[00:00:00] Speaker 03:
case today.

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Our first case today is 2015-3210, Scott versus MSPB.

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Mr. Dandar.

[00:00:15] Speaker 05:
Good morning, Your Honors.

[00:00:15] Speaker 05:
My name is Ken Dandar.

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I'm from Tampa, Florida.

[00:00:18] Speaker 05:
I have the honor of representing Terry Lee Scott, a disabled Army sergeant who left the service because of her disability, applied for the post office.

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and was awarded a position there after her doctor cleared her for the type of work she would experience in manual distribution known as 030.

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She worked there for 18 years without any problem, a good employee.

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And then she had surgery in 2013 to her leg, came back to work with increasing her disability in her feet from 30% to 90%, and continued to work in 030 manual distribution

[00:01:00] Speaker 05:
until February of 2014 when they told her she was assigned to automation.

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And she said, how am I going to do automation?

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I'm disabled.

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I have permanent restrictions.

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I remember reading in the record that there was, I couldn't tell it was a reduction in force or something, but the position that she had, I think, no longer was available.

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And she bid for another position.

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Is that correct?

[00:01:25] Speaker 05:
She never bid for any position.

[00:01:28] Speaker 04:
Well, tell me a little bit how that happened.

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The way the briefs presented it, in the opinion below, was if she'd bid for a position, didn't get it, and then she was given light duty assignments.

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Well, they placed her on light duty without telling her.

[00:01:44] Speaker 04:
Well, I understand that.

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But I mean, what caused the circumstance of the change?

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They said there was a change in the contract between the union and the Postal Service.

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And what effect did that have on her position?

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It had no effect on her position because she remained in 03-0.

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When she went to automation, as she was ordered to do, the supervisor said, you can't work here because it's too strenuous.

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You would think automation would be easier.

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You go back to manual distribution, where they send all the disabled employees to.

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And that was in early February of 2014.

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And the light duty coordinator, which is critical in this case, said, you need to bring in another doctor's note about your restrictions.

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Now, they already had in the file from 2006 permanent restrictions on standing and walking.

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They ignored that.

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And so she comes back with another doctor's order that continues her restrictions up until May.

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And they say we need a permanent restriction or not permanent.

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She goes back to the doctor in July.

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Following up on I think what Judge Clevenger was just asking you, on JA 361, this is the letter that Miss Scott received indicating that she had to re-bid because her current position was being reposted.

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Isn't that right?

[00:03:08] Speaker 05:
Yes.

[00:03:09] Speaker 03:
So I guess I thought I understood what Judge Clevenger was asking you was about this change.

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I mean, you're telling us about what was happening in the job she was in, but then according to this, that job sort of terminated, and she had to rebid, and she wasn't selected for the new position.

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Is that correct?

[00:03:28] Speaker 05:
She wasn't.

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She wasn't.

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That's correct.

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However, the Postal Service writings, the letter,

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do not, I hate to use the word jive, they don't jive with the practice of the postal service in Tampa, Florida because she was permitted to go back to 030 and stay in 030.

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And then when she received the permanent restrictions in July of 2014 and handed that to you.

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Was she legally entitled to go back, or was that a gift?

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It was an accommodation.

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A kindness accommodation by the agency that they were required to make?

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Right, because you can't bid on 030.

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That's for the disabled.

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So you can't bid on it.

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So they put her where they could only put her, and that was in 030.

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And she stayed in 030, 18 years.

[00:04:18] Speaker 03:
We're not talking about 18 years because it was in 2014 when this change occurred.

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Correct.

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So we can't look at what had happened the 16 years before that.

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We're only looking at what happened as of 2014 and going forward.

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Okay.

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So in 2014, going forward, she received this letter.

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She remained in 030 because automation could not use her.

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So no matter what the letter says, automation could not use her.

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There was no other place for her except O3O.

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She complied with the next demand request, which was get us another doctor's note.

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When you say she remained in O3O, does that mean she continued to go to work in the manual place and perform services and be paid for it?

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Yes.

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And remained there until she was walked out

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but she wasn't formally an employee in 030 at that point at all.

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Throughout that time, she may have been performing or on loan to 030 or doing job duties there, but she was formally employed by automation, correct?

[00:05:20] Speaker 05:
No.

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No, she wasn't.

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Well, then who was she employed by?

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She was employed at 030.

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But is there any paperwork that indicated that?

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Because I thought that paperwork indicated that she was in automation.

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Well, her assigned bid

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was automation.

[00:05:36] Speaker 01:
Right, so there was this informal arrangement for her to be in 030.

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I've never heard them testify that way, but they said that was the only place that she could work was in 030.

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So if the bid was automation and they knew she couldn't, and they all stipulated at the hearing that she could not do the job in automation, so that was not a meaningful choice under Bean.

