UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

KAROLY KOLETAR,

Appellant,

v.

UNITED STATES POSTAL SERVICE,

Agency.

DOCKET NUMBER

SF-0752-12-0543-I-2

DATE: October 17, 2014

THIS FINAL ORDER IS NONPRECEDENTIAL1

Karoly Koletar, Los Angeles, California, pro se.

Kristen L. Walsh, Esquire, San Francisco, California, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Anne M. Wagner, Vice Chairman

Mark A. Robbins, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which 

sustained the appellant’s indefinite suspension. Generally, we grant petitions 

such as this one only when: the initial decision contains erroneous findings of 

material fact; the initial decision is based on an erroneous interpretation of statute 

 1 A nonprecedential order is one that the Board has determined does not add 

significantly to the body of MSPB case law. Parties may cite nonprecedential orders, 

but such orders have no precedential value; the Board and administrative judges are not 

required to follow or distinguish them in any future decisions. In contrast, a 

precedential decision issued as an Opinion and Order has been identified by the Board 

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
or regulation or the erroneous application of the law to the facts of the case; the 

judge’s rulings during either the course of the appeal or the initial decision were 

not consistent with required procedures or involved an abuse of discretion, and 

the resulting error affected the outcome of the case; or new and material evidence 

or legal argument is available that, despite the petitioner’s due diligence, was not 

available when the record closed. See Title 5 of the Code of Federal Regulations, 

section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this 

appeal, and based on the following points and authorities, we conclude that the 

petitioner has not established any basis under section 1201.115 for granting the 

petition for review. Therefore, we DENY the petition for review and AFFIRM 

the initial decision, which is now the Board’s final decision. 5 C.F.R. 

§ 1201.113(b). 

¶2 Effective April 27, 2012, the agency placed the appellant, a Mail Handler

working on the flat sorter machine, in nondisciplinary leave without pay (LWOP) 

status based on his physical inability to perform the essential functions of his 

position due to off-the-job medical restrictions (including no lifting over 15 

pounds and the need to change position every 30 minutes), and the inability of the 

District Reasonable Accommodation Committee (DRAC) to locate another 

position for him that he could perform with or without reasonable 

accommodation. Initial Appeal File (IAF), Tab 6 at 57, 68, 82, 97. The appellant

appealed the agency’s action. IAF, Tab 1. Initially the appellant requested a 

hearing; however, during the course of the proceedings below, he asked for a 

decision based on the written record. IAF2, Tab 8. 2

¶3 The administrative judge adjudicated the appellant’s appeal as an indefinite 

suspension that had lasted for more than 14 days and was thus within the Board’s 

 2 The administrative judge dismissed the appellant’s first-filed appeal without 

prejudice, and the appellant timely refiled the action. The record in the first-filed 

appeal is cited as IAF, and the record in the refiled appeal is cited as IAF2.
jurisdiction.

3

 IAF2, Tab 43, Initial Decision (ID) at 9-10. He found that the 

agency proved by preponderant evidence that it had legitimate concerns that the 

appellant’s medical conditions, which were continuing and remained unchanged 

during the course of this appeal, made his continued presence as a Mail Handler

inappropriate. ID at 12. The administrative judge also found that the appellant

failed to prove his affirmative defense of disability discrimination. ID at 20. He 

found that, although the appellant established that he is a person with a disability, 

he failed to show that he could perform the essential duties of his Mail Handler

position with or without accommodation. ID at 20. The administrative judge also 

found that the appellant failed to show that he was treated in a disparate manner 

from nondisabled employees. ID at 20-21. Additionally, the administrative judge

found that the appellant failed to show that the processes used by the DRAC to 

determine that the appellant could not be accommodated or reassigned constituted 

harmful procedural error. ID at 21-23.

¶4 On petition for review, the appellant generally disagrees with the 

administrative judge’s findings of fact and conclusions of law. He disagrees 

especially with the finding that he failed to prove disability discrimination. 

