UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

TYSHA S. HOLMES,

Appellant,

v.

DEPARTMENT OF THE ARMY,

Agency.

DOCKET NUMBER

AT-0353-14-0459-I-1

DATE: August 14, 2014

THIS FINAL ORDER IS NONPRECEDENTIAL1

Allison Stephens, Fort Jackson, South Carolina, for the appellant.

Marvin Mervin, Columbia, South Carolina, for the appellant.

Patricia Smith, Fort Jackson, South Carolina, 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

dismissed her appeal for lack of jurisdiction. Generally, we grant petitions such 

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

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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).
2

fact; the initial decision is based on an erroneous interpretation of statute 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 The appellant filed an appeal alleging that the agency failed to restore her to 

duty in her position of Physician’s Assistant, GS-12, after an on-the-job injury. 

Initial Appeal File (IAF), Tab 1. The record reflects that on January 25, 2010, the 

appellant was involved in an altercation at work and she suffered an injury for 

which she received benefits from the Office of Workers’ Compensation Programs 

(OWCP). IAF, Tab 5, Exhibit (Ex.) B1-B3. The agency proposed the appellant’s 

removal on June 7, 2010, and on January 14, 2011, the agency removed the 

appellant for alleged misconduct which included charges of making an offensive 

remark to her supervisor, insubordination, and unauthorized disclosure of medical 

quality insurance information. IAF, Tab 6, Subtabs 4d, 4e. The appellant 

appealed her removal and the administrative judge reversed the agency’s action 

based on due process violations. Holmes v. Department of the Army, MSPB 

Docket No. AT-0752-11-0263-I-3 (Initial Decision, Jan. 2, 2013). The agency 

complied with the interim relief order by placing the appellant on administrative 

leave after determining that returning her to the workplace would be unduly 
3

disruptive. IAF, Tab 6, Subtab 4a. The appellant has remained in an 

administrative leave status. 

¶3 In this case, the appellant argued below that her removal was based on her 

compensable injury and that the agency failed to restore her to duty in her 

position of Physician’s Assistant after she had partially recovered. IAF, 

Tabs 1, 7. The appellant asserted further that she was not removed for cause 

because the agency’s action had been reversed on appeal. IAF, Tab 1; see MSPB 

Docket No. AT-0752-11-0263-I-3. Without holding a hearing, the administrative 

judge dismissed the instant appeal for lack of jurisdiction finding that the 

appellant is not entitled to restoration because she was removed for cause and that 

she cannot appeal any failure of restoration to the Board. Regarding the 

appellant’s argument that she could not have been removed for cause because the 

removal action was reversed on appeal, the administrative judge found that the 

removal action had been reversed on due process grounds; that the appeal did not 

address the merits of the misconduct charges; and noted that the case was still 

pending review by the Board.

2

 Initial Decision (ID) at 3. The administrative 

judge also found no merit to the appellant’s argument that her removal was 

related to her compensable injury. ID at 3. Thus, the administrative judge found 

that the appellant failed to establish that her removal was based on her

compensable injury or that she was absent from the workplace since January 2011 

due to a compensable injury.

¶4 On review, the appellant argues that the agency violated her restoration 

rights when it removed her and then failed to return her to duty following the

reversal of the removal action. Petition for Review (PFR) File, Tab 3, 9. The 

appellant contends that the agency failed to prove that she was removed for cause 

 2 The Board has subsequently reversed the initial decision in the appellant’s removal 

action and the case has been remanded to the Atlanta Regional Office for adjudication 

on the merits of the removal. See Holmes v. Department of the Army, MSPB Docket 

No. AT-0752-11-0263-I-3, Nonprecedential Remand Order (July 9, 2014).
4

and she reiterates her claim that her removal was related to her compensable 

injury. 3

 PFR File, Tabs 3, 9. In this connection, the appellant appears to be 

reasserting that, because OWCP approved her claim and retroactively paid her 

benefits from January 14, 2011, until December 2013, her removal was related to 

her compensable injury. Id. 