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And that's why they kept her in 030.

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Then in August, after they received the permit restrictions again from the VA doctors about her standing and walking based on her surgery and her increased disability, they keep her in 030 until August they have a meeting with her and they take her chair away, which

[00:06:22] Speaker 05:
was given to her from the 06 doctor's note, now her disability is worse, and they take the chair away in 030.

[00:06:29] Speaker 03:
It's wrong for them to have taken the chair away.

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It just seems, quite frankly, somewhat inhuman to do.

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But at the same time, part of the reason behind that is they realized she was being provided with accommodations that she had not applied for and therefore hadn't been justified.

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And what you can imagine, as I can as an employer,

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If you make exceptions for one person they haven't applied for through the application process the accommodations that they need, well suddenly everybody else now wants a chair and everybody else wants light duty and everybody else wants a change.

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So there's a process in place that if you follow that process you can then be awarded that and that allows the employer to be insulated

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from all the claims of disparate treatment by other employees who could say, well, she's got a chair.

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She didn't apply for disability.

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Why can't I have a chair?

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Do you understand the problem?

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I do.

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This is why the system is set up that requires her to put forth an application, which she kept refusing to do, which is why we're here.

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No, the agency, I'm sorry to correct you, I'm sorry.

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The agency, Ms.

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Peorno, who's in charge of light duty, she just told her to get a doctor's note.

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And then when she saw permit restrictions, she took it upon herself, as they do, without an application from the employee, to apply for reasonable accommodations with DRAC.

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And she testified under oath that that's exactly what she did on behalf of the employee Terry Scott in July.

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What she testified to was that she testified that that's what she thought Ms.

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Scott was requesting when she turned in the doctor's note.

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She misunderstood.

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She thought, by virtue of the doctor's note coming in, that she understood that Miss Scott was asking for accommodations.

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The only way to get accommodations is to apply for them.

[00:08:16] Speaker 03:
And she thought, well, why else is she providing a doctor's note?

[00:08:19] Speaker 05:
But Your Honor, she had reasonable accommodations since she first started in 1996.

[00:08:23] Speaker 05:
Yeah, but they were improper.

[00:08:24] Speaker 03:
They weren't properly awarded to her through the process, which is quite well established within the government for providing accommodations.

[00:08:33] Speaker 03:
They were provided by human supervisors that made decisions that, quite frankly, they didn't have the right to do.

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And yet they gave them to her, which is why I'm saying it's a very human thing to do, right?

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I mean, I'd want to do it too for my employees.

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But within the rubric of a large organization like the government, they have very established processes that must be undertaken.

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Why wouldn't your client just file the paperwork?

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I don't understand.

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She was repeatedly asked, just file the paperwork.

[00:09:02] Speaker 03:
for light duty and she just kept refusing.

[00:09:05] Speaker 05:
Okay, that's different now.

[00:09:06] Speaker 05:
That's different than reasonable accommodations.

[00:09:08] Speaker 05:
She was never asked to file paperwork for light duty until October 2014 when she was walked out.

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And she refused to do that because number one, light duty is voluntary.

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You can't order someone to apply for light duty.

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And number two, they all testified, all the agency higher-ups testified, that light duty is not for someone like her with permanent restrictions.

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Only DRAC, reasonable accommodations, is.

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And Piorno says, I gave that to DRAC.

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I thought I did.

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And that's all she had to do.

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When it came to reasonable accommodations, no one testified that she had to apply for reasonable accommodations.

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Piorno said, I did it for her.

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That's the way we do things in Tampa.

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And so my client relied upon that.

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When she did it, she did everything she was told to do.

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In July 2014, she gives her the note, no permit restrictions again.

[00:10:02] Speaker 05:
And Pirno said, I'll take care of it.

[00:10:05] Speaker 05:
Well, something happened because the Dirac person, Hill Commons, never got it.

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But more importantly, they should never have walked her out and taken her ID badge away that she could never get back in.

[00:10:18] Speaker 05:
She was forced out.

[00:10:18] Speaker 01:
Can you explain why when her supervisor gave her the choice of,

[00:10:25] Speaker 01:
applying for light duty, and she refused?

[00:10:27] Speaker 01:
You had said just a minute ago that light duty is not something you apply for.

[00:10:33] Speaker 01:
What did you mean by that?

[00:10:35] Speaker 05:
You can apply for light duty.

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However, light duty is voluntary.

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And when she's a 10-point veteran preference.

[00:10:44] Speaker 04:
What does it mean to say it's voluntary?

[00:10:47] Speaker 05:
The collective bargaining agreement, Article 13, states it's voluntary.

[00:10:51] Speaker 04:
What does that mean in the real world?

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That means if you don't want to apply for light duty and do the jobs and suffer physically, you don't have to apply for light duty.

