Joaquin Alvarez v. United States Postal Service ( 2016 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOAQUIN ALVAREZ, DOCKET NUMBER
Appellant, SF-0353-16-0102-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: September 9, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Guillermo Mojarro, Upland, California, for the appellant.
Jeremy M. Watson, Esquire, San Francisco, California, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his restoration appeal for lack of jurisdiction. Generally, we grant
petitions such as this one only when: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. See
title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
BACKGROUND
¶2 The appellant holds a City Carrier position with the agency. Initial Appeal
File (IAF), Tab 5 at 38. On April 7, 2010, he suffered a job-related injury. Id.
at 15, 17-18, 20-22, 24-26, 28-30, 32-33. He filed a compensation claim for this
injury with the Department of Labor’s Office of Workers’ Compensation
Programs (OWCP), which accepted his claim. 2 Id.; IAF, Tab 5 at 35-37.
¶3 Beginning in August 2015, the appellant returned to work in a limited-duty
capacity by accepting a series of the agency’s offers of modified assignments
dated August 18, September 2, September 18, and September 24, 2015. IAF,
Tab 5 at 15‑25. The appellant’s medical restrictions limited him to lifting no
more than 5 pounds and driving no more than 4 hours a day, and they prevented
him from climbing, twisting, pushing, pulling, and reaching above the shoulders.
2
The record does not contain documentation from OWCP reflecting that it accepted the
appellant’s claim. However, the administrative judge found, and the parties do not
dispute, that the appellant suffered a compensable injury on April 7, 2010. IAF, Tab 4
at 13, Tab 5 at 10, Tab 9, Initial Decision at 11; see Hamilton v. U.S. Postal Service,
123 M.S.P.R. 404, ¶ 14 (2016) (recognizing that a compensable injury is defined as one
that is accepted by OWCP as job-related and for which medical or monetary benefits
are payable from the Employees’ Compensation Fund).
3
Id. at 16, 19-21, 23-25, 27-29, 31-33. The appellant’s time and attendance
records reflect that he worked full-time from August 1 to October 6, 2015. 3 Id.
at 43-62.
¶4 The agency made two additional offers of modified assignments dated
October 1 and October 8, 2015. Id. at 26-33. The appellant did not accept the
October 1, 2015 offer, and he was not able to accept or decline the October 8,
2015 offer because he was on sick leave. Id. at 26, 30, 34, 62. The appellant
later gave the agency notice that he had allegedly suffered a traumatic injury on
October 8, 2015, and he made a claim for a continuation of regular pay based on
this injury. Id. at 35‑37.
¶5 On October 9 and October 30, 2015, the appellant made written requests to
the agency for reinstatement to a limited-duty position at the Van Nuys Passport
Office. IAF, Tab 4 at 18, Tab 5 at 40. In letters dated October 21 and
November 4, 2015, the agency responded that it had already offered him a
modified assignment at the Van Nuys Post Office, Encino Station, on
September 18, 2015, which he had accepted. IAF, Tab 5 at 39, 42. The agency
also stated that there was no available work at the Van Nuys Passport Office, and
the offer of modified assignment at the Van Nuys Post Office was still available. 4
Id. at 42.
¶6 The appellant filed this Board appeal and requested a hearing. IAF, Tab 1.
He alleged that the agency denied his restoration to the Van Nuys Passport Office
after he made a verbal request on September 29, 2015, and written requests on
October 9 and October 30, 2015. IAF, Tab 1 at 6, Tab 4 at 4, 21. According to
the appellant, the agency’s actions constituted a denial of restoration,
3
The agency explained what the following time and attendance codes stand for: 05200
is normal work hours, 05800 is holiday leave, 05600 is sick leave, 05900 is part-day
leave without pay, and 06000 is full-day leave without pay. IAF, Tab 5 at 10 n.2. The
appellant has not contested this explanation.
4
Both offices are located in Van Nuys, California. IAF, Tab 5 at 23.
4
discrimination based on age and disability, retaliation for equal employment
opportunity (EEO) activity, and other prohibited personnel practices. IAF, Tab 1
at 4, 6, Tab 4 at 4‑8, 13‑17, 21; see generally 5 U.S.C. § 2302 (listing prohibited
personnel practices). He also alleged that the agency failed to provide him with
his Board appeal rights or follow its own procedures regarding restoration. IAF,
Tab 4 at 4‑5.