Petition for Review (PFR) File, Tab 3. He contends that the duties of the Mail 

Handler position could be revised to meet his medical restrictions. The appellant

appears to assert that because his physician cleared him to work within 

restrictions, including the restriction that he not lift more than 15 pounds, the 

agency should have accommodated his restrictions. He also contends that the 

agency should have given him a light-duty assignment. He contends, moreover,

that the agency treated him disparately from nondisabled employees. 4

 

 3 While this appeal was proceeding, the appellant retired from the agency. IAF2, Tab 

14 at 23.

4 The appellant filed two additional motions after he filed his petition for review, 

requesting an extension of time to reply to the agency’s response to the petition for 

review. PFR File, Tabs 7-8. The Clerk of the Board denied the appellant’s motions 

because they were filed after the due date for the reply. Id., Tab 4.
¶5 The Board and its reviewing court have approved indefinite suspensions 

when, as here, the agency has legitimate concerns that an employee’s medical 

condition makes his continued presence in the workplace dangerous or 

inappropriate, pending a determination that the employee is fit for duty. 

Gonzalez v. Department of Homeland Security, 114 M.S.P.R. 318, ¶ 13 (2010). 

To establish that an indefinite suspension is reasonable, the agency must show 

that a lesser penalty, such as accommodation or reassignment, would be 

ineffective under the circumstances. Vega v. Department of Justice, 37 M.S.P.R. 

115, 118 (1988).

¶6 In this case, the agency established that the appellant had a medical 

condition that made the performance of his duties as a Mail Handler

inappropriate. The record shows that the physical requirements of the Mail 

Handler position include prolonged walking, standing, and possibly lifting heavy 

containers and parcels weighing up to 70 pounds, including manipulating sacks of 

mail weighing 35 to 50 pounds on a continuous basis. IAF, Tab 6 at 97. The 

appellant’s physician restricted the appellant to lifting no more than 15 pounds 

and needing to change position between standing, walking, and sitting every 30 

minutes. Id. at 70. Further, the agency showed that a lesser penalty would be 

ineffective under the circumstances. Before placing the appellant on LWOP, the 

agency searched for, but could not find, necessary and productive light-duty work 

that could be performed within the appellant’s restrictions. Id. at 82. 

Additionally, before placing the appellant on LWOP, the agency established

through the DRAC process that his physical restrictions could not be 

accommodated in the Mail Handler position and that there were no positions 

within the appellant’s restrictions to which he could be reassigned. Id. at 68. 

Thus, the administrative judge properly found that the agency established by 

preponderant evidence that placing the appellant on nondisciplinary LWOP status 

was reasonable.
¶7 The appellant contends that the administrative judge erred in finding that 

the agency did not discriminate against him on the basis of disability by failing to 

accommodate him. To establish disability discrimination, an employee must 

show: (1) he is an individual with a disability, as defined by 29 C.F.R. 

§ 1630.2(g); (2) he is a qualified individual with a disability, as defined 

by 29 C.F.R. § 1630.2(m); and (3) the agency failed to provide a reasonable 

accommodation. Miller v. Department of the Army, 121 M.S.P.R. 189, ¶ 13 

(2014).

¶8 The appellant established that he is a qualified individual with a disability

because he could lift no more than 15 pounds and has further limitations on the

time that he can stand continuously. ID at 18. The appellant failed to show, 

however, that there was a reasonable accommodation that could allow him to 

perform the essential duties of the Mail Handler position. An essential duty of 

the Mail Handler position assigned to duties on the flat sorter machine is to lift 

preloaded bulk mail trays, each of which weighs more than 20 pounds. The 

record shows that there is no way to eliminate the essential flat sorter duty of 

lifting and moving trays of mail, each weighing at least 5 pounds above the 

appellant’s 15-pound weight lifting restriction. ID at 18-20. The appellant 

presented no evidence to show that his treating physicians indicated that he could 

lift more than 15 pounds. Further, the appellant does not challenge the finding of 

the DRAC that no vacant positions were available to which the appellant could be 

reassigned. Thus, the administrative judge properly found that the appellant 

failed to show that the agency discriminated against him by failing to 

accommodate his disability. 

¶9 Further, regarding the appellant’s assertion that the agency should have 

accommodated his disability by creating a light-duty position, it is 

well-established that the Rehabilitation Act imposes no obligation on the agency 

to create modified work assignments. Bennett v. U.S. Postal 

Service, 118 M.S.P.R. 271, ¶ 10 (2012). The provision of limited-duty tasks that 
do not constitute a separate position is not a reasonable accommodation and the 

agency is not required to create a new position for an employee in order to 

provide reasonable accommodation. Id. 

