Nelson v. United States Postal Service , 200 F. App'x 983 ( 2006 )

NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
is not citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
2006-3171
ERICA S. NELSON,
Petitioner,
v.
UNITED STATES POSTAL SERVICE,
Respondent.
___________________________
DECIDED: October 3, 2006
___________________________
Before BRYSON, Circuit Judge, ARCHER, Senior Circuit Judge, and GAJARSA, Circuit
Judge.
PER CURIAM.
DECISION
Erica S. Nelson petitions this court for review of a decision of the Merit Systems
Protection Board, Docket No. AT-0353-05-0380-I-1, denying her request for restoration
to duty in her position with the Postal Service. Because we agree with the Board’s
determination that Ms. Nelson was terminated for cause, we conclude that she has not
shown she is entitled to restoration to duty. We therefore affirm the decision of the
Board.
BACKGROUND
On October 13, 2004, Ms. Nelson began duty as a Part-Time Flexible City
Carrier for the United States Postal Service. As a probationary employee, she was
required to complete a 90-day probationary period, during which she would receive
periodic performance evaluations.
Following two weeks of training, Ms. Nelson reported to a Postal Service facility
in Brunswick, Georgia, where her supervisor, Belinda Hardee, assigned her to an
auxiliary postal route. On November 19, 2004, Ms. Nelson received a 30-day
evaluation. In that first evaluation, Ms. Hardee rated Ms. Nelson as “satisfactory” in five
of six categories, but deemed her performance as “unsatisfactory” in the category of
“Work Quantity.”
On December 9, 2004, Ms. Nelson was involved in a motor vehicle accident with
another postal vehicle and sustained an injury to her right hand. Ms. Nelson was
granted two days off and returned on December 13, 2004. The following day, Ms.
Nelson received her 60-day evaluation. In that second evaluation, Ms. Hardee rated
Ms. Nelson “unsatisfactory” in four categories, including “Work Quantity,”
“Dependability,” “Work Relations,” and “Personal Conduct.” Concluding that Ms. Nelson
had “Fail[ed] to Meet Probation Standards,” Ms. Hardee issued a notice of termination,
effective December 14, 2004.
In that letter, Ms. Hardee stated that Ms. Nelson’s “measured performance does
not meet measurement standards for the city carrier craft” and “does not meet
proficiency standards established by the Postal Service.” Ms. Hardee explained that
Ms. Nelson’s 30- and 60-day evaluations indicated that she had “not demonstrated
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acceptable levels of performance in 4 of the 6 skill factors.” Ms. Hardee also noted that
on December 7, Ms. Nelson had complained about a change to her scheduled
assignment. Ms. Hardee stated that the incident “demonstrates unwillingness to be
flexible, even though flexibility is a key element of this position.”
Ms. Nelson subsequently filed an appeal with the Merit Systems Protection
Board, alleging that the agency had denied her request for restoration to duty following
her full recovery from a compensable injury. The administrative judge assigned to the
case conducted a hearing and concluded that Ms. Nelson failed to show that she is
entitled to restoration to duty.
The administrative judge noted that Ms. Nelson bore the burden of establishing
that her termination was “substantially related to her compensable injury.” Citing our
decision in Cox v. Merit Systems Protection Board, 817 F.2d 100, 101 (Fed. Cir. 1987),
the administrative judge stated that “[by] definition, separation as a result of a
compensable injury excludes a valid removal for cause unrelated to the employee’s
compensable injury.” (emphasis in original). The administrative judge explained that
“the employee must show that no cause aside from the compensable injury precipitated
the termination.”
The administrative judge then reviewed the testimony of Ms. Nelson, Ms.
Hardee, and Ernest Caine, a carrier/technician at the Brunswick, Georgia, facility, as
well as exhibits submitted by both parties. The administrative judge stated that he
found Ms. Nelson’s testimony to be “less than credible” because her responses were
“rambling,” “evasive,” “inconsistent,” and “self-serving.” In particular, he noted that her
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“constant evasiveness detracted from her credibility” and that “her bias . . . similarly
detracted from her credibility.”
In contrast, the administrative judge found Ms. Hardee’s testimony to be
“completely consistent with the record and credible.” He explained that he did not
discern, and Ms. Nelson “failed to establish[,] any motive for Ms. Hardee to fabricate her
testimony with respect to her treatment of [Ms. Nelson] . . . or in terms of the nature of
[Ms. Nelson’s] performance and conduct problems.”
The administrative judge also found that “the record clearly establishes that the
agency had raised concerns about [Ms. Nelson’s] performance and conduct prior to the
appellant’s compensable injury on December 9, 2004.” Citing specific “Workhour
Workload Report[s],” the administrative judge observed that the “record is replete with
evidence of [Ms. Nelson’s] substandard casing speed.” In particular, he noted that the
report for the rating period of November 19, 2004, to December 11, 2004, “shows that
[Ms. Nelson’s] casing speed/office time was below the minimum standard every day of
the rating period but one prior to the date of her compensable injury.”
The administrative judge further noted that “Ms. Hardee credibly testified, and
[Ms. Nelson] did not dispute,” that two days prior to the compensable injury, Ms. Hardee
and Ms. Nelson had a confrontation over the decision to reassign Ms. Nelson’s route.
The administrative judge thus found that concerns about Ms. Nelson’s “bad attitude”
and unwillingness to be flexible had arisen prior to the date of her injury.
As a result, the administrative judge concluded that the agency had clearly
established a basis for its termination action “that was rooted in [Ms. Nelson’s]
performance long before [her] compensable injury occurred.” Because Ms. Nelson had
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“failed to show that there was no valid cause aside from the injury that precipitated the
agency’s action,” the administrative judge ruled that she was not entitled to restoration
to duty.
