Desjardin v. United States Postal Serv.

• Decision Date: 22 February 2023
• Docket Number: SF-0353-15-0241-I-1
• Citation: 2023 MSPB 6
• Parties: Randall S. Desjardin, Appellant, v. United States Postal Service, Agency.
• Court: Merit Systems Protection Board

2023 MSPB 6

Randall S. Desjardin, Appellant, v. United States Postal Service, Agency.

No. SF-0353-15-0241-I-1

United States of America Merit Systems Protection Board

February 22, 2023

Randall S. Desjardin, Grove, Oklahoma, pro se.

Michael R. Tita, Esquire, Sandy, Utah, for the agency.

BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt Member Vice Chairman Harris recused herself and did not participate in the adjudication of this appeal.

OPINION AND ORDER

¶1 The appellant has filed a petition for review of the initial decision that granted in part his restoration claim on the merits. The agency has filed a cross petition for review. For the reasons discussed below, we DENY the petition for review and GRANT the cross petition for review. We AFFIRM the initial decision IN PART, AS MODIFIED by this Opinion and Order, REVERSE it IN PART, and VACATE it IN PART. More specifically, we AFFIRM AS MODIFIED the administrative judge's finding that the agency arbitrarily and capriciously denied the appellant restoration. We REVERSE the administrative judge's finding that the agency discriminated against the appellant on the basis of his disability. We VACATE the administrative judge's order to pay the appellant back pay for 2 hours per day for the time during which he was denied partial restoration.

BACKGROUND

¶2 The appellant is employed by the agency as a City Carrier. Initial Appeal File (IAF), Tab 6, Subtab A at 2. On December 11, 2014, he submitted a written request to the agency's local injury compensation manager to return to work following an absence due to a compensable injury. Id., Subtab B. He included a Form CA-17 (Duty Status Report) completed by his doctor that listed his medical restrictions. Id. at 2. He submitted updated paperwork over the following week. Id. at 4, 6-7, 10, 12.

¶3 On January 7, 2015, the appellant filed this Board appeal challenging the agency's failure to restore him to duty. IAF, Tab 1. Around the time the appellant filed his Board appeal, the agency informed him by letter that it had unsuccessfully searched for available work within his medical restrictions within his facility and throughout the local commuting area. IAF, Tab 6, Subtab E. Although the letter was dated January 5, 2015, it does not appear to have been sent to the appellant until 8 days later. Id., Subtab F. Additionally, the appellant's supervisor conceded in her hearing testimony that in fact a full search of the local commuting area had not been conducted when the agency sent the letter. Hearing Compact Disc (HCD) (testimony of S.N.).

¶4 The agency searched the local commuting area on January 15 2015, based on restrictions that differed somewhat from those set forth by the appellant's doctor. That search resulted in a finding of no work available within the appellant's restrictions. IAF, Tab 17 at 31-71. Approximately 2 weeks after he filed this appeal, the appellant received and accepted a modified limited-duty assignment casing mail for up to 2 hours per day. Id. at 14. The appellant accepted the modified limited-duty assignment "under protest," asserting that there was sufficient work available for him to work a full-time schedule. Id. at 13-14. He also argued that he could perform his duties as a union steward. Id.

¶5 Effective March 24, 2015, the appellant accepted a new modified limited-duty assignment for 8 hours per day. IAF, Tab 42, Subtab BB. In accepting the offer, the appellant protested that the offer did not specifically include union steward duties. Id. However, the appellant acknowledged in his hearing testimony that he was permitted to perform those duties after accepting the March 24, 2015 limited-duty assignment. HCD (testimony of the appellant).

¶6 After holding a hearing, the administrative judge issued an initial decision granting the appellant's request for restoration in part. IAF, Tab 61, Initial Decision (ID). Specifically, she found that the agency's initial search for available work for the appellant was inadequate because it failed to include the entire local commuting area and was based on incorrect medical restrictions.^[1]ID at 7. She further found that the appellant's partial restoration to duty in January 2015 was so unreasonable as to amount to an arbitrary and capricious denial of restoration. ID at 7-8. The administrative judge rejected the appellant's argument that the agency was required to assign him to perform union steward duties as part of its restoration obligation. ID at 9-11. However, she found that there were at least 2 hours of work available daily within the appellant's medical restrictions from the time he submitted his restoration request in December 2014. ID at 11-13. Accordingly, the administrative judge ordered the agency to pay the appellant back pay and benefits for 2 hours per day for the period during which his request for restoration was denied in its entirety and to conduct a proper search for available work retroactive to December 12, 2014. ID at 28-29.

