Leija v. Department of Veterans Affairs , 530 F. App'x 945 ( 2013 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
HORTENCIA R. LEIJA,
Petitioner,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
______________________
2013-3048
______________________
Petition for review of the Merit Systems Protection
Board in Nos. DA0752110588-I-1, DA0353110513-I-1, and
DA0752110537-I-1.
______________________
Decided: September 12, 2013
______________________
HORTENCIA R. LEIJA, of San Antonio, Texas, pro se.
CORINNE A. NIOSI, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent. With her on
the brief were STUART F. DELERY, Acting Assistant Attor-
ney General, JEANNE E. DAVIDSON, Director, and MARTIN
F. HOCKEY, Assistant Director.
______________________
2 LEIJA v. DVA
Before NEWMAN, PROST, and WALLACH, Circuit Judg-
es.
PER CURIAM.
Hortencia Leija appeals the decision of the Merit Sys-
tems Protection Board (“Board”) affirming her removal
from employment with the Department of Veterans
Affairs (“VA”) and dismissing her restoration appeal for
lack of jurisdiction. We affirm the Board’s decision that it
lacked jurisdiction over Ms. Leija’s restoration appeal, but
we vacate the Board’s affirmance of her removal and
remand for further proceedings consistent with our opin-
ion.
I
Hortencia Leija was employed as a Diagnostic Radio-
logical Technologist at the GS-9 level for the VA. In 2008,
she injured her left shoulder, and the next year she hurt
her right one. The Office of Workers’ Compensation
Programs (“OWCP”) found her injuries to be work-related
and compensable. After two periods of approved medical
leave, lasting approximately four months and six months,
Ms. Leija returned to work fulltime in October 2009.
Because of her shoulder injuries, her physician imposed
certain medically-necessary restrictions on her activities
at work. Due to those limitations, the VA offered Ms.
Leija—and she accepted—a series of restricted duty jobs
in 2010 that were commensurate with her physical capa-
bilities. Both Ms. Leija and her direct supervisor, Mr.
Long, believed that she was performing the duties of a
Medical Support Assistant at the GS-4 level by August
2010.
In December 2010, the VA mailed Ms. Leija a formal
offer of permanent reassignment as a Medical Support
Assistant with pay retained from the GS-9 level. In its
letter, the VA informed her that it could ask the OWCP
LEIJA v. DVA 3
for a suitability determination of the offer if she refused.
It further explained that, if the OWCP found the new
position suitable and she continued to refuse the offer, her
workers compensation benefits might be terminated and
she might face “administrative action.” Resp’t App. 63.
The VA also directed Ms. Leija to complete an enclosed
“Acceptance/Declination Statement” (“ADS”) form by
December 28, 2010. Resp’t App. 62. That form provided
two options: “voluntarily accept” the offered Medical
Support Assistant position or “decline” it. Resp’t App. 64.
Ms. Leija did not return the ADS form to the VA.
However, according to both her and Mr. Long, she contin-
ued working in her “light duty assignment that was
comprised of duties of the Medical Support Assistant
position.” Resp’t App. 10.
Despite Ms. Leija’s failure to return the ADS form,
the VA “issued a Standard Form 52” to officially change
her employment “from the Diagnostic Radiological Tech-
nician position to the Medical Support Assistant position,”
while “includ[ing] retained pay.” Resp’t App. 10-11. 1 The
VA also referred its offer to the OWCP for a suitability
determination.
On February 14, 2011, the OWCP informed Ms. Leija
that it believed the VA’s offer was suitable and instructed
her that she had “30 days to accept the position or provide
1 The administrative judge found that the Standard
Form 52 was issued on January 21, 2011. Resp’t App. 10.
However, we can find no such form in the documents
provided on appeal. A Standard Form 52 does appear in
the record though. Resp’t App. 71. That document bears
an April 2011 date and reflects a request to officially
transfer Ms. Leija to the Medical Support Assistant
position. Id.
4 LEIJA v. DVA
a valid reason for not accepting it.” Resp’t App. 11. Ms.
Leija provided a timely response, but the OWCP did not
find it “sufficient.” Id. On April 18, 2011, the office
informed Ms. Leija that her workers-compensation bene-
fits would be terminated “based on her refusal of an offer
of suitable work.” H.L., & Dep’t of Veterans Affairs, S.