[00:11:01] Speaker 05:
They ordered her to apply for light duty contrary to the collective bargaining agreement, which says it's voluntary, and they all testified, all the higher-ups, it's not for someone with permanent restrictions like her.

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So that was never a meaningful choice under Bean.

[00:11:17] Speaker 05:
She was, like, given a meaningful choice.

[00:11:18] Speaker 04:
Walk me through, if you will.

[00:11:19] Speaker 04:
Let's put ourselves in the shoes of the government.

[00:11:23] Speaker 04:
The government is saying your client, instead of staying home, should have, at work, asked for light duty.

[00:11:30] Speaker 04:
That's what the government's saying, right?

[00:11:32] Speaker 05:
That's what they're saying.

[00:11:33] Speaker 04:
So walk me through what would have happened if your client had not stayed home but had been in the workplace and walked in and said, I want to do what the government wants me to do.

[00:11:42] Speaker 04:
I want to apply for light duty.

[00:11:44] Speaker 04:
What would have happened?

[00:11:45] Speaker 05:
She loses her 40 hours a week employment.

[00:11:48] Speaker 04:
They just give her light duty.

[00:11:49] Speaker 04:
Why does all that?

[00:11:51] Speaker 04:
She gets light duty.

[00:11:53] Speaker 04:
They could afford her a quarter of light duty.

[00:11:56] Speaker 05:
Yes, they could have.

[00:11:58] Speaker 04:
And that would have given her a place to work.

[00:12:01] Speaker 04:
And she would have been paid for her work.

[00:12:04] Speaker 05:
And they would have said, we don't have any light duty assignments for today, stay home.

[00:12:08] Speaker 05:
And then she's down to less than 40 hours.

[00:12:11] Speaker 04:
She would have had continuing employment and light duty status, whatever that entails, as opposed to full-time work, which I think the record shows she wasn't able to do anyhow.

[00:12:24] Speaker 04:
She didn't have a job because of this restructuring that I first asked the questions about.

[00:12:31] Speaker 04:
She was sort of in no man's land, right?

[00:12:34] Speaker 05:
Well, I disagree because she had a job.

[00:12:38] Speaker 05:
She had 40 hours a week.

[00:12:39] Speaker 05:
She was working in the night shift that nobody wants to work.

[00:12:42] Speaker 05:
And it was interfering with their diabetes.

[00:12:44] Speaker 05:
But she kept at it anyway, because she was a loyal employee.

[00:12:48] Speaker 05:
And they kept putting her in O3O.

[00:12:51] Speaker 04:
What I'm trying to get at by the last question I asked is what would happen if she had come to work and said, I would want to apply for light duty.

[00:13:00] Speaker 04:
And you just said to me, I believe that she could have been accorded light duty, would have given her not the job she wanted, but it would have given her a position.

[00:13:10] Speaker 05:
But according to the supervisors, Ms.

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Peorno in particular, she was not a candidate for light duty because of this letter of July 2014 saying, again, permanent restrictions.

[00:13:22] Speaker 05:
Worse than the letter from 2006.

[00:13:24] Speaker 04:
If she had come back into the government and applied for light duty and they'd said, well, you don't qualify for light duty, then she could have gone home, right?

[00:13:34] Speaker 04:
And she wouldn't have been viewed to have had a voluntary termination.

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if you don't qualify for it.

[00:13:39] Speaker 05:
But Piorno said you don't qualify for light duty because it's permanent.

[00:13:43] Speaker 05:
It's very, very permanent and very restrictive.

[00:13:46] Speaker 01:
Where in the record is that?

[00:13:47] Speaker 01:
You're saying Ms.

[00:13:49] Speaker 01:
Piorno said that, but where in the record is that?

[00:13:53] Speaker 05:
In the record, it's in her testimony, cited again in our reply brief, that light duty is not for someone like her with permanent restrictions.

[00:14:03] Speaker 05:
And that is...

[00:14:08] Speaker 05:
Let's see, I'm sorry.

[00:14:19] Speaker 05:
I don't have that handy.

[00:14:24] Speaker 05:
It's Peorno's testimony.

[00:14:25] Speaker 05:
The post office admits in their brief that the testimony of their supervisors are contradictory.

[00:14:36] Speaker 05:
First they say she's not a candidate for light duty.

[00:14:39] Speaker 05:
And it's at 618 to 619 of the appendix.

[00:14:46] Speaker 05:
Light duty is not for one having permanent restrictions.

[00:14:49] Speaker 04:
And who says that?

[00:14:50] Speaker 04:
Your client?

[00:14:51] Speaker 05:
No, Peorno, the light duty coordinator.

[00:14:53] Speaker 05:
The reason why she took this letter of July 2014 and said that she then handed it or sent it over to DRAC for reasonable accommodations.

[00:15:03] Speaker 05:
DRAC says they never got that.