¶7 Having found that the Board had jurisdiction over the appellant's restoration appeal, the administrative judge then addressed the appellant's claims of discrimination, retaliation, and harmful procedural error. She found that the appellant failed to show that the agency denied him a reasonable accommodation for his disability because he failed to identify either an accommodation that would have enabled him to perform the essential functions of his position or a vacant funded position to which he could have been reassigned. ID at 16-17. In addressing the appellant's disparate treatment disability discrimination claim, the administrative judge applied a mixed-motive analysis and found that the appellant's disability was a motivating factor in both the agency's failure to immediately restore him for at least 2 hours per day, as well as its failure to restore him to full-time work. ID at 17-19. The administrative judge found that the agency proved by clear and convincing evidence that it would have denied the appellant a full-time limited-duty assignment even in the absence of his disability, but she also found that the agency failed to meet that burden regarding the failure to immediately provide 2 hours of work. ID at 19-20.

¶8 The administrative judge also found that the appellant failed to prove that his sex or prior equal employment opportunity (EEO) activity was a motivating factor in the agency's actions. ID at 20-23. She further found that the appellant failed to show that the agency's actions constituted retaliation for his whistleblowing or union activities. ID at 23-27. Finally, the administrative judge found that the appellant failed to show any harmful error separate from the merits of his restoration claim. ID at 27-28.

¶9 The appellant has filed a petition for review and the agency has filed a cross petition for review challenging the initial decision. Petition for Review (PFR) File, Tabs 1, 9. The appellant argues that the agency's actions violated the applicable collective bargaining agreement, the agency's Employee and Labor Relations Manual, and the National Labor Relations Act by failing to allow him to perform union duties. PFR File, Tab 1 at 9-12. He also argues that there were sufficient nonunion duties available to restore him to full-time work. Id. at 13-17. He argues that his union duties are essential functions of his position and that the agency's failure to restore him to perform those duties is therefore a denial of reasonable accommodation. Id. at 17. The appellant further argues that he proved his claims of harmful error, sex discrimination, and retaliation for prior EEO, whistleblowing, and union activities. Id. at 18-21. Finally, the appellant asserts that he has evidence that was not previously available.^[2] Id. at 21, 25-165. In its cross petition for review, the agency argues that the administrative judge erred in finding disability discrimination because it was not required under the Rehabilitation Act to offer the appellant duties that did not comprise the essential functions of a position. PFR File, Tab 9 at 10-12. The appellant has responded in opposition to the agency's cross petition for review.^[3] PFR File, Tab 11.

ANALYSIS

To establish jurisdiction over his restoration claim as a partially recovered employee, the appellant must show that the agency failed to meet its minimum obligation under 5 C.F.R. § 353.301(d).

¶10 The Federal Employees' Compensation Act provides, 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). Congress has explicitly granted the Office of Personnel Management (OPM) the authority to issue regulations governing the obligations of employing agencies in this regard. 5 U.S.C. § 8151(b). Pursuant to this authority, OPM has issued regulations requiring agencies to make certain efforts toward restoring employees with compensable injuries to duty, depending on the timing and extent of their recovery. 5 C.F.R. § 353.301; see Smith v. U.S. Postal Service, 81 M.S.P.R. 92, ¶ 6 (1999).

¶11 The regulation at 5 C.F.R. § 353.301(d) concerns the restoration rights granted to "partially recovered" employees, defined in 5 C.F.R. § 353.102 as injured employees who, "though not ready to resume the full range" of their regular duties, have "recovered sufficiently to return to part-time or light duty or to another position with less demanding physical requirements." Section 353.301(d) requires agencies to "make every effort to restore in the local commuting area, according to the circumstances in each case, an individual who has partially...