The appeals court has overturned a decision of the Merit Systems Protection Board involving the Department of Army’s removal of a welder for his physical inability to perform the duties of his position. (Smith v. Department of the Army, C.A.F.C. No. 05-3266, 8/11/06)
In one of those cases that has bounced around through the appeals systems for several years (since 1996), Mr. Smith stands to win substantial back pay depending on the findings of the Board when it takes up the Federal Circuit’s remand order.
It seems that in 1995 the agency determined that Smith had a disability that kept him from wearing the ear protection required for welders. Smith argued the condition resulted from an occupational injury and tried to get the agency to place him in a different position. The agency indicated there was no different position available.
Smith ended up going first to the Board and then to the EEOC (in a “mixed case” appeal) to challenge the agency’s refusal to accommodate his disability. Eventually, after several long years, it was concluded by the EEOC (and agreed to by the Board) that there had been an appropriate light duty assignment to which Smith could have been assigned in 1996. Failure to assign Smith to this position as a “reasonable accommodation” was handicap discrimination. Army was ordered to pay back pay to Smith and notify him once the agency believed it had complied fully. At that point Smith would have the right to petition the Board for enforcement if he felt the agency had not granted him full remedy. (p. 5)
Meanwhile, the agency had separated Smith due to his inability to perform the duties of his welder position. Smith did not appeal his separation. The agency therefore believed that it was not required to restore Smith to employment beyond the point of that separation. And, since he had already been paid for the period of time up to his separation, the agency indicated it had fully complied with the Board’s order.
Smith went back to the Board and argued that he would not have been terminated in the first place had he been properly placed in the light duty assignment in 1996. Therefore, the agency should be required to retroactively reinstate him into that position. The Administrative Judge did not agree with Smith’s argument, reasoning that to provide a remedy beyond the date of Smith’s removal would let him “use enforcement proceedings to obtain relief as to a separate non-adjudicated agency action.” The Board agreed and denied his petition for review. (p. 7)
On appeal to the Federal Circuit, Smith’s argument fared much better. As explained by the court, “By basing its denial of Smith’s petition for enforcement on the grounds that his later removal was not adjudicated on its merits, the Board erred.” (p. 10) Acknowledging that the case was “an unusual situation in which an appealable adverse action that began due to one improper agency act continued due to another,” nevertheless, the court concluded that had Smith been accommodated in the first place he would not have been removed for inability to perform his position. (Id.)
Beyond this, however, the court was not willing to try to sort through the facts regarding the light duty assignment—was there evidence that Smith would have been removed from that position since it was eliminated by the agency at some point? If so, this may be the point at which the back pay remedy for Smith would end. But the court left it up to the Board to go back to the evidentiary drawing board. In short, the case was reversed and remanded to the Board for further fact finding and a determination as to the appropriate remedy. (p. 15)