[00:15:05] Speaker 05:
letter, the doctor's note.

[00:15:08] Speaker 05:
And what's interesting is they walk her out on October 18th of 2014.

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And she is not permitted to return.

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And the 14-day period goes by.

[00:15:17] Speaker 05:
And after that 14-day period, she's supposed to be given.

[00:15:20] Speaker 05:
Oh, my.

[00:15:20] Speaker 05:
I'm in my red zone.

[00:15:23] Speaker 05:
I'm sorry.

[00:15:24] Speaker 03:
OK.

[00:15:25] Speaker 03:
We'll restore some of your rebuttal time.

[00:15:28] Speaker 05:
All right.

[00:15:28] Speaker 03:
Thank you.

[00:15:29] Speaker 03:
Let's hear from opposing counsel, Mr. Singley.

[00:15:40] Speaker 00:
May it please the court?

[00:15:42] Speaker 00:
Ms.

[00:15:43] Speaker 00:
Skye, in order to establish jurisdiction at the MSPB, needed to establish two elements.

[00:15:47] Speaker 00:
She needed to establish that she was not given a choice in the matter of not showing up to work, and that the agency did something wrong.

[00:15:57] Speaker 00:
She didn't establish either of those elements at the board, and therefore the board correctly determined that it didn't have jurisdiction.

[00:16:07] Speaker 00:
To clarify, some of the factual

[00:16:10] Speaker 00:
assertions that have just been made, no, Ms.

[00:16:13] Speaker 00:
Piorno did not ever indicate that Ms.

[00:16:17] Speaker 00:
Scott could not have requested light duty.

[00:16:21] Speaker 04:
She merely pointed out that- What about the provision you just cited?

[00:16:28] Speaker 00:
I'm sorry, are you talking about the testimony of Ms.

[00:16:29] Speaker 00:
Piorno?

[00:16:30] Speaker 00:
Yeah, right.

[00:16:32] Speaker 00:
So what Ms.

[00:16:32] Speaker 00:
Piorno indicated was that she actually could have requested light duty.

[00:16:37] Speaker 00:
She could have requested light duty

[00:16:39] Speaker 00:
multiple times, but the system that the agency has in place for a permanent accommodation is this reasonable accommodation process, which is a separate process from how they go about doing light duty.

[00:16:54] Speaker 03:
Is that through DRAC?

[00:16:56] Speaker 00:
Correct, Your Honor.

[00:16:57] Speaker 03:
OK, so it's just a different organization.

[00:16:59] Speaker 03:
Light duty temporary goes to one group of people.

[00:17:02] Speaker 03:
Permanent light duty goes to the DREC committee, whatever that is.

[00:17:06] Speaker 00:
Correct, Your Honor.

[00:17:07] Speaker 00:
In fact, light duty is really just Ms.

[00:17:09] Speaker 00:
Piorno and then the union representative.

[00:17:12] Speaker 01:
So Ms.

[00:17:14] Speaker 01:
Piorno was the one that was working with Ms.

[00:17:16] Speaker 01:
Scott directly.

[00:17:18] Speaker 01:
Ms.

[00:17:19] Speaker 01:
Piorno is the light duty

[00:17:22] Speaker 01:
Coordinator, yes.

[00:17:24] Speaker 01:
And then, who else?

[00:17:25] Speaker 01:
There's someone else that, or Mr. Andreadis, that's the supervisor.

[00:17:30] Speaker 00:
Mr. Andreadis was her supervisor on October 17th and 18th.

[00:17:36] Speaker 01:
So we heard a couple things from your opposing counsel.

[00:17:39] Speaker 01:
One was that once Ms.

[00:17:45] Speaker 01:
Scott submitted the second doctor's letter in July of 2014,

[00:17:51] Speaker 01:
that made it very clear that Ms.

[00:17:55] Speaker 01:
Scott was looking for some kind of permanent arrangement.

[00:17:59] Speaker 01:
And so by the time of October 14 rolls around and then the choice is given to Ms.

[00:18:05] Speaker 01:
Scott either apply for light duty or go home, it would seem like the letter of July 2014 from the doctor had already made it clear that applying for light duty would not make any sense.

[00:18:21] Speaker 01:
So what is your response to that?

[00:18:24] Speaker 00:
A couple of responses, Your Honor.

[00:18:25] Speaker 00:
First of all, the letter from July doesn't provide very much information at all.

[00:18:30] Speaker 00:
It's basically just the same letter that they got in April with another clause that says this condition is permanent.

[00:18:38] Speaker 00:
For either light duty or permanent reasonable accommodations, the agency has a responsibility for the employee's safety to seek more information.

[00:18:48] Speaker 00:
And that's what the light duty request would have provided, is more information.

[00:18:52] Speaker 00:
What exactly are your limitations?

