Carissima M. Pettus v. Department of the Navy ( 2015 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CARISSIMA M. PETTUS, DOCKET NUMBER
Appellant, DC-0353-13-0409-I-2
v.
DEPARTMENT OF THE NAVY, DATE: November 5, 2015
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Neil C. Bonney, Esquire, Virginia Beach, Virginia, for the appellant.
Dominick G. Yacono, Esquire, and Julia Alexandra Fitzmaurice, Esquire,
Norfolk, Virginia, 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 initial decision, which
dismissed this restoration appeal for lack of jurisdiction. For the reasons
discussed below, we GRANT the appellant’s petition for review and REMAND
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
the case to the regional office for further adjudication in accordance with this
Order.
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 The appellant, a GS-05 Police Officer at the agency’s Naval Weapons
Station Yorktown, Virginia, sustained a work-related injury on November 30,
2011, which the Office of Workers’ Compensation Programs (OWCP) accepted
on January 26, 2012. Pettus v. Department of the Navy, MSPB Docket No. DC-
0353-13-0409-I-1 Initial Appeal File (IAF), Tab 1, Tab 16 at 12. Following
surgery, the appellant worked in a limited duty position until August 28, 2012,
when she experienced a recurrence of her injury, which was later accepted by the
OWCP. IAF, Tab 8 at 49, 80. The appellant saw her orthopedic surgeon on
November 26, 2012, and he determined that she had reached maximum medical
improvement such that her restrictions were permanent. Id. at 15-17. On
November 29, 2012, the appellant provided the agency with medical
documentation from her orthopedic surgeon, id., and requested immediate
restoration, id. at 25. The agency subsequently issued the appellant a notice
stating that it was unable to accommodate the appellant in her Police Officer
position. IAF, Tab 16 at 19-21. The appellant then filed this appeal. IAF, Tab 4.
¶3 In pertinent part, the administrative judge rejected the appellant’s claim for
restoration as a physically disqualified individual under 5 C.F.R. § 353.301(c)
because the appellant first requested restoration on November 29, 2012, 1 day
before her entitlement to such restoration expired. Pettus v. Department of the
Navy, MSPB Docket No. DC-0353-13-0409-I-2 (I-2 IAF), Tab 22, Initial
Decision (ID) at 3-5. 2 Under those circumstances, the administrative judge
determined that she could not find that the agency improperly failed to provide
2
The administrative judge dismissed the appeal without prejudice and the appellant
later refiled it in keeping with the administrative judge’s instructions. IAF, Tab 27; I-2
IAF, Tab 1.
3
the appellant restoration rights under 5 U.S.C. § 353.301(c), because there was no
longer any time left when she requested restoration to locate positions for her
before the end of her 1-year entitlement to restoration under the regulation. ID at
4. Thus, the administrative judge found that the appellant failed to establish
jurisdiction over her restoration claim. ID at 9.
¶4 However, contrary to the administrative judge’s conclusion, we find that the
appellant nonfrivolously alleged facts that, if proven, would establish that the
agency violated her restoration rights as a “physically disqualified” individual.
The pertinent regulation provides that:
An individual who is physically disqualified for the former position
or equivalent because of a compensable injury, is entitled to be
placed in another position for which qualified that will provide the
employee with the same status, and pay, or the nearest approximation
thereof, consistent with the circumstances in each case. This right is
agencywide and applies for a period of 1 year from the date
eligibility for compensation begins. After 1 year, the individual is
entitled to the rights accorded individuals who fully or partially
recover, as applicable.
5 C.F.R. § 353.301(c). Presuming that the appellant’s eligibility for
compensation began on the date of her initial compensable injury, November 30,
2011, because the record reflects that she provided evidence establishing her
physical disqualification within 1 year after this date, i.e., November 29, 2012,
she was entitled to be placed in another position for which she qualified that
provided her with the same status and pay, or the nearest approximation of that
status and pay, consistent with the circumstances of her case. E.g., Hall v.
Department of the Navy, 94 M.S.P.R. 262, ¶ 24 (2003). Moreover, given that the
appellant requested restoration just 3 days after her orthopedic surgeon found that
she had reached her maximum medical improvement and that she provided the
agency with medical evidence establishing her physical disqualification within
the requisite 1 year after her eligibility for compensation began, we find that the
appellant has exercised diligence in requesting restoration. See, e.g., Gerdes v.
4
Department of the Treasury, 89 M.S.P.R. 500, ¶ 13 (2001) (discussing that, aside
from making a request for restoration within 1 year after eligibility for
compensation begins, 5 C.F.R. § 353.301(c) contains no additional requirements
for placing an agency on notice that restoration is sought).
¶5 Accordingly, we find that the appellant has nonfrivolously alleged facts
that, if proven, would establish that she was a physically disqualified individual
and that the agency violated the restoration rights to which she was entitled. She
therefore is entitled to a jurisdictional hearing at which she must prove
jurisdiction by preponderant evidence. 3 See Bledsoe v. Merit Systems Protection
Board, 659 F.3d 1097, 1101-02 (Fed. Cir. 2011).
ORDER
For the reasons discussed above, we REMAND the appellant’s restoration
claim 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.
3
Effective March 30, 2015, the Board amended its regulations concerning the burden of
proof for establishing jurisdiction over restoration appeals filed under 5 C.F.R.
§ 353.304. 5 C.F.R. § 1201.57(a)(4) (2015). The amended regulations do not apply to
the instant appeal, however, because they apply only to appeals filed on or after
Marc 30, 2015. 80 Fed. Reg. 4489, 4489 (Jan. 28, 2015).