“3

Arleather Reaves
- MS.P.B. Docket No. CH-0353-10-0823-I-1

CONCLUSION

It’s been demonstrated through the agency’s own regulations and procedures that
the use and implementation of “Operationally Necessary Tasks” as it applies to partially-
recovered employees, exceeds management’s discretion and is therefore an arbitrary and
capricious standard. The Board should revise their prior decisions regarding the use of
ONT’s, and find that the agency cannot implement a policy that is inconsistent with its
written rules, specifically with regard to partially-recovered employees.

The Appellant requests that the Board VACATE this Initial Decision and find in
her favor. In so doing, she requests that she be restored to duty in her former position in
ER © in an equivalent position that accommodates her medical restrictions.
She also requests all backpay and benefits, plus interest, encompassing the period of time
that the agency did not provide work for her. The Appellant has also raised an
affirmative defense of disability discrimination and therefore requests either a finding in
her favor, or an opportunity to present evidence and testimony relative to this claim,
including her claim for compensatory damages.

For the Appellant:

TR. Pritchett, Employee Advocate
Appellant’s Representative

POSTAL EMPLOYEE ADVOCATES

86 E. Merrill Road

McCammon, ID 83250-1532

Office: (208) 254-9196

Fax: (208) 254-9197

Email: postalemployeeadvocate@juno.com



Arleather Reaves
M.S.P.B. Docket No. CH-0353-10-0823-I-1

with only minor modification. Again, since the core duties are being performed,
this is not considered a modified assignment and the work hours are charged to
the regular operation LDC.

- Modified assignment. If a current of former employee’s restrictions prohibit
accommodation as described in the categories above, individual tasks must be
identified and combined to develop a modified assignment consistent with the
employee’s medical restrictions. These tasks are usually subfunctions
(emphasis added) and may be from multiple positions. The work hours for
employees accommodated in modified assignments are charged to LDC-69.

Ensure that:
- Any adverse or disruptive influence on the employee is minimized.

Clearly, the regulation states that if an employee cannot perform the core
functions of their position they should be offered reassignment. “Core functions” equate
to “operationally necessary tasks”, so if the employee can no longer perform those ONT
or core functions, they can no longer perform their bid position — unless management is
able to provide accommodation or modify methods that achieve accomplishing the core
duties of the bid assignment. If the employee is not able to be accommodated in an
existing position, then management’s obligation changes to find tasks that are
“subfunctions”. In other words, other duties that may not be “core” or operationally
necessary in the context of a bid or vacant assignment, are what must be located.

It is a general principle of administrative law that agencies should follow their
own procedural rules, even when these rules go beyond the rights afforded by any statute
or due process. See United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954).

The agency may not modify a rule sub silentio in a manner that is inconsistent

’ with’ the rule as announced and then defending its decision on the basis of a practice *

inconsistent with the written rule. See Allentown Mack Sales and Service, Inc. v. NLRB,
522 U.S. 359 (1998). :

_ Finally, the agency may not informally adopt a policy that contradicts the terms of
a formally adopted rule. See National Family Planning and Reproductive Health
Association, Inc. v. Sullivan, 979 F.2d 227 (D.C. Cir. 1992).


Arleather Reaves
MS.P.B, Docket No. CH-0353-10-0823-I-1

CERTIFICATE OF SERVICE

J certify that a true and correct copy of Appellant’s PETITION FOR-REVIEW OF
INITIAL DECISION, was (were) sent by regular U.S. mail, unless otherwise indicated
below, this date, to each of the following:

The Clerk of the Board Sent via Certified Mail Number:

Merit Systems Protection Board 7010 0290 0002 8570 4034
1615 M Street, NW Return Receipt Requested

Washington, DC 20419-0002

Agency Representative
Andrew C. Friedman, Esq.

Great Lakes Area Law Department
United States Postal Service

222 So. Riverside Plaza, Ste. 1200
Chicago, IL 60606-6105

Appellant
Ms. Arleather Reaves

Submitted on this | 4 day of February, 2011.

(oe

IR. Pritchett, Employee Advocate
Appellant’s Representative

POSTAL EMPLOYEE ADVOCATES

86 E. Merrill Road

McCammon, ID 83250-1532

Office: (208) 254-9196

Fax: (208) 254-9197

Email: postalemployeeadvocate@juno.com

Om


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UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
1615 M STREET, NW

WASHINGTON, DC 20419-0002 al

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ARLEATHER REAVES, M.S.P.B. Docket Number _

Appellant, | CH-0353-10-0823-I-1 =

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| Date: 14 February, 2011 =

UNITED STATES POSTAL SERVICE, |
Agency. |

APPELLANT’S PETITION FOR REVIEW OF INITIAL DECISION

Pursuant to 5 CFR. § 1201.114 & 115, the Appellant, by and through her
undersigned representative, Petitions for Review of an Initial Decision’, which dismissed
her appeal for failure to establish Board jurisdiction.

