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White v. USPS, 114 M.S.P.R. 386, {| 12 (2010) citing Ancheta v. Office of Personnel
Management, 95 M.S.P.R. 343, {| 11 (2001):

“Thus, | do not credit the appellant's assertion that the standard used by the agency
to search for adequate work was improper or that it violated agency regulations. |
find, therefore, that the assertion fails to rise to a non-frivolous allegation that the
agency's action was arbitrary and capricious."

Elvin D. Lopez y. US: PS, U.S. Merit Systems Protection Board, Western Regional
Office, SF-0353-10-0211-I-1, 110 LRP 63866 (April 1, 2010): ;

“The appellant asserts that the agency acted in an arbitrary and capricious manner
by terminating her limited duty assignment and having others continue to perform
her duties. AF, Tabs 13, 19, 23. The appellant asserts that 12 employees from the
Primary East Unit were rotated in to perform the same tasks that she had previously
performed in the Loose in Mail (LIM) unit. IAF, Tab 19 (appellant's declaration), She
alleges that three employees from the Primary West Unit have also been brought In
to perform her former tasks. /d. She additionally asserts that a regular employee in
the LIM unit, Young, an individual without any medical limitations, now performs her
tasks. /d.

“The appellant asserts that this reassignment of work violates the agency's
Employee and Labor Relatlons Manual (ELM) §546.142(a) which provides the
agency must make every effort toward assigning an employee limited duty and that
to the extent there is adequate work avallable within the employee's craft, in the
work facility to which the employee is regularly assigned and during the hours when
the employee regularly works, that work constitutes the limited duty to which the
employee is assigned. IAF, Tab 22.

“As noted previously, the appellant's last limited duty assignment had her
performing the following duties: sorting invoices, affixing memoranda of explanation
and putting them in envelopes for mailing, opening and sorting incoming
correspondence, addressing and sealing envelopes, and putting loose checks in
envelopes for mailing. IAF, Tab 5, Subtab 4N, Tab 22, The Distribution Operations
Manager, Thompson, certified that he had made every effort to search for and
identify any adequate work available for the appellant consistent with her
restrictions and located within her work facility. IAF, Tab 18 (Thompson declaration
with attachments). Thompson additionally stated that four employees assigned to
the LIM unit, specifically, Anthony, Young, R. Rivera and Zamil, are performing
tasks previously handled by the appellant as part of their Mail Processing bid
assignments. [AF, Tabs 18 (Thompson declaration), Tab 22. Thompson stated that
the duties of these four employees includes sorting invoices, affixing memoranda of
explanation, opening and sorting Incoming correspondence, addressing and sealing
envelopes, and putting loose checks in envelopes for mailing. /d. Moreover,
Thompson noted that other employees with bid assignments occasionally perform
these tasks when there is otherwise insufficient work for them to perform. [AF, Tab

- JAMES C. LATHAM vy, U, S. POSTAL SERVICE, AND. RELATED CASES ~ PAGE 19-


805 496 6368

Steve €. Brown 12:05:30 p.m, 08-24-2011

—.___What did the Administrative Judge find in this case?

The Appellant in Latham argued below that the Agency's failure to follow the

ELM constituted harmful error, and this argument was rejected by the Administrative

Judge. James Latham v. USPS, U.S. Merit Systems Protection Board, Dallas Regional

Office, DA-0353-10-0408-I-1, 110 LRP 69771 (September 2, 2010):

“The appellant argued that the agency committed harmful error by failing to comply
with: (1) Article 19 and Article 13 or the collective bargaining agreement between
the agency and the American Postal Workers Union which requires the agency to
be a model employer; (2) the agency's employee and labor relations manual (ELMS
546.12 ) which sets out the agency's obligations to employees with compensable
injuries; and (3) Executive Order 13548 which requires the Federal government to
hire employees with disabilities. To prove harmful procedural error, the appellant
must demonstrate that the agency committed an error in the application of its
procedures that is likely to have caused the agency to reach a conclusion different
from the one it would have reached in the absence or cure of the error. See 5
C.F.R. §1201.56(c)(3) (2010). The burden is upon the appellant to show that the
agency committed an error and that the error was harmful, i.¢., that it caused
substantial prejudice to his rights.

“l have reviewed the provislons identified by the appellant and | find that he failed to
show how the agency's action violated any of those provisions. Accordingly, | find
that the appellant failed to show that the agency committed any procedural error.
Assuming arguendo that the agency had committed some error by violating one of
the cited provisions, the appellant failed to establish that, in the absence of the
error, the agency would have reached a different conclusion. The evidence in this
appeal establishes that the appeliant is unable to perform the duties of his position
and there is no position that the appellant can perform that meets the requirements
of his work restriction. Thus, | find that the appellant has not met his burden of proof
with regard to his affirmative defense of harmful error.” [emphasis added]

The AJ appears to have focused on appellant's inability to perform “the duties of
his position”, yet that is not the proper inquiry when determining whether USPS violated
the relevant ELM provisions. See ELM §546.142(a) quoted above.

FE. How has the Board previously addressed the arqument that failure to follow ELM

§546.142(a) is arbitrary and capricious?

- JAMES C, LATHAM v. U. S, POSTAL SERVICE, AND RELATED CASES - PAGE 13 -

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disability recurs if the recurrence begins after the injured
employee resumes regular full-time employment with the United
States, the right to resume his former or an equivalent position,
as well as all other attendant rights which the employee would
have had, or acquired, in his former position had he not been
injured or disabled, Including the rights to tenure, promotian,
and safeguards in reductions-in-force procedures, and

“(2) the department or agency which was the last employer shall,
if the injury or disability is overcome within a period of more
than one year after the date of commencement of compensation,
make all reasonable efforts to place, and accord priority to
Placing, the employee in his former or equivalent position within
such department or agency, or within any other department or
agency.” [5 U.S.C. §8151 - emphasis added]

Under 5 U.S.C §8151(b){2), even an employee who was injured more than a year prior

is entitled'to insist that his Agency “make all reasonable efforts” to place him "In his

former or equivalent position”. Regulations issued by OWCP make clear that “position”

in this context means any work within the employee's medical restrictions that the

employee can perform with or without reasonable accommodation:

“Sec. 10.500 What are the basic rules governing continuing receipt of

compensation benefits and return to work?

“(a) Benefits are available only while the effects of a work-related
condition continue. Compensation for wage loss due to disability is
available only for any periods during which an employee's work-related
medical condition prevents him or her from earning the wages earned
before the work-related Injury. Payment of medical benefits is
available for all treatment necessary due to a work-related medical
condition.

