NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition is not citable as precedent. It is a public record. 

## United States Court of Appeals for the Federal Circuit

06-3134 JIMMY L. STROZIER, Petitioner,

v.

UNITED STATES POSTAL SERVICE, Respondent.

__________________ __________ DECIDED: June 29, 2006

__________________ __________ Before RADER, SCHALL, and BRYSON, Circuit Judges

. PER CURIAM.

DECISION Jimmy L. Strozier petitions for review of two final decisions of the Merit Systems Protection Board (“Board”). One decision, Strozier v. United St ates Postal Service , No. DE0752030183-I-2, slip op. (M. S.P.B. Oct. 31, 2003) (“ Enforced Leave Decision ”), denied Mr. Strozier’s challenge to the Post al Service placing him on enforced leave from his position as a Mail Proce ssing Clerk. The other decision, Strozier v. United States Postal Service , No. DE0752030351-I-1, slip op. (M.S.P.B. Nov. 3, 2003)(“ Removal Decis i on ”), denied Mr. Strozier’s challenge to the Postal Servic e removing him from the same position. We affirm

. DISCUSSI ON
I. Beginning July 4, 1998, Mr. Strozier was employed by the Postal Service at its Processing and Distributi on Center in Colorado Springs, Colorado. Enfor c ed Leav e Decis i on , slip op. at 2. 1 Although Mr. Strozier passed a physical examination prior to being hired as a 10-point disabled veteran, which examination fo und that he was then physically able to per form all of the dutie s of a mail processing clerk, he began hav ing serious physical problems relative ly soon after being hired. Id. These problems affected Mr. Strozier’s legs, feet, and back, inhib i ting his ability to stand. Id. In due course, Mr. Strozier reached an agreement with the Postal Ser v ice. Pursuant to the agreement, he relinquished his position and requested a temporary light duty assignment. Id. He was immediately placed in to a tempor ary light-duty position from February 22, 2002, unt il F ebruary 27, pendi ng updated m edical doc u mentation. Id. The updated medical repor t submitted by Mr. Strozier was signed by a medical doctor in the Department of Veterans Affair s. Mr. Strozier was diagnosed as suffering from: (1) deteriorating ligam ents and other degenerativ e joint disease (“DJD”) in his r i ght knee; (2) a lump in his left Ac hilles ’ tendon; (3) DJD in his le ft knee; (4) lumbar scoliosis; (5) flat feet; and (6) back arthritis on the right side of h i s spine. Id. , slip op. at 2-3. Upon reviewing Mr. Strozier’s m edical document ation, a m edical doct o r employ ed by the

1 The Board stated that it was undisputed that “[a]t all pertinent times, [Mr. Strozier] was employ ed as a Ma il Processing Clerk . . . .” Id. Mr. Strozier c ontends that he was reassigned from the pos ition of Distribution Clerk. As discussed below, the Board found that no substant ive reassignm ent occurred.

06-3134 2Postal Ser v ice’s Medical Unit determined that Mr. Strozier should have the following permanent physical r e strictions: (1) he could not lift over 20 pounds at a ll; ( 2 ) he could lift between 0 and 10 pounds fo r 4 hours intermittently; (3) he could lift between 10 and 20 pounds for 2 hours intermittently or 1 hour constantly; (4) he could stand up to 2 hours intermittently, but not more than 30 minut es at any one time; (5) he could walk up to 2 hours intermittently, but not for more t han 30 minutes at any one time; he could squat up to 30 minutes per day; he could dr iv e up to 4 hours per day intermittently or 2 hours cons tantly; and (8) he required a chai r with lumbar support when sitting. Id. , slip op. at 3. Based upon the Medical Unit’s r eport, Mr. Strozier was nominated for reasonable accommodation cons ideration by the Dis trict Reasonable Acc o mmodation Committee (“DRAC”), which asked him to supplement his medical documentation for further review. Id. On June 17, 2002, Mr. Strozier parti cipated by telephone in a DRAC proceeding discussing his request for r easonable acc o mmodation. Id. Mr. S t rozier informed DRAC that none of his major life activities wa s affecte d by the medical conditions and
accompany ing restrictions noted in the most recent medical report. Id. Because of the absence of any medic a l or other information that his job limitations s ubstantially affected any major life activities, DRAC c oncluded t hat Mr. Strozier was not covered by the Rehabilitation Act of 1973, and thus not eligible for reasonable acc o mmodation. Id. , slip op. at 3-4. Accordingly, Mr. Strozier wa s informed that he had three options : apply for other positions for which he would qu alif y medically and otherwise; seek disab ilit y retirement; or resign. Id.

