Fighting 'disabled' label

A fed recently battled for his job before the Merit Systems Protection Board, but didn't get the outcome he was hoping for.

The case involved Abraham Gonzales, a U.S. Postal Service employee who was suspended by the agency because he failed to perform his job in a satisfactory manner. Postal Service officials thought Gonzales was disabled and should file for disability retirement. Gonzales disagreed and appealed his suspension.

The appeal was settled by mutual agreement, which stipulated that Gonzales undergo an examination by a "neutral" physician. If the physician determined that Gonzales was able to perform the duties of any of three agreed-on positions, the Postal Service would return him to duty. But, if the physician determined that Gonzales was permanently unable to perform the duties of any of the positions, Gonzales would apply for disability retirement.

The physician examined Gonzales and concluded that Gonzales was permanently unable to perform the duties of the positions listed in the settlement agreement. But Gonzales disagreed and refused to apply for disability retirement.

Postal Service officials asked the board to order Gonzales to apply for disability retirement or, if Gonzales refused, authorize the Postal Service to fire Gonzales without appeal rights. However, the administrative judge held that all the board could do to enforce the agreement was order Gonzales to submit an application for disability retirement.

Gonzales ignored the board's order. The Postal Service later said that Gonzales did apply for disability retirement but did not "conscientiously pursue" the completion of the application. So the Postal Service fired Gonzales. I can't blame them.

The full board agreed with the administrative judge that Gonzales materially breached the settlement agreement when he refused to apply for disability retirement. However, in this case, the agreement Gonzales and the Postal Service entered into specifically provided that neither party would seek to rescind the agreement. Thus, the administrative judge correctly declined to consider that option.

The administrative judge correctly determined that the board could not authorize the Postal Service to fire Gonzales without appeal rights because the agreement contains no such provision. All that the board could do was to order Gonzales to submit an application for disability retirement, which the administrative judge did.

The board's power to sanction an employee for refusing to comply with a board order is limited to ordering the withholding of the employee's pay until the employee complies. But Gonzales already was on leave without pay while the board was reviewing the Postal Service's action to fire Gonzales without appeal rights. Consequently, the board decided that there was no further relief that it could grant the Postal Service. The Postal Service fired Gonzales, but he retains the right to appeal to the board.

Zall is a retired federal employee who since 1987 has written the Bureaucratus column for Federal Computer Week. He can be reached at milt.zall@verizon.net.