An Unusual Request for a Promotion

Here is a unique way to seek a significant promotion in government service. A federal employee submitted letters from her doctor indicating she could not perform the duties of a lower level job. She argued the agency should therefore give her a promotion to a higher level position.

In a rather bizarre federal employee appeal that made its way to the Federal Circuit Court of Appeals, a rural mail carrier who was told by the USPS to return to work following some 9 years on workers compensation, argued that she could only physically qualify to be Postmaster since she could no longer perform her duties as a carrier. (Fisher v. United States Postal Service, C.A.F.C. No. 06-3043 (non precedent), 6/8/06)

Fisher suffered an on-the-job injury and collected benefits until the Office of Workers’ Compensation Programs decided that there was no evidence of a continuing disability. Her agency then sent Fisher a request for updated medical information. She submitted letters from her doctor indicating that she could not perform the duties of the position she previously held—rural carrier—but rather she should return to work as Postmaster. (Opinion, p. 2)

(As an aside to the appeals court decision we are currently summarizing, the Postal Service removed Fisher from her position since she could not perform the duties of letter carrier. She appealed to the Merit Systems Protection Board, then changed her mind and withdrew her appeal, the Board dismissed her appeal as a result, but she apparently changed her mind again and took her case to the appeals court. In a separate decision, the court affirmed the Board’s dismissal of her appeal. (Fisher v. MSPB, 120 Fed. Appx. 812 (Fed. Cir. 2004)))

Meanwhile, back to the instant case, Fisher had filed a “series of appeals” to the MSPB prior to being removed from her job. These appeals related to “failure to properly restore her to duty as a partially recovered employee.” (Opinion, pp. 2-3) The Board dismissed these claims for failure to state a cause of action upon which relief could be granted. (Fisher v. United States Postal Service, 100 M.S.P.R. 94, Nos. DE-0353-02-0393-I-3, DE-0353-03-0072-I-3, DE-0353-03-0231-I-3, 2005 MSPB LEXIS 5105 (MSPB, September 1, 2005).

The Administrative Judge concluded in these consolidated cases that the agency had not acted arbitrarily and capriciously in view of Fisher’s failure to “adequately assist it in restoring her to an appropriate position.” Stating what might be considered the obvious, the AJ pointed out that Fisher was only entitled to be considered for restoration to the position she held at the time of her injury, or an equivalent one, and was not entitled to be made a Postmaster. (Opinion, p. 3)

The full Board agreed, observing that it was the exclusive purview of the OWCP to determine that Fisher no longer had a compensable injury. Absent such an injury she could not make a “nonfrivolous allegation that the Postal Service had violated her restoration rights,” which compelled dismissal of her claims before the Board for lack of jurisdiction. In short, case dismissed.

Undaunted, Fisher went to the Federal Circuit. The court affirmed the Board’s dismissal of Fisher’s appeals.

This case certainly illustrates a rather imaginative although totally unsuccessful way to try to gain a substantial promotion—mail carrier to Postmaster.

About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.