¶7 In an acknowledgment order, the administrative judge apprised the
appellant of his burden to establish jurisdiction by making nonfrivolous
allegations regarding the substantive jurisdictional elements of his restoration
claim. IAF, Tab 2 at 2-10. He also ordered the appellant to file evidence and
argument on the jurisdictional issue, and informed him that the record on the
issue of jurisdiction would close on December 7, 2015. Id. at 10. The appellant
responded. IAF, Tab 4. The agency also responded and filed a motion to dismiss
the appeal for lack of jurisdiction. IAF, Tab 5. The appellant then filed a
response to the agency’s motion to dismiss on December 9, 2015. IAF, Tab 6.
However, the administrative judge declined to accept or consider this submission
because it was filed after the record closed on the jurisdictional issue. IAF, Tab 8
at 2 n.*, Tab 9, Initial Decision (ID) at 6 n.4.
¶8 Without holding the requested hearing, the administrative judge issued an
initial decision granting the agency’s motion and dismissing the appeal for lack of
jurisdiction. ID at 1, 19. He found that the appellant failed to establish Board
jurisdiction over his denial of restoration appeal as a partially recovered
employee under 5 C.F.R. § 353.304(c). ID at 10, 16-17. Specifically, he found
that the appellant failed to nonfrivolously allege that the agency denied him
restoration after he partially recovered from his April 7, 2010 injury, or that any
such denial was arbitrary and capricious. ID at 10, 12-16. The administrative
judge further found that the Board lacks jurisdiction over any claim of denial of
restoration based on the appellant’s October 8, 2015 injury because he failed to
5
nonfrivolously allege that this injury was compensable. ID at 11 n.10. Finally,
the administrative judge found that the appellant’s claims of discrimination,
reprisal, prohibited personal practices, and harmful procedural error were not
relevant to the jurisdictional issue because the agency did not deny him
restoration, and that, absent an appealable action, the Board lacks independent
jurisdiction over such claims. 5 ID at 17-19.
¶9 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has filed a response. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant has failed to satisfy his jurisdictional burden.
¶10 The Federal Employees’ Compensation Act and the implementing
regulations of the Office of Personnel Management (OPM) at 5 C.F.R. part 353
provide, inter alia, that Federal employees who suffer compensable injuries enjoy
certain rights to be restored to their previous or comparable positions. 5 U.S.C.
§ 8151(b); Kingsley v. U.S. Postal Service, 123 M.S.P.R. 365, ¶ 9 (2016).
Partially recovered employees, like the appellant, are those who, “though not
ready to resume the full range” of duties, have “recovered sufficiently to return to
part-time or light duty or to another position with less demanding physical
requirements.” 6 5 C.F.R. § 353.102.
¶11 The Board has jurisdiction to review whether an agency’s denial of
restoration to a partially recovered employee was arbitrary and capricious.
Bledsoe v. Merit Systems Protection Board, 659 F.3d 1097, 1103-04 (Fed. Cir.
2011), modified in part by regulation as stated in Kingsley, 123 M.S.P.R. 365,
5
The administrative judge erroneously stated that the appellant alleged sex, instead of
age, discrimination. ID at 17. However, we find such error harmless because it
does not affect the outcome of the case. See Panter v. Department of the Air Force,
22 M.S.P.R. 281, 282 (1984) (stating that an adjudicatory error that is not prejudicial to
a party’s substantive rights provides no basis for reversal of an initial decision).
6
The administrative judge found, and the parties do not dispute, that the appellant was
a partially recovered employee. ID at 8; IAF, Tab 4 at 4, 14, Tab 5 at 6.
6
¶ 10; 5 C.F.R. § 353.304(c). To establish jurisdiction and obtain a hearing on the
merits, an appellant is required to make nonfrivolous allegations 7 that: (1) he was
absent from his position due to a compensable injury; (2) he 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 of him; (3) the agency denied his request for restoration; and (4) the
agency’s denial was arbitrary and capricious. Clark v. U.S. Postal Service,
123 M.S.P.R. 466, ¶ 5 (2016); 5 C.F.R. § 1201.57(a)(4), (b).
¶12 In his petition for review, the appellant disputes the administrative judge’s
finding that he failed to establish jurisdiction. PFR File, Tab 1 at 5. Specifically,
he alleges that the administrative judge “made improper determinations regarding
the time frames of this appeal” and “the limited duty job assignment that was
available” to him. Id. For the following reasons, we agree with the
administrative judge’s finding that the appellant failed to nonfrivolously allege
that the agency denied him restoration after he partially recovered from his
April 7, 2010 injury. 8 ID at 12-15.
