Latham et al. raise the following legal issues: (1) May a denial of restoration be “arbitrary and capricious” within the meaning of 5 C.F.R. § 353.304(c) solely for being in violation of the U.S. Postal Service’s own internal rules; and (2) what is the extent of the agency’s restoration obligation under its own internal rules, i.e., under what circumstances do the agency’s rules require it to offer a given task to a given partially recovered employee as modified work? The Board requested and received an advisory opinion from the Office of Personnel Management (OPM) in this matter. See 5 U.S.C. § 1204(e)(1)(A). The Board also invited and received amicus curiae briefs.

Here are excerpts from the 73-page MSPB decision surrounding NRP cases of five Postal Employees (James C. Latham, Ruby N. Turner, Arleather Reaves, Cynthia E. Lundy, and Marcella Albright). I have sanitized portions of the decision for easier reading. Some of the paragraphs may be out of sequence:

These appeals present the question of whether the agency’s own internal rules regarding the return to duty in modified assignments of compensably injured individuals are enforceable by the Board in a restoration appeal under 5 C.F.R. § 353.304(c). For the reasons set forth below, we answer in the affirmative.

We REVERSE the initial decisions in Latham v. U.S. Postal Service and Turner v. U.S. Postal Service

Latham v. U.S. Postal Service, MSPB Docket No. DA-0353-10-0408-I-1
Appellant Latham is a City Carrier for the agency. He suffered a compensable injury on September 28, 1998, and thereafter worked in a modified capacity, most recently in a rehabilitation assignment consisting of various supervisory, clerical, and customer service duties. On April 27, 2010, the agency discontinued that assignment pursuant to the NRP.

The appellant filed a Board appeal and requested a hearing. He argued that his modified assignment is still available and that he remains capable of performing its duties. The appellant argued that in discontinuing his modified assignment, the agency violated the ELM and committed various prohibited personnel practices.

We ORDER the agency to restore the appellant to his former modified assignment effective April 27, 2010. See Kerr v. National Endowment for the Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no later than 20 days after the date of this decision.

We also ORDER the agency to pay the appellant the correct amount of back pay, interest on back pay, and other benefits under the Back Pay Act and/or Postal Service Regulations, as appropriate, no later than 60 calendar days after the date of this decision.

Turner v. U.S. Postal Service, MSPB Docket No. SF-0353-10-0329-I-1
Appellant Turner is a Mail Processing Clerk for the agency. She suffered a compensable injury on February 22, 2000, and thereafter began working in a modified capacity, most recently in a limited duty assignment performing various mail scanning duties. On November 30, 2009, the agency discontinued that assignment pursuant to the NRP.

The appellant filed a Board appeal and requested a hearing. She alleged, among other things, that her former duties are still being performed by other employees and that the agency committed disability discrimination.

For these reasons, we find that the appellant has established that the discontinuation of her modified assignment violated the agency’s rules regarding its modified duty obligations. We therefore find that the denial of restoration was arbitrary and capricious.

or the reasons explained in the initial decision, we agree with the administrative judge that the appellant failed to prove her disability discrimination claim. ID at 27-31. In particular, we agree with the administrative judge that the creation of a unique position to fit an individual’s medical restrictions is not a reasonable accommodation required by the Rehabilitation Act. ID at 29-30; see Green, 47 M.S.P.R. at 668. We have reviewed the remainder of the appellant’s arguments on review regarding the administrative judge’s rulings on witnesses and the NRP in general, and we find nothing in them to show that the administrative judge erred in his ruling on the disability discrimination claim

We ORDER the agency to restore the appellant to her former modified assignment effective November 30, 2009. See Kerr, 726 F.2d 730. The agency must complete this action no later than 20 days after the date of this decision.

We also ORDER the agency to pay the appellant the correct amount of back pay, interest on back pay, and other benefits under the Back Pay Act and/or Postal Service Regulations

AFFIRM the dismissal of Reaves v. U.S. Postal Service as MODIFIED by this Opinion

Reaves v. U.S. Postal Service, MSPB Docket No. CH-0353-10-0823-I-1
Appellant Reaves is a Mail Processing Clerk for the agency. IAF, Tab 12 at 172. She suffered a compensable injury on February 10, 1990, and thereafter began working in a modified capacity, most recently in a rehabilitation assignment repairing damaged mail and processing mail to be returned to sender. Id. at 174. On June 25, 2010, the agency discontinued that assignment pursuant to the NRP. Id. at 60.

The administrative judge found that the appellant did not have an unconditional right to remain in her modified assignment, ID at 4-5, that the agency conducted a sufficient search for alternative work when it discontinued the assignment, and that the appellant failed to identify any vacant funded positions in the local commuting area within her medical restrictions. Having found that the appellant failed to establish jurisdiction over her appeal, the administrative judge declined to consider her retaliation and disability discrimination claims

For the reasons explained above, we agree with the appellant that her restoration right is not limited to vacant funded positions.  However, we also agree with the administrative judge that the appellant’s right to a modified assignment is not absolute but is conditioned on the availability of work within her medical restrictions.The appellant in this case made no allegation that the tasks of her modified assignment are still being performed by other employees or that they have otherwise not gone away. The appellant also failed to identify any other tasks within her medical restrictions that might have been available for her to perform either inside or outside the context of a vacant funded position. As explained above, the appellant bears the burden of proof on this matter.