[00:18:54] Speaker 00:
What can you do?

[00:18:55] Speaker 00:
How long can you do it?

[00:18:57] Speaker 00:
There's a whole list of information that she's supposed to provide in that light duty request.

[00:19:03] Speaker 00:
And then it's much more detailed for the reasonable accommodation.

[00:19:07] Speaker 00:
And the reasonable accommodation, first she fills out paperwork that provides all of her limitations, what she can do, for how long.

[00:19:15] Speaker 00:
And then that documentation gets sent to her treating physician.

[00:19:18] Speaker 00:
And a treating physician has to go through and provide specifics about the diagnosis.

[00:19:22] Speaker 01:
And just curious, why is it that the options that she was given in October 2014 didn't include the option of filing for a reasonable accommodation through DRAC?

[00:19:35] Speaker 00:
Your Honor, my understanding was that she was told she needed to request light duty and that

[00:19:43] Speaker 00:
that it was also communicated to her that she could also request a reasonable accommodation.

[00:19:47] Speaker 04:
But I don't see- Didn't you just say a minute ago that when you apply for light duty, the person that's assessing your application looks to see what your circumstances are, looks at what the doctors say.

[00:20:01] Speaker 04:
And then if that person concludes that you have a permanent problem, they say, well, light duty's not for you, go over to DRAC and apply over there.

[00:20:11] Speaker 04:
Isn't that what you told us a minute ago?

[00:20:12] Speaker 00:
Yes, Your Honor, but so they did.

[00:20:16] Speaker 04:
Let me just run that through the...

[00:20:18] Speaker 04:
for the projector and put it on the screen for purposes of what she was being told in October 14.

[00:20:25] Speaker 04:
They said, your retirement was voluntary because it wasn't involuntary because you could have come back and applied for light duty.

[00:20:33] Speaker 04:
And what would have happened was you would have gone to light duty and they would have said, well, give me some more doctor's reports.

[00:20:38] Speaker 04:
Let me assess this.

[00:20:39] Speaker 04:
And they assess all that and say, hey, you're in the wrong pigeonhole.

[00:20:42] Speaker 04:
You don't belong in light duty.

[00:20:43] Speaker 04:
You belong in the other place.

[00:20:45] Speaker 04:
Is that the way it would have played out?

[00:20:47] Speaker 04:
Is that what you're telling us?

[00:20:49] Speaker 00:
Your Honor, she could have been put on light duty while they were assessing the reasonable accommodation.

[00:20:57] Speaker 04:
Yes, I'm just trying to square up the reality of her condition, which seems to be that she couldn't possibly have held a light duty position properly in the agency over a long period of time, because that's not what light duty is for.

[00:21:12] Speaker 04:
But when this is what Judge Chen said, why weren't they clear in saying, well, your option also was to apply for a DRAC or whatever it is?

[00:21:22] Speaker 00:
Your Honor, I don't know.

[00:21:24] Speaker 00:
I don't have the exact language that communicated to her with respect to DRAC.

[00:21:29] Speaker 00:
But Ms.

[00:21:30] Speaker 04:
Pirro... Your Honor, he's told me a minute ago that there was some language to that effect.

[00:21:33] Speaker 04:
How can you say that unless it's in the record?

[00:21:36] Speaker 00:
Well, OK, the record evidence shows that she was familiar with the DREC process because she had sought reasonable accommodations in 2013.

[00:21:45] Speaker 04:
She was familiar with it, but was that an option that the agency was saying it's available to you?

[00:21:54] Speaker 00:
Your Honor, I don't think that there's specific language in the record from October

[00:22:01] Speaker 00:
saying that she also needed to request reasonable accommodation.

[00:22:06] Speaker 03:
So I think that's the problem that Judge Clevenger is getting at.

[00:22:10] Speaker 03:
In fact, the board opinion makes fact findings on this, don't they?

[00:22:14] Speaker 03:
Doesn't the board opinion make the following fact findings?

[00:22:17] Speaker 03:
She had three choices.

[00:22:19] Speaker 03:
I'm reading from page three of the board's opinion.

[00:22:23] Speaker 03:
Work in her assigned position, submit a light duty request, or go home.

[00:22:28] Speaker 03:
So I don't think there's any confusion.

[00:22:31] Speaker 03:
I don't see anywhere in the board's opinion where she was informed that rather than go home, she could also file for reasonable accommodations, which would be a totally different thing than the light duty request.

[00:22:43] Speaker 00:
I think in that moment, Your Honor, she still needed to request light duty, because reasonable accommodation takes time.

[00:22:50] Speaker 00:
She has to file that paperwork, and the agency has to consider it.

[00:22:54] Speaker 00:
And they had the option to deny the reasonable accommodation, as they did in 2013.