“(b) Each disabled employee is obligated to perform such work as he
or she can, and OWCP's goal is to return each disabled employee to
suitable work as soon as he or she is medically able. tn determining
what constitutes ““suitable work” for a particular disabled employee
OWCP considers the employes's current physical limitations, whether the
work is available within the employee's demonstrated commuting area
the employee's qualifications to perform such work, and other relevant
factors. (See Sec. 10.508 with respect to the payment of relocation
expenses.)" [20 C.F.R. §10.500 — emphasis added}

“Sec. 10.505 What actions must the employer take?
“Upon authorizing medical care, the employer should advise the employee in

- JAMES C. LATHAM v. U. S. POSTAL SERVICE, AND RELATED CASES - PAGE 23 -

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Steve E. Brown 12:03:26 p.m. 08-24-2011 $129

employee] to limited duty consistent with the employee's, medically defined work
limitation tolerance.” , ‘ ,

USPS's 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, In Postal Service parlance, “limited
duty" refers to work given to industrially-injured employees, while “light duty” refers to
work given to employees with non-work-related disabilities. *

The Board has commented that it therefore appears USPS 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

The Board is aware of one arbitration decision to the effect that the ELM was
revised as a product of collective bargaining in 1979 to afford partially recovered
employees the right to restoration to ‘limited duty’ rather than to “established jobs”
{citation omitted]. The Board is also aware of a number of recent arbitration decisions
in which arbitrators have ruled in favor of grievants challenging the discontinuation of
limited duty assignments under NRP, on the basis that the agency's actions violated the
ELM [citations omitted).

Wf
ff
"

+ JAMES C. LATHAM v. U, S, POSTAL SERVICE, AND RELATED CASES - PAGE 4 -


BOS 496 6368

Steve E. Brown 2 12:07:12 p.m. 08-24-2011

18 (Thompson declaration). Thompson declared that the Primary East and West
Units had been eliminated so that the primary sorters previously assigned to those
positions perform some LIM unit tasks when there is insufficient work for them in
their own duty assignments. IAF, Tab 22 (Thompson declaration). The primary
duties of these employees is to process mail in the Secondary unit, consisting of
keying (coding) parcels weighing up to 35 pounds, manually sorting parcels to
container sacks and lifting sacks weighing up to 70 pound. /d. Thompson noted that
agency work rules require rotating keyers/scanners to floor duties for at least an
hour after keying or scanning for no more than two hours. /d. As a result,
Thompson stated that some of these employees have been working in LIM as part
of their floor duties. /d.

“Of the employees from the Primary East and West units identified by the appellant,
Thompson acknowledged that seven of them, Brooks, Gonzalez, Lagrosa, C. Lee,
E. Lee, Oh, and Ramirez, performed some tasks previously performed by the
appellant. /d. Specifically, Brooks. Lagrosa, C. Lee, and Oh have sorted invoices
while Gonzalez, E. Lee, and Ramirez have addressed and sealed envelopes. /d.
“It is undisputed that the agency is experiencing an unprecedented reduction In
workload due to various marketplace factors resulting in an unprecedented
decrease in work hours, IAF, Tab 5, Subtabs 4F, 4G, 40. While-the agency is
obligated under 5 C.F.R. §353.301(d) to make every effort to restore, according to.
the circumstances of each case, a partially recovered employee to duty, | do not
find that this requires the agency to adopt inefficient work practices to da so. A
modified assignment is not the equivalent of a vacant position: See, .g., Ancheta
v. Office of Personnel Management, 95 M.S.P.R. 343, J] 12 (2003). | find the
agency is not precluded by the ELM from reviewing the assignment of limited duty
tasks and reassigning those tasks under the circumstances presented in this
appeal. The appellant has failed to explain why the agency was obligated to

* continue to assign these duties to her under the NRP or the ELM. Under ELM

§546.142 (a), only adequate work that is avallable Is to be assigned to limited
duty employees, As the agency was able to have the tasks previously
completed by the appellant performed by other employess, either as part of
their bid assignments or to prevent other employees from remaining idle after
performing thelr regularly assigned duty positions, these dutles were simply
not avallable for assignment to the appellant (emphasis added). | find the
appellant failed to establish the agency acted in an arbitrary and capricious manner
in having other employees perform the tasks at issue. See, e.g., Fitzsimmons, 99
M.S.P.R. 1, 111 (appellant's contention that she was informed no work was
available upon making request for restoration did not establish that denial of
restoration was arbitrary and capricious); cf. Gilbert, 100 M.S.P.R, at 383 (appellant
met his burden by showing the agency hired other, less qualified employees for
positions for which he was qualified).”

Question: If the work Is available to be performed by others, how is the exact

same work somehow NOT available for the appellant?

~ JAMES ©. LATHAM v. U. S. POSTAL SERVICE, AND RELATED CASES ~ PAGE 20 -

21/29


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Agencies shall give full consideration to the hiring, placement, and advancement of

_ qualified individuals with disabilities."), President Obama's 07/26/10 “Executive Order —

Increasing Federal Employment of !ndividuals with Disabilities" 5 reiterates that .
longstanding policy of the federal government. The Board is urged to consider the
implications of its decision in these cases for the policy behind that Executive Order.
Respectfully submitted:
ii
Dated: August 24, 2011 Steven E. Brown, PLC

By: Steven E. =o)

Decl) S.-

By: Daniel M|Goodkin

Amicus counsel joining in this brief: ©

Doris J. Dabrowski, Esq.

1526 Locust Street, 14th Floor
Philadelphia, PA 19102
215-790-1115
email@dabrowski-law.com

www.dabrowski-law.com
Haws DearnA

Mary OryGagd

Law Offices of Mary Dryovage
351 California Street, Suite 700
San Francisco, CA 94104

415 593-0095

mdryovage@igc.org
www.mdryovage.com

Available online at ww.whitehouse,gov/the-pr s3-office/executive-order-increasing-federal-
employment-Individuals-with-disabilities

- JAMES C. LATHAM v. U, S. POSTAL SERVICE, AND RELATED CASES ~ PAGE 26 -


805 496 6368

‘Steve E, Brown 12:07:44 p.m. 08-24-2011

the employee's medically defined work limitation tolerance, In assigning such limited
duty, the Postal Service should minimize any adverse or disruptive impact on the
employee. The following considerations must be made in effecting such limited duty
assignments:” The ELM then goes on to clarity In the factors to take Into account, in
ELM §546.142(a)(1)-(4) as discussed above. *

USPS's Postal Service Handbook EL-5085, Injury Compensation §§7.1-7.2
provides that limited duty assignments consist of whatever available tasks the agency
can identify for partially recovered individuals to perform consistent with their medical
restrictions.

Thus the USPS" obligations in thls context are set forth in its own ELM in some
detail as previously noted. While disputes may arise in specific cases as to whether
those obligations have been met, the general principles applicable to these situations
have been delineated beforehand and have been the subject of collective bargaining.