Tex. Health Care Sys., 2012 WL 8595448 at *2 (E.C.A.B.
2012). The VA was notified of the OWCP’s decision to
terminate her benefits.
Three days prior to the OWCP’s decision, on April 15,
2011, Ms. Leija’s representative, Mr. Rogers, mailed the
VA a letter indicating that she declined the VA’s Decem-
ber 2010 offer. In his letter, Mr. Rogers explained that
several attempts to discuss the offer with VA representa-
tives failed. Despite those unsuccessful attempts at
negotiation, he asserted that Ms. Leija was “back to work”
and “willing to accept [a] suitable job as applicable to her
current job description.” Resp’t App. 74. He further
argued that Ms. Leija was capable of performing the job
duties of a Radiological Technologist with accommoda-
tions similar to what other technologists were receiving
and that she would be able to return to “full capacity” in
the future after physical therapy. Resp’t App. 76. To that
end, he asked that “she be allowed to continue therapy
while working in an accommodated position” and posited
that “pay[ing] the difference in salary at a GS-4 level
rather [than] hav[ing] Ms. Leija work in her job field is a
waste of government spending.” Id. Mr. Rogers conclud-
ed his letter with a request that the VA “revisit the job
offer and reoffer one that is compatible to her current job
functions that will benefit the employee, patient[s], and
[the VA] Imaging Service.” Id.In response to Mr. Rogers’s letter, the head of Imag-
ing Services “approved a request to Human Resources” on
April 18, 2011, “that [Ms. Leija] be terminated.” Resp’t
App. 12. That request, however, was followed by a series
LEIJA v. DVA 5
of job offers that the VA provided to Ms. Leija, several of
which appear to have been accepted by her.
On April 19, 2011, the VA provided Ms. Leija a “Re-
stricted Duty Job Offer” as a “Medical Support Assistant.”
Resp’t App. 78. The required duties of that position were
detailed in the offer and were nearly identical to those
identified in the position description included with the
VA’s December 2010 offer to Ms. Leija for permanent
employment as a Medical Support Assistant. Compare
Resp’t App. 78-79, with Resp’t App. 67-68. Hand written
notes on the copy of the restricted duty offer in the record
reflect that Ms. Leija refused it and, as a result, was sent
home. Resp’t App. 80.
Three days later, on April 21, 2011, the VA provided
Ms. Leija a new “Restricted Duty Job Offer” as a “Medical
Support Assistant” in the VA Imaging Service. Resp’t
App. 93. Unlike the previous one, Ms. Leija accepted and
signed this new offer. Id. But she annotated her ac-
ceptance with the following: “I am told by Ms. Rubin that
this is a temporary job offer.” Id. The restricted duty job
offer included a brief description of the duties required for
a Medical Support Assistant that appears to match the
position description for the VA’s December 2010 offer.
Compare Resp’t App. 93, with Resp’t App. 67-68. There
was one addition to the new offer’s description of the
duties required by it though. The new offer stated: “No
lifting, pushing or pulling more than five (5) pounds.
There are plenty of radiology staff, please ask for help as
needed.” Resp’t App. 93.
Then on May 6, 2011, the VA provided Ms. Leija with
a “Transitional (Limited) Duty Job Offer for Work-Related
Injuries/Illness” in the “Medical Support Assistant” posi-
tion. Resp’t App. 81. Like before, the general description
of the job duties required by the offered position were in
accord with those identified in the VA’s December 2010
offer. Compare Resp’t App. 81, with Resp’t App. 67. Ms.
6 LEIJA v. DVA
Leija appears to have accepted the offer, which was
countersigned by a VA official. Resp’t App. 81.