[00:23:00] Speaker 00:
So at that time, the agency was saying, you can't come into manual distribution and sit in a chair unless you have light duty.

[00:23:09] Speaker 00:
You have to request light duty.

[00:23:10] Speaker 00:
If that's what you want, and that's what she was indicating that she wanted to do, was sit in a chair in manual distribution, they were saying, you have to be on the light duty list.

[00:23:19] Speaker 00:
And that was correct.

[00:23:21] Speaker 00:
And Ms.

[00:23:22] Speaker 00:
Pirno did testify that,

[00:23:24] Speaker 00:
While it's not ideal to permanently assign somebody to light duty, in fact, I'm sure that at a certain point they would have gone through the DRAC process and assessed the permanent situation.

[00:23:37] Speaker 00:
But she could have continued to request light duty in sequence.

[00:23:41] Speaker 00:
And she was given light duty in May for a period of two weeks.

[00:23:47] Speaker 00:
That was their response to the original doctor's note.

[00:23:50] Speaker 03:
And she wasn't actually made aware of until after the two-week period expired.

[00:23:55] Speaker 00:
Correct, Your Honor, but that was a miscommunication because Ms.

[00:23:58] Speaker 03:
Piorno... She was put on light duty, except she didn't know she was actually put on light duty.

[00:24:02] Speaker 00:
Right.

[00:24:02] Speaker 00:
I think Ms.

[00:24:04] Speaker 00:
Piorno was trying to read her... She basically just walked in and handed the doctor's note to her supervisors, and they didn't know what to do with that.

[00:24:14] Speaker 00:
They did assign her light duty, and then she came back with another doctor's note.

[00:24:20] Speaker 00:
In the meantime, I think the record shows there was a...

[00:24:25] Speaker 00:
I apologize, I don't have the exact site.

[00:24:27] Speaker 00:
But there was a letter from one of the senior managers that was noticing some sort of an issue.

[00:24:32] Speaker 00:
And they said, look, if you're going to be in a chair in manual distribution, you have to be on the light duty list.

[00:24:38] Speaker 03:
Or have reasonable accommodations through DREC.

[00:24:41] Speaker 00:
Correct, Your Honor.

[00:24:42] Speaker 00:
And again, reasonable accommodations is not necessarily going to put her in that chair in manual distribution.

[00:24:51] Speaker 00:
It could be some kind of a reasonable accommodation that's not

[00:24:55] Speaker 00:
on even on site and that was part of the issue with the 2013 request of reasonable accommodation because she very narrowly sought to stay in her position in manual distribution and They told her we don't have anything for you there So your request is denied

[00:25:16] Speaker 03:
And so just so I understand, so when a person requests a reasonable accommodation, it may be that they can't stay in job and that they may have to move to a totally different job, which would allow for their limitations.

[00:25:29] Speaker 03:
Or it could be the case that there is no job within the organization that could

[00:25:34] Speaker 03:
work out for them, given their limitations.

[00:25:36] Speaker 00:
Is that right?

[00:25:37] Speaker 00:
That is correct, Your Honor.

[00:25:38] Speaker 00:
That is correct.

[00:25:39] Speaker 04:
So the reason why we're having this discussion, I believe, is because Ms.

[00:25:42] Speaker 04:
Scott believes that when she was told she had the option of submitting a light duty request, that was illusory.

[00:25:48] Speaker 04:
That was false hope.

[00:25:55] Speaker 04:
That bottom line, that's her point, is that that wasn't illusory.

[00:25:59] Speaker 04:
That was a fake option.

[00:26:01] Speaker 04:
That's what she's saying.

[00:26:02] Speaker 04:
And what you're trying to explain to us is that it was a realistic option that could lead in any number of directions.

[00:26:10] Speaker 00:
It was a realistic option.

[00:26:11] Speaker 04:
It was the first step that puts her ask for a light duty.

[00:26:16] Speaker 04:
If the light duty was accepted, she is in a position from which she can either try to continue light duty, or if the decision is made that light duty is wrong, she can then apply for a reasonable accommodation.

[00:26:28] Speaker 00:
That's correct, Your Honor.

[00:26:29] Speaker 00:
And again, that's what she's saying.

[00:26:31] Speaker 04:
But isn't your argument basically that the option was not illusory because there was light at the end of the tunnel, possibly?

[00:26:38] Speaker 00:
That's correct, Your Honor.

[00:26:40] Speaker 00:
I mean, the situation in that moment at that day was that if she wanted to sit in a chair in manual distribution, she needed to request light duty.

[00:26:50] Speaker 00:
And she could have.

[00:26:52] Speaker 00:
Now she's arguing that that was illusory at the time.

[00:26:56] Speaker 00:
She simply said, I don't have to do that.

[00:26:58] Speaker 00:
I'm a 10-point veteran.