06-3134 3On or about June 28, 2002, Mr. Strozier notified DRAC that he had elect ed to apply for other positions. Id. DRAC notified Mr. Strozier t hat he had six weeks to obtain a position that fell within hi s physical restriction. Id. D R A C a l s o n o t i fied him that should he fail to find a pos ition within t hat time, he would be given an addi tional t e n days to elect resignation or di sability retirement. Id. Mr. Strozier failed to bid for any positions within the six week period and failed to notify his superio rs or DRAC t hat he wa s electing resignation or di sability retirement. Id. Consequently, on September 11, 2002, Mr. Strozier was given a notic e of proposed placement on enfor ced leav e. At the same time, he was plac ed on adm inistrative l eave pending the submission of medical documentation demonstrating that he was physically able to return to full duty, or pending his election of resignation or disability retirement. Id. Mr. Strozier did not respond to this notice. The Board found that as of September 17, 2002, Mr. St rozier ceased coming to work altogether, although he conceded th at ther e w a s still use f ul work that he could have performed for the Postal Service. Re moval Decision , slip op. at 4. M r . Strozier was placed on enforced leav e on November 8, 2002. Id. On December 10, 2002, and January 14 and January 17, 2003, Mr. Strozier was sent notices to report for a due process meeting (als o known as an inves t igative int e rview) concerning his absence from work. Id. , slip op. at 5. Mr. Strozier att ended the meeting, held on January 27, and was represented by a union steward. Id. Mr. Strozier refused to cooperate or answe r any questions during the meeting, despite the union steward’s guidance to the contrary. Id.

06-3134 4On March 14, 2003, Mr. Strozier was is s u ed a notic e of proposed removal for failure to perform the requirements of his pos ition due t o medical inability to perform. Id. Given that he did not respond to the noti ce, the Plant Manager issued a dec i sion removing Mr. Strozier on May 25, 2003. Id.
II. We have jurisdiction over appeals from t he Board under 28 U.S. C. § 1295(a)(9). The decis ion of the Board will be affirmed unless it is arbitr ary, capricious, an abuse of discretion, or otherwis e not in accordance with law; obtained without procedur es required by law, rule, or r egulation hav ing been followed; or unsupported by s u bstantial evidenc e. 5 U.S. C. § 7703(c). The Board found that the Postal Servic e demonstrated by a preponderanc e of the evidence that Mr. Strozi er was properly plac ed on enforced leave pending resolution of his medically-based employment problems. Mr. S t rozier alleges, however, that he was hired as a Distribution Cle r k , in whic h position h e serv ed until F ebruary of 2002. He asserts that, at all relevant times, he co uld p e rform all of the duties of that position without a need for accommodation. From there, he appears to argue that, in February of 2002, he was assigned to s e rve as a Ma il Processing Clerk an d that he was no t physically capable of performing t he duties of that posi t ion. He charges that the Postal Service knew that his disabilities prevent ed him from performing these new duties and that he was assigned to the Mail Processi ng Cler k positio n as retaliation for filin g discrimination complaints. He contends that he should have simply been returned to his prior job as a Distribution Clerk, which was similar to his temporary light duty assignment . Accordingly, he as s e rts that it was unreasonable for the Postal Service to

06-3134 5instruct him to choose betw een bidding for another position, 2 disability retirement, and resignation. It appears that after considering Mr. Stro zier’s argument that his job within t h e Postal Service was c hanged in retaliation, the Board found that no such change of job occurred. The Board expressed as a fact ual finding: “The following salient facts are undisputed unless otherwise stat ed. At all pertinent times, the a ppellant was employe d as a Mail Processing Clerk . . . . The ap pellant had been employ ed by the agency sinc e July 4, 1998.” Enforced Leave Decis i on , slip op. at 2. We c annot say that substantia l evidenc e does not support that finding. T he Notification of Personnel Action that accompanied Mr. Strozier’s change in title st ated, “[A]ll distributio n clerk has the same change it’s just a name chang e from Distribution Clerk to Mail Processing Cler k

. Everyone still has their bid assign ed job.”