After Ms. Leija accepted that “transitional” job offer,
the VA provided her with yet another “Restricted Duty
Job Offer” on May 17, 2011. Resp’t App. 82, 87. Besides a
change in the name of the offered position from “Medical
Support Assistant” to “PSA,” the duties and responsibili-
ties of the offered position were nearly identical to those
detailed in the VA’s December 2010 offer. Compare Resp’t
App. 82-83, with Resp’t App. 67-68. One copy of the offer
in the record indicates by handwritten note that Ms. Leija
refused to accept it. Resp’t App. 84. A second copy in the
record though, reflects Ms. Leija’s signature and her
supervisor’s countersignature. Resp’t App. 87. That
second copy contains several handwritten notes (seeming-
ly made by Ms. Leija), including one that appears to
indicate that her acceptance of the offer was conditioned
upon “proper training.” Resp’t App. 87.
On May 19, 2011, the VA issued a “Notice of Proposed
Removal” to Ms. Leija. It charged her with “failure to
accept directed reassignment.” Resp’t App. 89. The VA
included the following details of her alleged misconduct.
By letter dated December, 21, 2010, you were giv-
en a written notice of a reassignment to a Medical
Support Assistant position as a GS-0679-04 Step
10. The Department of Labor (DOL), Office of
Workers’ Compensation Programs (OWCP), de-
termined suitability of the job offer. On April 15,
2011, your written response from your representa-
tive informed the Agency that you had declined
the job offer.
Id.Shortly after Ms. Leija received the “Notice of Pro-
posed Removal,” her duty station was changed to her
home address and her prior pending request for family
LEIJA v. DVA 7
medical leave—to care for her elderly mother—was ap-
proved. An oral response hearing to the “Notice of Pro-
posed Removal” was held on June 9, 2011, and the next
day, the VA placed Ms. Leija on administrative leave. Ms.
Leija was still on leave when the VA issued a decision on
July 11, 2011, terminating her from “federal employment
effective July 22, 2011,” for “failure to accept a directed
reassignment.” Resp’t App. 106. A “Request for Person-
nel Action” on Standard Form 52 reflects that Ms. Leija
was removed from her position as a “MED SUP ASST
(TYPING)” pursuant to Chapter 75 for “failure to accept
directed assignment.” Resp’t App. 108-09.
II
Ms. Leija filed four appeals with the Board challeng-
ing the VA’s actions. She asserted that the VA improper-
ly demoted her to a lower grade job, wrongly terminated
her from federal employment, failed to properly restore
her to duty as a Diagnostic Radiological Technician fol-
lowing her compensable shoulder injuries, and construc-
tively suspended her without cause by putting her on
unrequested leave.
On October 7, 2011, the administrative judge for the
Board dismissed her demotion appeal. The administra-
tive judge explained that the VA “assigned [her] to the
GS-4 grade-level” job after the OWCP “determined the . . .
position was a suitable job offer to accommodate her
work-related injury.” Resp’t App. 139. According to the
administrative judge, “rather than a reduction–in-grade
action[,] the reassignment was taken to fulfill the [VA]’s
restoration obligations,” so “all arguments and relief
available to [her] will be available under the restoration-
based appeal.” Id.On January 30, 2012, the administrative judge reject-
ed Ms. Leija’s other appeals. The administrative judge
dismissed her constructive suspension appeal after con-
cluding that the Board lacked jurisdiction over it. Accord-
8 LEIJA v. DVA
ing to the administrative judge, there was no jurisdiction
because Ms. Leija “failed to show that she was construc-
tively suspended” since she never withdrew her request
for family medical leave. Resp’t App. 17-18.
The administrative judge also concluded that there
was no Board jurisdiction over Ms. Leija’s restoration
appeal. The administrative judge explained that the
Board has jurisdiction only over non-frivolous restoration
claims and that she failed to present a “non-frivolous
allegation that she was denied restoration as an employee
who has partially recovered from a compensable injury.”
Resp’t App. 16. That was apparent, in the administrative
judge’s view, because the “reassignment to the Medical
Support Assistant position was reasonable”; the perma-
nent offer of reassignment “was found suitable by OWCP”;
“retained pay was afforded [to Ms. Leija]”; and, based on
facts reflected in the record, Ms. Leija never informed the
VA of a note from her doctor dated April 23, 2011, that
released her to “full duty.” Id.Regarding Ms. Leija’s appeal challenging her termi-
nation, the administrative judge found that the Board had
jurisdiction over it but that it failed on its merits. The
administrative judge described the VA’s burden in a
“removal action based on a refusal to accept a directed . . .
reassignment” as “prov[ing] by a preponderance of the
evidence that its reassignment decision was based upon
legitimate management considerations.” Resp’t App. 13.
