                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     MICHAEL L. TOMCZAK,                             DOCKET NUMBER
                   Appellant,                        CH-0353-13-0138-I-1

                  v.

     UNITED STATES POSTAL SERVICE,                   DATE: September 30, 2014
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Sandra G. Radtke, Esquire, Milwaukee, Wisconsin, for the appellant.

           Maryl R. Rosen, Esquire, Chicago, Illinois, for the agency.


                                           BEFORE

                           Susan Tsui Grundmann, Chairman
                           Anne M. Wagner, Vice Chairman
                              Mark A. Robbins, Member
                   Member Robbins issues a separate concurring opinion.

                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     dismissed his restoration appeal for lack of jurisdiction.           For the reasons
     discussed below, we GRANT the appellant’s petition for review, REVERSE the



     1
        A nonprecedential order is one that the Board has determined does not add
     significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
     but such orders have no precedential value; the Board and administrative judges are not
     required to follow or distinguish them in any future decisions. In contrast, a
     precedential decision issued as an Opinion and Order has been identified by the Board
     as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
                                                                                     2



     initial decision, and FIND that he established jurisdiction over his restoration
     appeal and that the agency committed disability discrimination against him.

                                      BACKGROUND
     Factual background not in dispute.
¶2         The following information, as summarized in the initial decision, is not
     in dispute:   the agency hired the appellant as a Letter Carrier.   He suffered a
     compensable, work-related injury in 1990. As a result, the appellant could not
     perform the essential duties of the Letter Carrier position. Initial Appeal File
     (IAF), Tab 25, Initial Decision (ID) at 2.
¶3         In May 1993, the agency offered, and the appellant accepted, a “Permanent
     Job Offer” that listed 10 specific job tasks that were within his medical
     restrictions. ID at 3; IAF, Tab 10, Subtab 4NN. In July 2010, the agency notified
     the appellant that it was unable to identify any available necessary tasks within
     his medical restrictions and sent him home. The appellant’s grievance of that
     action was resolved on January 12, 2012, in a pre-arbitration settlement
     agreement pursuant to which the appellant returned to work with full back pay
     and restoration of benefits. ID at 3-4.
¶4         On March 5, 2012, the agency sent the appellant home again and advised
     him not to report for duty until notified that the agency had identified available
     necessary tasks within his medical restrictions. The appellant’s grievance of that
     action was resolved by a settlement agreement under which he would be made
     whole for all lost wages and benefits and would be restored to work. ID at 5.
¶5         The appellant filed an appeal with the Board on November 21, 2012. IAF,
     Tab 1. The agency created a modified, limited-duty assignment for the appellant,
     and he returned to work in that assignment on May 10, 2013. ID at 6.
¶6         Because of the resolution of the appellant’s first grievance, this appeal
     concerns the appellant’s absence from work from March 5, 2012, to May 11,
     2013. ID at 6.
                                                                                       3



      The administrative judge concluded that the appellant failed to establish
      jurisdiction and that the appeal was moot.
¶7          The administrative judge, in his initial decision, concluded that the
      appellant failed to establish jurisdiction and that the appeal was moot, reasoning
      as follows: a case is moot when an appellant has obtained all the relief he could
      receive if he prevailed in the appeal.   An appeal is not moot, however, if the
      Board could grant some additional relief, such as compensatory damages based on
      a discrimination claim. ID at 7.
¶8          Under Bennett v. U.S. Postal Service, 118 M.S.P.R. 271, ¶ 10 (2012),
      compensatory damages are not awardable for disability discrimination if the
      appellant cannot perform the essential functions of his official position. ID at 7.
      The appellant’s official position is Letter Carrier, not the modified job offer he
      held for 17 years. Because the appellant cannot perform the essential duties of a
      Letter Carrier with or without accommodation, he is not entitled to compensatory
      damages. ID at 8.
¶9          Because denying the appellant the modified work assignment he held for
      17 years does not constitute disability discrimination, this act was not arbitrary
      and capricious. To that end, the instant case is distinguishable from Crutch v.
      U.S. Postal Service, 119 M.S.P.R. 460 (2013), where the Board found that the
      agency constructively suspended Crutch and committed disability discrimination
      by refusing to let him return to work with the same reasonable accommodation he
      enjoyed for approximately 10 years because Crutch was able to perform the
      essential duties of his official position with a reasonable accommodation.      ID
      at 9-10.
¶10         Relying on White v. U.S. Postal Service, 110 M.S.P.R. 461, ¶ 10 (2009), the
      administrative judge concluded that the agency cannot be found to have acted
      arbitrarily and capriciously because the appellant conceded that he received
                                                                                             4



