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New v. Department of Veterans Affairs

April 27, 1998

DEONNE R. NEW, PETITIONER,
v.
DEPARTMENT OF VETERANS AFFAIRS, RESPONDENT.



Before Michel, Lourie, and Clevenger, Circuit Judges.

The opinion of the court was delivered by: Clevenger, Circuit Judge.

Appealed from: Merit Systems Protection Board

William H. Brown, III, Schnader Harrison Segal & Lewis, of Philadelphia, Pennsylvania, argued for petitioner. With him on the brief were Nancy Winkelman and Timothy H. Kratz.

Joel McElvain, Attorney, Commercial Litigation Branch, Civil Division, U.s. Department of Justice, of Washington, Dc, argued for respondent. On the brief were Frank W. Hunger, Assistant Attorney General, David M. Cohen, Director, Miguel Serrano, Trial Attorney.

Before Michel, Lourie, and Clevenger, Circuit Judges.

The opinion of the court was delivered by: Clevenger, Circuit Judge.

Ms. New appeals from the final decision of the Merit Systems Protection Board ("Board"), Docket Nos. PH0353950695-I-1 and PH0353910540-R-1, which affirmed with modification the initial decision of August 12, 1991. In the initial decision, the administrative Judge affirmed the Department of Veterans Affairs' denial of Ms. New's request for restoration, and concluded that the Board lacked jurisdiction over her appeal from her denial for restoration under 5 C.F.R. § 353.303 (1991), *fn1 because she was removed for cause and not for a reason substantially related to her compensable injury. Because Ms. New's termination was, in fact, substantially related to her compensable injury, we reverse the Board's decision dismissing Ms. New's claim for lack of jurisdiction, and we remand the case to the Board for further proceedings consistent with this opinion.

I

Ms. New, a GS-03 secretary with the Veterans' Administration ("VA"), suffered a temporary aggravation of a pre-existing work-related degenerative joint disease in May 1987, which prevented her from working. In July 1987, Ms. New applied to the Labor Department's Office of Workers' Compensation Programs ("OWCP") for workers' compensation benefits. In August 1987, Ms. New's physician informed the VA that Ms. New could return to work for four hours per day provided that she was given a parking space in the executive parking area, which was nearer to her work area than her existing space, and that her work space was redesigned to prevent a recurrence of her injury.

In response, on September 30, 1987, the VA shortened Ms. New's work day to four hours, made changes to her work station, and provided her with a handicapped parking space and a wheelchair to traverse the distance from her car to the door of the building. Based on these changes, the VA ordered Ms. New to return to work by October 7, 1987. Concerned that the VA's accommodations did not sufficiently comport with the recommendations of her physician, and that working under these conditions could endanger her health, Ms. New refused to return to work. On February 11, 1988, the VA removed Ms. New for two reasons: (1) her refusal to return to work for four hours per day after October 7, 1987; and (2) her poor attendance record dating from May 29, 1984, which was an indicator that she was unreliable, undependable, and of marginal value to the agency.

In December 1989, the OWCP awarded Ms. New retroactive benefits which covered the period between July 1987, when she filed her workers' compensation claim, and October 14, 1987. Claiming that her injury persisted, Ms. New later sought further benefits from the OWCP for the period from October 15, 1987 to October 2, 1990. The OWCP denied this claim on January 22, 1991, because it found that Ms. New had refused the VA's offer of suitable work. See 5 U.S.C. § 8106(c)(1). The OWCP further found that Ms. New was fully recovered as of October 2, 1990.

On February 15, 1991, Ms. New asked the Department of Veterans Affairs ("DVA") *fn2 to restore her to her former position. Ms. New claimed that she was entitled to priority consideration for restoration under 5 C.F.R. § 353.303, because she was separated as a result of her compensable injury. Contending that Ms. New was removed for cause, the DVA refused to restore her, for employees removed for cause are not entitled to priority consideration for restoration, see id. Ms. New appealed the DVA's refusal of her restoration request to the Board, and on August 12, 1991, the administrative Judge affirmed the DVA's denial of her restoration. The administrative Judge's initial decision became the Board's final decision on April 10, 1992, when the full Board denied Ms. New's petition for review.

On May 22, 1992, Ms. New filed a complaint against the DVA for gender discrimination and disability discrimination in the United States District Court for the Eastern District of Pennsylvania. On December 6, 1993, the district court directed a verdict for the DVA. Ms. New appealed to the United States Court of Appeals for the Third Circuit.

On July 14, 1994, while Ms. New's appeal was pending with the Third Circuit, the OWCP issued an order vacating its previous order which had denied Ms. New benefits for the period from October 1987 to October 1990. The OWCP awarded Ms. New partial benefits for this period because it had become aware that it had never made a formal determination that the accommodations that the VA offered Ms. New in 1987 were suitable for her particular disability. In response, the Third Circuit vacated the decision of the district court and remanded Ms. New's case to the district court with orders to remand to the Board for a determination as to whether the OWCP's revised award materially affected the Board's decision. On remand, the Board concluded that the OWCP's July 14, 1994 decision did not materially affect the administrative Judge's August 12, 1991, decision insofar as it held that Ms. New's removal for refusal to return to work after October 7, 1987, ...


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