¶13 The record reflects that the agency offered, and the appellant accepted, a
series of modified assignments in August and September 2015. IAF, Tab 5
at 15‑25. The agency made further offers of modified assignments on October 1
and October 8, 2015; however, the appellant declined the October 1 offer and
did not respond to the October 8 offer because he was on sick leave beginning on
October 8, 2015. 9 Id. at 26-34, 62. The appellant made several requests for
7
A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
issue. 5 C.F.R. § 1201.4(s).
8
The administrative judge found, in the alternative, that the appellant failed to
nonfrivolously allege that the agency’s denial of restoration was arbitrary and
capricious. ID at 15-16. The appellant does not dispute this finding on review, and we
find no reason to disturb it.
9
The appellant does not dispute, and we find no reason to disturb, the administrative
judge’s finding that the Board lacks jurisdiction over any denial of restoration claim
7
reinstatement to a limited-duty position at the Van Nuys Passport Office. IAF,
Tab 4 at 18, 21, Tab 5 at 40. The agency responded that it already had offered
him a modified assignment at the Van Nuys Post Office on September 18, 2015,
and that the offer was still valid. IAF, Tab 5 at 39, 42. The agency also
explained that it had previously issued him a temporary, limited-duty job offer to
perform some passport office duties; however, there was currently no available
work at the Van Nuys Passport Office. Id. at 42. The appellant declared under
penalty of perjury that the agency’s offered position at the Van Nuys Post Office
was outside of his medical restrictions, and the agency denied his requests for
reinstatement. IAF, Tab 4 at 21.
¶14 We agree with the administrative judge’s finding that the appellant’s
generalized claim that the agency required him to work outside his medical
restrictions was insufficient to nonfrivolously allege a restoration so unreasonable
as to be an effective denial. ID at 13; see Foley v. U.S. Postal Service,
90 M.S.P.R. 206, ¶ 6 (2001) (finding that to establish jurisdiction over a claim
that an offer of restoration amounts to an effective denial of restoration because a
partially recovered appellant is incapable of performing the job duties, an
appellant must present specific, independent evidence corroborating his
allegations). Although the appellant declared under penalty of perjury that the
agency’s offer of modified assignment at the Van Nuys Post Office was not
within his medical restrictions “because of my 5-15 pound weight restriction,”
and the agency denied his requests for reinstatement, IAF, Tab 4 at 21, Tab 6 at 5,
the administrative judge properly found the appellant’s allegations pro forma,
ID at 14; see Clark, 123 M.S.P.R. 466, ¶ 8 (stating that a vague, conclusory, or
unsupported allegation, such as one that essentially repeats the legal standard,
without more, is pro forma and insufficient to satisfy the jurisdictional burden in
based on the appellant’s alleged October 8, 2015 injury, because there was no evidence
that OWCP accepted the claim for compensation. ID at 11 n.10; see Hamilton,
123 M.S.P.R. 404, ¶ 14.
8
a restoration appeal); 5 C.F.R. § 1201.4(s). The agency’s job offers provided that
the appellant was not to lift more than “5 lbs. intermittently.” IAF, Tab 5 at 19,
23, 27, 31. The appellant provided no corroborating evidence below or on review
to support his claim that he was or would have been required to lift more weight
at the Van Nuys Post Office.
¶15 Further, the administrative judge correctly found that the appellant, as a
partially recovered employee, had no right to appeal the details and circumstances
of the agency’s restoration offer. ID at 14-15; Booker v. Merit Systems
Protection Board, 982 F.2d 517, 519 (Fed. Cir. 1992); 5 C.F.R. § 353.304(c).
Thus, the appellant may not appeal the agency’s determination that there was no
available work in his preferred office, the Van Nuys Passport Office, when the
record shows that he had other standing offers of modified assignments.
Paszco v. U.S. Postal Service, 119 M.S.P.R. 207, ¶ 10 n.4 (2013) (observing that
there is nothing to prevent the agency from assigning a partially recovered
employee from one set of modified duties to another). Finally, the appellant
does not specify what improper determinations the administrative judge made
regarding the time frame of this appeal, or how such errors affected the outcome
of this appeal. See Panter, 22 M.S.P.R. at 282; 5 C.F.R. § 1201.115(a).
The appellant’s remaining arguments on review do not provide a reason to disturb
the initial decision.