The administrative judge concluded that the “Board has
consistently held that discipline is warranted for refusing
to accept a legitimate directed reassignment and that
removal is not an unreasonably harsh penalty for such a
refusal.” Resp’t App. 14. He explained that Ms. Leija’s
removal was therefore permissible because she “continu-
ally rejected” a legitimate reassignment offer, Resp’t App.
15; she “acknowledged that [she] could not . . . perform
the duties of the Diagnostic Radiological Technician
position,” Resp’t App. 14; she never told the VA that “[her
LEIJA v. DVA 9
doctor] cleared her for full duty” in April 2011, Resp’t
App. 15; and “the evidence show[ed] that the reassign-
ment to the Medical Support Assistant position was taken
for a legitimate reason—[Ms. Leija] had permanent lifting
restrictions which precluded her from performing the
essential duties of her Diagnostic Radiological Technician
position,” Resp’t App. 14.
In addition, the administrative judge reasoned that
the legitimacy of the VA’s offer was confirmed by “the fact
that the OWCP found it . . . suitable” and by the VA’s
decision to maintain Ms. Leija’s level of pay in the reas-
signed position. Resp’t App. 15. The administrative judge
noted that “pertinent OWCP regulation” obligates em-
ployees to return to suitable employment when offered or
face discontinuance of workers-compensation benefits. Id.On March 3, 2012, Ms. Leija filed a petition for Board
review of the administrative judge’s decision. Subsequent
to that petition, the Employees’ Compensation Appeals
Board (“ECAB”) reversed the OWCP’s decision to termi-
nate Ms. Leija’s workers compensation benefits. H.L.,
2012 WL 8595448 at *3. The ECAB summarized certain
facts relevant to its decision as follows.
The [VA] offered [Ms. Leija] the modified position
of medical support assistant with pay retention.
At the time of the job offer, the record shows that
she was performing the job. The [VA] stated that
a written job offer had been sent to [her] for an of-
ficial job assignment with a change to a lower
grade with no change in pay. [She] refused to sign
a formal acceptance of the job offer, but continued
to work in the position on which the job offer was
based. The record reveals that she continued to
work for the employing establishment in that po-
sition until July 11, 2011. On July 11, 2011 the
[VA] removed [her] from federal employment
10 LEIJA v. DVA
based on her failure to accept a directed assign-
ment.
Id. Based in part on those facts, the ECAB concluded that
the “OWCP did not meet its burden of proof to terminate
[Ms. Leija]’s compensation for refusing suitable work.” Id.On October 22, 2012, Ms. Leija submitted the ECAB’s
decision to the Board as “new important evidence.” Pet’r
App. Tab 3.
Thereafter, on December 10, 2012, the Board denied
Ms. Leija’s petition for review and adopted the adminis-
trative judge’s decision as final. For Ms. Leija’s removal
appeal, the Board agreed with the administrative judge
that “the reassignment was taken for legitimate man-
agement reasons, i.e., [she] had permanent lifting re-
strictions which precluded her from performing the
essential duties of her Diagnostic Radiological Technician
position.” Resp’t App. 28. It was Ms. Leija’s burden,
according to the Board, to rebut that legitimate reason for
reassignment by showing that she informed the VA that
she was released to full duty. Id. That was not a burden
she met though because, in the Board’s view, the adminis-
trative judge correctly found that Ms. Leija did not inform
the VA prior to her termination that her doctor approved
her medical release to full duty in April 2011. Resp’t App.
26-28. The Board also summarily affirmed the adminis-
trative judge’s decision that there was no jurisdiction over
Ms. Leija’s restoration or constructive suspension appeals.
In addition, the Board briefly addressed why it re-
fused to consider several documents submitted by Ms.
Leijia as new evidence, including those “from her OWCP
appeal file.” Resp’t App. 28. First, it concluded that none
were “new” and that Ms. Leija “made no showing that
the[] documents were unavailable before the record closed
despite her due diligence.” Id. Second, the Board ex-
plained that “the[] documents [were] also not material
because they d[id] not show that the agency was aware of
LEIJA v. DVA 11
[Ms. Leija’s doctor’s] work release prior to removing her.”