Because M r . Strozier had not served five years in the Postal Ser v ice, he was not eligible for permanent reassignm ent under Sect ion 2( b) of Article 13 of the applicab le collectiv e bargaining agreement. Moreover, it is noteworthy that Mr. Strozier informed DRAC that none of his major life activities wa s affected by the medical conditions and
accompany ing restrictions noted in his medica l report, thus making him ineligible for a reasonable accommodation under the Rehabilitation Act of 1973. See Enforced Lea ve Decis i on , s lip op. at 3. Nonetheless, Mr. St rozier failed to suggest any reasonab le accommodation that would hav e enabled him to perform the core functions of his position. Under these circumstances, we s ee no error in the Board’s conclusion that placing Mr. Strozier on enfor ced leave was reasonable. Id. , slip op. at 6.

2 Mr. Strozier asserts that he was not qualified for any of the posted positions.

06-3134 6III.

The Board als o determined that the Postal Serv ice demonstrated by a preponderance of the evidence that Mr. Stro zier was properly r e moved for failure to perform the requirements of his position based on medi cal inability to pe rform. We see no error in this ruling. It is undisputed that Mr. S t rozier was only capable of performing a fraction of the duties of a Mail Process i ng Clerk. The Board aptly not ed that Mr. Strozier ceased reporting to work at a ll after September 17, 2002, even though he conceded that there was still us eful work t hat he could hav e performed for the Postal Service. Removal Decision , slip op. at 4. Furthermore , the B oard observed that Mr. Strozier was given many opportunities to present evidenc e of improvement of his physical condition enabling him to perfo rm a percentage of his duties as a Mail Processing Clerk. Id. , slip op. at 7. In short, the Bo ard did not err in finding that Mr. Strozier was properly remov ed based on his failure to perfo rm the requirements of his position based on medical i nability to perform. Additionally , the Board determined that Mr . Strozier failed to demonstrate by a preponderance of the evidence that the Postal Ser v ice’ s actions, placing him on enforced leave and removing him, were ta ken in reprisal agai nst him for filing discrimination complaints. It was undisputed t hat Mr. Strozier satisf ied three of the four requirements to demonstrate a repr isal claim in accor dance with Warren v. Department of the Army , 804 F.2d 654, 656-58 (Fed. Cir. 1986)—namel y that by filing disc rimination complaints, he engaged in a protected ac tivity within the meaning of 5 U.S. C. § 2302(b)(9), that he was adv ersely affected by an agency personnel ac tion that could, under the circumstances, have involv ed re taliation, and that the agency officials

06-3134 7responsible for the adverse action, who proposed and decided the adverse actions, had either actual or const r uctive knowledge of his pr otected activity. However, the Board found that Mr. Strozier failed t o satisfy the fourth requirement—showing a causal connection between his protected activity and his placement on enforced leave. Enforced Leave Decis i on , slip op. at 7; Removal Decis i on , slip op. at 8. The Board was correct that Mr. Strozier presented no ev id ence that his placem ent on enf orced leav e and subs equent removal constituted a reprisal for his discrimination complaints other than his unsubstantiated subjective opinion . The Board’s finding that the adverse actions were taken because of legitimate business reasons is s upported by substantial evidenc e. Finally, the Board found that the Post al Service demonstrated that taking disciplinary action against Mr. Strozier wa s for the “efficiency of the service” in accordanc e with 5 U.S.C. § 7513(a) and that placing him on enforced le ave and ultimately removing him were appropriate rem edies. This findin g lo gically flows from a consideration of the undisputed fact that Mr. Strozi er is not physically capable of performing the primary duties of his pos ition. Therefore, t he Postal Service’s decisions to place Mr. Strozier on enforced leave and subseque ntly remove him were reasonable under all the facts and circumstances of the case. For the foregoing reasons, the two final decisions of the Board are affirmed. Each party shall bear its own costs.

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