Appellant: Reginald B. Day
Agency: United States Postal Service
Decision Number: 2010 MSPB 63
Docket Number: AT-0752-09-0163-X-1
Issuance Date: April 13, 2010
Appeal Type: Adverse Action by Agency
Action Type: Constructive Adverse Action
Compliance
This case was before the Board pursuant to a recommendation of the administrative judge that the Board grant the appellant’s petition for enforcement (PFE) and enforce the terms of a final Board order. In the underlying appeal, the judge found that the agency’s placement of the appellant on enforced leave for more than 14 days constituted a constructive suspension. The judge reversed the agency action and ordered the agency to provide the appellant with back pay. The appellant later filed a PFE stating that the agency had failed to pay him back pay for the constructive suspension period. The agency argued that the appellant was not entitled to back pay for the period in question because he was not ready, willing, and able to work during the period. The administrative judge found the agency’s argument without merit and that the appellant was entitled to back pay. Accordingly, the judge recommended that the appellant’s PFE be granted, and the matter was referred to the Board. In his compliance recommendation, the judge informed the agency that, if it agreed with the recommendation, it had 15 days to submit to the Clerk of the Board evidence of its compliance, and that, if it decided not to take the actions required by the compliance recommendation, it had 30 days to file written arguments supporting its disagreement with the recommendation. The Clerk of the Board reiterated this information in an acknowledgment order. Despite the instructions of the compliance recommendation and the acknowledgment order, the agency has failed to inform the Clerk of the Board whether it agrees or disagrees with the compliance recommendation.
Holdings: The Board found the agency in noncompliance and ordered it to submit evidence and argument demonstrating compliance. The Board also identified the agency official responsible for compliance and stated that, if the agency fails to demonstrate compliance, the Board may seek the withholding of the responsible agency official’s pay until the agency demonstrates compliance.
From the full decision:
As set forth above, the agency has failed to demonstrate compliance with the Board’s final order in this matter. In the July 15, 2009 order acknowledging receipt of the appellant’s petition for enforcement, the administrative judge ordered the agency to submit the name of the official responsible for compliance with the March 12, 2009 order. CF, Tab 2 at 2. The administrative judge repeated that instruction in the November 3, 2009 compliance recommendation. CF, Tab 6 at 6. The agency has failed to identify the official responsible for compliance.
Accordingly, we have determined that Linda J Welch, Acting Vice President, Southeast Area Operations, is the agency official responsible for compliance. If the agency fails to demonstrate compliance, the Board may seek the withholding of the responsible agency official’s pay until the agency demonstrates compliance.
ORDER
The agency is ordered to file evidence and argument demonstrating compliance with the Board’s final order in this case and shall support its assertions of compliance with clear and understandable documentary evidence.
If the agency fails to demonstrate compliance, the responsible agency official may be ordered to appear before the General Counsel of the Merit Systems Protection Board to show cause why the Board should not seek the withholding of her pay pursuant to 5 U.S.C. § 1204(e)(2)(a).
Ms. Welch is the new Southeast Area VP and it looks like she is doing a great job in handling the postal affairs of the employees. The Atlanta District is especially plagued by many problems with mismanagement that has lead to hundreds if not thousands of grievances and many, many EEO cases. My guess is that she will also ignore and let the status quo continue to allow craft employees to be treated with continued disrespect with these type of situations. The Riverdale Postmaster Clarence Coulter has been the subject of MANY grievances and EEOs but management has ignored them and even allowed him to continue his reign of sexual assaults, verbal assaults, harrassments, bullying, intimidation and retaliation. Ms. Welch has been made aware of these situations but has chosen to ignore and let these situations continue by Postmaster Coulter. What a great Southest Vice President. She is well suited for this job – blinders and all.
CALIFORNIA UNEMPLOYMENT INSURANCE APPEALS BOARD
(909) 987-XXXX
INLAND OFFICE OF APPEALS XXXX Arrow Rt, Bldg 19-A
PO BOX XXXX RANCHO CUCAMONGA CA 91729
GUILLERMO MOJARRO Claimant-Appellant
US POSTAL SERVICE c/o UCEXPRESS
Employer
Case No. XXXXXXX
Issue(s): 1256
Date Appeal Filed: 01/12/2010
EDO: XXXX BYB: 11/01/2009
Date and Place of Hearing(s):
(1) 04/12/2010 Rancho Cucamonga
Parties Appearing:
Claimant, Employer
DECISION
The decision in the above-captioned case appears on the following page(s).