Id.III
Ms. Leija filed a timely appeal with us of the final de-
cision of the Board. The focus of her appeal is somewhat
imprecise. She does raise, however, several points that
merit attention. First, Ms. Leija explains that she was
offered some light duty positions after returning to work
and that she accepted them. Pet’r Br. 1. Second, she
asserts that, as the ECAB found, the VA “confirmed that
[she] was working in the offered [Medical Support Assis-
tant] position, but that she refused to sign the form ac-
cepting the job offer.” Pet’r Br. 3. Third, she argues that
the Board failed to properly consider the fact that she was
released to full duty prior to termination. Pet’r Br. 2-3.
And last, Ms. Leija posits that the Board’s opinion was
incorrect in light of the ECAB decision that she submitted
as new evidence while her petition for Board review was
pending. Pet’r Br. 4.
IV
We have jurisdiction over Ms. Leija’s appeal under 28
U.S.C. § 1295(a)(9). The scope of our review is limited.
We must affirm the Board’s final decision unless it is “(1)
arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law; (2) obtained without proce-
dures required by law, rule or regulation having been
followed; or (3) unsupported by substantial evidence.” 5
U.S.C. § 7703(c); see Kewley v. Dep’t of Health & Human
Servs., 153 F.3d 1357, 1361 (Fed. Cir. 1998). After careful
review of the decision and the record here, we believe that
12 LEIJA v. DVA
Ms. Leija’s restoration appeal was properly adjudicated by
the Board, but her termination appeal was not. 2
A. The Termination Appeal
Ms. Leija was removed from federal employment un-
der the authority granted to the VA in Chapter 75 of the
United States Code. A governmental agency, such as the
VA, may discipline and remove an employee under Chap-
ter 75 “for such cause as will promote the efficiency of the
service.” 5 U.S.C. § 7513(a). To support taking such
adverse action against an employee for committing mis-
conduct, an agency must: (1) “establish by preponderant
evidence that the charged conduct occurred”; (2) “show a
nexus between that conduct and the efficiency of the
service”; and (3) “demonstrate that the penalty imposed
was reasonable in light of the relevant factors set forth in
Douglas v. Veterans Admin., 5 MSPB 313, 5 M.S.P.R. 280,
307-08 (1981).” Malloy v. U.S. Postal Serv., 578 F.3d
1351, 1356 (Fed. Cir. 2009); see King v. Frazier, 77 F.3d
1361, 1363 (Fed. Cir. 1996); Miller v. Dep’t of the Interior,
119 M.S.P.R. 438, 441-42 (M.S.P.B. 2013). Neither the
administrative judge nor the Board adequately explained
how the VA made those three showings here.
In regard to the first, it is unclear that Ms. Leija
committed the misconduct she was charged with—refusal
to accept reassignment as a Medical Support Assistant.
The administrative judge and the Board provided exten-
sive discussion of how the Medical Support Assistant
position and the VA’s offer to Ms. Leija for permanent
employment in that role were suitable given her medical
restrictions known to the VA at the time of her termina-
2 We do not address the Board’s dismissal of Ms.
Leija’s constructive suspension claim for lack of jurisdic-
tion because she has not raised that decision in her ap-
peal.
LEIJA v. DVA 13
tion. But the administrative judge’s conclusion that Ms.
Leija “continually rejected” a legitimate reassignment
offer, Resp’t App. 15, does not seem to be supported by
substantial evidence in the record. First, when Ms. Leija
was removed from federal service for rejecting the VA’s
offer of employment as a Medical Support Assistant, she
was already employed in that position and appears to
have been performing the duties of that job at the time of
her termination. See Resp’t App. 10, 108-09. Second,
while Ms. Leija formally rejected the VA’s December 2010
offer of permanent employment as a Medical Support
Assistant, Ms. Leija appears to have subsequently accept-
ed several restricted or transitional job offers from the VA
pursuant to which she agreed to be employed as a Medical
Support Assistant. See Resp’t App. 81, 87, 93.