In addition, of course, the Postal Service's obligations to restore employees who
have partially recovered from an‘industrial injury are governed by other laws and
regulations. One of those laws is FECA, 5 U.S.C. §§8101-8152, which provides:
“Sec, 8151. Civil service retention rights

“(a) In the event the individual resumes employment with the
Federal Government, the entire time during which the employee was
receiving compensation under this chapter shall be credited to the
employes forthe purposes of within-grade step increases, retention

purposes, and other rights and benefits based upon length of
service. :

“(b) Under regulations issued by the Office of Personnel
Management -
"(1) the department or agency which was the {ast employer shall
immediately and unconditionally accord the employee, if the
injury or disability has been overcome within one year after the
date of commencement of compensation or from the time compensable

- JAMES C. LATHAM v. U. S. POSTAL SERVICE, AND RELATED CASES - PAGE 22 -

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2010); David Kinglee v. USPS, 2010 MSPB 153 (July 23, 2910); John P. Sanchez v.
USPS, 2010 MSPB 121 (June 25, 2010).
G. Ho' ive MSPB Ads have been handling this same arqument?

As reflected in recent reported decisions, with which amicus counsel disagree,
MSPB Administrative Judges have been prepared to let the USPS re-shuffle work in
apparent disregard of the ELM requirements and then assess if there is anything left
over for the partially recovered injured employees. These AJs.have in effect ruled that
even though the USPS took an injured worker's work away and gave it to someone
else, thus causing there to be no work available for. the injured worker, it is the province
of USPS to decide the most efficient way of getting the work done. This of tourse
ignores the issue of whether it was arbitrary and caprictous for USPS to take the ©
work away in the first place, given the requirement to “make every effort" to give
the injured worker a limited duty assignment. :

In esserice, these AJ decisions allow the USPS to ignore the ELM and elevate
dubious and unproved efficiency standards over its collectively-bargained obligation to
provide limited duty if possible. Given that some of these injured workers have been
performing necessary tasks for many years, on a full time basis, the undersigned argue
that USPS should at least be required to explain why it was necessary to take the work
away now and give it to another employee or employees. For example, were the other
employees just standing around idle? Such an unlikely scenario should not be
assumed. The USPS should at least have to make a strong showing that its action vis-
a-vis an individual employee was operationally necessary - rather than being allowed to

issue a blanket proclamation that particular work was no longer necessary and no other

~ JAMES C. LATHAM v. U. S. POSTAL SERVICE, AND RELATED CASES - PAGE 17 -


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“646.142 Obligation
“When an employee has partially overcome the injury or disability, the Postal Service
has the following obligation:
“a, Current Employees. When an employee has partially overcome a compensable
disability, the Postal Service must make every effort toward assigning the employee to
limited duty consistent with the employee's medically defined work limitation tolerance
(see 546.611), In assigning such limited duty, the Postal Service should minimize any
adverse or disruptive impact on the employee. The following considerations must be
made in effecting such limited duty assignments:
(1) To the extent that there is adequate work available within the employee's work
limitation tolerances, within the employee's craft, in the work facility to which the
employee is regularly assigned, and during the hours when the employee regularly
works, that work constitutes the limited duty to which the employee is assigned,
(2) If adequate duties are not available within the employee's work limitation tolerances
in the craft and work facility to which the employee is regularly assigned within the
employee's regular hours of duty, other work may be assigned within that facility.
(3) If adequate work is not available at the facility within the employee's regular hours of
duty, work outside the employee's regular schedule may be assigned as limited duty.
However, all reasonable efforts must be made to assign the employee to limited duty
within the employee's craft and to keep the hours of limited duty as close as possible to
the employee's regular schedule,
(4) An employee may be assigned limited duty outside of the work facility to which the
employee is normally assigned only if there is not adequate work available within the
employee's work limitation tolerances at the employee's facility, In such instances,
every effort must be made to assign the employee to work within the employee's craft
within the employee's regular schedule and as near as possible to the regular work
facility to which the employee is normally assigned,
“b. Former Employees. When a former employee has partially recovered from a
compensable injury or disability, the Postal Service must make every effort toward
teemployment consistent with medically defined work limitation tolerances. Such an
employee may be returned to any position for which he or she is qualified, including a
lower grade position than that which the employee held when compensation began.
Note: Placement priority for rehabilitation assignment is the same as for
limited duty.” .

Of the considerations listed, the second one (§546.142(a)(2)) is most relevant to
this discussion because it allows for “other work" that is outside of the employee's craft.
This Section does not say anything about assignment to a new position, rather it just

says other work may be assigned within the facility. OWCP often approves “positions”

as suitable, for purposes of suspension of workers’ compensation benefits if the

employee were to refuse to accept it as suitable alternative employment, when those

- JAMES C. LATHAM v. U, S. POSTAL SERVICE, AND RELATED CASES - PAGE 9-


805 496 6368 Steve E. Brown 12:03:47 p.m. 08-24-2011 TRY

“capricious, adj. 1. (Of a person) weg 2. (Of a decree) contrary to the evidence or
established rules of law.”

A. As an initial matter, an Agency “must" fallow its own rules.

» Morton v. Ruiz, 415 U.S. 199 (1974) — “Where the rights of individuals are affected,
it is incumbent upon agencies to follow their own procedures. This is so even where
the internal procedures are possibly more tigorous than otherwise would be
required. Service v. Dulles, 354 U.S. 363, 388 (1957); Vitarelli v. Seaton, 359 U.S.
535, 539 -540 (1959). The BIA, by its Manual, has declared that all directives that
‘inform the public of privileges and benefits available’ and of ‘eligibility requirements’
are among those to be published. The requirement that, in order to receive general

. assistance, an Indian must reside directly ‘on’ a reservation is clearly an important
substantive policy that fits within this class of directives. Before the BIA may
extinguish the entitlement of these otherwise eligible beneficiaries, it must comply, at
a minimum, with its own internal procedures.”

© Drumheller v. Department of the Army, 49 F.3d 1566, 1574 (Fed. Cir. 1995), 95
FMSR 7011 ~ (the dissent is quoted here because it gives a goad history of the:
case law requiring federal agencies to follow their own procedures. The majority did
not disagree on this point, but rather found that it did not have jurisdiction to review
whether the Agency in question had followed its own procedures as it was a security
clearance issue):

“Newman, Circuit Judge, dissenting -

“Where the rights of individuals are affected, it is incumbent upon agencies to follow
their own procedures. This is so even where the internal procedures are possibly
more rigorous than otherwise would be required. Morton v. Ruiz, 415 U.S. 199, 235

(1974). See Fort Stewart Schools v. Federal Labor Relations Auth., 495 U.S. 641,

654 (1990) (“It is a familiar rule of administrative law that an agency must abide by it
own regulation.")