As for the sufficiency of the agency’s job search, we agree with the administrative judge’s finding that there is no indication in the record that the search was insufficient geographically.

In addition, the agency’s decision not to accommodate the appellant’s medical condition by creating a unique position for her does not give rise to an inference of disability discrimination because the Rehabilitation Act does not require such accommodations. See Green, 47 M.S.P.R. at 668. Therefore, even considering the appellant’s allegations of disability discrimination and reprisal for protected equal employment opportunity activity, we find that she has failed to make a nonfrivolous allegation that the denial of restoration was arbitrary and capricious so as to entitle her to a jurisdictional hearing.

Order, and REMAND Lundy v. U.S. Postal Service

We remand this appeal to the regional office for further proceedings consistent with this Opinion and Order, including the jurisdictional hearing that the appellant requested.

Lundy v. U.S. Postal Service, MSPB Docket No. AT-0353-11-0369-I-1
Appellant Lundy is a Mail Processing Clerk for the agency. She suffered a compensable injury on December 19, 1997, and thereafter began working in a modified capacity, most recently in a limited duty assignment in the “Resource Activation Room,” apparently performing a number of customer service functions.  On September 23, 2010, the agency discontinued that assignment pursuant to the NRP

In this case, we agree with the administrative judge that there is no indication in the record that the agency’s job search was inadequate geographically.  (evidence that the agency failed to search the 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). We also find nothing in the record to show that the appellant’s former Resource Activation Room duties continue to be performed by other employees or that the agency otherwise acted

However, we find that the appellant made a nonfrivolous allegation that the denial of restoration was arbitrary and capricious when she identified particular tasks within her medical restrictions and alleged that they are available for her to perform.  It is immaterial that these tasks do not comprise the essential functions of a vacant funded position. The agency is obligated to provide the appellant with work in the form of a modified assignment as long as that work is available and within her medical restrictions, regardless of whether it comprises the essential functions of any established position

Although the appellant presented scant evidence in support of her claim, she is not required to make her entire case at the nonfrivolous allegation stage, and we find that her pleadings are sufficient to establish a justiciable issue of material fact that can only be resolved after a jurisdictional hearing.

We note that there appears to be an issue of timeliness in this appeal.

Because we are unable to resolve the timeliness issue on the existing record, the administrative judge should address the matter on remand after affording the appellant the required notice and an opportunity to file evidence and argument on the issue.

Order, and REMAND  Albright v. U.S. Postal Service,  for further adjudication consistent with this Opinion and Order.

ORDER IN ALBRIGHT V. U.S. POSTAL SERVICE, DC-0752-11-0196-I-1
We remand this appeal to the regional office for further proceedings consistent with this Opinion and Order, including the jurisdictional hearing that the appellant requested

Appellant Albright is a Custodial Laborer for the agency.  She suffered compensable injuries on April 17, 1996, and September 27, 2004, and thereafter worked in a modified capacity, most recently in a limited duty assignment performing the usual tasks of her official position, but with certain restrictions.  On September 23, 2010, the agency discontinued that assignment pursuant to the NRP.

The appellant made specific factual allegations that she used to work routes 202 and 203 at her facility, that other employees are now covering those routes, and that those employees are requiring overtime to do so.  She also supported her factual allegations with documentary evidence showing that routes 202 and 203 continue to be worked and that her former duties have therefore not gone away. That these duties might not have constituted the essential functions of any established position is immaterial.  We find that the appellant’s specific factual allegations regarding the continued availability of her former tasks constitute nonfrivolous allegations that the agency arbitrarily and capriciously denied her request for restoration. The appellant is therefore entitled to the jurisdictional hearing that she requested.

We also find that the appellant has made allegations of fact that, if proven, could establish that the denial of restoration constituted disability discrimination.

Therefore, the administrative judge should consider the appellant’s disability discrimination claim on remand insofar as it bears on the jurisdictional issue and allow the appellant to present relevant evidence and argument at a jurisdictional hearing.

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Jurisdiction has been established in all of these appeals. All of the appellants have proven by preponderant evidence that they were absent from their positions due to a compensable injury, that they recovered sufficiently to return to duty on a part-time or limited duty basis, and that the agency denied their request for restoration to duty.11 As discussed above, however, none of the appellants has stated a claim upon which the Board could grant relief

Strictly speaking, the agency did not deny requests for restoration made by employees who were not working; it instead discontinued existing limited duty assignments. Under the circumstances of these cases, however, I agree with Board precedent holding that the discontinuance of existing limited duty assignments is comparable to denying requests for restoration made by individuals who are not working.

MSPB Decision In Postal Employees NRP Appeals