Ross v. United States Postal Service , 353 F. App'x 441 ( 2009 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-3178
KEENAN V. ROSS,
Petitioner,
v.
UNITED STATES POSTAL SERVICE,
Respondent.
Keenan V. Ross, of Vallejo, California, pro se.
Michael D. Snyder, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With him on
the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director,
and Kenneth M. Dintzer, Assistant Director. Of counsel was Sean M. Dunn, Trial
Attorney.
Appealed from: Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-3178
KEENAN V. ROSS,
Petitioner,
v.
UNITED STATES POSTAL SERVICE,
Respondent.
Petition for review of the Merit Systems Protection Board in SF-0752-07-0805-I-3.
___________________________
DECIDED: November 24, 2009
___________________________
Before NEWMAN, RADER, and BRYSON, Circuit Judges.
PER CURIAM.
The Merit Systems Protection Board (“Board”) dismissed Mr. Keenan V. Ross’s
claim for lack of jurisdiction. Mr. Ross alleges that he was constructively suspended
from his limited duty position as a mail handler for the United States Postal Service
(“USPS”). The Board determined that Mr. Ross was voluntarily absent from work.
Therefore, the Board detected no constructive suspension and no basis for jurisdiction
to pursue the matter further. Because substantial evidence supports the Board’s final
decision, this court affirms.
I.
Mr. Ross was employed by the USPS as a level four mail handler for the bulk
mail center located in Richmond, California. On June 3, 1994, Mr. Ross suffered a
work-related injury to his right shoulder and underwent arthroscopic surgery on
September 13, 1995. Thereafter, the Office of Workers Compensation Programs
(“OWCP”) approved a compensation claim for Mr. Ross. On August 20, 1996, Mr. Ross
accepted a “limited duty” job offer. “Limited duty” is a form of modified work provided to
USPS employees that have medical restrictions due to work-related injuries.
Mr. Ross then submitted a Certification For Return to Work, dated September 23,
1996, from Michael Charles, M.D., who was his orthopedic surgeon. The certification
stated that Mr. Ross was permanently restricted from lifting, pushing, or pulling greater
than fifteen pounds above his right shoulder level. For several years thereafter, Mr.
Ross performed limited duty assignments and occupied a limited duty mail handler
position. Mr. Ross accepted a renewed limited duty position in April 2000.
On September 24, 2003, a Department of Labor claims examiner requested that
Mr. Ross provide updated medical documentation within sixty days to establish his
entitlement to continuing compensation benefits. The record does not show that Mr.
Ross ever submitted the updated medical documentation. In April 2007, David Bernard,
a USPS supervisor of distribution operations, advised management that Mr. Ross did
not have an open injury compensation case. As a result, Mr. Ross should have been
working at full duty capacity unless he provided updated medical documentation for any
work restrictions.
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Approximately three months later, a human resources specialist notified Mr. Ross
that he was an unassigned full-time mail handler. His supervisors asked Mr. Ross to
indicate his preference for a residual mail handler vacancy; otherwise, he would be
assigned to a position based upon his seniority. When Mr. Ross did not indicate a
preference, the USPS notified Mr. Ross that he was assigned, effective September 1,
2007, to a residual vacancy.
In a letter dated July 27, 2007, the Department of Veterans Affairs (“DVA”)
granted Mr. Ross’s claim for military service-connected compensation and determined
that he had several physical conditions that were related to his military service. Shortly
thereafter, Mr. Ross filed a grievance regarding the USPS’s residual assignment and
requested a return to his prior limited duty position, partially relying on the DVA’s
findings. On September 19, 2007, the USPS denied Mr. Ross’s grievance because he
was “off work due to a medical condition and not due to any management action,”
effective August 13, 2007.
On August 13, 2007, Mr. Ross provided Ivan O’Quinn, Mr. Ross’s supervisor, an
August 8, 2007, Family and Medical Leave Act (“FMLA”) form, completed by Richard
Karp, M.D., that related to his DVA claim for injuries. Using this documentation, Mr.