"The Federal Circuit has regularly held that agencies are charged with following their
own regulations, E.g., Dodson v. United States, 988 F.2d 1199, 1204 (Fed. Cir.
1993) ("The Secretary has prescribed Army regulations setting out the Qualitative
Management Program (QMP) by which the Army determines whom it will reentist.
Although the Secretary was not required to promulgate QMP regulations, having
done so, he Is bound to follow them.") (citation omitted); Sargisson v. United States,
913 F.2d 918, 921 (Fed. Cir. 1990) ("Once the Secretary promulgated regulations
and instructions and made them the basis for Sargisson's release, his action
became the subject of judicial review for compliance with those regulations and
instructions, even though he was not required to issue them at all"); Lyles v.

~ JAMES C. LATHAM v. U. S. POSTAL SERVICE, AND RELATED CASES — PAGE 6 -


BOS 496 6368

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Issues to be determined:

4. May a denial of restoration be “arbitrary and capricious” within the meaning of 5
CFR §353.304(c) solely for being in viclation of tha ELM, ie., 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 tha extent of the agency's restoration obligation under the ELM, /e.,
under what circumstances does the ELM require the agency to offer a given task toa
given partially recovered employee as limited duty work?

Ht

: APPLICABLE LAW
v. A DENIAL OF RESTORATION IS “ARBITRARY AND CAPRICIOUS” WITHIN

THE MEANING OF 5 CFR §353.304(C) SOLELY BY REASON OF ITS BEING IN
VIOLATION OF THE RELEVANT ELM PROVISIONS GOVERNING THE AGENCY'S
OBLIGATION TO MAKE EVERY EFFORT TO RESTORE PARTIALLY RECOVERED
INDUSTRIALLY-INJURED WORKERS.

Query: If an Agency violates its own rules, is it thereby taking an action that is arbitrary

and capricious?

A standard of “arbitrary and capricious” necessarily implies that there are in

place certain rules or procedures that must be followed, the violation of which cannot be

justified. See, e.g., Black's Law Dictionary (9! Ed., 2009),

“arbitrary, adj..1. Depending on individual discretlon; specif., determined by ajudge ©
rather than by fixed rules, procedures, or law. 2. (Ofa judicial decision) founded on
prejudice or preference rather than on reason or fact. This type of decision is often
termed arbitrary and capricious.”

? ‘Simonton v. USPS, 85 MSPR 189, 8 (2000),

- JAMES C. LATHAM v. U. S, POSTAL SERVICE, AND RELATED CASES ~ PAGE 5-


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Steve E, Brown 12:06:41 p.m. 08-24-2011 19/29

work was available. [tis patently misleading for an employer to claim a specific

- work function is no longer necessary when it immediately assigns the same

function to another employee.

Here are representative recent cases found in our research:

Patchamkulam T. Alexander, y. USPS, U.S. Merit Systems Protection Board, Dallas

Regional Office, DA-0363-11-0389-F-1, 111 LRP 52138 (July 1, 2011).
HELD: The appellant has not identified facts to support his assertion that the agency
violated the collactive bargaining agreement or the relevant employee labor provisions. ’
The portion of Section §46.142 ELM quoted by the appellant does not necessarily show
that the agency's interpretation that a search for adequate work is an improper
standard, nor that assignment of necessary work is disconnected from a determination
of worthwhile quantity. Moreover, the appellant's claim that the agency has violated the
terms of its handbooks, manuals and regulations by using the standard of adequate.
work standard as opposed to necessary work has also been previously addressed by
the Board:
“[T]he Board stated 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 a different facility if there Is no work at [his] own. That is, limited
duty or rehabilitation assignments of current employees are dependent on the
extent to which adequate ‘work exists within the employees work limitation
tolerances [emphasis added).”
Note: This decision does not appear to consider the issue of USPS's obligation to.
restore the employee to work other than within his or her craft.
u

Wt

- JAMES C. LATHAM v. U. S. POSTAL SERVICE, AND RELATED CASES - PAGE 18 -


B05 496 6268

Steve E. Brown 12:04:20 p.m, 08-24-2011

simply violate any and all of its own rules and procedures vis-a-vis its employees for
some vague reason like “economic necessity” or “the work is not available’. While
perhaps not every violation of any rule or procedure set forth in the entire ELM may rise
td the level of being “arbitrary and capricious", the particular. portions of the ELM at
issue in this case are essential to the employer-employee relationship and have been

specifically bargained for by Postal employee unions. The issue of what happens to

industrially-injured Postal workers is not a minor one, as fully 40% of all work-related

injuries to employees covered by the Federal Employees’ Compensation Act happen to

Postal employees.’ FECA covers all goverment employees in all three branches of
the federal government and the Postal Service worldwide — approximately 2.7 million

employees — and Is one of the largest self-insured workers’ compensation systems in

the world. ©

_=&B. What rules are set forth in_the USPS ELM about assigning work duties that do

not constitute a vacant position?
The USPS ELM §546.14 discusses procedures to follow when an employee has
partially overcome a work-related disability.- :

“546.141 General ’
“The procedures for current employees cover both limited duty and rehabilitation
assignments. Limited duty assignments are provided to employees during the recovery
process when the effects of the injury are considered temporary. A rehabilitation
assignment is provided when the effects of the injury are considered permanent-and/or
‘the employee has reached maximum medical improvement. Persons in permanent
rehabilitation positions have the same rights to pursue promotional and advancement
appartunities as other employees.

+ This case is cited in Broida, A Guide to Marit Systems Protection Board Law and Practice, Chapter
06.01(B)(05)(g) (2011) for the proposition that “The Board will enforce employee rights derived from an
agency's own rules.”. ;

* See letter from Brian V. Kennedy, USDOL Assistant Secretary for Congressional and Intergovernmental
Affairs to Congressman Darrel Issa dated 08/01/11 (copy available on request).

* See testimony of Gary Steinberg, Acting Director, USDOLIOWCP on 07/26/11 before the Senate
Subcommittee on Oversight of Government Management, etc. available online.

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writing as soon as possible of his or her obligation to return to work under Sec.
10.210 and as defined in this subpart. The term “return to work" as used in this
subpart is not limited to returning to work at the employee's normal worksite or
usual position, but may include returning to work at other locations and in other
positions. In general, the employer should make all reasonable efforts to place the
employee in his or her former or an equivalent position, in accordance with 5 U.S.C.
8151(b)(2), if the employee has fully recovered after one year. The Office of
Personnel Management (not OWCP)

administers this provision.

“(a) Where the employer has specific alternative positions available for partially
disabled employees, the employer should advise the employee in writing of the
specific duties and physical requirements of those. positions.