¶16 The appellant claims that the administrative judge failed to review all of his
pleadings. PFR File, Tab 1 at 4. However, an administrative judge’s failure to
mention all of the evidence of record does not mean that he did not consider it in
reaching his decision. Marques v. Department of Health & Human Services,
22 M.S.P.R. 129, 132 (1984), aff’d, 776 F.2d 1062 (Fed. Cir. 1985) (Table).
Moreover, the appellant has not identified any particular argument or evidence
that the administrative judge may have overlooked that might have affected the
outcome of this appeal. See Panter, 22 M.S.P.R. at 282.
9
¶17 We also decline to find that it was error for the administrative judge not to
consider the appellant’s untimely response to the agency’s motion to dismiss.
PFR File, Tab 1 at 4; IAF, Tab 8 at 2 n.*. The administrative judge advised the
parties that the record on jurisdiction would close on December 7, 2015. IAF,
Tab 2 at 10. The appellant responded on November 22, 2015, and the agency
responded on December 2, 2015. IAF, Tabs 4-5. The agency’s response was also
a motion to dismiss for lack of jurisdiction. IAF, Tab 5. The appellant waited
until December 9, two days after the record on jurisdiction closed, to respond to
the agency’s motion. Therefore, the administrative judge acted within his
discretion in declining to consider this response. Nonetheless, we have reviewed
the response and find that it presents no new arguments. IAF, Tab 6.
¶18 Next, the appellant alleges that the administrative judge “made improper
determinations regarding the [a]gency’s [f]ailure to provide [him] with his
requested discovery.” PFR File, Tab 1 at 5. An appellant may request discovery
of relevant materials to help him meet his burden of establishing the Board’s
jurisdiction. Parker v. Department of Housing & Urban Development,
106 M.S.P.R. 329, ¶ 9 (2007). The Board’s regulations reflect an expectation that
the parties will start and complete discovery with minimum Board intervention.
5 C.F.R. § 1201.71; see King v. Department of the Navy, 98 M.S.P.R. 547, ¶ 10
(2005) (recognizing that a party does not need the Board’s approval to engage in
discovery, and the Board generally only becomes involved in discovery matters if
a party files a motion to compel), aff’d, 167 F. App’x 191 (Fed. Cir. 2006).
Because the appellant did not file a motion to compel below, he is precluded from
raising this discovery issue for the first time on review. See Szejner v. Office of
Personnel Management, 99 M.S.P.R. 275, ¶ 5 (2005), aff’d, 167 F. App’x 217
(Fed. Cir. 2006).
¶19 Finally, the appellant argues that the administrative judge erred in not
finding discrimination. PFR File, Tab 1 at 5. We find that the administrative
judge properly determined that the appellant’s discrimination claims were
10
immaterial to the jurisdictional issue because the appellant failed to
nonfrivolously allege that the agency denied him restoration to a position within
his medical restrictions. ID at 17-18; see Latham v. U.S. Postal Service,
117 M.S.P.R. 400, ¶ 58 (2012) (finding that the Board lacks jurisdiction over
disability discrimination and EEO reprisal claims per se absent an otherwise
appealable action; however, such claims should be considered to the extent that
they pertain to the jurisdictional issue), modified by regulation on other grounds
as stated in Kingsley, 123 M.S.P.R. 365, ¶ 10. We further agree with the
administrative judge’s finding that the Board lacks jurisdiction over the
appellant’s discrimination claims absent an otherwise appealable action.
ID at 17-19; see Wren v. Department of the Army, 2 M.S.P.R. 1, 2 (1980) (finding
that a prohibited personnel practice under 5 U.S.C. § 2302(b) is not an
independent source of Board jurisdiction), aff’d, 681 F.2d 867 (D.C. Cir. 1982).
¶20 Accordingly, we conclude that the administrative judge properly dismissed
this appeal for lack of jurisdiction.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the U.S.
Court of Appeals for the Federal Circuit. You must submit your request to the
court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar days
after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27,
2012). If you choose to file, be very careful to file on time. The court has held
that normally it does not have the authority to waive this statutory deadline and
11
that filings that do not comply with the deadline must be dismissed. See Pinat v.
Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
title 5 of the U.S. Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. Dec. 27,
2012). You may read this law as well as other sections of the U.S. Code, at our
website, http://www.mspb.gov/appeals/uscode.htm. Additional information is
available at the court’s website, www.cafc.uscourts.gov. Of particular relevance
is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained
within the court’s Rules of Practice, and Forms 5, 6, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Merit Systems Protection Board neither endorses the services provided by any
attorney nor warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.