Dawn M Pullano v. United States Postal Service ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DAWN M. PULLANO, DOCKET NUMBER
Appellant, CH-3443-21-0270-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: September 30, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Dawn M. Pullano , Oak Forest, Illinois, pro se.
Rebecca L. Stephenson , Esquire, Chicago, Illinois, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her restoration appeal for lack of jurisdiction. Generally, we grant
petitions such as this one only in the following circumstances: 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 law to 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. 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. We
VACATE the administrative judge’s findings that the appellant failed to
nonfrivolously allege that she recovered sufficiently to return to regular duty and
that the agency improperly denied her request for restoration based on lack of
available work within her restrictions, MODIFY the initial decision to supplement
the administrative judge’s jurisdictional analysis, and otherwise AFFIRM the
initial decision, still finding that the Board lacks jurisdiction over the appeal.
BACKGROUND
The appellant was employed as a City Carrier at the Mount Greenwood
Post Office in Chicago, Illinois. Initial Appeal File (IAF), Tab 1 at 17. In
January 2009, the appellant sustained an on-the-job injury that impacted the use
of her hands. IAF, Tab 12 at 4-5. In April 2009, the Office of Workers’
Compensation Programs (OWCP) accepted her claim for occupational disease
based on her January 2009 injury. Id. The appellant held modified limited-duty
assignments as a Lobby Greeter in February 2018, and a Customer Care
Representative in December 2018. Id. at 127-29. According to the appellant, the
agency withdrew its offer of a modified limited-duty assignment in July 2020 due
to lack of available work based on her existing medical restrictions, and she was
not offered a compatible position thereafter. IAF, Tab 1 at 8-9, Tab 12 at 2-3.
3
She indicated that the agency did not conduct a proper search of positions that
could comply with her medical restrictions. IAF, Tab 12 at 2-3.
The appellant filed the instant appeal with the Board, alleging that the
agency failed to restore her to duty in a position consistent with her medical
restrictions related to her on-the-job injury. IAF, Tab 1 at 8-9. In its initial
response to the appeal, the agency noted that the appellant’s OWCP file from the
Department of Labor was “highly relevant” to the case, but that the appellant had
not responded to its request to authorize the release of her file. IAF, Tab 5 at 6.
During a telephonic status conference, the appellant refused to authorize the
release of her OWCP file on the grounds that the entirety of her medical records
is not relevant. IAF, Tab 10 at 1. The administrative judge then issued an order
that apprised the appellant of the elements and burden of proving jurisdiction
over a restoration appeal, and ordered her to file evidence and argument on the
jurisdictional issue. IAF, Tab 11. The appellant responded that she sustained an
on-the-job injury and provided medical documentation but the agency took away
her modified assignment in July 2020. IAF, Tab 12 at 1-3. The appellant
submitted documents pertaining to her 2009 OWCP claim and subsequent
disciplinary actions taken against her by the agency, which resulted in her filing
several grievances. Id. at 4-129. The agency stated that, because the appellant
refused to provide updated medical information and authorize the release of her
OWCP file, the agency was unable to respond to the restoration claim. IAF,
Tabs 15, 17. The appellant responded that the entirety of her medical records is
not relevant and again refused to authorize the release of her OWCP file. IAF,
Tabs 16, 18.
Without holding the requested hearing, the administrative judge issued an
initial decision dismissing the appeal for lack of jurisdiction. IAF, Tab 20, Initial
Decision (ID) at 1, 7. Specifically, he found that the appellant failed to
nonfrivolously allege that she has recovered sufficiently to return to regular duty;
that the agency improperly denied her request for restoration based on lack of
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available work within her restrictions; and that the denial was arbitrary and
capricious. ID at 5-6. He noted that, in the absence of jurisdiction, the Board
could not address the appellant’s discrimination claim. ID at 6-7.
