Josephine Acosta v. United States Postal Service
Background
- Appellant Josephine Acosta, a former USPS mail processing clerk, suffered compensable injuries and received OWCP benefits and later disability retirement; she sought restoration to duty with medical restrictions (no walking/standing).
- USPS offered a modified assignment; DOL later told USPS the modified offer was not suitable given Acosta’s restrictions. Acosta reported for duty April 3, 2015, performed ad hoc tasks April 3–7, then was sent home when USPS had no work within her restrictions.
- Acosta requested restoration; USPS searched the local commuting area (including Coppell, TX) from June 23–July 22, 2015, and found no positions meeting her restrictions.
- Acosta appealed to the MSPB claiming denial of restoration; the administrative judge found jurisdiction and held Acosta failed to prove USPS’s denial was arbitrary and capricious, denying her appeal.
- On petition for review, Acosta raised new allegations (witness testimony about favoritism in job assignments) and asserted she could perform certain positions (dispatch dock clerk, call center) and that USPS’s search was insufficient; MSPB denied the petition and affirmed the initial decision.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether USPS’s denial of restoration to a partially recovered employee was arbitrary and capricious | Acosta: USPS failed to find work within restrictions; ad hoc duties were insufficient; she was forced to report April 3 and was not told DOL rejected the offer | USPS: Modified offer did not meet medical restrictions; searches of local commuting area were reasonable and found no suitable vacancies | Held: Acosta failed to show denial was arbitrary and capricious; MSPB affirmed denial |
| Whether USPS conducted a legally sufficient search for alternative assignments | Acosta: Search was inadequate; alleged investigator gave jobs to friends, creating missed opportunities | USPS: Conducted a local-area search (including Coppell); no vacancies met restrictions | Held: Search was sufficient; allegations of favoritism raised for first time on review and unsupported, so not considered |
| Whether ad hoc duties from April 3–7 constituted valid modified reemployment | Acosta: Performed duties and thus was reemployed | USPS: Ad hoc tasks were not within restrictions or necessary; modified offer invalid per DOL | Held: Tasks were not valid modified assignment; she was not reemployed under a valid offer |
| Whether new evidence/witnesses on review should be considered | Acosta: Proffered new witness and OPM retroactive payment document | USPS: Opposed; record lacked timely witness designation and support | Held: Board refused new arguments/evidence raised first on review absent new, material evidence shown to be unavailable earlier |
Key Cases Cited
- Kingsley v. U.S. Postal Service, 123 M.S.P.R. 365 (MSPB 2016) (defines restoration rights for partially recovered employees)
- Bledsoe v. Merit Systems Protection Board, 659 F.3d 1097 (Fed. Cir. 2011) (Board has jurisdiction to review arbitrary-and-capricious denial of restoration)
- Clark v. U.S. Postal Service, 123 M.S.P.R. 466 (MSPB 2016) (requirement to identify specific vacant positions to meet burden)
- Banks v. Department of the Air Force, 4 M.S.P.R. 268 (MSPB 1980) (Board will not consider issues raised first on petition for review absent new material evidence)
- Tarpley v. U.S. Postal Service, 37 M.S.P.R. 579 (MSPB 1988) (failure to timely object to witness rulings below precludes raising on review)
- Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991) (court’s statutory deadline for filing review is strictly enforced)