[00:27:00] Speaker 00:
She was very concerned about her disability status as a 10-point veteran.

[00:27:07] Speaker 01:
I'll have to ask your opposing counsel on reply.

[00:27:09] Speaker 01:
But that was what I was trying to decipher, what the argument was below in front of the board as well as the Veterans Court.

[00:27:17] Speaker 01:
There was some relationship with her status as a 10-point veteran and maybe a disabled veteran.

[00:27:24] Speaker 01:
and she expressed some kind of concern that applying for light duty would either jeopardize her status as a 10-point veteran or, alternatively, she was already entitled to light duty as a disabled veteran.

[00:27:41] Speaker 01:
What's your understanding of her basis?

[00:27:45] Speaker 00:
My understanding is that none of that is true.

[00:27:46] Speaker 00:
There's no basis for those claims.

[00:27:49] Speaker 01:
That's a different question.

[00:27:51] Speaker 01:
The other question is, what is the actual argument that the board and Veterans Court had to resolve?

[00:27:56] Speaker 00:
So I looked at the testimony.

[00:28:01] Speaker 00:
She indicates she says, they've always known about my feet.

[00:28:04] Speaker 00:
They've known about my feet since I was hired.

[00:28:06] Speaker 00:
So one place to start is by looking at the 1996 doctor's note.

[00:28:11] Speaker 00:
which was provided that explained that she did have these issues with her fee, but also explains, and that's at appendix 119, that she was cleared to work.

[00:28:21] Speaker 00:
She was cleared to do everything that they had for her to do, including lifting 70 pounds, standing for 12 hours, et cetera.

[00:28:28] Speaker 00:
The administrative judge, well, in her testimony during the jurisdictional hearing,

[00:28:36] Speaker 00:
It was repeatedly asked, did you ever formally request an accommodation for your feet?

[00:28:43] Speaker 00:
Have you ever sought any kind of formal accommodation for this issue?

[00:28:48] Speaker 00:
And she admitted that she had not.

[00:28:51] Speaker 00:
And so I don't know what the reasoning is for her claim that she thought that her 10-point veteran preference was at stake.

[00:29:02] Speaker 00:
That's just not factually correct.

[00:29:05] Speaker 00:
Preference is something you get when you're applying for the job.

[00:29:09] Speaker 00:
It gives you a preference over other people applying for the same job.

[00:29:11] Speaker 01:
Can you remind me where in the record she indicated that she had never made a reasonable accommodation request or a light duty request with respect to her foot condition?

[00:29:24] Speaker 01:
Because I seem to recall that too.

[00:29:26] Speaker 01:
But the submission of the doctor's letters obviously represents something.

[00:29:35] Speaker 00:
I'm sorry, Your Honor, the doctor's note?

[00:29:38] Speaker 01:
Right.

[00:29:40] Speaker 00:
Well, so again, the doctor's note, as far as what the agency has to offer her, it's not sufficient for her to just go and choose for herself to go sit in manual distribution and put herself on light duty.

[00:29:56] Speaker 03:
Well, let's look at footnote three of the board's opinion, which touches on these questions that you're discussing with Judge Chen.

[00:30:03] Speaker 03:
Would you like to follow up on his question?

[00:30:06] Speaker 03:
You have put no three of the board's opinion here.

[00:30:08] Speaker 00:
Oh, I'm sorry, Your Honor.

[00:30:10] Speaker 03:
It's on Appendix Page Six.

[00:30:15] Speaker 00:
Yes.

[00:30:17] Speaker 00:
I know what you're talking about, Your Honor.

[00:30:19] Speaker 03:
All right, till you find it.

[00:30:23] Speaker 03:
So it says the appellant appears to believe that as a pregnant eligible veteran, she is guaranteed a 40-hour work week as long as she does not request slight duty, even if she cannot perform the full duties of her position.

[00:30:37] Speaker 03:
And then it says, however, the appellant has cited no statutory or regulatory authority and we have found none.

[00:30:43] Speaker 03:
which supports her claim that she will forfeit her 10-point preference if she requests light duty.

[00:30:49] Speaker 03:
So what that addresses is her argument vis-a-vis light duty, but what it doesn't address is the argument in the same sentence about the fact that she holds the belief that because she is a 10-point preference eligible veteran, she's guaranteed a 40-hour work week even if she can't perform the full duties.

[00:31:07] Speaker 03:
So I guess my question to you is, is that true if you're a 10-point preference eligible veteran?

[00:31:14] Speaker 03:
And if you need reasonable accommodations because of an injury, are you guaranteed a 40-hour work week?

[00:31:20] Speaker 03:
Is the government prohibited from moving you out of that position?

[00:31:24] Speaker 00:
No, Your Honor, I don't believe so.

[00:31:26] Speaker 00:
There is no support for that claim.

