MSPB invites interested parties to file briefs in NRP (limited duty) case

The Merit Systems Protection Board has invited interested parties to file amicus briefs in a series of cases chsllenging the US Postal Service’s “National reassessment Process (NRP), which seeks to separate from the agency employees who are unable to perform the duties of a complete and separate position, as allowed under the law.

The MSPB has, however, been presented with evidence thet the USPS has committed to providing limited duty assignments to such employees, and may therefore be prevented from separating them:

The Board announces the opportunity to file amicus briefs in the matters of James C. Latham v. U.S. Postal Service, MSPB Docket Number DA-0353-10-0408-I-1, Ruby N. Turner v. U.S. Postal Service, MSPB Docket Number SF-0353-10-0329-I-1, Arleather Reaves v. U.S. Postal Service, MSPB Docket Number CH-0353-10-0823-I-1, Cynthia E. Lundy v. U.S. Postal Service, MSPB Docket Number AT-0353-11-0369-I-1, and Marcella Albright v. U.S. Postal Service, MSPB Docket Number DC-0752-11-0196-I-1.

The Office of Personnel Management’s regulation at 5 CFR 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, ¶ 14 (2010) (citing Taber v. Department of the Air Force, 112 M.S.P.R. 124, ¶ 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 CFR 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 U.S. Postal Service’s 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 U.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. 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.” The Board is also aware of a large number of other recent cases challenging the discontinuation of limited duty assignments under the National Reassessment Process in which the arbitrators ruled in favor of the grievants on the basis that the agency’s actions violated the ELM.

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, however, has not yet addressed the implications of ELM § 546.142(a) on restoration appeals of partially recovered U.S. Postal Service employees under 5 CFR 353.304(c).

The above-captioned appeals thus present the following legal issues: (1) May a denial of restoration be “arbitrary and capricious” within the meaning 5 CFR 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; and (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?

Interested parties may submit amicus briefs or other comments on these issues no later than August 24, 2011. Amicus briefs must be filed with the Clerk of the Board. Briefs shall not exceed 30 pages in length. The text shall be double-spaced, except for quotations and footnotes, and the briefs shall be on 81/2by 11 inch paper with one inch margins on all four sides.

Complete article: Federal Register | Notice of Opportunity To File Amicus Briefs.

  • Richard Kincer

    i was given a job offer to go back on my with the medical restrictions the doctor had given me, which I accepted. My salary was supposed to be locked in at the rate i was being paid when i became disabled. Since then the postal service has cut my pay and given me a letter of demand to pay them back over $2000.00 that they say they have over paid me. Actually they owe me money and I may have to sue if greviance procedure doesn’t work!

  • linda christian

    If npr ended in January,2011, why was I put out ?
    I broke my leg on November 30th 2010. I was told to come back to work in a wheelchair until they told me on February 17th, 2011 that they had no work available for me and that I would have to file for workmen’s comp. and was told to leave and not come back. I have finally returned to work on July 21st after having some complication in the healing of my leg, but the only way I could come back to work was with no restrictions of any kind which I told my doctor I wanted to try still have stiffness and pain in ankle with limited movement. I feel I was removed unneccessarily and I am still mad at what they did and how they did it.

  • ifitmakessensetheywontdoit

    If NRP was over in January, 2011, then WHY was I put out on April 30, 2011 “under the NRP, due to no work available”??? I WAS working the FULL core duties of my BID job at the time!

    Due I have legal recourse to SUE this particular supervisor, whom I’ve already engaged in an EEO [ongoing], for undue stress, pain, suffering, and financial hardship [my husband, who does not work for the PO was laid off from his job back in January…one kid in college, one about to go…house payments, insurance payments, etc. -we used up our savings and have had to borrow from family…and I am currently ‘on standby’ awaiting to be ‘imminently’ returned to work-my bid has since been abolished and I will have to resume bidding, IF and WHEN I return to work].

    If someone has some answers, suggestions or thoughts, I’d appreciate them…and thanks.