Notice of Appeal Rights

Wednesday, October 23, 2013

In Johnson v. USPS, 2013 MSPB 68 (Sept. 9, 2013), the Merit Systems Protection Board affirmed an administrative judge’s initial decision sustaining a removal and explained its practice after Kloeckner v. Solis, 133 S.Ct. 596 (2012), where the U.S. Supreme Court clarified an appellant’s right to seek review in federal court of a final Board decision in a mixed-case appeal where the appellant alleges discrimination.

Johnson, a supervisor of customer service at the U.S. Postal Service, was removed by the agency based on a charge of inability to perform the essential functions of her position after she had failed to report to work for almost two years. Johnson filed an appeal in which she alleged disability discrimination although she later withdrew this claim. The administrative judge affirmed the removal action, and Johnson filed a petition for review.

The MSPB held that the AJ had correctly found that the agency had proved that Johnson was unable to work because of a medical condition. Specifically, the evidence showed that the Office of Workers’ Compensation Programs continued to pay Johnson benefits throughout the relevant time, that she had not returned to work despite providing medical documentation indicating that she would, and that her absence from work was a burden to the agency.

MSPB noted that the medical documentation newly submitted showed that Johnson could work with certain restrictions but found that these restrictions did not clearly show that she was able to perform the essential functions of her position. The MSPB rejected Johnson’s assertion that the agency should have accommodated her in her position on the ground that she had not alleged disability discrimination, and, thus, the agency was not required to consider a reasonable accommodation. The MSPB also noted that the agency was not required to modify or eliminate duties that are an essential function of the position.

Finally, the MSPB explained that, consistent with Kloeckner v. Solis, it will provide notice of mixed-case appeal rights in all cases in which the appellant is affected by an action that she may appeal to the Board if the appellant alleges prohibited discrimination-regardless of whether the Board decides the claim of discrimination. The MSPB then clarified that when, as here, the appellant unequivocally withdraws her discrimination claim before the administrative judge issues a decision, the mixed appeal becomes a non-mixed appeal and, thus, notice of non-mixed appeal rights is proper.