Sharell Washington v. United States Postal Service
Background
- Appellant Sharell Washington was hired April 2014 as a permanent part‑time Mail Handler Assistant, injured on the job June 2014, and converted to full‑time Mail Handler in April 2015.
- By collective bargaining rules she had a 90‑day probationary period as a Mail Handler; at a June 9, 2015 probationary review she was told she was terminated that day for failure to remain gainfully employed, poor performance, attendance, and safe work habits; she signed the probationary report and surrendered badge/time card.
- The agency mailed a Letter of Separation; appellant later filed with the MSPB alleging failure to restore her to employment after partial recovery from a compensable injury and discrimination.
- The administrative judge dismissed for lack of jurisdiction, finding appellant failed to nonfrivolously allege her separation was caused solely by a compensable injury, as required for restoration rights under 5 C.F.R. part 353.
- Appellant’s petition for review raised arguments about the probationary requirement, timing of the termination letter, employee status at filing, discrimination, and discovery, but did not identify specific evidence to show the injury was the sole cause of separation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether MSPB has jurisdiction under 5 C.F.R. part 353 for restoration after compensable injury | Washington: her separation resulted from compensable injury and she was not effectively separated; thus restoration rights apply | USPS: removal was for multiple reasons (attendance, performance, safety); injury not sole cause, so part 353 restoration rights do not attach | Held: No jurisdiction — appellant failed to nonfrivolously allege separation was caused solely by compensable injury |
| Whether appellant was still an employee when filing | Washington: asserts she remained employed and termination letter arrived later | USPS: termination occurred at probationary review and she surrendered badge/time card; separation effective then | Held: Board accepted administrative judge’s factual finding of termination at probationary review; even crediting timing claims would not change legal requirement to allege sole causation by injury |
| Whether appellant need show no other cause precipitated removal (burden/standard) | Washington: argues agency discriminated and failed to restore her | USPS: points to precedent requiring demonstration that no cause aside from compensable injury precipitated removal | Held: Affirmed New standard — appellant failed to make nonfrivolous, plausible, material allegation that injury was the sole cause |
| Whether discovery was improperly limited | Washington: contends agency denied requested discovery | USPS: discovery not necessary because appellant did not allege nonfrivolous, sole‑cause claim | Held: No error — discovery not required to meet threshold pleading burden |
Key Cases Cited
- New v. Department of Veterans Affairs, 142 F.3d 1259 (Fed. Cir. 1998) (requires showing that no cause aside from compensable injury precipitated separation for restoration rights)
- Wren v. Department of the Army, 2 M.S.P.R. 1 (1980) (prohibited personnel practices are not an independent source of Board jurisdiction absent an otherwise appealable action)
- Hulett v. Department of the Navy, 120 M.S.P.R. 54 (2013) (petition for review must identify specific factual or procedural errors and explain their effect on outcome)
- Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991) (court normally will not waive the statutory deadline for filing an appeal)