Thus, it appears that, when Ms. Leija was removed
from federal service, she was employed as a Medical
Support Assistant and performing the duties of that
position pursuant to several job offers that she accepted—
despite her initial rejection of such employment in the
VA’s December 2010 offer. While the administrative
judge seems to have simply accepted that the charged
conduct (refusal of a directed reassignment) occurred
because of Mr. Roger’s letter to the VA, see Resp’t App. 11,
the administrative judge failed to address the relevant
evidence in the record that appears to indicate that Ms.
Leija negotiated an offer of employment as a Medical
Support Assistant that was acceptable to her and the
VA—which is exactly what Mr. Rogers requested in his
letter.
There also appears to be scant evidence that the VA
made its second required showing here—that a nexus
existed between Ms. Leija’s apparent refusal of the di-
rected reassignment and the efficiency of the VA. The
administrative judge never directly discussed whether
such a nexus existed. Instead, the administrative judge
appears to have relied solely on several Board cases in
14 LEIJA v. DVA
which refusal to accept a reassignment was found to affect
the efficiency of an agency. Resp’t App. 14. In those
cases, however, a refusal to accept reassignment was
accompanied by absenteeism from the new position. 3 The
principle applied in those cases is unremarkable. As we
have specifically held, “any sustained charge of AWOL
[(absent without authorized leave)] is inherently connect-
ed to the efficiency of the service.” Bryant v. Nat’l Sci.
Found., 105 F.3d 1414, 1417 (Fed. Cir. 1997).
That legal assumption does not seem to apply here
though because absenteeism by Ms. Leija does not appear
to be an issue. The administrative judge did not find that
she was AWOL after refusing reassignment. With the
exception of one unclear handwritten annotation, see
Resp’t App. 80, the record does not reveal any evidence of
unauthorized leave by Ms. Leija. Rather, as the adminis-
trative judge noted, Ms. Leija and her supervisor both
agreed that she performed the duties required of the
Medical Support Assistant position even though she
declined to voluntarily accept it. 4 Resp’t App. 10.
3 See Cooke v. U.S. Postal Serv., 67 M.S.P.R. 401,
407-08 (M.S.P.B. 1995) (employee removed after he “did
not report for work to either of [two newly] assigned
positions”) aff’d, 73 F.3d 380 (Fed. Cir. 1995); Nalbandian
v. Dep’t of the Interior, 25 M.S.P.R. 691, 695 (1985) (em-
ployee removed after refusing to move for newly assigned
position in a different state); Else v. Dep’t of Justice, 3
M.S.P.R. 397, 398 (M.S.P.B. 1980) (employee removed for
“refusal to accept the reassignment, and for absence
without leave from the new position”).
4 Reviewing similar evidence, the ECAB reached an
identical conclusion. H.L., 2012 WL 8595448 at *3 (“The
record establishes that [Ms. Leija] had actual earnings at
the [VA] since she was performing the duties of the of-
LEIJA v. DVA 15
Accordingly, it is unclear from the record how the effi-
ciency of the service was affected by Ms. Leija’s initial
rejection of permanent reassignment as a Medical Sup-
port Assistant. Despite the fact that she did not want the
job, Ms. Leija was reassigned by the VA to the position
and performed the duties required by it. Had Ms. Leija
refused to perform her job, been absent without leave, or
committed some egregious misconduct, then the impact on
the efficiency of the VA would be much clearer. 5 But
limited to the record before us, we cannot determine
whether the VA has adequately proven the existence of
the required nexus between Ms. Leija’s conduct and the
efficiency of the VA.
Last, we do not see how the administrative judge
properly considered the Douglas factors to conclude that
removal of Ms. Leija was a reasonable penalty for the
misconduct she may have committed. The administrative
fered position. In correspondence to OWCP, the [VA]
acknowledged that [she] was working in the offered
position, but that she refused to sign the form accepting
the offered job.”).
5 See, e.g, Walley v. Dep’t of Veterans Affairs, 279
F.3d 1010, 1013 (Fed. Cir. 2002) (unauthorized absences
prevented restoration claim), abrogated on other grounds
by Garcia v. Dep’t of Homeland Sec., 437 F.3d 1322 (Fed.
