay for 1 year from the time eligibility for injury
    7
    Ordinarily, it is expected that a partially recovered employee will fully recover
    eventually. 5 C.F.R. § 353.102.
    7
    compensation begins. Kravitz v. Department of the Navy, 104 M.S.P.R. 483, ¶ 5
    (2007); 5 C.F.R. § 353.301(c). After 1 year passes, the employee’s restoration
    rights are equivalent to those of someone who is partially recovered or fully
    recovered, as applicable. 5 C.F.R. § 353.301(c).
    ¶12        On the record before us, we cannot determine whether the appellant was a
    physically disqualified or partially recovered employee at the time of her
    restoration request. The evidence that the agency submits for the first instance on
    review reflects that the appellant’s request for restoration has a complicated
    history and that her level of recovery may have changed over time.             See
    RPFR File, Tab 5 at 14-85. For example, the agency submitted an August 1, 2014
    job offer for a Custodial Worker position that it extended to the appellant, which
    stated that the offer was based upon medical restrictions dated April 10, 2014. 
    Id. at 25.
    Those medical restrictions indicated that the appellant was unable to reach
    above or with her left shoulder, and was limited to 3 hours per day of lifting a
    maximum of 20 pounds with her left shoulder. 
    Id. at 49.
    However, the appellant
    rejected this offer, and in September 2014, OWCP determined that the April 10,
    2014 medical restrictions were invalid because they were provided prior to a left
    shoulder surgery that the appellant underwent in May 2014.          
    Id. at 29,
    50.
    Subsequently, OWCP clarified that the August 1, 2014 job offer was not suitable,
    and requested that the agency offer the appellant a position within the medical
    restrictions of the November 3, 2014 FCE, which indicated that she was restricted
    to sedentary work. RPFR File, Tab 4 at 25, 30, Tab 5 at 30, 64.
    ¶13        Furthermore, the record does not reflect when the appellant requested
    restoration or when she became eligible for OWCP compensation, information
    that may be crucial to a determination of whether she had restoration rights as a
    physically disqualified employee when she first requested to return to work. See
    Mendenhall v. U.S. Postal Service, 74 M.S.P.R. 430, 437-38 (1997) (finding that
    an appellant’s right to restoration as a physically disqualified employee expired
    1 year after he became eligible for injury compensation); 5 C.F.R. § 353.301(c).
    8
    Although the agency offered the appellant a Custodial Worker position in
    August 2014, the record does not reflect when she made her restoration request
    that culminated in this offer. RPFR File, Tab 6 at 25-27. In addition, although
    the record on review contains a letter from the Department of Labor indicating
    that the appellant began receiving OWCP compensation for wage loss effective
    February 25, 2013, her injury occurred almost 1 year earlier, and thus, she also
    may have been eligible for other forms of compensation beginning on an earlier
    date. 
    Id. at 20-22;
    see Leach v. Department of Commerce, 61 M.S.P.R. 8, 14
    (1994) (finding that the date that an appellant became eligible for OWCP
    compensation may have been earlier than the date that she received OWCP
    benefits for wage loss); 20 C.F.R. § 10.5(a) (defining compensation under the
    Federal Employees’ Compensation Act as including amounts paid out of the
    Employees’ Compensation Fund for items such as medical treatment and medical
    examinations conducted at the request of OWCP as part of the claims
    adjudication process).
    ¶14         Accordingly, because we are unable to determine when the appellant
    became eligible for OWCP compensation, when she requested restoration, and
    whether she was partially recovered or physically disqualified at the time of her
    request, it is unclear whether the agency afforded the appellant the restoration
    rights to which she was entitled.   On review, the agency submits an affidavit
    indicating that it had searched vacancies in the Georgia/Alabama School District
    between November 14, 2014 and May 15, 2015, and found that the appellant did
    not meet the minimum qualification requirements for any of the vacancies. RPFR
    File, Tab 5 at 83-85. However, if the appellant requested restoration within a
    year of the date that she became eligible for OWCP compensation, and was a
    physically disqualified employee at the time of her request, she would have been
    entitled to agencywide consideration for vacancies for which she may have been
    qualified.   See 5 C.F.R. § 353.301(c); see also Hall v. Department of the
    Navy, 94 M.S.P.R. 262, ¶¶ 25-26 (2003) (finding that an agency potentially
    9
    violated an appellant’s rights as a physically disqualified employee by failing to
    consider him for vacancies for which he was qualified outside of the local
    commuting area), modified on other grounds by Welby v. Department of
    Agriculture, 101 M.S.P.R. 17, ¶ 15 (2006).     Alternately, if the appellant was
    partially recovered when she requested restoration, or more than a year had
    passed since her eligibility for compensation, the agency may have been required
    to consider her for vacancies for which she was qualified within the local
    commuting area. See 5 C.F.R. § 353.301(c)-(d).
    ¶15        Therefore, because the evidence submitted by the agency on review raises
    questions regarding the Board’s jurisdiction over this appeal, we remand the
    appeal for the administrative judge to afford the parties an opportunity to submit
    evidence and argument on the following issues: (1) when the appellant became
    eligible for OWCP compensation; (2) when the appellant requested restoration;
    (3) whether the appellant was a physically disqualified or partially recovered
    employee at the time of her restoration request; and (4) what actions the agency
    took in response to the appellant’s request for restoration. If the administrative
    judge determines that the parties’ responses raise a nonfrivolous allegation of
    jurisdiction over the appeal, he shall hold a jurisdictional hearing at which the
    appellant must prove jurisdiction by preponderant evidence.         See 
    Bledsoe, 659 F.3d at 1102
    .
    10
    ORDER
    ¶16        For the reasons discussed above, we remand this case to the regional office
    for further adjudication in accordance with this Remand Order.
    FOR THE BOARD:                          ______________________________
    William D. Spencer
    Clerk of the Board
    Washington, D.C.
    

Document Info

Filed Date: 1/12/2016

Precedential Status: Non-Precedential

Modified Date: 4/17/2021