More MSPB cases filed by Postal Workers were remanded during the month of October. The cases were remanded because the Postal Service’s job search under the National Reassessment Process was limited to installations within a single district and failed to include the entire commuting area as required by 5 C.F.R. § 353.301(d). Each decision cited Sanchez v. USPS, 2010 MSPB 121.

The Office of Personnel Management’s (OPM’s) regulations provide:

Agencies must make every effort to restore in the local commuting area, according to the circumstances in each case, an individual who has partially recovered from a compensable injury and who is able to return to limited duty. At a minimum, this would mean treating these employees substantially the same as other handicapped individuals under the Rehabilitation Act of 1973, as amended. 5 C.F.R. § 353.301(d).

The Board has interpreted this regulation as requiring agencies to search within the local commuting area for vacant positions to which an agency can restore a partially recovered employee and to consider her for any such vacancies. Sanchez v. U.S. Postal Service, 114 M.S.P.R. 345, ¶ 12 (2010); see Sapp v. U.S. Postal Service, 73 M.S.P.R. 189, 193-94 (1997); see also Urena v. U.S. Postal Service, 113 M.S.P.R. 6, ¶ 13 (2009) (evidence that the agency failed to search the local commuting area as required by 5 C.F.R. § 353.301(d) rendered nonfrivolous the appellant’s allegation that the agency acted arbitrarily and capriciously in denying restoration).

“For restoration rights purposes, the local commuting area is the geographic area in which an individual lives and can reasonably be expected to travel back and forth daily to his usual duty station.” Hicks v. U.S. Postal Service, 83 M.S.P.R. 599, ¶ 9 (1999). It includes any population center, or two or more neighboring ones, and the surrounding localities. Sapp, 73 M.S.P.R. at 193. The question of what constitutes a local commuting area is one of fact. The extent of a commuting area ordinarily is determined by factors such as common practice, the availability and cost of public transportation or the convenience and adequacy of highways, and the travel time required to go to and from work. Sanchez, 114 M.S.P.R. 345, ¶ 13.
Summary of MSPB cases on National Reassessment Process:

Appellant:  Blanca G. Patino

Agency:  United States Postal Service

Decision Number:  2010 MSPB 210

Docket Number:  SF-0353-10-0183-I-1

Issuance Date:  October 29, 2010

Appeal Type:  Restoration to Duty

Action Type:  Denial After Partial Recovery from Compensable Injury

In June 2009, the agency’s Bay-Valley District began implementation of Phase 2 of the National Reassessment Program (NRP). Under the NRP, the agency seeks to identify operationally necessary work for employees with compensable injuries. The Bay-Valley District undertook to identify operationally necessary tasks and assess employees on limited duty assignments for modified work assignments. On November 18, 2009, pursuant to the NRP, the agency provided the appellant a modified assignment as a Sales Associate for 3 hours a day. Starting December 17, 2009, the agency assigned the appellant to work 8 hours a day as a lobby host for the holiday season. *

The appellant filed an appeal alleging that the agency’s provision of only 3 hours of work was a rescission of her restoration to duty after a compensable injury and denial of reasonable accommodation. The agency filed a Motion to Dismiss the appeal for lack of jurisdiction. The administrative judge issued an initial decision granting the agency’s motion.

The appellant has filed a petition for review. Petition for Review (PFR) . She asserts that the administrative judge misstated her physical restrictions, did not consider the relevancy of the collective bargaining agreement, and erroneously found that the agency’s action was not arbitrary and capricious because she had been doing the same work since 2007. She further contends that the agency failed to search for work within a 50-mile radius and directed the offices to which it sent search requests to respond negatively

Although the initial decision states that “the agency submitted evidence that it searched for available work within the appellant’s medical restrictions in her commuting area,” it does not define the local commuting area relevant in the appellant’s restoration claim. Therefore, we are remanding the appeal for supplemental proceedings and issuance of a new initial decision. See Mubdi v. U.S. Postal Service, 114 M.S.P.R. 559, ¶ 12 (2010). On remand, the administrative judge shall oversee further development of the record by the parties on this issue, including an opportunity for discovery by the parties and a hearing. Id.; see Sanchez, 114 M.S.P.R. 345, ¶ 15; Sapp, 73 M.S.P.R. at 193-94 (remanding the appeal for further development of the record on what constituted the local commuting area and whether the agency’s job search properly encompassed that area).