XXXXXXXX XXXXXXXX, Administrative Law Judge
Case No.: XXXXXXX Inland Office of Appeals
CLT/PET: Guillermo Mojarro
Parties Appearing: Claimant. Employer
Parties Appearing by Written Statement: None
ISSUE STATEMENT
The claimant appealed from a determination disqualifying the claimant for unemployment benefits under Unemployment Insurance Code section 1256. The issue in this case is whether the claimant left the most recent employment voluntarily without good cause.
FINDINGS OF FACT
The claimant was employed as a Distribution Clerk. Level VI, for 22 years with the above-named employer earning $52,000 per year when his employee on October 30, 2009 under the following circumstances. The claimant resigned and accepted early retirement.
The claimant has a long, complicated history of grievances with his employer. The relevant portion of that history begins in February of 2007 when he was suspended for inappropriate conduct towards a co-employee. At the end of that brief suspension, the claimant informed the employer that he was not emotionally prepared to return to work. The claimant’s physician verified the claimant was unable to work because of his depression and anxiety. The claimant did not return to work before resigning on October 30, 2009 to accept his early retirement.
In February of 2009n the claimant requested to be returned to work. On March 26, 2009 the employer notified the claimant in writing that he was required to provide “objective and specific medical documentation sufficient to establish that you are able to perform the essential functions of your position, with or without accommodation…” before the employer could return him to employment. In response to this directive the claimant submitted a four-paragraph correspondence from his treating psychiatrist, Dr. Harry G. Lewis. The correspondence detailed the claimant’s condition, diagnosis and prognosis.
At the hearing the employer’s psychiatrist confirmed that this correspondence from Dr. Lewis “technically” satisfied the employer’s request for detailed medical documentation. Despite complying with the request, the employer did not return the claimant to his employment. Instead, it demanded that he submit to examination by the employer’s physicians. The claimant asserted his privacy rights and prevented the employer-appointed psychiatrist from sharing his
opinions with the employer. The employer refused to return the claimant to his position. The impasse was not resolved until the claimant became eligible for early retirement, which he then accepted.
REASON FOR DECISION
In Precedent Decision P-B-37 the appeals board held that in determining whether there has been a voluntary leaving or a discharge under section 1256 of the code it must first be determined who was the moving party in the separation. If the claimant left employment while continuing work was available, the claimant was the moving party. If the employer refused to permit the claimant to continue working, although the claimant was ready, willing and able to do so, the employer was the moving party.
An individual is disqualified for benefits if he or she has been discharged for misconduct connected with his or her most recent work. (Unemployment Insurance Code, section 1256.)
Absence caused by illness does not constitute misconduct. (Precedent Decision P-B-216.)
The department’s determination that the claimant was the moving party in this separation of employment is incorrect. The claimant had been out of work due to a psychiatric condition. The leave from work was approved by the employer. The claimant’s psychiatric issues were resolved according to the claimant’s treating physician, thereby opening the way for him to return to employment. The employer refused to permit the claimant to continue to work since it had not received a medical report from its own physician concerning the claimant’s medical condition. The claimant was ready willing and able to return to employment. Accordingly, the employer’s refusal to return the claimant to employment was the reason the claimant was forced to take early retirement, and thus the employer is the moving party in the separation.
The claimant was not discharged for misconduct connected with his most recent work. The absence from work was due to psychiatric medical condition. The employer approved the leave, and appropriately demanded medical verification that the claimant was capable of returning to his employment. According to the employer-appointed psychiatrist the claimant’s treating psychiatrist’s written release “technically” complied with the employer demand. Nevertheless, the employer refused to return the claimant to work.
The absence from work for a medical condition is not misconduct. The claimant was cleared medically by his own physician to the satisfaction of the employer’s written policy, and should have been returned to work. The employer’s refusal to return the claimant to work may have been for good cause. However, the decision not to return the claimant to his position was for reasons not amounting return the claimant to work may have been for good cause. However, the decision not to return the claimant to his position was for reasons not amounting to misconduct by the claimant. Accordingly, the claimant is not disqualified under code section 1256.
DECISION
The department’s determination is reversed. The claimant is not disqualified under code section 1256. and benefits are payable provided the claimant is otherwise eligible.
KICK L WELCH TO THE CURB!!! SHE THINKS SHE OWNS NTX ALONG WITH THE REST OF THOSE MORONS..
KICK L WELCH TO THE CURB!!! SHE THINKS SHE OWNS NTX ALONG WITH THE REST OF THOSE MORONS..
Carlton, please get back on your medication.
YHVH,s Solution the Peoples Righteous Kill Defense (PRKD). The USPS continues to be responsible for the total destruction of entire American families (Postal Holocaust). See United States Supreme Court case 99-565 & supplement in which the MSPB and other subsidiaries of Corporate USA used and are still using Collusion (RICO Act) responsible for the American Holocaust today.