“(b) Where the employer has no specific alternative positions available for an

“employee who can perform restricted or limited duties, the employer should advise

the employee of any accommodations the agency can make to. accommodate the
employee's limitations due to the injury.” [20 C.F.R. §10.505 — emphasis added}

“Sec, 10.507 How should the employer make an offer of suitable work?
“Where the attending physician or OWCP notifies the employer in writing that the

employee is partially disabled (that Is, the employee can perform some work but not
return to the position held at date of injury), the employer should act as follows:
“(a) If the employee can perform in a.specific alternative position available in the

_ agency, and the employer has advised the employee in writing of the specific duties

and physical requirements, the employer shall notify the employee in writing
immediately of the date of availability.

“(b) If the employee can perform restricted or limited duties, the employer should
determine whether such duties are avallable or whether an existing job can be
modified. (f so, the employer shall advise the employee in writing of the duties, their
physical requirements and availability.

“(c) The employer must make any job offer in writing. However, the employer |
may make a job offer verbally as long as it provides the job offer to the employee in
writing within two business days of the verbal job offer.

“(d) The offer must Include a description of the duties of the position, the physical
requirements of those duties, and the date by which the employee is either to return
to work or notify the employer of his or her decision to accept or refuse the job offer.
The employer must send a complete copy of any Job offer to OWCP when itis sent
to the employee.” (20 C.F.R. §10.507 — emphasis added]

"Sec. 10.515 What actions must the employee take with respect to
retuming to work? .

“(a) If an employee can resume regular Federal employment, he or she must do
so. No further compensation for wage loss is payable once the employee has
recovered from the work-related injury to the extent that he or she can perform the
duties of the position held at the time of injury, or eam equivalent wages.

(b) If an employee cannot return to the job held at the time of injury due to partial
disability from the effects of the work-related injury, but has recovered enough to

~ JAMES C. LATHAM v. U. S. POSTAL SERVICE, AND RELATED CASES ~ PAGE 24 -


sm ete steve £. Brown 12:02:40 p.m. 08-24-2011 1129
- Steven E. Brown, Telephones: (805) 496-9777; ($18) 706-1555
A PROFESSIONAL LAW CORPORATION Facsimile: (805) 496-6368
Steven E, Brown, Esq. . sbrownesq@fedcral-law.com.
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At The WaterCourt
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BOS 496 6363

‘Steve €. Brown 12:05:06 p.m. 08-24-2011

regulation can be “arbitrary and capricious”, which is beyond the scope of this brief. But
to the extent laws such as the Rehabilitation Act are behind the rationale for the
relevant ELM Sections and the cited OPM regulations, a brief discussion of some
aspects of that Act seems in order.
O. Brief summary of relevant Rehabilitation Act principles

Section 501 of the Rehabilitation Act, 29 usc. §791, requires affirmative action,
not merely non-discrimination, on the part of federal agencies. McWright v. Alexander,
982 F. 2d 222 (7" Cir. 1992). Courts and the EEOC have interpreted Section 501 to
require more than the submisston of affirmative action plans.. “The Federal Government
shall be a model employer of individuals with disabilities. Agencies shall give full
consideration to the hiring, placement, and advancement of qualified individuals with
disabilities.” 29 C.F.R. §1614,.203(a). Section 501 imposes a duty upon federal
agencies to structure their procedures and programs so as to ensure that handicapped
individuals are afforded equal opportunity in both job assignment and promotion.
Prewitt v. United States Postal Service, 662 F. 2d 292 (5" Cir. 1981), quoting Ryan v.
Federal Deposit Insurance Corporation, 565 F. 2d 762, 763 (D.C. Cir. 1977). Notably,
the court observed the obligation of federal employers to afford opportunities of the
handicapped to assignments ‘not positions.

The Rehabilitation Act requires the employer to afford a reasonable
accommodation to qualified employees with a disability. Reasonable accommodation is
a means of alleviating and removing barriers to equal Opportunity of disabled

employees. The duty to accommodate disabilities requires employers to modify their

7 Tha class in this action reportedly includes approximately 100,000 employees. For general information
about the action and definition of the class, see www.nrpclassactlon.com.

- JAMES C. LATHAM y. U. S. POSTAL SERVICE, AND RELATED CASES ~ PAGE 11 -

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positions are listed under the heading of "Modified Clerk” 7 “Modified Carrier’".- which
“positions” are not regular biddable positions with position descriptions but rather can
be composed of almost any collection of tasks regardless of craft (see discussion of
owcP regulations, below).

Cc. Since the OPM regulation uses the same lanquage as the ELM with regard to

obliging the Agency to “make every effort to restore the injured employee, does that

imply that a violation of the regulation is also a violation of the ELM?

Both the relevant OPM regulation (6 CFR §353.301(d)) and the USPS's
ELM (§546.142(a)), cited by the Board, require USPS to “make every effort” to restore a
Partially recovered employee to limited duty within the local commuting area. The OPM
regulation also states that “a[t] a minimum, this would mean treating these employees
substantially tha same as other [disabled] individuals under the Rehabilitation Act of
1973."° By implication, a violation of the regulation may also be a violation of the ELM,
as they both use the exact same language. If so, the ELM may require the USPS to, at
a minimum, treat these employees substantially the same as other [disabled]
Individuals under the Rehabilitation Act of 1973.”

It is noteworthy that there is currently a massive class action ” pending at EEOC
against USPS specifically charging the Agency with violation of the Rehablitation Act by
sending home partially recovered injured employees, most of whom suffered industrial
injuries, on the basis of “no work available’. McConnell v. USPS, EEOC Case No. 520-

2008-00053X. This raises the separate question whether violation of a statute or

* While this regulation requiras the Agency to consider fully recovered employees for the position, or an

equivalent position, held at the time of injury, the requiation uses the jerm ‘limited duty’ instead of
“pasitign" to describe the work which the Agency must consider for partially recovered employees.

-- JAMES C. LATHAM v. U. S. POSTAL SERVICE, AND RELATED CASES - PAGE 10 -

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Steve E. Brown 12:04:04 p.m. 08-24-2011 8129

Department of Army, 864 F.2d 1581, 1583 (Fed. Cir. 1989), 88 FMSR 7037 ("The
Army must abide by its own regulation, even if it is more rigorous than necessary.
And the Board, according to Egan, may review the Army's efforts under this
regulation to reposition Lyles.") (citations omitted); Voge'v. United States, 844 F.2d
776, 779 (Fed, Cir. 1988) ("It has long been established that goverment officers
must follow their own regulations, even if they were not compelled to have them at
all, and certainly if directed to promulgate them by Congress, as is this case,");
Boddie v. Department of Navy, 827 F.2d 1578, 1588 (Fed. Cir. 1987), 87 FMSR

"7046 ("Employing agencies are required to abide by their own regulations."); Yuni

v. Merit Systems Protection Board, 784 F.2d 381, 386 (Fed. Cir. 1986), 86 FMSR
7017 ("Where the rights of the individuals are affected, it is incumbent upon

agencies to follow their own procedures.") (quoting Morton v. Ruiz, 416 U.S. at
235)."

