Leija v. Dep't of Veterans Affairs, 2013-3048
| Decision Date | 12 September 2013 |
| Docket Number | 2013-3048 |
| Parties | HORTENCIA R. LEIJA, Petitioner, v. DEPARTMENT OF VETERANS AFFAIRS, Respondent. |
| Court | U.S. Court of Appeals — Federal Circuit |
NOTE: This disposition is nonprecedential.
Petition for review of the Merit Systems Protection Board in Nos. DA0752110588-I-1, DA0353110513-I-1, and DA0752110537-I-1.
HORTENCIA R. LEIJA, of San Antonio, Texas, pro se.
CORINNE A. NIOSI, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for respondent. With her on the brief were STUART F. DELERY, Acting Assistant Attorney General, JEANNE E. DAVIDSON, Director, and MARTIN F. HOCKEY, Assistant Director.
Before NEWMAN, PROST, and WALLACH, Circuit Judges.
Hortencia Leija appeals the decision of the Merit Systems Protection Board ("Board") affirming her removal from employment with the Department of Veterans Affairs ("VA") and dismissing her restoration appeal for lack of jurisdiction. We affirm the Board's decision that it lacked jurisdiction over Ms. Leija's restoration appeal, but we vacate the Board's affirmance of her removal and remand for further proceedings consistent with our opinion.
Hortencia Leija was employed as a Diagnostic Radiological Technologist at the GS-9 level for the VA. In 2008, she injured her left shoulder, and the next year she hurt her right one. The Office of Workers' Compensation Programs ("OWCP") found her injuries to be work-related and compensable. After two periods of approved medical leave, lasting approximately four months and six months, Ms. Leija returned to work fulltime in October 2009. Because of her shoulder injuries, her physician imposed certain medically-necessary restrictions on her activities at work. Due to those limitations, the VA offered Ms. Leija—and she accepted—a series of restricted duty jobs in 2010 that were commensurate with her physical capabilities. Both Ms. Leija and her direct supervisor, Mr. Long, believed that she was performing the duties of a Medical Support Assistant at the GS-4 level by August 2010.
In December 2010, the VA mailed Ms. Leija a formal offer of permanent reassignment as a Medical Support Assistant with pay retained from the GS-9 level. In its letter, the VA informed her that it could ask the OWCPfor a suitability determination of the offer if she refused. It further explained that, if the OWCP found the new position suitable and she continued to refuse the offer, her workers compensation benefits might be terminated and she might face "administrative action." Resp't App. 63. The VA also directed Ms. Leija to complete an enclosed "Acceptance/Declination Statement" ("ADS") form by December 28, 2010. Resp't App. 62. That form provided two options: "voluntarily accept" the offered Medical Support Assistant position or "decline" it. Resp't App. 64.
Ms. Leija did not return the ADS form to the VA. However, according to both her and Mr. Long, she continued working in her "light duty assignment that was comprised of duties of the Medical Support Assistant position." Resp't App. 10.
Despite Ms. Leija's failure to return the ADS form, the VA "issued a Standard Form 52" to officially change her employment "from the Diagnostic Radiological Technician position to the Medical Support Assistant position," while "includ[ing] retained pay." Resp't App. 10-11.1 The VA also referred its offer to the OWCP for a suitability determination.
On February 14, 2011, the OWCP informed Ms. Leija that it believed the VA's offer was suitable and instructed her that she had "30 days to accept the position or providea valid reason for not accepting it." Resp't App. 11. Ms. Leija provided a timely response, but the OWCP did not find it "sufficient." Id. On April 18, 2011, the office informed Ms. Leija that her workers-compensation benefits would be terminated "based on her refusal of an offer of suitable work." H.L., & Dep't of Veterans Affairs, S. Tex. Health Care Sys., 2012 WL 8595448 at *2 (E.C.A.B. 2012). The VA was notified of the OWCP's decision to terminate her benefits.