The appellant has filed a petition for review of the initial decision. Petition
for Review (PFR) File, Tab 1. She argues that the agency should not have taken
her job away in July 2020, and that the agency did not provide work for her that
was within her medical restrictions. Id. at 4. She also argues that she should not
be expected to provide the agency with her medical records and that the agency
harassed her because of her on-the-job injury. Id. The agency has filed a
response, PFR File, Tab 3, to which the appellant has replied, 2 PFR File, Tab 4.
DISCUSSION OF ARGUMENTS ON REVIEW
The Federal Employees’ Compensation Act (FECA) and the implementing
regulations of the Office of Personnel Management (OPM) at 5 C.F.R. part 353
provide, among other things, that Federal employees who suffer compensable
injuries enjoy certain rights to be restored to their previous or comparable
positions. Kingsley v. U.S. Postal Service, 123 M.S.P.R. 365, ¶ 9 (2016); see
5 U.S.C. § 8151(b). Under OPM’s regulations, such employees have different
substantive rights based on whether they have fully recovered, partially
recovered, or are physically disqualified from their former or equivalent
positions. Kingsley, 123 M.S.P.R. 365, ¶ 9; 5 C.F.R. § 353.301. Partially
recovered employees 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.” Kingsley,
123 M.S.P.R. 365, ¶ 9; 5 C.F.R. § 353.102. OPM’s regulations require that
agencies “make every effort to restore in the local commuting area, according to
2
The appellant provided a copy of a December 23, 2020 decision on her Step B
grievance. PFR File, Tab 4 at 9-11. That document is already in the record, IAF, Tab 1
at 19-21, and thus, it is not new evidence, see Meier v. Department of the Interior,
3 M.S.P.R. 247, 256 (1980).
5
the circumstances in each case, an individual who has partially recovered from a
compensable injury and who is able to return to limited duty.” Kingsley,
123 M.S.P.R. 365, ¶ 10; 5 C.F.R. § 353.301(d). The Board has jurisdiction to
review whether an agency’s denial of restoration to a partially recovered
employee was arbitrary and capricious. Kingsley, 123 M.S.P.R. 365, ¶ 10;
5 C.F.R. § 353.304(c).
To establish jurisdiction over a claim of a denial of restoration as a
partially recovered employee, an appellant is required to make the following
nonfrivolous allegations: (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 of her; (3) the agency denied her request for
restoration; and (4) the denial was arbitrary and capricious because of the
agency’s failure to perform its obligations under 5 C.F.R. § 353.301(d).
Hamilton v. U.S. Postal Service, 123 M.S.P.R. 404, ¶ 12 (2016); 5 C.F.R.
§ 1201.57(a)(4), (b). Once an appellant establishes jurisdiction, she is entitled to
a hearing at which she must prove the merits of her restoration appeal, i.e., all
four of the above elements, by a preponderance of the evidence. Kingsley,
123 M.S.P.R. 365, ¶¶ 11-12; 5 C.F.R. § 1201.57(c)(4).
Here, it is undisputed that the appellant had an approved OWCP claim and
that she was absent from work due to an injury that impacted the use of her
hands. We find that the appellant nonfrivolously alleged the first element of her
partial restoration claim—that she was absent from her position due to a
compensable injury. The administrative judge found, however, that the appellant
failed to nonfrivolously allege that she recovered sufficiently to return to regular
duty; that the agency improperly denied her request for restoration based on lack
of available work within her restrictions; and that the denial was arbitrary and
capricious. ID at 6; IAF, Tab 12. For the following reasons, we vacate the
administrative judge’s findings that the appellant failed to nonfrivolously allege
6
that she recovered sufficiently to return to regular duty and that the agency
improperly denied her request for restoration based on lack of available work
within her restrictions, which rephrased the jurisdictional elements, and we find
instead that the appellant nonfrivolously alleged the second and third elements of
her partial restoration claim—that she recovered sufficiently to return to work in
a position with less demanding physical requirements than those previously
required of her, and that the agency denied her request for restoration. We affirm
the finding that the appellant failed to nonfrivolously allege the fourth element of
her partial restoration claim—that the denial was arbitrary and capricious.
