The  MSPB, with new Board members, issued three (3) decisions earlier this month.  Those three decisions had three things in common:

1) The employing Agency was the USPS in each of the  MSPB appeals

2) Each of the  MSPB Judges reversed was from the San Francisco Regional Office

3) Each of the 3 cases dealt with “restoration rights” for Federal employees who had recovered from an on-the-job injury.

4) Each of the 3 cases reinforced the incorporation of the Americans with Disabilities Act and the Rehabilitation Act into the restoration rights regulations, which, in this author’s opinion, has been glossed over by the  MSPB for years.

In the first case, Smith v. USPS (MSPB Docket No. SF-0353-09-0202-I-1), the Board vacated the  MSPB Administrative Judge decision denying the appellant’s request for restoration, and remanded it to the Administrative Judge for additional evidence. The  MSPB Administrative Judge found that the appellant failed to show by preponderant evidence that the agency acted arbitrarily and capriciously in denying his  request for restoration. The full MSPB found that the Administrative Judge erred because the Agency failed to apply the same legal standards to a request for restoration as would be applied to an individual with a disability under the Americans with Disabilities Act and the Rehabilitation Act. The ADA requires that the agency must make  reasonable accommodation of an employee’s disability through means such as modifying or adjusting the duties of the position at issue, or reassigning the employee to a vacant position whose duties the employee can perform. Under the Americans with Disabilities Act and the Rehabilitation Act, an agency is required to afford  reasonable accommodation to the known limitations of a qualified individual with a disability unless it can demonstrate that the accommodation would impose an undue hardship on the operation of its program. Because the USPS failed to demonstrate that an accommodation of the employee, in the facts of this case, worked an  undue hardship on the Agency, the full Board found that the Administrative Judge erred in concluding that the Agency’s failure to restore was not “arbitrary and capricious”. The case was remanded only for evidence as to whether the Appellant was qualified for a particular position; if so, he is entitled to be placed in that position.

In the second case, Urena v. USPS (MSPB Docket No. SF-0353-09-0650-I-1), the  MSPB Administrative Judge dismissed a Federal employee’s  restoration rights appeal for lack of jurisdiction. The  MSPB Administrative Judge held that the appellant failed to provide any facts in support of her assertion that the agency did not conduct a search for restoration for her within the local commuting area. The full MSPB disagreed, finding that the Agency itself had submitted evidence that the Agency did not conduct a search for restoration within the local commuting area. Instead, the Agency provided evidence that it only searched the Appellant’s facility for a position. The case was remanded to the  MSPB Administrative Judge for a hearing on the substantive question of whether the Appellant’ restoration rights were violated.

In the third case, Barachina v. USPS (MSPB Docket No. SF-0353-09-0554-I-1), the full  MSPB denied the Appellant’s Petition for Review, but reopened on their own motion, reversed the  MSPB Administrative Judge’s decision and remanded the case to the  MSPB Administrative Judge. The decision in this case reinforced the Urena decision: the documentary evidence submitted by both parties showed that the USPS searched only the Pasadena facility for available work, and did not look elsewhere within the appellant’s commuting area, as required under 5 C.F.R. § 353.301(d). The agency’s failure to comply with that regulation is sufficient to render non-frivolous her allegation that the agency acted arbitrarily and capriciously in denying the Appellant’s  request for restoration.

What is important to note about these cases?

Each of the cases stressed that Agencies, in deciding whether or not to restore a federal employee who was previously injured on the job, are bound by the minimum standards outlined in the Americans with Disabilities Act and the Rehabilitation Act. The restoration regulations at 5 C.F.R. § 353.301(d) require that agencies “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.” Agencies are required to treat partially recovered employees substantially the same as an  individual with a disability under the Americans with Disabilities Act and the Rehabilitation Act, which require that the agency must make reasonable accommodation of an employee’s disability through means such as modifying or adjusting the duties of the position at issue, or reassigning the employee to a vacant position whose duties the employee can perform. The only way that the Agency can escape this duty is to prove that the  accommodation works an “undue hardship” on the Agency.

In recent years, the  MSPB has long upheld Administrative Judge’s decisions refusing jurisdiction in restoration rights cases, and glossing over the requirements of the ADA that are incorporated into the restoration rights statutes. Many injured workers are without jobs and paychecks, though they have fully or partially recovered from their on the job injuries.

If you have been injured on the job at a Federal Executive Agency, if you have partially or fully recovered from that injury, and your Agency (or the  MSPB) has denied your request to restoration, it may be time to try again. You should consider contacting an attorney with experience in handling restoration rights appeals to the  MSPB or a lawyer with experience representing Federal employees in  MSPB and EEOC complaints of violations of the ADA and Rehab Acts.

No post on this website is legal advice, is meant to be legal advice, and certainly does not serve as a substitute for legal advice. Information is power, and we are providing this information to give you, the federal employee, with some power. This information is not widely or easily accessible to Federal Employees.

It is best to consult with a lawyer familiar with Merit Systems Protection Board (MSPB) appeals to discuss the facts and law of your particular case. If you have recovered from an on the job injury while working  for a Federal executive Agency, and you believe that your  Agency has not honored your restoration rights, contact an attorney familiar with  MSPB appeals and federal employee EEOC complaints.