      Office of Workers’ Compensation Programs payments covering the entire period
      in question.
¶11         In his petition for review, the appellant contends that that the administrative
      judge erred in relying on Bennett for the proposition that he could not establish
      that the agency committed disability discrimination. He argues that the position
      he accepted in 1993 is the relevant one for purposes of considering whether he
      suffered disability discrimination. Petition for Review (PFR) File, Tab 1. 2 The
      agency has timely responded. PFR File, Tab 5.

                                            ANALYSIS
      The appellant established good cause for the untimely filing of his appeal.
¶12         This appeal was filed on November 21, 2012, well after the denial of
      restoration at issue in this case. IAF, Tab 1. Based on his determination that the
      Board was without jurisdiction to hear the case, the administrative judge stated
      that he need not address the agency’s motion to dismiss the appeal as untimely.
      Because we determine, as discussed below, that the administrative judge erred in
      dismissing     the   appeal   for   lack   of   jurisdiction,   we   must   address   the
      timeliness issue.
¶13         The Board’s regulations require that an appeal be filed no later than 30 days
      after the effective date, if any, of the action being appealed, or 30 days after the
      date of the appellant’s receipt of the agency’s decision, whichever is
      later. 5 C.F.R. § 1201.22(b). The regulations also require that, when an agency
      issues a decision to an employee on a matter that is appealable to the Board, the
      agency must provide the employee with notice of the time limits for appealing to
      the Board, the requirements of § 1201.22(c) (that an untimely-filed appeal will be
      2
         The appellant cites two guidance documents issued by the Equal Employment
      Opportunity Commission (EEOC) in support of this contention:            Enforcement
      Guidance: Workers’ Compensation and the ADA; and a Technical Assistance Manual
      on the Employment Provisions of the Americans with Disabilities Act. PFR File, Tab 1
      at 5, 7-8, 11-19.
                                                                                          5



      dismissed as untimely filed unless a good reason for the delay is shown), the
      address of the appropriate Board office for filing the appeal, and a copy, or access
      to a copy, of the Board's regulations. 5 C.F.R. § 1201.21. It was undisputed that
      the agency did not provide the appellant notice that he could file an appeal with
      the Board when it terminated the limited-duty job he had performed for more than
      17 years.
¶14         An agency’s failure to notify an employee of his or her Board appeal rights
      when such notification is required generally constitutes good cause for late filing.
      As our reviewing court has stated, the “critical and controlled fact in [such a]
      case is not the alleged lack of diligence on the part of the [appellant], but the
      flagrant violation of [the Board’s] regulations by the [agency] in failing to give
      [the appellant] notice of [his] appeal rights in the form and manner described by
      the regulations . . . .” Shiflett v. U.S. Postal Service, 839 F.2d 669, 673 (Fed. Cir.
      1988). When the agency fails to provide the required notice of appeal rights, the
      appellant is not required to show that he exercised due diligence in attempting to
      discover his appeal rights but rather must show diligence in filing an appeal after
      learning that he could do so. Gingrich v. U.S. Postal Service, 67 M.S.P.R. 583,
      588 (1995). These principles are fully applicable to restoration appeals under
      5 C.F.R. Part 353.     See Cranston v. U.S. Postal Service, 106 M.S.P.R. 290,
      ¶¶ 8-14 (2007).
¶15         The appellant stated under oath that he did not understand that he might
      have appeal rights to the Board until the first week of November 2012, when his
      union provided him a copy of an October 24, 2012 Opinion and Order issued by
      the Board in what appeared to be a similar case. IAF, Tab 6 (the appellant’s
      affidavit) at ¶ 40. In arguing that the appeal should be dismissed as untimely, the
      agency relied particularly on a Notice of Right to File Mixed Complaint it
      provided the appellant in November 2010.         IAF, Tab 10 at 17 (of 23); Tab 6,
      Exhibit (Exh.) 8. That Notice informed him that he had a right to appeal to the
                                                                                           6