Ross asserted that he was physically unable to perform his duties due to the injuries he
received while in the military. Mr. O’Quinn informed Mr. Ross that “he would have to
submit a request for light duty to the plant manager because his injuries as indicated in
the documentation were not job related.” Id. Mr. Ross asserts, and Mr. O’Quinn
disputes, that in addition to the FMLA form, he provided Mr. O’Quinn copies of his
limited duty job offer and OWCP restrictions from Dr. Charles. Mr. O’Quinn allegedly
2009-3178 3
refused these documents because they did not include any updated medical
documentation related to a USPS work-related injury. After Mr. Ross refused to submit
a light duty request form, Mr. O’Quinn advised him that he had one week to provide
updated medical documentation showing a USPS work-related injury. Mr. Ross
asserted, however, that Mr. O’Quinn only gave him three days to provide this
documentation.
That same day, on August 13, 2007, Mr. Ross met with David Bernard, a USPS
supervisor of distribution operations at the Richmond bulk mail center. At the meeting,
“Mr. Bernard opened up a file and said Mr. Ross’s limited duty (on the job injury) case
was closed because there had been no activity in the last years [and that there was] no
record of medical updates or any treatment for Mr. Ross’s injury.” Mr. Bernard
explained that Mr. Ross must complete a light duty request form to remain in the
building. Id. When Mr. Ross refused to complete the form, he was sent home.
Two days later, on August 15, 2007, Dr. Karp examined Mr. Ross and indicated
that Mr. Ross’s physical concerns were increasing left shoulder pain that significantly
affected his ability to work. The left shoulder issue was different from the right shoulder
injury that had previously been his work-related injury. Dr. Karp noted that Mr. Ross
had not worked for a number of weeks because he was unable to perform the work
assigned to him; he also noted that Mr. Ross felt he could not fulfill the requirements of
light duty. Id. On August 28, 2007, Dr. Karp signed a release allowing Mr. Ross’s
return to work on September 4, 2007, with restrictions of “no lifting above 15 lbs. at or
above shoulder indefinitely.”
2009-3178 4
Several weeks later, on October 24, 2007, Richard Nolan, M.D., completed a
Work Capacity Evaluation indicating that Mr. Ross could not perform his usual job but
could perform some work with restrictions. These restrictions included reaching above
shoulder height, twisting, pushing, pulling, lifting, climbing, and working in cold, damp
environments. On November 1, 2007, the USPS extended to Mr. Ross a limited duty
job offer. Mr. Ross reviewed the job offer, did not decline the offer, but stated he
needed his doctor to review it.
Thereafter, Dr. Nolan provided Mr. Ross a work status notice on November 21,
2007, stating that he was temporarily disabled until December 15, 2007. In a letter
dated December 19, 2007, Dr. Nolan further indicated that, as a result of a diagnostic
work-up, Mr. Ross was not even capable of returning to a modified work status with the
USPS. In subsequent periodic work status notices that extended into 2008, Dr. Nolan
indicated that Mr. Ross was “totally temporarily disabled” and that Mr. Ross stated he
was unable to return to work.
On September 7, 2007, Mr. Ross filed an appeal with the Board, alleging that on
August 13, 2007, he was constructively suspended for greater than fourteen days from
his limited duty position as a mail handler for the USPS. On November 4, 2008, the
Board dismissed the appeal in an initial decision. It held that it lacked jurisdiction
because the USPS had not constructively suspended Mr. Ross; Mr. Ross’s absence
from work was the result of his own voluntary conduct when he refused to supply the
USPS with updated medical documentation showing a work-related injury. Mr. Ross
filed a petition for review with the full Board on December 6, 2008. The full Board
denied the petition on March 11, 2009, at which time the Board’s initial decision became
2009-3178 5
final. Mr. Ross timely appeals the full Board’s final decision to this court. This court has
jurisdiction over this appeal under 28 U.S.C. 1295(a)(9).
II.