 Appellant:  Cynthia A. Nevers

Agency:  United States Postal Service

Decision Number:  2010 MSPB 206

Docket Number:  SF-0353-09-0676-I-1

Issuance Date:  October 28, 2010

Appeal Type:  Restoration to Duty

Action Type:  Denial After Partial Recovery from Compensable Injury

Restoration to Duty

       The appellant petitioned for review of an initial decision that dismissed her restoration appeal for lack of jurisdiction.  As in Soto, the appellant was a partially recovered employee who had worked limited duty assignments on a full-time basis.  In April 2009, the agency notified her that, pursuant to the NRP, it had searched for operationally necessary tasks meeting her medical restrictions, but was unable to identify enough operationally necessary work in order for her to work a full day, and offered her a new modified job working 2 hours per day, which she accepted.  The agency later notified the appellant that it was unable to identify any operationally necessary tasks within her medical restrictions, and instructed her not to report to work unless it contacted her.  On appeal to the Board, the administrative judge found that the appellant failed to make a nonfrivolous allegation that she was denied restoration with respect to the agency’s offer of less than full-time work, but that the agency’s action in sending her home without any work was a nonfrivolous allegation that she was denied restoration.  The judge found, however, that the appellant failed to make a nonfrivolous allegation that this denial of restoration was arbitrary and capricious. 

Holdings:  The Board denied the appellant’s petition for review, reopened the appeal on its own motion, reversed the initial decision, and remanded the case to the regional office for further adjudication:

1.  Provision of part-time work, where an agency has partially eliminated previously afforded limited duty pursuant to the NRP, constitutes a nonfrivolous allegation of a denial of restoration.

2.  As in Soto, the evidence indicated that the agency did not search the entire local commuting area for suitable work, and this constitutes a nonfrivolous allegation that the denial of restoration was arbitrary and capricious.  A remand is therefore necessary.

Appellant:  Annette Ferrin-Rodgers

Agency:  United States Postal Service

Decision Number:  2010 MSPB 209

Docket Number:  SF-0353-09-0651-I-1

Issuance Date:  October 28, 2010

Appeal Type:  Restoration to Duty

Action Type:  Denial After Partial Recovery from Compensable Injury

Restoration to Duty

       The appellant petitioned for review of an initial decision that dismissed her restoration appeal for lack of jurisdiction.  As in Soto, the appellant was a partially recovered employee who had worked limited duty assignments on a full-time basis.  In April 2009, the agency notified the appellant that, pursuant to the NRP, it had searched for operationally available work within her medical restrictions, but could only find work totaling 3 hours per day, which the appellant accepted “under protest.”  In dismissing the appeal for lack of jurisdiction, the administrative judge found that the appellant was essentially disputing the particulars of her restoration, and that she failed to make a nonfrivolous allegation that her assignment of 3 hours of limited duty work per day was so unreasonable as to constitute an arbitrary and capricious denial of restoration.

Holdings:  The Board denied the appellant’s petition for review, reopened the appeal on its own motion, reversed the initial decision, and remanded the case to the regional office for further adjudication:

1.  Under the circumstances of this case, where the agency had previously provided full-time limited duty work, reducing that limited work from 8 hours to 3 hours per day pursuant to the NRP constitutes a denial of restoration.

2.  As in Soto, the evidence indicated that the agency did not search the entire local commuting area for suitable work, and this constitutes a nonfrivolous allegation that the denial of restoration was arbitrary and capricious.  A remand is therefore necessary.

 Appellant:  Lin Yang

Agency:  United States Postal Service

Decision Number:  2010 MSPB 208

Docket Number:  SF-0353-09-0553-I-1

Issuance Date:  October 28, 2010

Appeal Type:  Restoration to Duty

Action Type:  Denial After Partial Recovery from Compensable Injury

Restoration to Duty

       The appellant petitioned for review of an initial decision that dismissed her restoration appeal for lack of jurisdiction.  As in Soto, the appellant was a partially recovered employee who had worked limited duty assignments on a full-time basis.  In April 2009, the agency notified the appellant that, pursuant to the NRP, it had determined that there was no operationally necessary work available for her within her medical restrictions, and she should not report again for duty unless she was informed that such work had become available.  In dismissing the appeal for lack of jurisdiction, the administrative judge found that the appellant failed to make a nonfrivolous allegation that the agency’s denial of restoration was arbitrary and capricious.