Campbell y. USPS, 75 MSPR 273, 279 (1997), 3 “An agency is required to act in
accordance with the procedures it adopts for itself, and the Board will enforce
employee rights derived from such rules, regulations, and collective bargaining
agreements. See, 0.g., Dwyer v. U.S. Postal Service, 32 M.S.P.R. 181, 185 (1987)." «

Campbell v. United States Postal Service, 94 MSPR 646, 655 (2003). “An
employee who is absent from work for medical reasons and who, thereafter, cannot
perform the full duties of his position is not constructively suspended. See Rivas v.
United States Postal Service, 61 M.S.P.R. 121, 126 (1994). If, however, an
employee who is absent due to medical restrictions requests work within those
restrictions, and if the agency is bound by agency policy, regulation, or contractual
provision to offer available’ light-duty work to the employee, the employee's
continued absence would constitute a constructive suspension appeatable to the
Board, in the event that the agency fails to offer the employee any available light-

duty work.”
Question: If such an employee is considered constructively suspended where the
agency fails to offer available light-duty work, is it not “arbitrary and capricious" for

the agency for fail to make such an offer?

Note: It follows logically that where there is a rule in place and the Agency

violates it for its own unrelated (e.g. financial) purposes, this is “arbitrary and capricious”
as it is an exercise of discretion in direct violation of applicable rules that must take

precedence. To hold otherwise ‘would be to grant blanket permission for any agency to

- JAMES C, LATHAM v. U. S, POSTAL SERVICE, AND RELATED CASES ~ PAGE 7 -


805 496 6368 Steve €. Brown 12:07:31 p.m. 08-24-2011 22129

Barbara J. Durand y. USPS, U.S. Merit Systems Protection Board, New York Field
Office, PH-0353-10-0186-I-1, May 18, 2010, 110 LRP 65635:
“The appellant's claim that the agency was obligated to continue to assign her
limited duties is therefore without merit. Under ELM §646.142(a), only adequate
work that is available is to be assigned to limited duty employees. As the agency
was able to have the tasks previously completed by the appellant performed by
other employees, either as part of their bid assignments or to prevent other
employees from remaining idle after performing their regularly assigned duty
positions, these duties were simply not available for assignment to the appellant. |
therefore find that the appellant failed to establish that the agency acted in an
arbitrary and capricious manner in having other employees perform the tasks at
issue,"
Note: This same circular argument appears to have been copied and pasted into
numerous AJ decisions, The undersigned did not review all of them. Ads have been
finding that because USPS found other people to do the Appellant's job duties, those
job duties were not available to the Appellant. Well of course they were not available -
they were taken away and given to someone else!
7
2. THE EXTENT OF THE AGENCY'S RESTORATION OBLIGATION IS
COMMENSURATE WITH ITS ELM AND OTHER APPLICABLE LAWS AND
REGULATIONS.
It is probably impossible to envision every scenario that can arise tn the context
of a job offer required to be extended to an industrially-injured employee under these
i
provisions of the ELM. The tasks to be offered will vary, depending on many factors
including, primarily, the employee’s work restrictions and the details of the work to be
done.
The USPS is required, by the terms of ELM §546,142(a) to "make avery effort

toward assigning (a partially recovered current employee] to limited duty consistent with

- JAMES C. LATHAM v. U. S. POSTAL SERVICE, AND RELATED CASES — PAGE 21 -


6368 Steve €. Brown 12:08:56 p.m. 08-24-2011 28/29
205 496 6

_ Amicus counsel joining in this brief (continued):

Steven E. Brown, FECA Section Chair, WILG, for
Andrew J. Reinhardt, President, WILG

Reinhardt & Harper, PLC

1809 Staples Mill Road, Suite 300

Richmond, VA 23230

804-359-5600 .

andy@vainjurylaw.com

www. vainjuryiaw.com

- JAMES C. LATHAM v. U, S. POSTAL SERVICE, AND RELATED CASES - PAGE 27 -


805 496 6368

Steve E. Brown, 12:03:14 p.m. 08-24-2011 4129

STATEMENT OF FACTS AND ISSUE:
Summary of Facts:

As amicus counsel understand the facts based on the Board's request for
amicus briefs, Appellant was an employee of the U. S. Postal Service ("USPS") who
suffered an on-the-job injury for which he was entitled to workers’ compensation
benefits under the Federal Employees’ Compensation Act (“FECA") from
USDOLIOWCP. He was returned to work in a limited duty capacity at USPS, but
pursuant to USPS's National Reassessment Process ("NRP”) he was later sent home
by USPS onthe basis that there was “no work available”,

The relevant OPM regulation at 5 CFR §353.301(d) requires that an agency
{including the Postal Service) “make every effort” to restore a partially recovered
employee to timited duty within the local commuting area. The regulation states that
“alt} a minimum, this would mean treating these employees substantially the same as
other (disabled] individuals under the Rehabilitation Act of 1973." The Board has
required 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 {citations omitted}. 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 (citations omitted].
The USPS's Employee Labor Relations Manual ("ELM") §546.142(a) requires

the agency to "make every effort toward assigning [a partially recovered current

- JAMES C. LATHAM v. U. S. POSTAL SERVICE, AND RELATED CASES - PAGE 3-


805 496 6368

Steve £, Brown 12:05:46 p.m. 08~24-2011

INustrative cases found in our research include the following two cases, in which
the full Board addressed the argument that violation of the ELM may constitute arbitrary

and capricious action (although the cases did not involve the same specific ELM

Section): .
Paula White v. USPS, 114 MSPR 386, 110 LRP 41008, 111 FMSR 37, U.S. Merit

Systems Protection Board, SF-0353-09-0647-I-1 (July 15, 2010):

“In this case, the agency's evidence shows only that it searched within the
appellant's facility, the Los Angeles ISC, and not within her local commuting area,
as required by OPM regulations at 5 C.F.R. § 353.301(d) [emphasis added]. Thus,
“although the appellant's submissions are insufficient to satisfy the fourth
jurisdictional criterion, the agency's submissions are sufficient to.render
nonfrivolous the appellant's allegation that the denial of restoration was arbitrary
and capricious [emphasis added]. "See Baldwin v. Department of Veterans Affairs,
109 M.S.P.R. 392, 1] 11, 32 (2008)(the Board may consider the agency's
documentary submissions in finding that an appellant had made a nonfrivolous
allegation of Board jurisdictlon). We therefore find that the appellant has met all of

the criteria to establish Board jurisdiction over the merits of her restoration appeal.
Barachina, 113 M.S.P.R. 12, | 7; Urena, 113 M.S.P.R. 6, J 13.”