The record reflects that, after OWCP approved her claim for a compensable
injury, the agency offered the appellant modified limited-duty assignments,
including Lobby Greeter in February 2018 and Customer Care Representative in
December 2018, both of which the appellant accepted. IAF, Tab 12 at 127-29.
However, the appellant indicates that the agency did not provide her with work
within her medical restrictions from July 2020 onward, even though she
expressed to the agency that she wished to return to work. PFR File, Tab 1 at 4;
IAF, Tab 1 at 8-9, Tab 12 at 2-3. In her jurisdictional response, the appellant
included a copy of a December 23, 2020 decision on her Step B grievance,
finding that the agency violated a section of the Employee and Labor Relations
Manual when it withdrew an offer of a modified limited-duty assignment. IAF,
Tab 12 at 72-75.
The Board has found that an agency’s rescission of a previously provided
restoration or the discontinuation of a limited-duty position may constitute an
appealable denial of restoration. Scott v. U.S. Postal Service, 118 M.S.P.R. 375,
¶ 9 (2012). Therefore, we find that the appellant has made a nonfrivolous
allegation that the agency denied her request for restoration when it discontinued
her former limited-duty assignment in July 2020.
However, regarding the fourth jurisdictional element, the mere fact that the
agency discontinued the appellant’s former limited-duty assignment does not
7
necessarily mean that it was acting arbitrarily and capriciously. See Paszko v.
U.S. Postal Service, 119 M.S.P.R. 207, ¶ 10 (2013). After the initial decision in
this appeal was issued, the Board issued a decision in Cronin v. U.S. Postal
Service, 2022 MSPB 13, which clarified when a denial of restoration may be
arbitrary and capricious. 3 The Board in Cronin held that, although agencies may
undertake restoration efforts beyond the minimum effort required by OPM under
5 C.F.R. § 353.301(d), an agency’s failure to comply with self-imposed
obligations cannot itself constitute a violation of 5 C.F.R. § 353.301(d) such that
a resulting denial of restoration would be rendered arbitrary and capricious for
purposes of establishing Board jurisdiction under 5 C.F.R. § 353.304(c). Cronin,
2022 MSPB 13, ¶ 20. Rather, as explained in Cronin, the issue before the Board
is limited to whether the agency failed to comply with the minimum requirement
of 5 C.F.R. § 353.301(d), i.e., to search within the local commuting area for
vacant positions to which it can restore a partially recovered employee and to
consider her for any such vacancies. See Cronin, 2022 MSPB 13, ¶ 20 (citing
Sanchez v. U.S. Postal Service, 114 M.S.P.R. 345, ¶ 12 (2010)).
Additionally, the Board in Cronin clarified that claims of prohibited
discrimination or reprisal cannot serve as an “alternative means” of showing that
a denial of restoration was arbitrary and capricious. Cronin, 2022 MSPB 13,
¶ 21. The Board acknowledged that an agency’s failure to comply with section
353.301(d) may well be the result of prohibited discrimination or reprisal for
protected activity; however, whether that is so is immaterial to the question of
whether a denial of restoration is arbitrary and capricious for purposes of section
353.304(c). Id.3
Because the Board issued Cronin while this appeal was pending, it is given retroactive
effect and applies to this appeal. See Reynoldsville Casket Co. v. Hyde, 514 U.S. 749,
752 (1995) (finding that, when a court decides a case and applies a new legal rule to the
parties before it, it must apply the same new legal rule to all pending cases, whether or
not those cases involve events that occurred prior to the announcement of the new rule).
8
On review, the appellant appears to be alleging that her denial of
restoration was arbitrary and capricious, and that the agency discriminated against
her based on disability. She claims that the agency representative should have
been able to obtain her medical information from the OWCP and that it was the
agency’s responsibility to locate a position that was within her medical
restrictions, which the agency failed to do. PFR File, Tab 1 at 4, Tab 4 at 5-6.