      Board “if the matter that you brought to my attention during the pre-complaint
      process concerned a failure to restore you to duty following your recovery from a
      compensable on-the-job injury, or if you claim that you were not properly
      restored to duty.” IAF, Tab 6, Exh. 8.
¶16         The use of the term “recovery,” without any qualifier such as “partially,” as
      well as the phrase “not properly restored,” easily could have been construed as
      indicating that the appellant only had appeal rights to the Board if he had fully
      recovered    from    a   compensable     injury.      See   Zysk    v.   U.S.   Postal
      Service, 108 M.S.P.R. 520, ¶ 6 (2008) (only employees who have fully recovered
      from a compensable injury have the right to appeal an improper restoration). The
      November 2010 Notice did not inform the appellant that he had the right to file a
      restoration appeal with the Board as an individual who has partially recovered
      from a compensable injury. Nor did it provide a notice of appeal rights “in the
      form and manner described by the [Board’s] regulations.”            Shiflett, 839 F.2d
      at 673. We also acknowledge the appellant’s assertions that he understood that,
      as long as he was included in a class action discrimination case pending before
      the EEOC, he could not file an appeal with the Board, and he was never advised
      otherwise. IAF, Tab 6 (the appellant’s affidavit) at ¶¶ 43-46.
¶17         Under the above circumstances, we find that the appellant established good
      cause for his delay in filing this appeal.

      The appellant established that the Board has jurisdiction over his restoration
      appeal and that the agency committed disability discrimination.
¶18         It is well settled that a claim for disability discrimination will not lie if the
      employee cannot perform the essential duties of his position or the duties of a
      vacant position to which he could be reassigned. See, e.g., Bennett, 118 M.S.P.R.
      271, ¶ 10; White v. U.S. Postal Service, 117 M.S.P.R. 244, ¶ 16 (2012); Pugh v.
      U.S. Postal Service, 81 M.S.P.R. 313, ¶ 14 (1999). It is also well established that
      the provision of limited-duty tasks that do not constitute a separate position is not
                                                                                      7



      a reasonable accommodation and an agency is not required to create a new
      position in order to provide a reasonable accommodation.               See, e.g.,
      Bennett, 118 M.S.P.R. 271, ¶ 10; White, 117 M.S.P.R. 244, ¶ 16; Gonzalez-Acosta
      v. Department of Veterans Affairs, 113 M.S.P.R. 277, ¶ 13 (2010).
¶19         However, the appellant is claiming that the position he held from May 1993
      until July 2010 pursuant to the agency’s May 1993 “Permanent Job Offer”
      was not a temporary limited-duty assignment but was his established position
      within the U.S. Postal Service.
¶20         Although the agency was not legally obligated in 1993 to create a
      permanent position to accommodate the appellant’s medical restrictions, it
      nevertheless did so. The agency’s own language, “Permanent Job Offer,” was
      and is not ambiguous. Previously the Board, in rejecting appellants’ claims that
      the U.S. Postal Service acted arbitrarily and capriciously by discontinuing
      limited-duty assignments afforded employees who had partially recovered from
      compensable injuries, specifically noted that the record did not indicate that the
      agency ever formally reassigned the appellant to a permanent limited-duty
      position.    See White, 117 M.S.P.R. 244, ¶ 17; Gonzalez-Acosta, 113 M.S.P.R.
      277, ¶ 13.
¶21         We note that providing the appellant a permanent limited-duty position was
      consistent with the agency’s Employee and Labor Relations Manual (ELM),
      which provides as follows:
            The procedures for current employees cover both limited duty and
            rehabilitation assignments. Limited duty assignments are provided
            to employees during the recovery process when the effects of the
            injury are considered temporary. A rehabilitation assignment is
            provided when the effects of the injury are considered permanent
            and/or the employee has reached maximum medical improvement.
            Persons in permanent rehabilitation positions have the same rights to
            pursue     promotional    and    advancement      opportunities    as
            other employees.
      ELM § 546.141.
                                                                                       8



¶22         The Permanent Job Offer the appellant accepted in May 1993 was clearly a
      permanent rehabilitation position of the sort described in the ELM. 3 Accordingly,
      we conclude that, for purposes of determining whether the agency acted
      arbitrarily and capriciously in sending the appellant home in 2010 by failing to
      accommodate his medical restrictions, the relevant analysis should focus on the
      agency’s May 1993 Permanent Job Offer. There is no dispute that the appellant
      was able to perform the duties of this permanent rehabilitation position when
      those duties were taken away from him in 2010. The agency was entitled to take
      away those duties only if the duties of that assignment no longer needed to be
      performed by anyone or those duties needed to be transferred to other employees
      in order to provide them with sufficient work.          See Latham v. U.S. Postal
      Service, 117 M.S.P.R. 400, ¶ 31 (2012). The appellant has asserted under oath
      that the duties he performed in his permanent limited-duty position still exist and
      are being performed by others. IAF, Tab 6 (the appellant’s affidavit) at ¶ 36; see
      Penna v. U.S. Postal Service, 118 M.S.P.R. 355, 359 (2012). The agency has not
      disputed or rebutted that assertion.
¶23         In failing to consider a reasonable accommodation with the appellant, the
      agency     committed      disability   discrimination     against   him.       See
      Crutch, 119 M.S.P.R. 460, ¶¶ 13-17. This also means that the agency arbitrarily
      and capriciously denied the appellant restoration.       See Davis v. U.S. Postal
      Service, 119 M.S.P.R. 22, ¶ 11 (2012) (establishing a disability discrimination
      claim is an alternative means of proving that a denial of arbitration was arbitrary
      and capricious); Latham, 117 M.S.P.R. 400, ¶ 58 n.27 (same).
¶24         Ordinarily, when the Board finds that an agency has arbitrarily and
      capriciously denied an appellant restoration, it orders the agency to take
      3
       The appellant’s acceptance of this Permanent Job Offer was memorialized on a U.S.
      Postal Service Form 50, effective date June 12, 1993, that contains the following
      notation: “EMPLOYEE ACCEPTED A PERMANENT JOB OFFER DUE TO AN ON
      THE JOB INJURY.” IAF, Tab 6, Exh. 6.
                                                                                   9



appropriate remedial action, such as retroactively reinstating the appellant to duty
with back pay and benefits. See, e.g., Davis, 119 M.S.P.R. 22, ¶ 19; Coles v. U.S.
Postal   Service,   118 M.S.P.R. 249,     ¶ 12 (2012);    Ashley   v.   U.S.   Postal
Service, 118 M.S.P.R. 231, ¶ 11 (2012). In this case, however, it is undisputed
that the appellant has received the pay and benefits for the period at issue, and the
appeal would have been dismissed as moot but for the possibility that he could
receive compensatory damages if it were determined that the agency had
committed disability discrimination. Consequently, we now provide the appellant
with notice of what he must do in order to seek such damages, as well as to seek
attorney fees.

                  NOTICE TO THE APPELLANT REGARDING
                        YOUR RIGHT TO REQUEST
                       ATTORNEY FEES AND COSTS
      You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set out at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.                            You
must file your attorney fees motion with the office that issued the initial decision
on your appeal.

                        NOTICE TO THE APPELLANT
                    REGARDING YOUR RIGHT TO REQUEST
                        COMPENSATORY DAMAGES
      You may be entitled to be paid by the agency for your compensatory
damages, including pecuniary losses, future pecuniary losses, and nonpecuniary
losses, such as emotional pain, suffering, inconvenience, mental anguish, and loss
of enjoyment of life.     To be paid, you must meet the requirements set out
                                                                              10



at 42 U.S.C. § 1981a. The regulations may be found at 5 C.F.R. §§ 1201.201,
1201.202, and 1201.204. If you believe you meet these requirements, you must
file a motion for compensatory damages WITHIN 60 CALENDAR DAYS OF
THE DATE OF THIS DECISION. You must file your motion with the office that
issued the initial decision on your appeal.

                NOTICE TO THE APPELLANT REGARDING
                   YOUR FURTHER REVIEW RIGHTS
     The initial decision, as supplemented by this Final Order, constitutes the
Board's final decision in this matter. 5 C.F.R. § 1201.113. You have the right to
request further review of this final decision.

Discrimination Claims: Administrative Review
      You may request review of this final decision on your discrimination
claims by the Equal Employment Opportunity Commission (EEOC). See Title 5
of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)).    If you
submit your request by regular U.S. mail, the address of the EEOC is:
                          Office of Federal Operations
                   Equal Employment Opportunity Commission
                                P.O. Box 77960
                           Washington, D.C. 20013

If you submit your request via commercial delivery or by a method requiring a
signature, it must be addressed to:
                          Office of Federal Operations
                   Equal Employment Opportunity Commission
                               131 M Street, NE
                                 Suite 5SW12G
                           Washington, D.C. 20507

You should send your request to EEOC no later than 30 calendar days after your
receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
                                                                                   11



later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.

Discrimination and Other Claims: Judicial Action
      If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate United States
district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with
the district court no later than 30 calendar days after your receipt of this order. If
you have a representative in this case, and your representative receives this order
before you do, then you must file with the district court no later than 30 calendar
days after receipt by your representative. If you choose to file, be very careful to
file on time. If the action involves a claim of discrimination based on race, color,
religion, sex, national origin, or a disabling condition, you may be entitled to
representation by a court-appointed lawyer and to waiver of any requirement of
prepayment of fees, costs, or other security.           See 42 U.S.C. § 2000e5(f)
and 29 U.S.C. § 794a.




FOR THE BOARD:                             ______________________________
                                           William D. Spencer
                                           Clerk of the Board
Washington, D.C.
              CONCURRING OPINION OF MEMBER MARK A. ROBBINS
                                              in
                     Michael L. Tomczak v. United States Postal Service
                         MSPB Docket No. CH-0353-13-0138-I-1

¶1         I concur with the disposition of this case. The Board’s decision in Latham
     v. U.S. Postal Service, 117 M.S.P.R. 400 (2012), decided prior to my appointment
     to the Board, is controlling in the present matter insofar as the Board will hold
     the United States Postal Service (USPS) to the terms and conditions it has
     negotiated and/or voluntarily adopted in its Employee and Labor Relations
     Manual (ELM). I write separately, however, to express my long held and often
     stated concern at the scope of the Board’s Latham holding, particularly when
     applied to agencies such as the USPS that are facing potentially existential fiscal,
     structural and management challenges.
¶2         Historically, the USPS has, either through negotiation or voluntarily,
     extended to its employees substantive and procedural rights greater than what is
     required by law or regulation. Under favorable circumstances, agencies may wish
     to extend entitlements beyond the required minimum to employees. But when
     circumstances turn unfavorable, the agency should be allowed to respond
     appropriately. I have long warned that an unintended consequence of Latham
     may well be an institutional reluctance on the part of agencies to extend
     entitlements to employees beyond the legal or regulatory minimum, even when
     they have the ability to do so.
¶3         In the instant case, the ELM and all the documentary evidence makes very
     clear that the appellant accepted a new position with the USPS through the
     permanent job offer of May 1993. It is from that position, not the position he
     originally occupied, that our reasonable accommodation analysis must proceed.


     ___________________________
     Mark A. Robbins
     Member