When the full Board denied Ms. Nelson’s petition for review, the administrative
judge’s initial decision became the final decision of the Board. Ms. Nelson now seeks
review by this court.
DISCUSSION
Ms. Nelson argues that the administrative judge applied an incorrect standard
under 5 C.F.R. § 353.301 because he improperly relied on this court’s decisions in
Walley v. Department of Veterans Affairs, 279 F.3d 1010 (Fed. Cir. 2002), and New v.
Department of Veterans Affairs, 142 F.3d 1259 (Fed. Cir. 1998). According to Ms.
Nelson, those cases, which require the employee to show that the separation is “solely
attributable to the compensable injury,” Walley, 279 F.3d at 1016 n.6, are
distinguishable because they involve employees who were either partially recovered
(Walley) or fully recovered after more than one year (New). In contrast, Ms. Nelson
asserts that she is an employee who recovered fully within one year and that a different
standard applies in her situation.
In making that argument, Ms. Nelson overlooks the fact that an employee who
recovers from a compensable injury, whether partially or fully, within one year or after
one year, is not immune from separation for cause. Under 5 C.F.R. § 353.108,
“separation for cause that is substantially unrelated to the injury . . . negates restoration
rights.” Moreover, as we explained in Cox v. Merit Systems Protection Board, and as
noted by the administrative judge, “[by] definition, separation as a result of a
2006-3171 5
compensable injury excludes a valid removal for cause unrelated to the employee’s
compensable injury.” 817 F.2d 100, 101 (Fed. Cir. 1987). Consequently, the
administrative judge appropriately required Ms. Nelson to establish that she was not
terminated for a reason substantially unrelated to her injury. Because the administrative
judge found that the termination action “was rooted in [Ms. Nelson’s] performance long
before [her] compensable injury occurred,” the administrative judge did not err in
denying her request for restoration.
Ms. Nelson argues that four cases, Raicovich v. United States Postal Service,
675 F.2d 417 (D.C. Cir. 1982); Ruppert v. United States Postal Service, 8 M.S.P.R. 593(1981); Rishavy v. United States Postal Service, 35 M.S.P.R. 528 (1987); and Roche v.
United States Postal Service, 828 F.2d 1555 (Fed. Cir. 1987), stand for the proposition
that “unsatisfactory performance does not preclude restoration.” Those cases,
however, do not support her request for restoration.
In Raicovich, the court’s decision to reinstate Raicovich was based on the
government’s concession that he “could not have been dismissed at the time of his
injury on the basis of the three disciplinary incidents.” 675 F.2d at 424 n.7. Unlike in
Ms. Nelson’s case, Raicovich’s previous misconduct did not rise to a level requiring
removal, and reinstatement was granted because separation was not for cause.
Raicovich therefore does not assist Ms. Nelson, who was found to have been
terminated for cause.
Similarly, in Ruppert the Board found that there was a relationship between
Ruppert’s injury and the reason for his separation, and that “the separation indisputably
would not have occurred in the manner that it did had [Ruppert] not been injured.”
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Ruppert, 8 M.S.P.R. at 596. Consequently, Ruppert also does not apply to Ms.
Nelson’s situation.
Rishavy and Roche are entirely inapposite. Rishavy merely addressed the
question whether restoration rights are applicable to employees serving in probationary
status, an issue that is not in dispute in Ms. Nelson’s case. See 35 M.S.P.R. at 531.
And Roche dealt only with the question of jurisdiction; that is, “whether Roche
sufficiently alleged that he was removed due to a compensable injury.” 828 F.2d at1557 (remanded to the Board “for a hearing on the jurisdictional issue”). Here, that
question is not at issue; the administrative judge expressly found that Ms. Nelson had
made a nonfrivolous allegation of jurisdiction. Ms. Nelson’s reliance on Raicovich,
Ruppert, Rishavy, and Roche is therefore misplaced.
Although Ms. Nelson argues that the administrative judge erred in discrediting
her testimony, we have consistently held that the “evaluation of witness credibility is a
matter within the discretion of the [administrative judge] and is ‘virtually unreviewable.’”
Frey v. Dep’t of Labor, 359 F.3d 1355, 1361 (Fed. Cir. 2004) (quoting King v. Dep’t of
Health and Human Servs., 133 F.3d 1450, 1453 (Fed. Cir. 1998)); see also Clark v.
Dep’t of the Army, 997 F.2d 1466, 1473 (Fed. Cir. 1993). We therefore defer to the
administrative judge’s findings on witness credibility.
Ms. Nelson further argues that the administrative judge erred in conducting a
hearing. Noting that she declined a hearing on her appeal form to the Board, Ms.
Nelson asserts that she is entitled to a decision based only on the written record. For
support, she cites Grimes v. General Services Administration, in which the Board stated
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that “[a] hearing with live witnesses should never be forced upon an employee who has
forfeited or abandoned his right to a hearing.” 84 M.S.P.R. 244, 248 (1999).
In making that argument, Ms. Nelson fails to acknowledge that the administrative
judge reviewed the written record and concluded that the “record clearly establishes that
the agency had raised concerns about [Ms. Nelson’s] performance and conduct prior to
[her] compensable injury on December 9, 2004.” In fact, the administrative judge
expressly found that “the record is replete with evidence of [Ms. Nelson’s] substandard
casing speed” and described specific examples from the “Workhour Workload
Report[s].” Thus, even if the administrative judge had based his decision upon the
written record alone, the case would not have come out differently. Ms. Nelson
therefore did not suffer any prejudice as a result of the administrative judge’s action in
holding a hearing in her case. Accordingly, we uphold the Board’s decision.
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