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MSPB Issues Precedent-Setting
Decision in NRP Cases

APWU Web News Article 016-2012, March 5, 2012

Postal workers who were injured on the job won an important victory on Feb. 24, when the Merit Systems Protection Board (MSPB) issued a precedent-setting decision [PDF] in the case of James C. Latham et al v USPS. The ruling has important implications for postal workers who were affected by the Postal Service’s National Reassessment Process (NRP).

The MSPB decision affirms the Postal Service’s obligation to restore employees who have been injured on the job to any medically suitable work that is available, and affirms the MSPB’s jurisdiction over appeals involving that issue. Under the NRP program the Postal Service routinely reduced the work hours of injured employees who were working in modified assignments – or eliminated their work hours entirely.

“The MSPB ruling gives a well-deserved slap in the face to the Postal Service for its heartless mistreatment of injured workers,” said Sue Carney, APWU Human Relations director. “The Board’s decision opens the flood gates for injured workers who were improperly denied work to receive justice through MSPB.”

Restoration

The Federal Employees’ Compensation Act (FECA) says that federal employees who suffer compensable injuries enjoy certain rights to be “restored” to their previous positions or to comparable positions.

Prior to this landmark ruling, however, no MSPB judge had found that a reduction in work-hours or the elimination of work under the NRP program violated an employee’s restoration rights. Of the dozens of previous appeals, every case was rejected, either on jurisdictional grounds or because the Postal Service’s actions were not deemed “arbitrary and capricious.”

The appellants in the Latham cases were working in modified assignments as a result of job-related disabilities when the Postal Service implemented the NRP program and withdrew the assignments. These employees were told there were no “operationally necessary” tasks for them to perform and were directed to take leave. They were instructed not to report for duty until they were informed that medically suitable work was available.

Each of the displaced workers filed an MSPB appeal and requested a hearing. They asserted they were denied “restoration” following their injuries and claimed their modified assignments were still available. They argued that the agency, by discontinuing their modified assignments, had violated the Employee and Labor Relations Manual (ELM) and committed various “prohibited personnel practices.”

The appellants alleged that their former duties were being performed by other employees and that the agency was guilty of disability discrimination. They asked the board to order the Postal Service to return them to their modified assignments with back pay.

Jurisdiction

In order to establish Board jurisdiction over a restoration appeal, an appellant must prove by preponderant evidence 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;

(3) The agency denied a request for restoration; and

(4) The agency’s denial was “arbitrary and capricious.”

It was undisputed that the Latham appellants satisfied the first three jurisdictional elements, leaving them to prove that the denials of restoration were arbitrary and capricious. Resolving that issue required MSPB to first address whether the Board’s jurisdiction under Title 5 may encompass a claim that an agency’s violation of its internal rules resulted in an arbitrary and capricious denial of restoration.

The board consolidated the appeals and asked the parties to address how the Postal Service acted in an arbitrary and capricious manner and to explain the agency’s restoration obligations.

Arbitrary and Capricious

In response, the appellants and several “friends of the court” stressed that the USPS had acted arbitrarily and capriciously when it failed to follow its own rules. They maintained that the Postal Service’s handbook and manual commanded the USPS to provide partially recovered individuals with any available work within their medical restrictions, although they generally conceded the agency is not required to provide “make work.”

FECA provides that federal employees who suffer compensable injuries enjoy certain rights to be restored to their previous or comparable positions. Congress has explicitly granted the Office of Personnel Management (OPM) the authority to issue regulations governing agencies’ obligations in this regard. Pursuant to this authority, OPM has issued regulations requiring agencies to make certain efforts toward restoring compensably injured individuals to duty, depending on the timing and extent of their recovery. OPM’s regulations require at minimum that agencies “make every effort to restore partially recovered individuals in the local commuting area.” At a minimum, this would mean treating these employees substantially the same as other individuals with disabilities under the Rehabilitation Act of 1973, as amended.

The Postal Service argued that OPM regulations governing the restoration of partially recovered individuals were beyond OPM’s power and therefore invalid. The USPS said the statute authorizing OPM to issue the regulations, 5 U.S.C. § 8151(b), provides restoration rights only to fully recovered individuals. The Postal Service also asserted that the statute provides only for restoration to work that comprises the “essential functions of an established position.”

Follow the Rules

Concluding that the issues presented in the appeals directly concerned the interpretation of a regulation issued by OPM, the board requested an advisory opinion from OPM. OPM said agencies are required to “meticulously follow their own rules,” and said an agency’s failure to follow its own rules concerning the restoration of a partially-recovered individual would be arbitrary and capricious — even when the rules go beyond the minimum restoration obligation set forth in Section 353.301(d).

The MSPB ruled that OPM’s interpretation was “controlling,” and concluded that the Postal Service’s alleged failure to adhere to its own regulations could be the basis for establishing MSPB jurisdiction.

The board also concluded that the Postal Service has a legal obligation to employees with job-related disabilities and is required, pursuant to ELM § 546 and EL-505, Chapters 7 and 11, to restore partially-recovered individuals to duty in whatever tasks are available, regardless of whether those tasks comprise the essential functions of an established position.

Signals for Future Appeals

The decision also signals the line of inquiry the board will use as the framework to analyze appeals. “This information will serve appellants well,” Carney said.

Advocates should be prepared to prove:

(1) Are the tasks of the appellant’s former modified assignment still being performed by other employees?

(2) If so, did those employees lack sufficient work prior to absorbing the appellant’s modified duties?

(3) If so, did the reassignment of that work violate any other law, rule, or regulation?

MSPB cautioned that evidence pertaining to general declines in mail volume and displacement of non-injured workers will likely be immaterial in the absence of a connection between these matters and the availability of the appellant’s former job duties or the duties of the employees who absorbed the appellant’s former tasks.

The board also emphasized that it will not examine whether the agency followed the “pecking order” or minimized “any adverse or disruptive impact” in assigning modified duties as set forth at ELM § 546.142(a). The board reasoned these matters pertain to the circumstances of restoration that were actually accomplished, and are therefore outside the Board’s jurisdiction. The Board clearly stated that it is only concerned with whether the agency actually denied an appellant restoration following partial recovery from a compensable injury and whether that denial was arbitrary and capricious.

Throughout its analysis the Board cited statutory history, emphasizing the rights of partially-recovered and fully-recover recovered employees and underscoring that injured or disabled federal employees — including employees of Postal Service — must be treated in a fair and equitable manner. The Board stated it believed its actions served the individuals the statutes were intended to protect.

Tools Available

Since the onset of NRP, the APWU Human Relations Department has counseled affected members who were unable to hire an attorney to file MSPB appeals as compensationers, making the same arguments as those proven effective in Latham. (A template [PDF] for filing MSPB appeals has been posted on the APWU department’s National Reassessment Process Web page since 2009.)

The guide does not replace legal advice, Carney said, and she noted that the board often orders the offending agency to pay the legal fees of successful appellants.

“It is important for appellants to understand they have the burden to prove, not just assert, their claims,” she added.

“Although the USPS maintains that it terminated the NRP program, the Postal Service has continued its ill-fated practices,” Carney observed.

“The guide is a practical tool for compensationers whose work hours have since been reduced or eliminated. Appellants may also find the review of precedential and non-precedential MSPB NRP rulings educational.” The decisions can be found by visiting www.mspb.gov and searching keywords: NRP or USPS denial of restoration.

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