Cir. 2006) (en banc); Bryant, 105 F.3d at 1417 (holding
that an employee’s unauthorized absence justified remov-
al by serving the efficiency of the service); Cooke, 73 F.3d
380 (affirming removal after an employee refused a reas-
signment and was AWOL); Wright v. U.S. Postal Serv., 42
F.3d 1410 (Fed. Cir. 1994) (same); Miller, 119 M.S.P.R.
438 (collecting cases in which refusal to accept and per-
form reassignments supported removal for promoting the
efficiency of the service).
16 LEIJA v. DVA
judge’s consideration of Douglas seems to have been
limited to a single citation to the case. While such terse
reference to Douglas might suffice when its application is
overwhelmingly clear, it is inadequate here.
The VA asserts that reassigning Ms. Leija was in the
interest of the service because Ms. Leija could not perform
the job duties of a Diagnostic Radiological Technician but
seemingly could perform the duties required of a Medical
Support Assistant. Resp’t Br. 11-12. Apparently, in
accord with that interest, the VA officially reassigned Ms.
Leija to the Medical Support Assistant position. It then
provided her several job offers in that position for transi-
tional or restricted duty that the record indicates she
accepted. And while employed as a Medical Support
Assistant, Ms. Leija seems to have performed the duties
required by the job. If indeed Ms. Leija was dutifully and
continuously performing as a Medical Support Assistant,
agreed to the reassignment after continued negotiation,
and was on the road to a full recovery through physical
therapy (as asserted by Mr. Rogers in his April 15, 2011
letter), it is difficult to understand how the VA’s exercise
of managerial discretion to remove Ms. Leija was reason-
able and served the interest of the VA. On the record
here, it was therefore error for the Board to affirm Ms.
Leija’s removal without applying the Douglas factors to
determine if the VA acted reasonably.
Furthermore, thoroughly addressing the Douglas fac-
tors in this case is of particular import because Ms. Leija
appears to have followed the long-standing guidance we
and the Board have provided to federal employees who
wish to challenge agency orders. We and the Board have
explained that such employees generally should not
disregard an order with which they disagree—including
one related to reassignment; they should instead follow
the order and then challenge it through appropriate
LEIJA v. DVA 17
administrative channels. 6 The record appears to show
that Ms. Leija followed that advice. Despite her unwill-
ingness to voluntarily accept reassignment as a Medical
Support Assistant, Ms. Leija seemingly performed the
duties of her new position as ordered and pursued admin-
istrative relief. A thorough discussion of the Douglas
factors seems necessary to explain why Ms. Leija’s appar-
ent adherence to our precedent and that of the Board was
inappropriate and merited her removal from federal
service.
On the record here, it simply is unclear how the VA
met its evidentiary burden to sustain the removal of Ms.
Leija under Chapter 75. The record before us does not
6 See, e.g, New v. Dep’t of Veterans Affairs, 142 F.3d
1259, 1264 (Fed. Cir. 1998) (“[A]n employee is required to
comply with instructions from her agency acting within
its authority, unless obedience would place her in a clear-
ly dangerous circumstance.”); Bigelow v. Dep’t of Health &
Human Servs., 750 F.2d 962, 965-66 (Fed. Cir. 1984)
(“Unless [a] transfer is, in effect, a discharge, [an] em-
ployee has no right simply to walk out; he must accept the
orders of his superior, even if felt to be unjust, until
relieved of them by judicial or administrative action.”);
Cooke, 67 M.S.P.R. at 407-08 (agreeing that “even if the
assignment was improper, the appellant’s recourse was to
obey by performing the duties of his new position and
then appeal the propriety of the assignment,” even if the
Board’s ultimately found the reassignment improper,
because “[t]he appellant’s conduct was not protected by
either privilege or a legitimate concern that it would
cause him irreparable harm”); Taylor v. Dep’t of Health &
Human Servs., 40 M.S.P.R. 106, 112 (M.S.P.B. 1989) (“If
the appellant believed that her reassignment was im-
proper, her recourse was to report for duty and grieve
while working.”), aff’d, 891 F.2d 299 (Fed. Cir. 1989).