This court reviews Board decisions, including jurisdictional dismissals, “pursuant
to the strictures of 5 U.S.C. § 7703(c).” Maddox v. Merit Sys. Prot. Bd., 759 F.2d 9, 10
(Fed. Cir. 1985). As such, this court affirms the Board’s decision if it is supported by
substantial evidence in accordance with the law, and is not procedurally defective,
arbitrary, or capricious. See generally 5 U.S.C. § 7703(c). “Under the substantial
evidence standard of review, a court will not overturn an agency decision if it is
supported by ‘such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.’” Haebe v. Dep’t of Justice, 288 F.3d 1288, 1298 (Fed. Cir.
2002); Jacobs v. Dep’t of Justice, 35 F.3d 1543, 1546 (Fed. Cir. 1994).
Placing an employee on enforced leave without pay for greater than fourteen
days, even if not termed a “suspension,” may constitute a constructive suspension that
allows the employee to appeal to the MSPB under 5 U.S.C. §§ 7512(2) and 7513(d).
Perez v. Merit Sys. Prot. Bd., 931 F.2d 853 (Fed. Cir. 1991). “Suspension” is defined as
“the placing of an employee, for disciplinary reasons, in a temporary status without
duties and pay.” 5 U.S.C. § 7501(2). An employee who voluntarily absents himself
from the workplace, however, even due to a valid medical consideration, is not
constructively suspended because the leave is not enforced. Id. at 855. In short, for a
constructive suspension, an employee must show by a preponderance of the evidence
that he or she was “ready, willing, and able to work” but was not permitted to do so.
2009-3178 6
Adams v. Dep’t of Transp., 735 F.2d 488, 492 (Fed. Cir. 1984); 5 C.F.R. §
1201.56(a)(2).
A.
Mr. Ross asserts that the Board’s ruling is not supported by substantial evidence
because “[t]he record contains post-suspension medical evidence from my current
treating physician, reaffirming a prior medical opinion that I was medically able to
perform my limited duty assignment.” Petitioner’s Informal Brief (“Inf. Br.”) at 1-F. The
record indeed reflects that, on October 24, 2007, Dr. Nolan indicated that Mr. Ross
could perform work with restrictions. The record also shows that just a week later, on
November 1, 2007, the USPS extended to Mr. Ross a limited duty job offer that he did
not accept. Further, in December 2007, Dr. Nolan determined that Mr. Ross was not
even capable of returning to a modified work status; he indicated for several months
thereafter that Mr. Ross was “totally temporarily disabled,” while also noting that Mr.
Ross stated he was unable to return to work. In sum, Mr. Ross was offered a limited
duty job assignment, but did not accept the assignment.
Mr. Ross also asserts that, after the August 13, 2007, meeting with Mr. O’Quinn,
he was not given a “reasonable time to obtain” the medical documentation for his
alleged work-related injury. First, the record demonstrates that the USPS ultimately
gave Mr. Ross greater than two months to provide medical documentation supporting
limited duty work assignments. Indeed, the USPS offered Mr. Ross a limited duty work
assignment that he refused. Moreover, in the interim, the USPS also offered Mr. Ross
light duty work that he also declined.
2009-3178 7
The facts show that Mr. Ross was given reasonable opportunities to show that he
was entitled to a limited duty job offer. Indeed, he received such an offer, but he
refused it allegedly due to his inability to perform. In sum, Mr. Ross voluntarily declined
to work. Accordingly, the Board correctly found no constructive suspension. See
Adams, 735 F.2d at 492 (Constructive suspension requires that the employee show by
a preponderance of the evidence that he was “ready, willing, and able to work.”).
B.
Because the USPS did not constructively suspend Mr. Ross, the Board did not
have jurisdiction to entertain his appeal. This court has found on other occasions that
no constructive suspension exists when an absentee employee is placed in a non-pay
status by an agency, pending receipt of satisfactory medical documentation regarding
his or her ability to work. Holloway v. U.S. Postal Serv., 993 F.2d 219, 221-22 (Fed. Cir.
1993); Perez, 931 F.2d at 854-55.
For these reasons, this court finds that the Board did not abuse its discretion, its
findings were not arbitrary, capricious, contrary to law, or otherwise reversible, and
affirms its final decision in this case.
AFFIRMED
No costs.
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