¶10 The appellant also contends that the administrative judge erred in finding 

that the agency did not discriminate against him based on disparate treatment. To 

establish a prima facie case of disability discrimination based on disparate 

treatment, an appellant must prove that: (1) he is a member of a protected class; 

(2) he suffered an adverse employment action; and (3) the unfavorable action 

gives rise to an inference of discrimination. McDonnell Douglas Corp. v. 

Green, 411 U.S. 792, 802 (1973). If an appellant establishes a prima facie case of 

prohibited employment discrimination, the burden of going forward then shifts to 

the agency to articulate a legitimate, nondiscriminatory reason for its action; and, 

finally, the employee must show that the agency’s stated reason is merely a 

pretext for prohibited discrimination. Id. at 802–04. However, in a case like this, 

where the record is complete, the Board will proceed directly to the ultimate 

question of whether the appellant has demonstrated by preponderant evidence that 

the agency’s reason for its actions was a pretext for discrimination. Berry v. 

Department of Commerce, 105 M.S.P.R. 596, ¶ 10 (2007).

¶11 The administrative judge carefully considered whether the appellant was 

similarly situated to any of the six employees to whom he compared himself. ID 

at 20-21. He found that the appellant was not similarly situated to one particular

employee who was allowed to bypass the flat sorter rotation for several months 

because she was pregnant. ID at 20. He also found that the appellant failed to 

support his assertion that two other employees worked on only one station of the 

flat sorter. ID at 20. In any event, as noted, the agency established that each 

station on the machine required that the employee move the full trays of mail 

weighing in excess of 20 pounds. ID at 19. Additionally, the administrative 

judge found that, while the appellant showed that one employee was permitted to 

sit for some intervals and another was allowed for several months to do the job 
while he was seated, the appellant failed to show that the employees were similar 

to the appellant in that they could not lift the mail trays while seated. ID at 20. 

Further, the administrative judge found that, regarding the sixth employee whom 

the appellant identifies, the appellant failed to show that he was comparable 

because the appellant failed to address the employee’s limitations, modifications, 

assignments, duties, or other factors. ID at 21. We thus find that the 

administrative judge properly found that the appellant failed to show that agency

discriminated against him based on disparate treatment. 5

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request further review of this final decision. 

Discrimination Claims: Administrative Review

You may request review of this final decision on your discrimination 

claims by the Equal Employment Opportunity Commission (EEOC). See Title 5 

of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you 

submit your request by regular U.S. mail, the address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit your request via commercial delivery or by a method 

requiring a signature, it must be addressed to:

 5 The agency submitted into the record on petition for review a letter stating that the 

appellant has filed a complaint in the U.S. District Court making claims substantially 

similar to those asserted in his Board appeal. PFR File, Tab 10. The Assistant U.S. 

Attorney handling the appellant’s court complaint is seeking a stay of that action until 

the Board issues a final decision on the appellant’s petition for review. Id.
Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, NE

Suite 5SW12G

Washington, D.C. 20507

You should send your request to EEOC no later than 30 calendar days after 

your receipt of this order. If you have a representative in this case, and your 

representative receives this order before you do, then you must file with EEOC no 

later than 30 calendar days after receipt by your representative. If you choose to 

file, be very careful to file on time.

Discrimination and Other Claims: Judicial Action

If you do not request EEOC to review this final decision on your 

discrimination claims, you may file a civil action against the agency on both your 

discrimination claims and your other claims in an appropriate United States 

district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with 

the district court no later than 30 calendar days after your receipt of this order. If 

you have a representative in this case, and your representative receives this order 

before you do, then you must file with the district court no later than 30 calendar 

days after receipt by your representative. If you choose to file, be very careful to 

file on time. If the action involves a claim of discrimination based on race, color, 

religion, sex, national origin, or a disabling condition, you may be entitled to 

representation by a court-appointed lawyer and to waiver of any requirement of
prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e5(f) 

and 29 U.S.C. § 794a.

FOR THE BOARD:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board