Though the Board ruled in favor of the appellant in terms of its jurisdiction based
on a nonfrivolous allegation of arbitrary and capricious failure to restore the employee,

the Board went on to hold that it was not relying on appellant's assertion that USPS

improperly used an “operationally necessary" standard under NRP in determining if

work was avallable within her medical restrictians — which in offect was a challenge to
the way USPS implements NRP in terms of its general outlines and principtes.

“In so holding, we do not rely on the appellant's assertion that the agency
improperly used an “operationally necessary" standard under the NRP in
determining if work was available withIn her medical restrictions. It is axiomatic that
an agency must determine what work is necessary and available to accomplish its
mission, Further, in Ancheta v, Office of Personnel Management, 95 M.S.P.R. 343,
J 11 (2003), the Board stated 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 facillty if there is no work at her own. That

~ JAMES C, LATHAM v. U. S. POSTAL SERVICE, AND RELATED CASES — PAGE 14-

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offer him’, citing Taber v. Dept. of Air Force, 112 MSPR 124 (2009) for the proposition
that an agency is not required to assign to a partially recovered employee limited duties
that “are not an essential function of his position or that do not comprise a complete
and separate position", Neither the Brunton nor the Taber case appears to have
considered the issue of USPS’s obligation to restore such an employee to work
that is NOT an essential function of his encumbered position, NOT his regular
position, and/or NOT another regular position. All those types of work must be

offered if available, including “limited duty consistent with the employee's medically

defined work limitation tolerance” per ELM §§46.142(a). Further, neither of these cases
considers the issue of how an agency can legitimately claim, for fiscal reasons or any
other reason, that specific work duties are not available for the partially recovered
employee when they somehow are available to other, non-disabled employees — and
the appellant should be allowed to introduce evidence on this and related points. The
issue should not be framed as whether fiscal difficulties “may well affect whether the
agency has any available work to offer him"; it should instead be framed as whether in
fact the agency has any available work to offer that employee.

Fora discussion of the four elements to be proven in such failure to restore
cases, see Walley v. Department of Veterans Affairs, 279 F.3d 1010, 1018-20 (Fed.
Cir, 2002); Bennett v. U.S. Postal Service, 94 M.S.P.R. 443, 4.3 (2003). There are

several other Board cases with holdings similar to White and Marquez regarding the

USPS obligation to search within the comriuting area, see, e.g., Linda Chen v. USPS,”
2010 MSPB 129 (July 8, 2010); Paul Dean y. USPS, 2010 MSPB 187 (September 14,

‘

- JAMES C. LATHAM v. U. S. POSTAL SERVICE, AND RELATED CASES - PAGE 16 -


B05 496 6368

Steve E. Brown 12:03:01 p.m. 08-24-2011

INTEREST OF THE AMICUS CURIAE WILG *

Amicus curiae Workers’ Injury Law & Advocacy Group [WILG] is an organization
dedicated to protecting anid advocating the rights of injured workers throughout the
United States. WILG has substantial common interests in ensuring that the rights of
injured workers throughout the United States are not diminished. Workers’ compen-
sation is a form of insurance that provides medical care, campensation and vocslons!
rehabilitation for workers who are injured in the course of employment, while abrogating
the employee's right to sue their employer for the tort of negligence.

The rights of injured workers continue to legislatively diminish in the workers’
compensation arena. Preserving the rights of injured workers requires vigilant
protection. Denying industrially-injured Postal workers the right to restoration to duty
must be considered “arbitrary and capricious”; it precludes the federal goverment from
being a model employer of individuals with disabilities, severely punishes the injured
worker, and further compounds the devastating nature of the injury.

INTEREST OF THE AMICUS CURIAE, STEVEN E, BROWN, DANIEL M. GOODKIN,

DO . DABROWSKI, AND MARY DRYOVAG
Steven E. Brown, Esq. and Daniel M. Goodkin, Esq. of Steven E. Brown, PLC,
Wastlake Village CA, Doris J. Dabrowskl, Esq., of Philadelphia, PA, and Mary
Dryovage, Law Office of Mary Dryovage, San Francisco, CA are federal employee
rights advocates who represent USPS employees in MSPB and EEOC cases and are

members in good standing of their respective state bar associations,

* Amicus curiae WILG joins the other amicus counsel on this brief in stating that no counsel for a party has authored
this brief in whole or in part, and no counsel or party made a monetary contribution intended to fund the preparation
or submission of this brief, No person or entity, other than the amicus curiae, its members, or its counsel, has made a
monetary contribution to this briefs preparation or submission.

- JAMES C. LATHAM v. U. 8. POSTAL SERVICE, AND RELATED CASES ~ PAGE 2 -

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Steve E. Brown 12:08:31 p.m. 08-24-2011

perform some type of work, he or she must seek work. In the alternative, the
employee must accept suitable work offered to him or her. (See Sec. 10.500 for a
definition of “suitable'work".) This work may be with the original employer or
through job placement efforts made by or on behalf of OWCP.

(c) lf the employer has advised an employee in writing that specific alternative
positions exist within the agency, the employee shall provide the description and
physical requirements of such alternate positions to the attending physician and ask
whether and when he or she will be able to perform such duties, :

(d) If the employer has advised an employee that it is willing to accommodate his,
or her work limitations, the employee shall so advise the attending physician and
ask him or her to specify the limitations imposed by the injury. The employee is
responsible for advising the employer immediately of these limitations.

(e) From time to time, OWCP may require the employee to report his or her
efforts to obtain suitable emplayment, whether with the Federal Government, State
and local Governments, or in the private sector.” (20 C.F.R..§10.515 — emphasis
added)

An employee's failure to accept suitable work will result in forfeiture of all future FECA
monetary benefits for that injury, for life. 20 C.F.R. §10.517.
The Board will note the similarity of the language about the employer's
obligations in these statutory and regulatory provisions to the language of the ELM:
- “make all reasonable efforts" (5 USC 8151(b)(2))
: “make all reasonable efforts" (20 C.F.R. §10.505)
: “make every effort” (ELM §546.142(a)).
“
CONCLUSIONS
The Postal Service's violation of its own ELM in the important area of restoration
to duty of industrially-injured Postal workers must be considered “arbitrary and
capricious” under the authorities cited above. EEOC's regulations implementing in the
Rehabilitation Act have always said that the federal government shall be (or become) a
model employer of the disabled. (see 29 C.F.R. §1614.203(a), last amended 05/21/02 -

“The Federal Government shall be a model employer of individuals with disabilities,

- JAMES C. LATHAM v. U. S, POSTAL SERVICE, AND RELATED CASES ~ PAGE 25 -

26/29


BOS 496 6368 Steve E. Brown, 12:02:54 p.m. OB=24-2011 2/29
oo

Steven E. Brown, PLC
Steven E. Brown, Bar #55491
Daniel M. Goodkin, Bar #212178
910 Hampshire Road, Suite G
Westlake Village, CA 91361-28888 ©
Telephones: (805) 496-9777

(818) 706-1555

sbrownesa@federal-law.com '

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

JAMES C. LATHAM,

DOCKET NO. DA-0353-10-0408-I-1
Appellant,

vs.

