CERTIFICATE OF SERVICE

I certify that the attached Document(s) was (were) sent as indicated this

day to each of the following:

Appellants
U.S. Mail Arleather Reaves
U.S. Mail Cynthia E. Lund
U.S. Mail J C. Latham
Electronic Mail Marcella Albright
sn
U.S. Mail Ruby N. Turner

Appellant Representative

U.S. Mail Geraldine Manzo
7700 Edgewater Drive
Suite 656
Oakland, CA 94621

U.S. Mail J.R. Pritchett
Postal Employee Advocates
86 East Merrill Road
McCammon, ID 83250


(1) May a denial of restoration be “arbitrary and capricious” within
the meaning 5 C.F.R. § 353.304(c) solely for being in violation of
the ELM, i.e., may the Board have jurisdiction over a restoration
appeal under that section merely on the basis that the denial of
restoration violated the agency’s own internal rules?

(2) What is the extent of the agency’s restoration obligation under
the ELM, i.e., under what circumstances does the ELM require the
agency to offer a given task to a given partially recovered employee
as limited duty work?

BRIEFING SCHEDULE
The parties are requested to file briefs addressing the issues identified
above. Briefs shall not exceed 30 double-spaced pages in length and must be
filed no later than August 17, 2011. Reply briefs shall not exceed 20 double-
spaced pages, and must be filed by September 6, 2011.

FOR THE BOARD:

William D. Spencer
Clerk of the Board

Washington, D.C.


July 25, 2011

(Date) Dinh Chung
Case Management Specialist


UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

JAMES C. LATHAM, DOCKET NUMBERS
RUBY N. TURNER, DA-0353-10-0408-I-1
ARLEATHER REAVES, SF-0353-10-0329-I-1
CYNTHIA E. LUNDY, AND CH-0353-10-0823-I-1
MARCELLA ALBRIGHT, AT-0353-11-0369-I-1
Appellants, DC-0752-11-0196-I-1
Vv.

UNITED STATES POSTAL SERVICE,
Agency. DATE: July 25, 2011

James A. Penna, Amarillo, Texas, for appellant Latham.

Geraldine Manzo, Oakland, California, for appellant Turner.

J.R. Pritchett, Esquire, McCammon, Idaho, for appellant Reaves.

Cynthia E. Lundy, Lithonia, Georgia, pro se.

Thomas William Albright, Garner, North Carolina, for appellant Albright.

Theresa M. Gegen, Esquire, Dallas, Texas, Joshua T. Klipp, Esquire, San
Francisco, California, Andrew C. Friedman, Esquire, Chicago, Illinois,
Earl L. Cotton, Sr., Esquire, Atlanta, Georgia, and Ayoka Campbell,
Esquire, Charlotte, North Carolina, for the agency.

CONSOLIDATION ORDER AND REQUEST FOR BRIEFING

The above-captioned appeals pertaining to alleged denials of restoration
pursuant to the agency’s National Reassessment Process (NRP) involve a
common issue that the Board has not yet addressed. We therefore
CONSOLIDATE the above-captioned appeals for purposes of this request for
briefing.


The Office of Personnel Management’s regulation at 5 C.F.R. § 353.301(d)
requires the agency to “make every effort” to restore a partially recovered
employee to limited duty within the local commuting area. The regulation
explains that “[a]t a minimum, this would mean treating these employees
substantially the same as other [disabled] individuals under the Rehabilitation Act
of 1973.” The Board has interpreted this regulation as requiring agencies to
search within the local commuting area for vacant positions to which an agency
can restore a partially recovered employee and to consider the employee for any
such vacancies. Sanchez v. U.S. Postal Service, 114 M.S.P.R. 345, § 12 (2010)
(citing Sapp v. U.S. Postal Service, 73 M.S.P.R. 189, 193-94 (1997)).
Conversely, the Board has found that this regulation does not require an agency
to assign a partially recovered employee limited duties that do not comprise the
essential functions of a complete and separate position. Brunton v. U.S. Postal
Service, 114 M.S.P.R. 365, 9 14 (2010) (citing Taber v. Department of the Air
Force, 112 M.S.P.R. 124, J 14 (2009)).

However, it appears that the U.S. Postal Service may have established an
agency-specific rule providing partially recovered employees with greater
restoration rights than the “minimum” rights described in 5 C.F.R. § 353.301(d).
See generally Drumheller v. Department of the Army, 49 F.3d 1566, 1574 (Fed.
Cir. 1995) (agencies are required to follow their own regulations). Specifically,
the Employee and Labor Relations Manual (ELM) § 546.142(a) requires the
agency to “make every effort toward assigning [a partially recovered current
employee] to limited duty consistent with the employee’s medically defined work

”

limitation tolerance.” One of the appellants has submitted evidence to show that
Postal Service Handbook EL-505, Injury Compensation §§ 7.1-7.2 provides that
limited duty assignments “are designed to accommodate injured employees who
are temporarily unable to perform their regular functions” and consist of
whatever available tasks the agency can identify for partially recovered

individuals to perform consistent with their medical restrictions. Latham v. U.S.


Postal Service, MSPB Docket No. DA-0353-10-0408-I-1, Initial Appeal File, Tab
21, Subtab 7. It therefore appears that the agency may have committed to
providing medically suitable work to partially recovered employees regardless of
whether that work comprises the essential functions of a complete and separate
position. Indeed, the Board is aware of one arbitration decision explaining that,
as a product of collective bargaining, the agency revised the ELM in 1979 to
afford partially recovered employees the right to restoration to “limited duty”
rather than to “established jobs.” Jn re Arbitration between U.S. Postal Service
and National Association of Letter Carriers, Case No. EO6N-4E-C 09370199, 16
(2010) (Eisenmenger, Arb.). The Board is also aware of a large number of other
recent cases challenging the discontinuation of limited duty assignments under
the NRP in which the arbitrators ruled in favor of the grievants on the basis that
the agency’s actions violated the ELM. E.g., In re Arbitration between U.S.
Postal Service and National Association of Letter Carriers, Case No. GO6N-4G-C
10205542 (2011) (Sherman, Arb.); Jn re Arbitration between U.S. Postal Service
and National Association of Letter Carriers, Case No. EQ6N-4E-C 09419348
(2010) (Duffy, Arb.); In re Arbitration between U.S. Postal Service and National
Association of Letter Carriers, Case No. FO6N-4F-C 09221797 (2010) (Monat,
Arb.); In re Arbitration between U.S. Postal Service and National Association of
Letter Carriers, Case No. BO1N-4B-C 06189348 (2010) (LaLonde, Arb.). The
appellants in the above-captioned appeals have all raised similar arguments
before the Board pertaining to alleged violations of their restoration rights under
the ELM.

The Board has not yet addressed the implications of ELM § 546.142(a) on
restoration appeals of partially recovered U.S. Postal Service employees under
5 C.F.R. § 353.304(c). The Board’s resolution of this issue will affect the
outcome of a large number of restoration appeals arising under the NRP.
Therefore, in the interest of justice, we wish to afford the parties a full and fair

opportunity to brief the following issues: