MVS Driver Wins Reinstatement
posted June 25, 2005
Craig D. Robinson, Esq. filed the amicus brief on the Boots Special Panel case. Mr. Robinson formerly served as a APWU steward and officer for 17 years.
There was a very significant Special
Panel decision, http://www.mspb.gov/decisions/2005/boots_at030286e1.html>
Boots v. USPS, that was issued on June 23, 2005 (MSPB # AT-0752-03-0286-E-1;
EEOC 03A-40060). The case upheld the EEOC's ruling that federal agencies can
not adopt rules, regulations, job qualification standards, etc. which exclude
employees with certain disabilities without doing an individualized assessment
of the person's medical history and work history to determine whether the
person presents a direct threat to self or others.
Panel that resolves disputes between EEOC and MSPB on June 23rd overruled the
Robert Boots vs. USPS. It said DOT
regulations adopted voluntarily by the USPS do not override EEO rules with
regard to disability discrimination. The Special Panel directed the MSPB to
order the appellant’s restoration to duty and the back pay and benefits that
go with it.
HOLDING: When a case is certified to the Special Panel, the Panel must accept jurisdiction; the Special Panel decision in Ignacio v. U.S. Postal Service, 30 M.S.P.R. 471 (Spec. Pan. 1986), is “guiding precedent” for the Panel; pursuant to Ignacio, the Board may disagree with EEOC only as to misinterpretations of civil service law, not discrimination law; for it to disturb an EEOC decision, the Panel must find that the decision depends on civil service law for its support, or that it is so unreasonable that it amounts to a violation of civil service law; the Department of Transportation statute and regulations concerning commercial drivers’ licenses are not directly applicable to federal agencies and employees; whether an agency is bound by the regulations it adopts may be a matter of general administrative law, but it is not inherently a matter of civil service law; under 29 C.F.R. § 1630.15(b),(c), an individual “shall not pose a direct threat to the health or safety of the individual or others in the work place”; 29 C.F.R. § 1630.15(e) provides a defense to an Americans with Disabilities Act claim where a challenged action “is required or necessitated by another Federal law or regulation or another Federal law or regulation prohibits an action…required by this part”; in 1992, section 501 of the Rehabilitation Act was amended to incorporate all of the EEOC’s ADA employment discrimination standards, “thus making clear that part 1630 of the ADA regulations appl[ies] under the Rehabilitation Act as well”; EEOC’s decision in this case did not involve an interpretation of civil service law, and was not so unreasonable that it violated civil service law; rather, although there is room for disagreement on the merits, a reasonable basis for the EEOC decision does exist; thus, EEOC’s decision must prevail; the Panel directed the Board to order the appellant’s restoration to duty and the back pay and benefits that go with it, and to enforce compliance, pursuant to 5 U.S.C. § 7702; Chairman McPhie issued a dissenting opinion arguing that EEOC’s decision should be reversed because its interpretation of discrimination law is unreasonable.
The appellant was a Tractor-Trailer Operator for the Postal Service. Because he had experienced a seizure in 1984, he was taking anti-seizure medication when he was hired in 1998. He had a commercial driver’s license throughout his tenure at the agency and was removed in 2002 because under Department of Transportation regulations for commercial drivers, which by their terms apply only to the private sector but which the Postal Service had adopted, his use of the anti-seizure medication disqualified him.
On appeal, the Board upheld his removal, but upon review of the Board’s decision by EEOC, that agency found that the removal constituted disability discrimination; that because the agency had voluntarily adopted the DOT regulations it could not simply rely on their disqualification provision; and that to rely on the “direct threat” defense against disability discrimination, 29 C.F.R. § 1630.15(b),(c) (an individual “shall not pose a direct threat to the health or safety of the individual or others in the work place”), it must instead do an individualized assessment of the appellant’s qualifications. Because the Postal Service had not done such an assessment, it failed to show that the appellant posed a “significant risk of substantial harm,” as required by EEOC regulations.
On reconsideration, the Board disagreed with EEOC, holding that the Postal Service was bound to follow the regulations it had adopted. It reaffirmed its earlier conclusion. As a result, the case was certified to the Special Panel, as required by 5 U.S.C. § 7702(d)(1). Panel Chairman John Howard and EEOC Chair Cari Dominguez issued a majority decision for the Panel, over the dissent of the Chairman of the MSPB, Neil McPhie.
Noting that when a case is certified to the Special Panel, it must accept jurisdiction, the Panel began its analysis by citing as “guiding precedent” the Special Panel decision in Ignacio v. U.S. Postal Service, 30 M.S.P.R. 471 (Spec. Pan. 1986). Pursuant to Ignacio, the Board may disagree with EEOC only as to misinterpretations of civil service law, not discrimination law. Thus, for it to disturb an EEOC decision, the Panel must find that the decision depends on civil service law for its support, or that it is so unreasonable that it amounts to a violation of civil service law. The Board’s ruling that led to the certification is that EEOC misinterpreted civil service law when it found that the Postal Service is not bound by the DOT regulations that it adopted.
To prevail on that argument, the Panel majority stated, the application of the DOT regulation must first be found to implicate civil service law. However, the DOT statute and regulations are not directly applicable to federal agencies and employees. Moreover, whether an agency is bound by the regulations it adopts may be a matter of general administrative law, but it is not inherently a matter of civil service law. Even assuming that the agency has the authority to adopt DOT rules and that it did so, the Special Panel found that this alone would not raise an issue of civil service law. “Neither the standard nor its purported adoption by the USPS was challenged by the EEOC or ‘interpreted’ in any way.” And, although the Board held that the Postal Service was bound to follow DOT rules once it adopted them, the Panel held that the agency did not have a “conflict with other Federal laws” defense under the Americans with Disabilities Act. EEOC regulations at 29 C.F.R. § 1630.15(e) provide a defense where a challenged action “is required or necessitated by another Federal law or regulation or another Federal law or regulation prohibits an action…required by this part.” No such defense is available here because compliance by USPS with the DOT regulations or its Medical Advisory was neither required nor necessitated by the underlying statute or the regulations. The Panel held that the USPS cannot extend the DOT statutory authority, which would void the direct threat analysis requirement, to itself using its own regulatory authority; “[o]therwise, the USPS would be able to do something that Congress never gave the DOT itself the authority to do – apply its regulations proscriptively to a government entity.”
The Panel also ruled that even if civil service law, rule, or regulation is implicated under the circumstances, nonetheless EEOC’s decision rested on discrimination law. The dispute was over defenses available under the Rehabilitation Act, and EEOC’s decision was based exclusively on regulations implementing Title I of the ADA, including 29 C.F.R. §§ 1630.2(r), 1630.15(b), (c), and (e), and the interpretive guidance in the Part 1630 Appendix, all of which was adopted through formal rulemaking In 1992, section 501 of the Rehabilitation Act was amended to incorporate all of the EEOC’s ADA employment discrimination standards, “thus making clear that part 1630 of the ADA regulations appl[ies] under the Rehabilitation Act as well.” At its base, the Panel held, the USPS’s argument is about how the EEOC has interpreted discrimination law.
The majority then addressed the portions of the dissent to this decision and the concurrence to the Board’s Opinion and Order certifying the case that assert that EEOC’s application of “direct threat” and “individualized assessment” has been rejected by federal courts. In this respect, the Panel stated that it was not prepared to expand Ignacio based on the arguments offered here, and that Ignacio already provides for further review and reversal where EEOC’s discrimination law interpretation is so unreasonable that it amounts to a violation of civil service law. In this case, as in Ignacio, “we find that although there is room for disagreement on the merits, a reasonable basis for the decision does exist.” There is some conflict in the circuits, but nothing so definitive as to allow the conclusion that EEOC incorrectly interpreted discrimination law. Whether EEOC’s interpretation is the most reasonable, or the only reasonable one is irrelevant, since the Panel must defer to it on a finding that it is, simply, “reasonable.” Accordingly, the Special Panel must give due deference to EEOC in its sphere of expertise and it adopted EEOC’s decision as the decision of the Special Panel.
Pursuant to 5 U.S.C. § 7702(d)(3), the Panel referred the decision to the Board to order the agency to take appropriate action including cancellation of the removal and the award of all pay and benefits due as a result of the decision.
Chairman McPhie issued a dissenting opinion arguing that EEOC’s decision should be reversed because its interpretation of discrimination law is unreasonable. Specifically, he would have found that Ignacio does not give direct guidance and that, in any event, the Special Panel must rule on the reasonableness of the EEOC’s interpretation of discrimination law. He argued at length that the Ignacio decision is flawed, in part because it turns a dispute between employer and employee into one between EEOC and MSPB, and forces the Panel to seek a bright line between civil service law and discrimination law. Moreover, in the instant case, EEOC’s decision should be reversed because it is based on an unreasonable interpretation of discrimination law; EEOC’s interpretive guidance on safety-based qualification standards is not consistent with the ADA; that guidance has uniformly been rejected in Federal court; it is not consistent with EEOC’s own regulations; it was only recently made applicable to Federal agencies and differs from the longstanding Federal sector rule on qualification standards; and finally, it is not entitled to deference under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), because it is just an interpretation that lacks the force of law.
UNITED STATES OF AMERICA
DATE: June 22, 2001
Philip D. Thomas, Omaha, Nebraska, for the appellants.
Joseph F. Doyle, Esquire, St. Louis, Missouri, for the agency.
Beth S. Slavet, Chairman
OPINION AND ORDER
¶1 This case is before the Board on the appellants’ petitions for review (PFR) of the initial decisions (ID) that dismissed their appeals for lack of jurisdiction. For the reasons set forth below, the Board GRANTS the appellants’ PFRs, REVERSES the IDs, and REMANDS the appeals for further adjudication.
¶2 Eleven of the appellants, all except Thelen, were Level 6 Clerks when, in July 1993, the agency began to eliminate the operation with which their positions were associated. At that time, those eleven appellants were notified that their positions were to be abolished and that they would become unassigned regulars, and further that, if they failed to bid to existing vacancies, they would be placed in residual vacancies. At different times, the eleven appellants bid to, and/or were placed in, Level 5 positions. In 1998, Thelen was a Level 6 Review Clerk. When the agency began to eliminate Review Clerk positions, Thelen bid to a Level 5 position. Initial Appeal File (IAF), Tab 11, Subtab 4A.
¶3 The appellants filed individual, but identical, appeals wherein they alleged that the agency’s actions constituted reduction-in-force (RIF) demotions taken without RIF procedures. Id. at Tab 1. They specifically alleged that their demotions were involuntary. Claiming to be preference eligibles, they argued that they were denied their rights as such because, while their own positions were abolished and they were demoted to Level 5 positions, nonveterans were allowed to retain their Level 6 positions. They contended that their demotions violated the Veterans Preference Act of 1944 and the RIF regulations at 5 C.F.R. §§ 351.502 and 351.601. Id. These regulations generally give preference to preference eligible employees in a RIF. In addition, they claimed that the agency’s actions were discriminatory based on their race and sex. And, they requested hearings, id., but later agreed to have their cases adjudicated on the written record, id. at Tab 11, Subtab 4A.
¶4 After reviewing the parties’ submissions, id. at Tabs 3, 11, 13-14, 16-17, the administrative judge (AJ) issued twelve separate, but identical, IDs in which he found that the appellants were not furloughed for more than 30 days, separated, demoted, or affected by reassignment involving displacement. ID at 3. He found that: (1) There was nothing in the record to indicate that the appellants’ Level 6 positions were ever in jeopardy; (2) they voluntarily took action to bid to the lower-graded positions; and (3) their eventual demotions to Level 5 positions were not RIF demotions. Id. at 3-4. The AJ therefore dismissed the appeals for lack of jurisdiction, finding no basis upon which to consider the appellants’ allegations of discrimination and no need to address the apparent untimeliness of the appeals. Id. at 4.
¶5 In their PFRs, the appellants challenge generally the AJ’s dismissal of their appeals. Petition for Review File, Tab 1. The agency has responded in opposition to the appellants’ PFRs. Id. at Tab 3.
¶6 Key to the AJ’s dismissal of these appeals for lack of jurisdiction was his finding that the appellants could have remained indefinitely in their Level 6 positions, but chose, apparently for personal reasons, to bid to Level 5 positions. That finding, however, is not supported by the record. Nothing in the parties’ stipulations or in the notices the appellants received indicated that they would, or could, remain indefinitely in their Level 6 positions. IAF, Tab 11, Subtabs 4A and 4B. The notices stated that, if the appellants "declined to bid or [were] unsuccessful in obtaining bid position[s], [they would] become … unassigned regulars and subject to assignment to … residual vacanc[ies]" in accordance with the collective bargaining agreement. Id. at Subtab 4B. While it is true that the appellants stipulated to being told that, upon abolishment of their Level 6 positions, they would become unassigned regular employees at the "PS Level 6 paylevel," id. at Subtab 4A (emphasis added), neither the notices nor the stipulations indicated the grade level of the residual vacancies in which the appellants would be placed, if they failed to bid. In other words, the appellants were never notified that they would or could be placed into Level 6 positions.
¶7 Moreover, the records of four of the appellants, Burger, Christian, Markowitz, and Holloway, directly contradict the AJ’s finding that they voluntarily bid to the Level 5 positions and could therefore have remained indefinitely at the grade 6 level. A listing of the positions to which these four appellants bid during their careers does not show any bid for a Level 5 position at or near the time they were placed in the Level 5 positions. Id. at Tab 9, Subtab 4C. Thus, the records for these four appellants support their contention that they were involuntarily demoted to Level 5 positions. Id. at Tab 1.
¶8 The records of the remaining eight appellants, Blackman, Reall, Schrage, Schmidt, Thelen, Haskett, Chism, and Dodd, arguably show that they bid to positions at or near the time they were placed in Level 5 positions. However, even if they did, and even if all of the appellants bid to the lower-graded positions to which they were demoted, the applicable case law nevertheless supports a finding that they made nonfrivolous allegations that their assignments to those positions were involuntary RIF demotions. In Hanson v. U.S. Postal Service, 58 M.S.P.R. 413, 417 (1993), the Board held that the appellant’s change to a lower-graded position was not voluntary, despite his application for it, because he did not seek assignment to that position until after his organization had been restructured, after he had been informed that he had not been selected for assignment at his former grade level, and after he was placed in the agency’s "national pool for unplaced preference eligibles." And, in Harants v. U.S. Postal Service, 130 F.3d 1466, 1469 (Fed. Cir. 1997), the court held that an assignment to a lower-graded position constitutes a RIF demotion even when the employee voluntarily applies for or is offered an assignment to that position, as long as the assignment was made after the agency had informed the employee that his original position had been abolished and that he had not been selected for assignment to a position at his former grade level.
¶9 Here, although the agency’s notices informing the appellants that their positions would be abolished did not explicitly state that there were no positions available for them at their current grade levels, it did inform them that their rights to any future positions were governed by the parties’ collective bargaining agreement.2 See, e.g., Burger IAF, Tab 11, Subtab 4B. Under Article 37.3.F.10 of the agreement, id. at Subtab 4D, 152-53, the agency was obligated to offer the appellants vacancies at the "same or higher salary level," but if this were not possible, it could offer them lower-level vacancies with "rate protection." Id. at 153-54. Thus, even if the appellants bid to lower-level positions, they did so under circumstances clearly indicating that there were no positions at their current grade levels to which they were entitled under the collective bargaining agreement. In other words, the agency’s demoting the appellants to lower-graded positions was the functional equivalent of confirming that there were no positions at their former grade levels to which they were entitled. Applying the test in Hanson and Harants, we find that the appellants made nonfrivolous allegations that they were subjected to RIF demotions, we reverse the AJ’s contrary finding, and we remand these appeals for further proceedings.
¶10 We find further that the records in seven of these twelve appeals clearly support the conclusion that the appellants made nonfrivolous allegations that they were subjected to adverse actions without being afforded any of the required statutory procedures. Specifically, the files of appellants Reall, Schmidt, Christian, Haskett, Chism, Holloway, and Dodd show that they suffered reductions in their grades and basic pay. IAF, Tab 11, Subtab 4C. These actions qualify as adverse actions under 5 U.S.C. §§ 7511(a)(3)-(4), 7512; Fair v. Department of Transportation, 4 M.S.P.R. 493, 496 (1981). The agency’s notices neither advised the appellants that they would be reduced in grade or pay, nor provided any of the other procedures required by 5 U.S.C. § 7513(b). See, e.g., Reall IAF, Tab 11, Subtab 4B. All of these seven appellants invoked 5 U.S.C. Chapter 75 as a basis for the Board’s jurisdiction. IAF, Tab 1, Item 38. Accordingly, these seven appeals must be remanded for further proceedings to adjudicate these appellants’ rights under 5 U.S.C. Chapter 75.
¶11 We acknowledge that, under the parties’ stipulations, the agency reserved its right to contest the appellants’ claims that they are preference eligibles. Id. at Tab 11, Subtab 4A. See Imdahl v. U.S. Postal Service, 72 M.S.P.R. 453, 455-56 (1996) (Postal Service employee who was not a preference eligible was not entitled to appeal a RIF demotion); Toomey v. U.S. Postal Service, 71 M.S.P.R. 10, 12 (1996) (to appeal an adverse action under Chapter 75, a postal employee must be a preference eligible, a management or supervisory employee, or an employee engaged in personnel work in other than a purely nonconfidential clerical capacity, and must have completed 1 year of current continuous service in the same or similar positions). Therefore, the matter of the appellants’ preference eligibility remains an open and dispositive jurisdictional issue in each appeal.
¶12 The appellants’ contention that the agency violated their rights as preference eligibles may raise a claim under the Veterans Employment Opportunities Act of 1998 (VEOA), codified at 5 U.S.C. § 3330a, although they have not specifically cited that statute. In general, the VEOA provides an appeal to the Board by a preference eligible who alleges a violation of any statute or regulation relating to veterans preference concerning a matter that occurred on or after October 31, 1998, after the individual has exhausted the complaint procedure administered by the Department of Labor. See Smyth v. U.S. Postal Service, 85 M.S.P.R. 549, 550 (2000). Although it appears that many of the demotions that are at issue here occurred before October 31, 1998, appellant Thelen alleges that he was involuntarily demoted in June 1999. Thelen IAF, Tab 1. On remand, the AJ shall determine if any of the appellants is raising a VEOA claim and, if so, shall advise those appellants of the jurisdictional requirements of such a claim and provide them with an opportunity to respond.
¶13 Accordingly, all eleven of these appeals are hereby remanded to adjudicate the appellants’ nonfrivolous allegations that they were affected by RIF demotions. The appeals of appellants Reall, Schmidt, Christian, Haskett, Chism, Holloway, and Dodd are also remanded to adjudicate their nonfrivolous allegations that they were subjected to adverse actions under 5 U.S.C. Chapter 75. On remand, the AJ shall also: (1) determine if any of the appellants is raising a VEOA claim and adjudicate any such claim if it is within the Board’s jurisdiction; (2) resolve the issue of the appellants’ preference eligibility as well as the timeliness of their appeals, and (3) consider their allegations of discrimination, if appropriate.3
1This is the lead case of twelve cases that have been consolidated on petition for review because they contain identical issues. 5 C.F.R. § 1201.36. The names of the remaining eleven appellants and the docket numbers assigned to their individual cases are included in the attached appendix.
2Preference-eligible employees of the Postal Service have the same rights as competitive service employees under title 5, U.S. Code, and these rights "shall not be modified by …any collective bargaining agreement…." 39 U.S.C. § 1005(a)(2).
3We note the appellants’ claim on PFR that they believed there would be a hearing in their cases. The record reflects that, during processing, the parties agreed that the appeals would be submitted along with their arguments to the AJ for decision without a hearing. IAF, Tab 11, Subtab 4A. Because they agreed to forego a hearing, they may not now be heard to complain. Cf. Tarpley v. U.S. Postal Service, 37 M.S.P.R. 579, 581 (1988) (the appellant’s failure to timely object to rulings on witnesses precludes his doing so on petition for review). However, if the appellants renew their request for a hearing on remand, the AJ, at his discretion
Robert L. Thelen DE-0351-00-0168-I-1
Richard C. Schmidt DE-0351-00-0174-I-1
Gary R. Reall DE-0351-00-0175-I-1
Stanley F. Markowitz DE-0351-00-0176-I-1
Timothy L. Schrage DE-0351-00-0177-I-1
Alberta G. Christian DE-0351-00-0178-I-1
Harold W. Blackman DE-0351-00-0183-I-1
Susan J. Haskett DE-0351-00-0192-I-1
Edward S. Chism DE-0351-00-0193-I-1
James R. Holloway DE-0351-00-0197-I-1
Timothy Z. Dodd DE-0351-00-0218-I-1
Ernest M. Yohn, III v. United States Postal Service
MSPB Docket No. AT-0351-01-0610-I-1
SEPARATE OPINION OF BETH S. SLAVET
Ernest M. Yohn, III v. United States Postal Service
MSPB Docket No. AT-0351-01-0610-I-1
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