U.S. POSTAL SERVICE,

Agency.
/

AND RELATED CASES

AMICUS CURIAE BRIEF

The undersigned hereby file their Amicus Curiae Brief with the Board on the

above matters.

Steven E. Brown, PLC Doris Dabrowski, Esq.
Steven E. Brown, Esq. . Mary Dryovage, Esq.
Daniel M. Goodkin, Esq. WILG

- JAMES C. LATHAM v. U, S. POSTAL SERVICE, AND RELATED CASES ~ PAGE 1 -


805 496 6368

Steve E. Brown 12:09:01 p.m. 08-24-2011 29/29

PROOF OF SERVICE BY FAX AND MAIL — CCP 1013a, 2015.5

STATE OF CALIFORNIA )
‘ ) ss.
COUNTY OF VENTURA )

Sam employed in the county of Ventura, J am over the age of eighteen years and am nota
party to the within entitled action. My business address is 910 Hampshire Road, Suite G,
Westlake Village, CA 91361-2888. .

On August 24, 2011, I served the within AMICUS CURIAE BRIEF on the interested
party(ies) in said action, by facsimile transmission to the party (ies) whose number(s) are
listed. For faxed transmissions, the facsimile used complies with CRC Rule 2003(3); no -
error was reported by the machine, and the transmission report was properly issued by the
transmitting machine; and/or (as indicated) placing true copies thereof in a sealed
envelope with postage thereon fully prepaid, in a designated mail receptacle of the United
States Postal Service at Westlake Village, California, addressed as follows:

MSPB - VIA FAX: 202-653-7130
Headquarters Office Original & 2 copies via USPS
1615 M. Street, NW

Washington D.C., DC 20036-3209

Udectare that | am employed in the office of a member of the bat of this court, at whose
direction said service was made.

Executed on August 24, 2011 at Westlake Village, California.

‘V Canod id

Vicky Camacho, Paralegal



B05 496 6368

Steve E. Brown 12:05:18 p.m. 08-24-2011

work requirements to enable disabled individuals to have the same opportunities as ©
their non-disabled counterparts. Peebles v. Potter, 354 F. 3d 761 767 ia" Cir. 2004),

‘For employees with a known disability, the Postal Service must make a

, Taasonable accommodation unless it would impose an undue hardship. To determine a

reasonable accommodation, the employer must make a good faith effort to assist the
employee to seek an accommodation. When an employee shows that (s)he is disabled
and that an accommodation is possible, the burden of proof shifts to the Agency to
demonstrate that the accommodation is unreasonable or would cause undue hardship.
Unless the employer can prove undue hardship, failure to make a reasonable
accommodation to known limitations of an otherwise qualified disabled employee is
prohibited by the ADA, 42 U.S.C. §121142(b)(5), 29 C.F.R. §1630.9(a). The only
statutory limitation on the employer's obligation to provide a reasonable accommodation
is undue ‘hardship. °

Procedural Irregularities evidence discrimination. Village of Arlington Heights v.
Metropolitan Housing Division Corp,, 429 U.S. 252 (1977). In U.S. Airways, Ine. V.
Barnett, 535 U.S. 304 (2002) the Supreme Court recognized the importance of rules as
a factor in determining a reasonable accommodation. Rules create and fulfill
expectations of fair, uniform treatment. Yet there is evidence that the Postal Service
repeatedly disregards the rules of its own ELM,
Wt
Wt
i

® Failure to accommodate In violation of the Rehabilitation Act is a prohibited personnel practice under 5
U.S.C. §2302(b)(1)(D). See, e.g., Roberts v, Dept. of Navy, 5 MSPR 387, 389-390, 5 MSPB 403 (1981).

- JAMES C. LATHAM v. U. S. POSTAL SERVICE, AND RELATED CASES - PAGE 12 -

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B05 496 6368

‘Steve E. Brown 12:06:01 p.m. 08-24-2011

is, “limited duty or rehabilitation assignments of current employees are dependent
on the extent to which adequate ‘work’ exists within the employees’ work limitation
tolerances." /d.; see also Okleson y. U.S. Postal Service, 90 M.S.P.R. 415, $11
(2001) (duties assigned to those in a limited duty capacity "often do not constitute
an actual position, but are made up of work available that meets the employee's
restrictions")."

Teresa Marquez_v. USPS, 2010 MSPB 144, U.S. Merit Systems Protection Board, SF-
0353-09-0540-I-1 (July 16; 2010):

“In this case, the agency's documentary submissions show that its job search
encompassed installations within 50 miles of the LABMC but only within the Los
Angeles District. The Board has recently found that the arbitrary and capricious
criterion is met where the agency's search for available work was limited to the
Sierra Coastal District, although the commuting area may include part of other
districts ... Therefore, although the appellant's evidence and argument are
insufficient to show that the agency's discontinuation of her limited duty position
was an arbitrary and capricious denial of restoration, the agency's submissions,
which show that it search only within a single district, render the appellant's
allegation nonfrivolous. Id.; see Baldwin v. Department of Veterans Affairs, 109
M.S.P.R. 392, J] 11, 32 (2008). ... Accordingly, we find that all four of the criteria to
establish Board Jurisdiction over this restoration appeal have been met, and the
appeal must be remanded for adjudication on the merits. See Barrett v. U. S,
Postal Service, 107 M.S.P.R. 688, {] 8 (2008).”

The case of Dana Brunton v. USPS, 114 MSPR 365 (July 15, 2010), cited by the
Board in its request for amicus briefs, was another case involving an inadequate USPS

search (limited to the Sierra Coastal District and within 50 miles of the Pasadena

P&DC), While ruling in favor of the Appellant on that issue and remanding the case for

hearing, the Board rejected his argument that the process followed by USPS violated a
2002 arbitration decision because the Board is not bound by such decisions ~ another
attack on the entire NRP process. The Board also rejected Appeliant's argument that
“the agency's alleged fiscal difficulties are immaterial ta'its obligation to offer him a
limited duty assignment.” The Board's reasoning on this later point, however, was that

such fiscal difficulties “may well affect whether the agency has any available work to

- JAMES C, LATHAM v. U. S. POSTAL SERVICE, AND RELATED CASES - PAGE 15 -