Holdings:  The Board denied the appellant’s petition for review, reopened the appeal on its own motion, reversed the initial decision, and remanded the case to the regional office for further adjudication.  The Board found that the evidence indicated that the agency did not search the entire local commuting area for suitable work, and this constitutes a nonfrivolous allegation that the denial of restoration was arbitrary and capricious.  A remand is therefore necessary.

Appellant:  Mari C. Rodriguez-Moreno

Agency:  United States Postal Service

Decision Number:  2010 MSPB 205

Docket Number:  SF-0353-10-0212-I-1

Issuance Date:  October 27, 2010

Appeal Type:  Restoration to Duty

Action Type:  Denial After Partial Recovery from Compensable Injury

Restoration to Duty

       The appellant petitioned for review of an initial decision that dismissed her restoration appeal for lack of jurisdiction.  As in Soto, the appellant was a partially recovered employee who had worked limited duty assignments on a full-time basis.  In November 2009, the agency notified the appellant that, pursuant to the NRP, it had determined that there was no operationally necessary work available for her within her medical restrictions, and she should not report again for duty unless she was informed that such work had become available.  On appeal to the Board, the appellant alleged that the agency had not searched the entire local commuting area for operationally necessary work.  The administrative judge concluded, however, that the appellant failed to make a nonfrivolous allegation in this regard because she identified no facts to support her assertion.

Holdings:  The Board granted the appellant’s petition for review, vacated the initial decision, and remanded the case to the regional office for further adjudication:

1.  Although the appellant’s documentary submissions are themselves insufficient to raise a nonfrivolous contention that the denial of restoration was arbitrary and capricious, the agency’s documentary submissions call into question whether it searched the entire local commuting area.  Without a finding as to what constitutes the local commuting area in this appeal, and an explanation of which offices outside of the Bay Valley District were actually searched, the Board cannot determine if the appellant made a nonfrivolous allegation that the agency acted arbitrarily and capriciously in denying restoration.

2.  A remand is necessary to determine whether the Board has jurisdiction.  If a finding of jurisdiction is made, the appellant’s claim of disability discrimination must also be adjudicated.

 Appellant:  Sandra M. Soto

Agency:  United States Postal Service

Decision Number:  2010 MSPB 204

Docket Number:  SF-0353-09-0574-I-1

Issuance Date:  October 25, 2010

Appeal Type:  Restoration to Duty

Action Type:  Denial After Partial Recovery from Compensable Injury

Restoration to Duty

       The appellant petitioned for review of an initial decision that dismissed her restoration appeal for lack of jurisdiction.  This case involves the agency’s National Reassessment Process (NRP), under which supervisors and managers of employees performing limited duty review those employees’ assignments to ensure that they are consistent with employees’ medical restrictions and contain only “operationally necessary tasks.”  If the supervisor or manager is unable to identify any operationally necessary tasks within the employee’s work restrictions, the employee will be placed on leave until such work becomes available or her medical restrictions change.  If there are operationally necessary tasks available with the employee’s work restrictions, but not enough to provide the employee with a full day’s work, the employee will be scheduled to work partial days, and be placed on leave for the remainder of the workday.  This arrangement will continue until either the availability of work or the employee’s medical restrictions change.

       The appellant in this case had partially recovered from a work-related injury and had worked in limited duty positions on a full-time basis.  In April 2009, the agency notified the appellant that, because there was no operationally necessary work available for her within her medical restrictions at her duty site, she should not report again for duty unless she was informed that such work had become available.  During the pendency of the Board appeal, the appellant accepted the agency’s offer of a part‑time limited duty assignment of 3 hours per day.  The administrative judge dismissed the appeal for lack of jurisdiction, finding that the appellant failed to make a nonfrivolous allegation that the agency’s denial of restoration was arbitrary and capricious.