18 LEIJA v. DVA
adequately reveal whether she actually declined reas-
signment as charged, how her actions negatively affected
the efficiency of the VA, or how her removal was a rea-
sonable penalty for the charged misconduct. We therefore
vacate the Board’s affirmance of Ms. Leija’s termination
and remand for the Board to further discuss or develop
the factual and legal basis necessary to properly adjudi-
cate her termination appeal.
B. The Restoration Appeal
The administrative judge dismissed Ms. Leija’s resto-
ration appeal for lack of jurisdiction after finding that she
failed to present a non-frivolous restoration claim. The
administrative judge cited two primary reasons to support
dismissal: (1) Ms. Leija failed to inform the VA prior to
her termination that she was capable of performing all
the job duties of a Diagnostic Radiological Technician; and
(2) the OWCP had declared that the Medical Support
Assistant position was suitable. Based upon the facts in
the record at the time of the administrative judge’s initial
determination, we see no error in the administrative
judge’s decision that jurisdiction was lacking. There is
substantial evidence to support the administrative judge’s
factual finding that Ms. Leija did not inform the VA prior
to her termination that she was capable of performing all
the job duties of a Diagnostic Radiological Technician. As
the administrative judge noted, there is a distinct lack of
testimony by Ms. Leija or argument by Mr. Rogers that
she provided her doctor’s written opinion to the VA. In
addition, at the time of the administrative judge’s deci-
sion, the OWCP had declared the VA’s December 2010 job
offer to be suitable. The administrative judge recognized
that, once issued, “[d]ecisions on the suitability of an
offered position are within the exclusive domain of the
OWCP.” New, 142 F.3d at 1265. Thus, based on the facts
as found by the administrative judge and the state of Ms.
Leija’s OWCP appeal at the time of the administrative
judge’s decision, we cannot say that the administrative
LEIJA v. DVA 19
judge’s dismissal of Ms. Leija’s restoration appeal for lack
of jurisdiction was erroneous.
Furthermore, we see no error in the Board’s decision
to adopt the administrative judge’s opinion despite being
informed of the ECAB’s reversal of the OWCP’s suitability
determination. Ms. Leija provided the ECAB’s opinion to
the Board while her petition for review was pending. The
Board declined to consider it, however, after finding that
the “documents from [Ms. Leija’s] OWCP appeal file” were
untimely submitted and immaterial. Resp’t App. 28. Ms.
Leija argues that the Board’s decision is incorrect because
it never considered the import of the ECAB’s reversal to
her restoration claim. Pet’r Br. 3-4; see Resp’t App. 28-29.
Clearly, Ms. Leija could not have submitted the ECAB’s
opinion to the Board while the record was open. But the
Board was correct to find that the ECAB’s decision was
nevertheless irrelevant to Ms. Leija’s restoration appeal. 7
The effect of the ECAB’s reversal could have been to
eliminate, as a matter of law, an OWCP suitability de-
termination that would compel Ms. Leija to accept the
Medical Support Assistant position offered by the VA. See
New, 142 F.3d at 1265. However, Ms. Leija “returned to
work and never asserted that the [VA]’s accommodation
did not comply with her physician’s instructions” prior to
her termination. Walley, 279 F.3d at 1021. And, as the
administrative judge found, Ms. Leija did not inform the
VA that she could perform the duties of a Diagnostic
Radiological Technician prior to her termination. There-
fore, given the facts here, the ECAB’s reversal was imma-
terial to Ms. Leija’s restoration claim because an OWCP
suitability determination was “not a necessary predicate
7 On consideration during remand, the Board can
consider the import of the ECAB’s reversal to the merits
of Ms. Leija’s termination appeal.
20 LEIJA v. DVA
to [Ms. Leija’s] obligation to return to work,” Walley, 279
F.3d at 1021, and—as the Board reasoned—“do[es] not
show that the [VA] was aware of . . . [Ms. Leija’s] work
release [to full duty] prior to removing her,” Resp’t App.
28. Thus, we see no error in the Board’s adjudication of
Ms. Leija’s restoration appeal.
V
We affirm the Board’s dismissal of Ms. Leija’s restora-
tion appeal, vacate the Board’s denial of Ms. Leija’s
termination appeal, and remand for proceedings con-
sistent with our opinion.
AFFIRMED-IN-PART, VACATED-IN-PART, AND
REMANDED