NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
MARK D. EISELE,
Petitioner,
v.
UNITED STATES POSTAL SERVICE,
Respondent.
__________________________
2010-3002
__________________________
Petition for review of the Merit Systems Protection
Board in DC0752080626-C-2.
___________________________
Decided: July 22, 2010
___________________________
MARK D. EISELE, of Rock Hill, South Carolina, pro se.
MICHAEL J. ELSTON, Appellate Counsel, Office of the
General Counsel, United States Postal Service, of Wash-
ington, DC for respondent. With him on the brief was
LORI J. DYM, Chief Counsel.
__________________________
EISELE v. USPS 2
PER CURIAM.
Mark D. Eisele appeals from a decision of the Merit
Systems Protection Board (Board) denying his petition to
enforce the Board’s order for back pay. See Eisele v. U.S.
Postal Serv., No. DC-0752-08-626-1-1 (MSPB Nov. 26,
2008 ) (Eisele I) (ordering the Postal Service to pay Mr.
Eisele back pay); Eisele v. U.S. Postal Serv., No. DC-0752-
08-626-C-2 (MSPB July 2, 2009) (Eisele II) (denying
petition to enforce). For the reasons discussed below, we
affirm.
BACKGROUND
Mr. Eisele was employed as a mail processing clerk at
the Charlotte Processing and Distribution Facility in
Charlotte, North Carolina. On April 17, 2008, the Postal
Service placed Mr. Eisele on administrative leave with
pay pending a fitness for duty examination. Mr. Eisele
was examined by Dr. Amalia Falcon (his own physician),
Dr. Richard Bradner (a physician hired by the Postal
Service), and Dr. Alan Lombardi (a psychologist hired to
conduct the fitness for duty examination), all of whom
expressed concerns about Mr. Eisele’s mental condition.
Eisele I, at 2-3. Drs. Falcon and Bradner concluded that
Mr. Eisele was not fit to return to work and that he was
in need of long term psychiatric treatment. Id. Dr.
Lombardi concluded that although Mr. Eisele was “not
necessarily unfit, it might be prudent to explore other
options with him in terms of his employment.” Id. at 2.
On May 28, 2008, the Postal Service informed Mr.
Eisele that it had concluded that he was not fit to return
to work and gave him three options: resign, apply for
disability retirement, or retire if eligible. On June 13,
2008, the Postal Service informed Mr. Eisele that if he did
3 EISELE v. USPS
not select one of the three options, then his administra-
tive leave status would be terminated and the Postal
Service would propose his removal. On June 14, 2008, the
Postal Service placed Mr. Eisele on leave without pay.
Mr. Eisele appealed to the Board, alleging that he had
been constructively removed. The Board determined that
the Postal Service did not provide Mr. Eisele with the
procedural protections required by statute and the U.S.
Constitution prior to suspending him. The Board re-
versed the suspension and ordered the Postal Service to
retroactively restore Mr. Eisele’s pay and benefits effec-
tive June 14, 2008. The initial decision issued on Novem-
ber 26, 2008. Mr. Eisele filed a notice of appeal to this
court, but he did not submit a brief. His appeal was
dismissed on June 4, 2009, and at which point the initial
decision ordering back pay became the final decision of
the Board.
While Mr. Eisele’s case was pending before the Board,
the Postal Service took steps to correct any possible due
process violation. On November 7, 2008, the Postal
Service proposed that Mr. Eisele be placed on enforced
leave based on a medical condition rendering him unfit for
duty. Gov’t Br. 3. Mr. Eisele responded on November 24,
2008. Id. After this period for notice and response, the
agency then placed Mr. Eisele on enforced leave effective
December 14, 2008. Id.
The Postal Service did not pay Mr. Eisele any back
pay for the period after June 14, 2008. The Postal Service
sent Mr. Eisele a letter dated January 21, 2009 informing
him that he was not entitled to back pay because Mr.
Eisele was not ready, willing, and able to work during the
period in question. The Postal Service asserted that it
was in full compliance with the Board’s order.
EISELE v. USPS 4
Mr. Eisele filed a petition for enforcement seeking his
back pay. 1 The Board explained that the goal of awarding
back pay is to place the employee in the same position in
which he would have been without the wrongful personnel
action. Eisele II, at 4. Thus, an employee is not entitled
to back pay if the employee was not ready, willing, and
able to work during the period in question. Id. The
Board further explained that when the agency produces
“concrete and positive evidence” that the employee was
not ready, willing, and able to work during all or part of
the period for which he seeks back pay, the burden shifts
to the employee to show that he is entitled to back pay.
Id. Before the Board, the Postal Service provided three
medical opinions. Dr. Richard Bradner, a physician hired
by the agency, concluded that Mr. Eisele was not fit for
duty. Id. at 3. Dr. Amalia Falcon, Mr. Eisele’s own
doctor, concluded that Mr. Eisele was not fit to return to
work and was in need of long-term psychiatric treatment.
Id. at 2. Dr. Alan Lombardi, the psychiatrist who per-
formed the fitness for duty examination, noted that Mr.
Eisele had a paranoid personality disorder and concluded
that although Mr. Eisele was “not necessarily unfit, it
might be prudent to explore other options with him in
terms of his employment.” Id. The Postal Service also
cited four worker’s compensation claims filed by Mr.