¶5 We have considered the appellant’s arguments on review concerning the 

administrative judge’s weighing of the evidence. The applicable law and the 

record evidence support the administrative judge’s findings that the appellant 

failed to establish that her removal was based on her compensable injury or that 

she was absent from the workplace since January 2011 due to a compensable 

injury. Thus, we discern no reason to reweigh the evidence or substitute our 

assessment of the record evidence for that of the administrative judge. See

Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 105-106 (1997) (finding no reason 

to disturb the administrative judge’s findings when the administrative judge 

considered the evidence as a whole, drew appropriate inferences, and made 

reasoned conclusions); Broughton v. Department of Health & Human Services, 

33 M.S.P.R. 357, 359 (1987) (same).

¶6 Specifically, an employee who has been removed for cause, other than for a 

compensable injury, is not entitled to restoration and cannot appeal any failure of 

restoration to the Board. Minor v. Merit Systems Protection Board, 819 F.2d 280, 

282 (Fed. Cir. 1987). Here, the record reflects that on January 25, 2010, the 

appellant was involved in an altercation at work and she suffered a compensable 

injury. IAF, Tab 5, Ex. B1-B3. The agency proposed the appellant’s removal on 

June 7, 2010, and on January 14, 2011, the agency removed the appellant for 

 3 We note that the appellant also argues that the agency failed to provide her interim 

relief because it placed her on administrative leave after determining that her return to 

the workplace would cause undue disruption. However, interim relief was not ordered 

in the instant case, and thus, it is not at issue here. Moreover, the Board has addressed 

the appellant’s interim relief arguments in Holmes, MSPB Docket No. AT-0752-11-

0263-I-3, Nonprecedential Remand Order at n.2. 
5

alleged misconduct which included charges of making an offensive remark to her 

supervisor, insubordination, and unauthorized disclosure of medical quality 

insurance information. IAF, Tab 6, Subtabs 4d, 4e. 

¶7 The agency’s documentary submissions show that it issued a notice of 

proposed removal on February 18, 2010, IAF, Tab 7, Ex. E, based inter alia, on a 

January 25, 2010 “verbal altercation,” which ended in the compensable injury. 

The agency rescinded the February 18, 2010 proposal notice and issued a new 

proposal notice on June 7, 2010, which did not reference the January 25, 2010 

verbal altercation. IAF, Tab 6, Subtabs 4d, 4e. Further, the June 7 notice relied 

on incidents that allegedly occurred prior to the January 25, 2010 altercation. Id. 

Thus, the record supports the administrative judge’s determination that the 

appellant’s absence since January 2011 resulted from her removal for alleged 

misconduct and her failure to maintain her clinical privileges, not her inability to 

work because of a compensable injury. ID at 3-4; see IAF, Tab 6, Subtabs 4a, 

4d-4f. Thus, the appellant’s separation for cause precludes restoration rights. 

See 5 C.F.R. § 353.108. Accordingly, because the appellant has failed to make a 

nonfrivolous allegation that her removal was based on her compensable injury, 

the appellant has provided no basis upon which to disturb the initial decision.

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision by the United 

States Court of Appeals for the Federal Circuit. You must submit your request to 

the court at the following address:

United States Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, DC 20439

The court must receive your request for review no later than 60 calendar 

days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 
6

27, 2012). If you choose to file, be very careful to file on time. The court has 

held that normally it does not have the authority to waive this statutory deadline 

and that filings that do not comply with the deadline must be dismissed. See 

Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).

If you need further information about your right to appeal this decision to 

court, you should refer to the federal law that gives you this right. It is found in 

Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. 

Dec. 27, 2012). You may read this law as well as other sections of the United 

States Code, at our website, http://www.mspb.gov/appeals/uscode.htm. 

Additional information is available at the court's website, www.cafc.uscourts.gov. 

Of particular relevance is the court's "Guide for Pro Se Petitioners and 

Appellants," which is contained within the court's Rules of Practice, and Forms 5, 

6, and 11.

If you are interested in securing pro bono representation for your court 

appeal, you may visit our website at http://www.mspb.gov/probono for a list of 

attorneys who have expressed interest in providing pro bono representation for 

Merit Systems Protection Board appellants before the court. The Merit Systems 

Protection Board neither endorses the services provided by any attorney nor 

warrants that any attorney will accept representation in a given case. 

FOR THE BOARD:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board