The agency explained, however, that, pursuant to an August 18, 2014
Memorandum of Understanding between the agency and the Department of Labor,
the agency may only obtain OWCP records for a restoration case if the appellant
executes a FECA release, which the appellant refused to do. IAF, Tab 5 at 5-6.
The agency may discontinue a modified assignment if the duties of that
assignment actually went away or if the agency needed to reassign them to
non-limited duty employees who would otherwise not have enough work to do.
Paszko, 119 M.S.P.R. 207, ¶ 10. According to the March 2, 2021 final agency
decision in the appellant’s equal employment opportunity (EEO) complaint, the
appellant was provided with modified limited-duty assignments as a Customer
Care Representative and Lobby Greeter, but the outbreak of COVID-19
eliminated the need for such positions throughout the agency. IAF, Tab 2
at 16-18. The agency was under no obligation to make work for the appellant or
to pay the appellant when there was not enough meaningful work for her to do.
See Fitzsimmons v. U.S. Postal Service, 99 M.S.P.R. 1, ¶ 11 (2005) (noting that
the appellant’s contention that she was informed no work was available upon
making request for restoration was not a nonfrivolous allegation that denial of
restoration was arbitrary and capricious). Furthermore, as the administrative
judge noted, the appellant was unwilling to allow the agency to obtain her OWCP
file in order to allow the agency to evaluate her current medical restrictions and
any potential compatible job vacancies. ID at 6. Therefore, even though the
agency was required to search throughout the entire local commuting area for
alternative assignments, and the appellant suggests that it did not, its failure to do
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so does not necessarily render the denial of restoration arbitrary and capricious if
it has a sufficient explanation. See Paszko, 119 M.S.P.R. 207, ¶ 10. We
therefore find that the appellant has failed to nonfrivolously allege that the
agency’s discontinuation of her assignment was arbitrary and capricious.
In the absence of an otherwise appealable action, we lack jurisdiction to
address the appellant’s claim of disability discrimination. IAF, Tab 1 at 9,
Tab 12 at 2-3; see McDonnell v. Department of the Navy, 84 M.S.P.R. 380, ¶ 11
(1999) (finding that, in the absence of an otherwise appealable action, the Board
lacked jurisdiction to review the appellant’s claim of disability discrimination or
reprisal for EEO activity). Finally, the appellant’s claim that the administrative
judge was biased in favor of the agency and that he ruled against her due to her
failure to sign the FECA release is unavailing. 4 PFR File, Tab 4 at 5-6. The fact
that an administrative judge ruled against the appellant is insufficient evidence to
show bias. Coufal v. Department of Justice, 98 M.S.P.R. 31, ¶ 11 (2004).
Thus, we affirm the dismissal of this appeal for lack of jurisdiction.
NOTICE OF APPEAL RIGHTS 5
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
4
The Board has long held that, in making a claim of bias or prejudice against an
administrative judge, a party must overcome the presumption of honesty and integrity
that accompanies administrative adjudicators. Oliver v. Department of Transportation,
1 M.S.P.R. 382, 386 (1980). An administrative judge’s conduct during the course of a
Board proceeding warrants a new adjudication only if his comments or actions evidence
“a deep-seated favoritism or antagonism that would make fair judgment impossible.”
Bieber v. Department of the Army, 287 F.3d 1358, 1362-63 (Fed. Cir. 2002). The
appellant has not identified any conduct by the administrative judge that would reflect
antagonism or favoritism, nor has she raised any allegations that would support a
finding of bias. Thus, we find that the appellant has not overcome the presumption of
honesty and integrity that accompanies an administrative judge.
5
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
10
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
11
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, 10, 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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
12
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
13
competent jurisdiction. 6 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit 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, 10, 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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
6
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
14
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.