BACKGROUND

As noted in the Initial Decision (LD.), the appellant is a non-preference-eligible
Postal employee who filed a Restoration to Duty appeal with the Board subsequent to
being removed from her full-time rehabilitative job in the4QQMMMMMBB.at the Chicago
P&DC pursuant to the agency’s National Reassessment Program (NRP).

In the LD. the administrative judge concluded that the appellant had met the first
three elements for restoration to duty claims (see e.g. Chen v. U.S.P.S., 114 M.S.P.R.
292; Vasquez v. U.S.P.S.,. 114 M.S.P.R. 264, etc.). However, the AJ opined that,
“(b)ecause the appellant did not meet the fourth element of the jurisdictional test

requiring her to make a non-frivolous allegation that the denial of restoration was
“arbitrary and capricious”, I find that the Board lacks jurisdiction over her restoration
appeal.”
ARGUMENT .
In her LD. the AJ indicates that “On October 25, 2010, I ordered the appellant to

file evidence and argument identifying vacant positions within the local commuting area

| ‘The finality date of the Initial Decision is 14 February, 2011.

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Arleather Reaves
MS.P.B. Docket No. CH-0353-10-0823-I-1

that she could perform within her medical restrictions.” That’s not exactly correct. In the
23 September, 2010, Order to Show Cause, the AJ advised the appellant of the four
elements to show Board jurisdiction pursuant to Barrett. The AJ encapsulated the
appellant’s requisite response by noting that, “(u)nless the appellant provides a non-
frivolous allegation of Board jurisdiction, I will dismiss her appeal without holding a
hearing as we have previously discussed.” Nowhere in her Order to Show Cause did the
AJ specifically instruct or advise the appellant that her burdern was to “file evidence and
argument identifying vacant positions”.

The AJ however was correct in noting that the appellant was asserting that the
agency’s NRP process, as well as its use of the term “necessary work” as the standard
was arbitrary and capricious.”

In Chen v. U.S.P.S. the Board had concluded that, “pursuant to a Postal Service
Employee and Labor Relations Manual, a limited duty assignment is “determined based
on whether adequate ‘work’ or ‘duties’ are available” within the employee’s restrictions,
craft and current facility or at a different facility if there is no work at her own. That is,
“limited duty or rehabilitation assignments of current employees are dependent on the
extent to which adequate ‘work’ exists within the employee’ work limitation tolerances.”
Id. at p. 5

The Board’s conclusions were based on the ELM 546.142, which elucidates the
pecking order referenced above. It appears however that the Board did not consider
ELM 546.222 wherein it states in pertinent part:

A partially recovered current or former employee reassigned or reemployed to a
different craft to provide appropriate work must be assigned to accommodate
the employee’s job-related medical restrictions (emphasis added). Such
assignment may be to a residual vacancy or to a position uniquely created to fit
those restrictions (emphasis added); however, such assignment must not impair
seniority rights of PTF employees.

2 Specifically, the appellant objected to the use and/or implementation of “Operationally Necessary Tasks”
(ONT) as a standard in which to determine if work was available for partially-recovered employees.

a2


.

Arleather Reaves
MS.P.B. Docket No. CH-0353-10-0823-I-1

In the instant matter, the agency is alleging that it has no “operationally necessary
tasks” (ONT) that the Appellant could perform. The Appellant asserts that the agency is
imposing a standard that does not apply to permanently rehabilitated employees. If there
was a bona fide operational need for certain tasks to be performed, they would have
been subsumed into a bid position consistent with the Collective Bargaining
Agreement (CBA). These bid assignments are driven solely by management's
operational needs. This is not true for rehabilitation assignments.

Rehab assignments are created as a result of legal, contractual and regulatory
mandates, and “every effort” must be extended to find employment consistent with the
employee’s medical limitations — not whether their limitations allow them to perform
ONT. ,

ELM 546.222 mandates that the employee “must be assigned to accommodate the
employee’s job-related medical restrictions”. This is not discretionary on the part of the
agency, it is mandatory. The implementation or use of ONT is appropriate only where
management wants to identify jobs or duties that can be subsumed into a regular or bid
position. But the reliance on ONT to determine whether work is available for employees
who have been injured on-the-job is completely contrary to the agency’s own regulations.
As a result, the reliance on searching for ONT to determine whether to restore an
employee to duty is in itself, an arbitrary and capricious standard.

EL-505, Section 11.7, in identifying a Modified Job Assignment it directs that
“each task within the identified assignment must comply with the employee’s medical
limitation” (emphasis added). It then provides additional guidelines for possible
placements, which include —

- Reassignment to an existing position. \f a current employee can no longer
perform the core duties of his or her position but is capable of performing the core
duties of another authorized position for which he or she is qualified,
reassignment may be offered. Since the employee is performing the core duties of
the position, the work hours are charged to the regular operation LDC.

- Residual vacancy. If a vacancy has been posted for bid or application and there

are no successful bidders or applicants, both current and former employees may
be offered a residual vacancy if they can perform the core duties of the position

-3-