Michael D. Reed v. United States Postal Service

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
06-3017
MICHAEL D. REED,
Petitioner,
v.
UNITED STATES POSTAL SERVICE,
Respondent.
__________________________
DECIDED: October 6, 2006
__________________________
Before BRYSON, Circuit Judge, CLEVENGER, Senior Circuit Judge, and GAJARSA,
Circuit Judge.
PER CURIAM.
Michael D. Reed seeks review of the final decision of the Merit Systems
Protection Board (“Board”) dismissing his appeal for lack of jurisdiction. Reed v. U.S.
Postal Serv., No. CH3443040272-I-1 (August 24, 2005). We affirm.
I
Mr. Reed filed an appeal with the Board on February 7, 2004, alleging that the
U.S. Postal Service (“agency”) improperly failed to hire him for a position in May 1985,
constructively suspended him from February 2002 until September 2003, and
involuntarily demoted him from the position of PS-06 Letter Carrier to PS-05 Mail

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Processing Clerk in September 2003. He also raised claims of age and disability
discrimination.
Following a hearing, the Administrative Judge assigned to Mr. Reed’s appeal
dismissed the failure-to-hire claim for want of jurisdiction and declined to sustain the
discrimination claims. However, the Administrative Judge sustained Mr. Reed’s claims
of constructive suspension and involuntary demotion. The agency petitioned for review
by the Board, and Mr. Reed cross-petitioned for review of the Administrative Judge’s
ruling dismissing the discrimination claims.
II
When Mr. Reed began working as a letter carrier in 1986, he was capable of
performing all the duties of the position, including the requirements of lifting and casing
mail. He developed carpal tunnel syndrome in 1997, and he thereafter worked as a
limited-duty status carrier from 1997 until 2001. In June 2001, he had surgery for
shoulder tendonitis and returned to work as a carrier in limited-duty status in September
2001. In that status, he delivered express mail and performed clerk craft duties. In
December 2001, the agency offered Mr. Reed, then a PS-06 carrier, a PS-05 clerk
position. Mr. Reed declined the offer, and continued his limited-duty assignments.
Those assignments included working with labels and stamping return-to-sender mail.
Mr. Reed complained to the agency that the movements necessary to complete those
tasks violated his repetitive motion restrictions. As a result of Mr. Reed’s complaint, the
agency concluded that there was no work available for Mr. Reed as a PS-06 Letter
Carrier. Consequently, in February 2002, the agency summoned Mr. Reed to a
supervisor’s office where he was informed that the agency had no work available for
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him as a letter carrier. The agency again offered Mr. Reed the PS-05 clerk position,
which it believed to be within the physical limitations that Mr. Reed could endure.
Mr. Reed was told that he must leave the premises if he refused the offer, and when he
did refuse the offer, he was escorted off the premises. Mr. Reed applied for and
received compensation benefits under the Federal Employees’ Compensation Act,
which is administered by the Department of Labor’s Office of Workers’ Compensation
Programs (“OWCP”).
In June 2003, the agency again offered a PS-05 clerk position, which Mr. Reed
accepted. He returned to work in September 2003, and his compensation benefits
terminated.
III
The Board held that the Administrative Judge erred in ruling that Mr. Reed had
been involuntarily suspended from February 2002 until September 2003 and
involuntarily demoted to the PS-05 position in September 2003.
With respect to the issue of involuntary suspension, the Board correctly noted
that the dispositive issue in determining if the suspension was involuntary is who
initiated the absence. Perez v. Merit Sys. Protection Bd., 931 F.2d 853, 855 (Fed. Cir.
1991) (“It was his choice, not the agency’s, to remain away from work.”). Upon review
of the evidence, the Board concluded that, even though Mr. Reed was escorted off the
premises in February 2002, such was the result of his refusal to accept the only job
available to him in the agency. The Board held that the agency had not instructed
Mr. Reed not to report for work. To the contrary, the agency notified Mr. Reed by letter
on March 5, 2002, that the clerk position offer was still open should Mr. Reed wish to
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accept the offer and return to work. As Mr. Reed had himself contended that the
physical burdens of the carrier job excluded him from it, the Board held that the agency
had offered Mr. Reed a job it felt he could perform. Mr. Reed was found by the Board to
have placed himself out of work by declining the clerk position. Consequently, the
Board held that Mr. Reed, not the agency, had initiated Mr. Reed’s absence from work.
As such, his absence from work from February 2002 until September 2003 did not
constitute a constructive suspension.
The Board also rejected the Administrative Judge’s analysis of the involuntary
demotion issue. The Administrative Judge concluded that the wrongful (to the
Administrative Judge) suspension placed the agency in such a position of power over
Mr. Reed that he had no realistic alternative but to accept the demotion to the PS-05
position. The Board, having rejected the Administrative Judge’s premise, concluded
that Mr. Reed voluntarily accepted the lower grade position.
The Board’s jurisdiction over Mr. Reed’s appeal depended upon whether
Mr. Reed’s contentions of constructive suspension and involuntary demotion had merit.
When the Board rejected those contentions, it found itself without jurisdiction to address
Mr. Reed’s cross-petition for review of the discrimination issues.
Mr. Reed timely sought review in this court of the Board’s final decision
dismissing his appeal. He now challenges the Board’s decision on the suspension and
demotion issues.
IV
We must affirm the final decision of the Board unless we determine that it is
arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law.
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5 U.S.C. § 7703(c) (2000). Further, where the Board’s decision rests on findings of fact,
we must sustain its fact-findings if supported by substantial evidence. Id.
The facts demonstrate, by more than substantial evidence, that Mr. Reed
declared himself unfit for the PS-06 letter carrier position and that the agency had no
work available for him in that status. The agency offered him a suitable alternative, less
attractive to be sure, which he rejected. During his entire period of suspension, he
received compensation from OWCP. Mr. Reed’s options were few: he could return to
work in a lower grade position and forfeit OWCP compensation, or he could remain in
non-pay suspension status. The Board’s finding that Mr. Reed absented himself from
work, rather than being pushed into absence by the agency, is supported by substantial
evidence. That finding underlies the Board’s conclusion that his suspension was not
constructively caused by the agency. We see no error in the Board’s conclusion that
Mr. Reed failed to show a constructive suspension by the agency.
The evidence is also substantial supporting the Board’s conclusion that Mr. Reed
voluntarily accepted the PS-05 position to which he returned in September 2003. His
claim to a forced demotion was correctly rejected by the Board.
Because we affirm the Board’s final decision on the suspension and demotion
issues, the Board was correct in determining that it lacked jurisdiction to address
Mr. Reed’s cross-petition for review of the discrimination issues on which the
Administrative Judge ruled adversely to Mr. Reed.
The Board’s final decision is affirmed.
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