Holdings:  The Board denied the appellant’s petition for review, reopened the appeal on its own motion, reversed the initial decision, and remanded the case to the regional office for further adjudication:

1.  In the case of a partially recovered employee, i.e., one who cannot resume the full range of regular duties but has recovered sufficiently to return to part-time or light duty or to another position with less demanding physical requirements, an agency must make every effort to restore the individual to a position within her medical restrictions and within the local commuting area.

3.  The administrative judge correctly found that the appellant was denied restoration from April 9, 2009, when the agency discontinued her former full-time limited duty assignment, until at least May 12, 2009, when the agency offered her the part-time limited duty assignment.

4.  Although the appellant’s submissions themselves failed to raise a nonfrivolous allegation that the agency’s denial of restoration was arbitrary and capricious, the agency’s documentary submissions are sufficient to render nonfrivolous the appellant’s allegation in this regard.  Specifically, the evidence does not suggest that the agency search the entire local commuting area for suitable work as it was required to do.  Evidence that the agency failed to search the entire local commuting area as required by 5 C.F.R. § 353.301(d) constitutes a nonfrivolous allegation that the agency acted arbitrarily and capriciously in denying restoration.

5.  The Board has found that when the agency awards an employee a full-time limited duty assignment and then reduces the employee’s hours to part time under the NRP, the agency has denied the employee restoration.  Accordingly, the merits of the agency’s decision to restore the appellant to part-time limited duty rather than full-time limited duty is within the Board’s jurisdiction under the circumstances of this case.

Appellant:  Margaret Ann Jordan

Agency:  United States Postal Service

Decision Number:  2010 MSPB 200

Docket Number:  PH-0353-09-0562-I-1

Issuance Date:  September 30, 2010

Appeal Type:  Restoration to Duty

Action Type:  After Recovery from Compensable Injury

Restoration to Duty

       The appellant petitioned for review of an initial decision that dismissed her restoration appeal for lack of jurisdiction.  The appellant suffered an on-the-job injury in 1994 that resulted in permanent physical limitations.  She worked in limited duty positions from 1996 until May 2009, at which time the agency notified her that, under his National Reassessment Process (NRP), it reviewed rehabilitation and limited duty employees’ assignments and medical restrictions and searched for operationally necessary work to determine if such work was available with the employees’ restrictions, and determined that there was no work available for her within the operational needs of the service and her medical restrictions and within the local commuting area.  The notice defined the local commuting area as the 50 miles surrounding the appellant’s current work location.  After placing the appellant on administrative leave and providing her an opportunity to challenge its determination that there was no work available within her restrictions and of the appropriate job search area, the agency issued a “Letter of Decision” in June 2009 stating that there was no work available within “the agreed upon search area,” her medical restrictions, and current operational needs. 

       On appeal to the Board, the administrative judge found that the appellant did not establish jurisdiction over her appeal because she made only conclusory allegations that work was available within her restrictions and did not make a nonfrivolous allegation that the agency’s actions were arbitrary and capricious.

Holdings:  The Board granted the appellant’s petition for review, reversed the initial decision, and remanded the appeal to the regional office for further adjudication:

1.  In the case of a partially recovered employee, an agency must make every effort to restore the individual to a position within her medical restrictions and within the local commuting area.

2.  The dispositive jurisdictional issue in this case is whether the appellant made a nonfrivolous allegation that the agency’s denial of restoration was “arbitrary and capricious.”

3.  For restoration rights purposes, the local commuting area is the geographic area in which an individual lives and can reasonably be expected to travel back and forth daily to his usual duty station.  The question of what constitutes a local commuting area is one of fact.

4.  The agency’s evidence indicates that it searched for a suitable position for the appellant within a 50-mile radius of her existing work location, but only with the Boston District.  Because the agency’s search was apparently limited to a 50-mile radius and a single district, whether the agency searched the entire local commuting area remains an unanswered question of material fact. 

5.  The evidence of record is insufficient for the Board to determine the extent of the local commuting area.  Accordingly, a remand is appropriate for further development of this issue, including the opportunity for further discovery.

6.  Because the Board has jurisdiction to consider the merits of the restoration appeal, it also has jurisdiction to consider the appellant’s disability discrimination claim.