Three days prior to the OWCP's decision, on April 15, 2011, Ms. Leija's representative, Mr. Rogers, mailed the VA a letter indicating that she declined the VA's December 2010 offer. In his letter, Mr. Rogers explained that several attempts to discuss the offer with VA representatives failed. Despite those unsuccessful attempts at negotiation, he asserted that Ms. Leija was "back to work" and "willing to accept [a] suitable job as applicable to her current job description." Resp't App. 74. He further argued that Ms. Leija was capable of performing the job duties of a Radiological Technologist with accommodations similar to what other technologists were receiving and that she would be able to return to "full capacity" in the future after physical therapy. Resp't App. 76. To that end, he asked that "she be allowed to continue therapy while working in an accommodated position" and posited that "pay[ing] the difference in salary at a GS-4 level rather [than] hav[ing] Ms. Leija work in her job field is a waste of government spending." Id. Mr. Rogers concluded his letter with a request that the VA "revisit the job offer and reoffer one that is compatible to her current job functions that will benefit the employee, patient[s], and [the VA] Imaging Service." Id.
In response to Mr. Rogers's letter, the head of Imaging Services "approved a request to Human Resources" on April 18, 2011, "that [Ms. Leija] be terminated." Resp't App. 12. That request, however, was followed by a seriesof job offers that the VA provided to Ms. Leija, several of which appear to have been accepted by her.
On April 19, 2011, the VA provided Ms. Leija a "Restricted Duty Job Offer" as a "Medical Support Assistant." Resp't App. 78. The required duties of that position were detailed in the offer and were nearly identical to those identified in the position description included with the VA's December 2010 offer to Ms. Leija for permanent employment as a Medical Support Assistant. Compare Resp't App. 78-79, with Resp't App. 67-68. Hand written notes on the copy of the restricted duty offer in the record reflect that Ms. Leija refused it and, as a result, was sent home. Resp't App. 80.
Three days later, on April 21, 2011, the VA provided Ms. Leija a new "Restricted Duty Job Offer" as a "Medical Support Assistant" in the VA Imaging Service. Resp't App. 93. Unlike the previous one, Ms. Leija accepted and signed this new offer. Id. But she annotated her acceptance with the following: "I am told by Ms. Rubin that this is a temporary job offer." Id. The restricted duty job offer included a brief description of the duties required for a Medical Support Assistant that appears to match the position description for the VA's December 2010 offer. Compare Resp't App. 93, with Resp't App. 67-68. There was one addition to the new offer's description of the duties required by it though. The new offer stated: Resp't App. 93.
Then on May 6, 2011, the VA provided Ms. Leija with a "Transitional (Limited) Duty Job Offer for Work-Related Injuries/Illness" in the "Medical Support Assistant" position. Resp't App. 81. Like before, the general description of the job duties required by the offered position were in accord with those identified in the VA's December 2010 offer. Compare Resp't App. 81, with Resp't App. 67. Ms.Leija appears to have accepted the offer, which was countersigned by a VA official. Resp't App. 81.
After Ms. Leija accepted that "transitional" job offer, the VA provided her with yet another "Restricted Duty Job Offer" on May 17, 2011. Resp't App. 82, 87. Besides a change in the name of the offered position from "Medical Support Assistant" to "PSA," the duties and responsibilities of the offered position were nearly identical to those detailed in the VA's December 2010 offer. Compare Resp't App. 82-83, with Resp't App. 67-68. One copy of the offer in the record indicates by handwritten note that Ms. Leija refused to accept it. Resp't App. 84. A second copy in the record though, reflects Ms. Leija's signature and her supervisor's countersignature. Resp't App. 87. That second copy contains several handwritten notes (seemingly made by Ms. Leija), including one that appears to indicate that her acceptance of the offer was conditioned upon "proper training." Resp't App. 87.
On May 19, 2011, the VA issued a "Notice of Proposed Removal" to Ms. Leija. It charged her with "failure to accept directed reassignment." Resp't App. 89. The VA included the following details of her alleged misconduct.
Shortly after Ms. Leija received the "Notice of Proposed Removal," her duty station was changed to her home address and her prior pending request for familymedical leave—to care for her elderly mother—was approved. An oral response hearing to the "Notice of Proposed Removal" was held on June 9, 2011, and the next day, the VA placed Ms. Leija on administrative leave. Ms. Leija was still on leave when the VA issued a decision on July 11, 2011, terminating her from "federal employment effective July 22, 2011," for "failure to accept a directed reassignment." Resp't App. 106. A "Request for Personnel Action" on Standard Form 52 reflects that Ms. Leija was removed from her position as a "MED SUP ASST (TYPING)" pursuant to Chapter 75 for "failure to accept directed assignment." Resp't App. 108-09.
Ms. Leija filed four appeals with the Board challenging...
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