[00:31:32] Speaker 00:
And based on the original claim,

[00:31:37] Speaker 00:
letter in 1996 when she applied for the job, she was originally able to do the 40-hour work week and do all of the manual labor they were asking her to do.

[00:31:51] Speaker 00:
So it seems that her claim that this status, this 10-point status, really had nothing to do with whether or not she was able to do the work that they were asking her to do.

[00:32:04] Speaker 00:
My understanding is that the agency's not, I mean,

[00:32:06] Speaker 00:
In 2013, the agency denied for request reasonable accommodation at that point.

[00:32:13] Speaker 00:
She had the opportunity.

[00:32:14] Speaker 00:
I mean, she could have quit working at that point.

[00:32:18] Speaker 00:
But no, the agency's not obligated to keep somebody

[00:32:22] Speaker 00:
in working status when they're not able to do what the agency needs them to do.

[00:32:27] Speaker 00:
And Mr. Andrew Otis testified that there was work that needed to be done in automation that wasn't being done because she wasn't in there.

[00:32:34] Speaker 00:
So she's essentially taking somebody else's job.

[00:32:37] Speaker 00:
And being a 10-point veteran does not justify her doing that.

[00:32:42] Speaker 02:
Okay.

[00:32:42] Speaker 02:
Thank you very much.

[00:32:44] Speaker 02:
Let's restore two minutes of rebuttal time, please.

[00:32:53] Speaker 05:
The 10-point veteran status has only one thing.

[00:32:57] Speaker 05:
It requires a 30-day notice under the collective bargaining agreement before you force a veteran out.

[00:33:05] Speaker 05:
They have to be given 30 days notice, and she was never given any notice whatsoever.

[00:33:10] Speaker 01:
But that assumes the conclusion that she was forced out.

[00:33:14] Speaker 01:
What we're trying to figure out here is whether she was given a meaningful choice in October of 2014.

[00:33:20] Speaker 01:
of an option of applying for light duty so that she can maybe get the chair back and continue to work in 0304.

[00:33:29] Speaker 01:
Refuse to apply for light duty and then therefore go home.

[00:33:33] Speaker 05:
When they took her chair away,

[00:33:35] Speaker 05:
It was okay because she would lean up against the rest bar when she needed to.

[00:33:39] Speaker 05:
She didn't make a big deal about that and she continued to work.

[00:33:43] Speaker 05:
The thing about light duty is they, Peorno and the union representative had a meeting in February and they put her on light duty.

[00:33:51] Speaker 05:
Her biggest thing was I never requested it.

[00:33:53] Speaker 05:
Fine.

[00:33:54] Speaker 05:
But as February 2014, she's on light duty and her status never changed.

[00:33:59] Speaker 05:
So

[00:34:00] Speaker 05:
When Purino hands this letter of July 2014 with more restrictions that are now classified again as permanent, they don't come back to my client and say, oh, by the way, now you've got to fill out an applicant.

[00:34:12] Speaker 05:
They don't do anything.

[00:34:13] Speaker 05:
They leave her where she is, in 030, on light duty, because they put her there.

[00:34:18] Speaker 05:
So why ask her in October, oh, now you have to apply for light duty all of a sudden?

[00:34:22] Speaker 05:
Why?

[00:34:22] Speaker 05:
There's no reason to.

[00:34:24] Speaker 05:
Purino already had her on light duty.

[00:34:26] Speaker 05:
Nothing's changed.

[00:34:27] Speaker 01:
But all of that was at that point.

[00:34:29] Speaker 01:
And so now they've wanted to get things regulated on the books and have paperwork to justify the light duty.

[00:34:39] Speaker 05:
It's not informal because they had a meeting in February 2014.

[00:34:44] Speaker 05:
They determined she's on light duty then and they gave her that letter that you're on light duty and go get this doctor's note.

[00:34:51] Speaker 03:
But it was temporary and it expired.

[00:34:54] Speaker 05:
And they said, get another doctor's note.

[00:34:55] Speaker 05:
And so she did.

[00:34:57] Speaker 05:
And she handed it to them.

[00:34:58] Speaker 05:
And they gave her no more instructions.

[00:35:00] Speaker 05:
So they forced her out on October 18 without any written instructions, without a 30-day notice.

[00:35:06] Speaker 01:
Well, again, this all goes back to the option that they gave her, which was please apply for light duty.

[00:35:15] Speaker 01:
And for whatever reason, she

[00:35:17] Speaker 05:
elected not to apply for light duty and the click the bargaining agreement says if you're forced out but but also we're back to square one but all the testing out if they give her an option right but all the testimony is light duty is not available for someone like her with permanent restrictions okay Mr. Dander we have your argument well over time thank you to move on to the next case I thank both counsel the case is submitted our next case is two zero one six dash one four eight