{"id":3853,"date":"2012-03-05T13:06:24","date_gmt":"2012-03-05T18:06:24","guid":{"rendered":"http:\/\/postalemployeenetwork.com\/news\/?p=3853"},"modified":"2015-04-06T10:12:36","modified_gmt":"2015-04-06T15:12:36","slug":"mspb-issues-precedent-setting-decision-in-nrp-cases","status":"publish","type":"post","link":"https:\/\/postalemployeenetwork.com\/news\/2012\/03\/05\/mspb-issues-precedent-setting-decision-in-nrp-cases\/","title":{"rendered":"MSPB Issues Precedent-Setting Decision in NRP Cases"},"content":{"rendered":"

\"\"<\/a><\/p>\n

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<\/a> [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\u2019s National Reassessment Process (NRP).<\/p>\n

The MSPB decision affirms the Postal Service\u2019s obligation to restore employees who have been injured on the job to any medically suitable work that is available, and affirms the MSPB\u2019s 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 \u2013 or eliminated their work hours entirely.<\/p>\n

\u201cThe MSPB ruling gives a well-deserved slap in the face to the Postal Service for its heartless mistreatment of injured workers,\u201d said Sue Carney, APWU Human Relations director. \u201cThe Board\u2019s decision opens the flood gates for injured workers who were improperly denied work to receive justice through MSPB.\u201d<\/p>\n

Restoration<\/strong><\/p>\n

The Federal Employees\u2019 Compensation Act (FECA) says that federal employees who suffer compensable injuries enjoy certain rights to be \u201crestored\u201d to their previous positions or to comparable positions.<\/p>\n

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\u2019s restoration rights. Of the dozens of previous appeals, every case was rejected, either on jurisdictional grounds or because the Postal Service\u2019s actions were not deemed \u201carbitrary and capricious.\u201d<\/p>\n

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 \u201coperationally necessary\u201d 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.<\/p>\n

Each of the displaced workers filed an MSPB appeal and requested a hearing. They asserted they were denied \u201crestoration\u201d 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 \u201cprohibited personnel practices.\u201d<\/p>\n

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.<\/p>\n

Jurisdiction<\/strong><\/p>\n

In order to establish Board jurisdiction over a restoration appeal, an appellant must prove by preponderant evidence that:<\/p>\n

(1) He was absent from his position due to a compensable injury;<\/p>\n

(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;<\/p>\n

(3) The agency denied a request for restoration; and<\/p>\n

(4) The agency\u2019s denial was \u201carbitrary and capricious.\u201d<\/p>\n

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\u2019s jurisdiction under Title 5 may encompass a claim that an agency\u2019s violation of its internal rules resulted in an arbitrary and capricious denial of restoration.<\/p>\n

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\u2019s restoration obligations.<\/p>\n

Arbitrary and Capricious<\/strong><\/p>\n

In response, the appellants and several \u201cfriends of the court\u201d stressed that the USPS had acted arbitrarily and capriciously when it failed to follow its own rules. They maintained that the Postal Service\u2019s 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 \u201cmake work.\u201d<\/p>\n

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\u2019 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\u2019s regulations require at minimum that agencies \u201cmake every effort to restore partially recovered individuals in the local commuting area.\u201d 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.<\/p>\n

The Postal Service argued that OPM regulations governing the restoration of partially recovered individuals were beyond OPM\u2019s power and therefore invalid. The USPS said the statute authorizing OPM to issue the regulations, 5 U.S.C. \u00a7 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 \u201cessential functions of an established position.\u201d<\/p>\n

Follow the Rules<\/strong><\/p>\n

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 \u201cmeticulously follow their own rules,\u201d and said an agency\u2019s failure to follow its own rules concerning the restoration of a partially-recovered individual would be arbitrary and capricious \u2014 even when the rules go beyond the minimum restoration obligation set forth in Section 353.301(d).<\/p>\n

The MSPB ruled that OPM\u2019s interpretation was \u201ccontrolling,\u201d and concluded that the Postal Service\u2019s alleged failure to adhere to its own regulations could be the basis for establishing MSPB jurisdiction.<\/p>\n

The board also concluded that the Postal Service has a legal obligation to employees with job-related disabilities and is required, pursuant to ELM \u00a7 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.<\/p>\n

Signals for Future Appeals<\/strong><\/p>\n

The decision also signals the line of inquiry the board will use as the framework to analyze appeals. \u201cThis information will serve appellants well,\u201d Carney said.<\/p>\n

Advocates should be prepared to prove:<\/p>\n

(1) Are the tasks of the appellant\u2019s former modified assignment still being performed by other employees?<\/p>\n

(2) If so, did those employees lack sufficient work prior to absorbing the appellant\u2019s modified duties?<\/p>\n

(3) If so, did the reassignment of that work violate any other law, rule, or regulation?<\/p>\n

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\u2019s former job duties or the duties of the employees who absorbed the appellant\u2019s former tasks.<\/p>\n

The board also emphasized that it will not examine whether the agency followed the \u201cpecking order\u201d or minimized \u201cany adverse or disruptive impact\u201d in assigning modified duties as set forth at ELM \u00a7 546.142(a). The board reasoned these matters pertain to the circumstances of restoration that were actually accomplished, and are therefore outside the Board\u2019s 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.<\/p>\n

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 \u2014 including employees of Postal Service \u2014 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.<\/p>\n

Tools Available<\/strong><\/p>\n

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 for filing MSPB appeals has been posted on the APWU department\u2019s National Reassessment Process Web page since 2009.)<\/p>\n

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.<\/p>\n

\u201cIt is important for appellants to understand they have the burden to prove, not just assert, their claims,\u201d she added.<\/p>\n

\u201cAlthough the USPS maintains that it terminated the NRP program, the Postal Service has continued its ill-fated practices,\u201d Carney observed.<\/p>\n

\u201cThe 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.\u201d The decisions can be found by visiting http:\/\/www.mspb.gov\/<\/a> and searching keywords: NRP or USPS denial of restoration.<\/p>\n","protected":false},"excerpt":{"rendered":"

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\u2019s National Reassessment […]<\/p>\n","protected":false},"author":1,"featured_media":3854,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[21],"tags":[],"class_list":["post-3853","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-apwu-news","last_archivepost"],"_links":{"self":[{"href":"https:\/\/postalemployeenetwork.com\/news\/wp-json\/wp\/v2\/posts\/3853","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/postalemployeenetwork.com\/news\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/postalemployeenetwork.com\/news\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/postalemployeenetwork.com\/news\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/postalemployeenetwork.com\/news\/wp-json\/wp\/v2\/comments?post=3853"}],"version-history":[{"count":3,"href":"https:\/\/postalemployeenetwork.com\/news\/wp-json\/wp\/v2\/posts\/3853\/revisions"}],"predecessor-version":[{"id":10552,"href":"https:\/\/postalemployeenetwork.com\/news\/wp-json\/wp\/v2\/posts\/3853\/revisions\/10552"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/postalemployeenetwork.com\/news\/wp-json\/wp\/v2\/media\/3854"}],"wp:attachment":[{"href":"https:\/\/postalemployeenetwork.com\/news\/wp-json\/wp\/v2\/media?parent=3853"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/postalemployeenetwork.com\/news\/wp-json\/wp\/v2\/categories?post=3853"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/postalemployeenetwork.com\/news\/wp-json\/wp\/v2\/tags?post=3853"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}