Eisele in October 2008 claiming that he was incapacitated
by work-related stress (listing June 7, 2005, as the date of
illness), a shoulder injury (date of injury October 23,
2005), carpal tunnel syndrome (date of illness December
3, 2007), and hemorrhoids. Id. at 5; Gov’t Br. 4. In his
1 Mr. Eisele’s first petition for enforcement was
dismissed because his appeal before this court was still
pending. Mr. Eisele filed a second petition, and shortly
thereafter his appeal was dismissed. Thus the Board
determined that it was appropriate to adjudicate his
second petition.
5 EISELE v. USPS
claims, Mr. Eisele stated that he stopped work due to
these injuries on April 17, 2008, or June 13, 2008. Gov’t
Br. 4. The Board also reviewed a letter submitted by Dr.
Robert Fulmer dated January 22, 2009, stating that Mr.
Eisele was unable to perform his duties due to shoulder
pain and hemorrhoids cause by the heavy lifting required
by his job. Eisele II, at 5. In addition, the Board reviewed
an insurance form dated March 5, 2009, on which Mr.
Eisele claimed that he was “continuously and totally
disabled and unable to perform substantially all of his
occupational duties from April 17, 2008, to the present.”
Id. at 5. The Board determined that “the undisputed
evidence here, bolstered by the appellant’s own admis-
sions in [worker’s compensation claim forms] and a dis-
ability insurance form, shows that he was not ready,
willing and able to work from June 14, 2008, to present.”
Id. The Board thus denied Mr. Eisele’s petition for en-
forcement.
Mr. Eisele appealed to this court for review. We have
jurisdiction under
28 U.S.C. § 1295(a)(9).
DISCUSSION
A decision by the MSPB must be affirmed unless it is
(1) arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with law; (2) obtained without
procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial evidence.
5 U.S.C. § 7703(c); Hamel v. President’s Comm’n on Exec.
Exch.,
987 F.2d 1561, 1564 (Fed. Cir. 1993). “Substantial
evidence must be such as would persuade a reasonable
fact finder, but need not be, in our view, a preponder-
ance.” Stanke v. Dep’t of Transp.,
805 F.2d 1572, 1577
(Fed. Cir. 1986).
EISELE v. USPS 6
An employee affected by an unjustified or unwar-
ranted personnel action that resulted in the withdrawal
or reduction in pay is entitled to back pay that “the em-
ployee normally would have earned or received during the
period if the personnel action had not occurred, less any
amounts earned by the employee through other employ-
ment during that period.”
5 U.S.C. § 5596(b)(1) (Back Pay
Act). “[T]he basic principle of back pay, adopted by Con-
gress in 1948, holds that an employee is entitled to be
made whole whenever an erroneous personnel action
which has terminated or reduced his compensation is
corrected by appropriate authority.” Martin v. Dep’t of the
Air Force,
184 F.3d 1366, 1371 (Fed. Cir. 1999).
The statute itself does not address how an agency
must calculate the amount of back pay. Congress author-
ized the Office of Personnel Management (OPM) to pre-
scribe regulations to carry out the Back Pay Act.
5 U.S.C.
§ 5596(c); Martin,
184 F.3d at 1370. Pursuant to this
authority, OPM issued a regulation instructing that when
computing the amount of back pay, an agency may not
include pay for “[a]ny period during which an employee
was not ready, willing, and able to perform his or her
duties because of an incapacitating illness or injury.”
5
C.F.R. § 550.805. This reflects the desire to make the
employee whole and to avoid overcompensation when it is
clear that the employee would not have been able to work
even in the absence of the wrongful personnel action.
The Board’s conclusion that Mr. Eisele was not ready,
willing, or able to work due to an incapacitating illness or
injury is supported by substantial evidence. Drs. Bradner
and Falcon determined that Mr. Eisele was not fit to
return to work because of his mental condition, and Dr.
Fulmer found that he was unable to work because of his
shoulder pain and hemorrhoids. Mr. Eisele himself
7 EISELE v. USPS
admitted on an insurance claim that he was “continuously
and totally disabled and unable to perform substantially
all of his occupational duties from April 17, 2008, to the
present.”
Id. at 5. Thus, the Board properly declined to
grant Mr. Eisele’s petition for enforcement because he
was not ready, willing, and able to work during the rele-
vant time frame. Although in her prior opinion the ad-
ministrative judge ordered the Postal Service to give
Eisele back pay, in her second decision (the one here
under review) she determined that the amount of back
pay actually owed to Mr. Eisele was zero. Thus, effec-
tively, the administrative judge determined that Mr.
Eisele was not entitled to back pay. See Eisele II, at 5
(“The undisputed evidence here, bolstered by the appel-
lant's own admission in OWCP claims and a disability
insurance form, shows that he was not ready, willing and
able to work from June 14, 2008, to present, and thus is
not entitled to back pay as ordered in the initial decision
issued on November 26, 2008.”). To the extent that Mr.
Eisele raises other arguments, they are without merit.
CONCLUSION
For the reasons discussed above, we affirm the
Board’s denial of Mr. Eisele’s petition to enforce the
Board’s prior order of back pay.
AFFIRMED
