Josephine Acosta v. United States Postal Service
Background
- Appellant Josephine Acosta, a former USPS Mail Processing Clerk, suffered compensable injuries and was partially recovered with work restrictions (no walking/standing) as of April 3, 2015.
- USPS offered a modified assignment; DOL later informed USPS the modified offer was not suitable given Acosta's restrictions. Acosta reported to work April 3–7, 2015 and performed ad hoc duties but was sent home when no appropriate duties were available.
- Acosta requested restoration and USPS searched the local commuting area (including Coppell, TX) between June 23 and July 22, 2015 but found no positions within her restrictions and denied restoration.
- Acosta appealed to the MSPB alleging denial of restoration rights and argued the agency's search was insufficient and that the agency acted discriminatorily in assigning light duty to others.
- The administrative judge found jurisdiction, concluded Acosta met the first three elements of a restoration claim, but ruled she failed to prove by preponderant evidence that USPS’s denial was arbitrary and capricious; the decision denying restoration was affirmed on review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Acosta was entitled to restoration as a partially recovered employee | Acosta: USPS’s modified offer was unsuitable; agency failed to find alternative work within restrictions; alleged discriminatory light-duty assignments to others | USPS: Modified offer did not meet restrictions; conducted an adequate local commuting-area search and had no vacant positions within restrictions | Held: Acosta met first three elements but failed to show denial was arbitrary and capricious; USPS’s denial affirmed |
| Adequacy of USPS search for reassignment | Acosta: Search was insufficient, delayed, and possibly tainted by investigator misconduct; she could perform certain vacant jobs (dispatch dock, Coppell call center) | USPS: Search covered the local commuting area (including Coppell); no identified vacancies within restrictions; delay not unreasonable | Held: Search was reasonable; new allegations of misconduct raised on review unsupported and not considered |
| Whether ad hoc duties April 3–7, 2015 constituted valid modified assignment | Acosta: She reported for duty and performed tasks | USPS: Duties were ad hoc, not within medical restrictions, and not part of a valid modified assignment | Held: Duties were not necessary or within restrictions; no valid modified assignment established |
| Consideration of new evidence/testimony raised on review | Acosta: Sought to introduce testimony and post-record documents (OPM retro payments) | USPS: Opposed; argued new claims/evidence were untimely and unsupported | Held: Board refused to consider new allegations/evidence raised first on review absent showing of new, material evidence and due diligence |
Key Cases Cited
- Kingsley v. U.S. Postal Service, 123 M.S.P.R. 365 (MSPB 2016) (defines partially recovered employee and restoration framework)
- Bledsoe v. Merit Systems Protection Board, 659 F.3d 1097 (Fed. Cir. 2011) (Board has jurisdiction to review whether denial of restoration was arbitrary and capricious)
- Clark v. U.S. Postal Service, 123 M.S.P.R. 466 (MSPB 2016) (requirement to identify specific vacant positions within commuting area when alleging available work)
- Tarpley v. U.S. Postal Service, 37 M.S.P.R. 579 (MSPB 1988) (failure to timely object to witness rulings below precludes raising the issue on review)