UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICHAEL L. KING, SR, DOCKET NUMBER
Appellant, CH-0353-15-0202-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: September 14, 2015
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Gale R. Thames, Washington, D.C., for the appellant.
James P. Verdi, Chicago, Illinois, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his restoration appeal for lack of jurisdiction. Generally, we grant
petitions such as this one only when: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. See
Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, and based on the
following points and authorities, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
¶2 The facts in this appeal are largely undisputed. At all relevant times, the
appellant has been employed as a letter carrier at the Morgan Park Station in
Chicago, Illinois. Initial Appeal File (IAF), Tab 1. Since 2013, he has sustained
compensable injuries. The Office of Workers’ Compensation Programs (OWCP)
accepted his claim for a “thoracic sprain” on February 6, 2013. IAF, Tab 7 at
13-15, 17-18. The OWCP accepted his claim for a “temporary aggravation” of
“osteoarthrosis unsp pelvis/thigh” on August 13, 2013. Id. at 20-23, 25-27. On
October 15, 2014, the OWCP added another medical condition to the appellant’s
accepted claim: “other joint derangement, pelvic region and thigh left.” Id.
29-30.
¶3 Because of his injuries, the appellant has shown varying degrees of medical
limitation to work during this time. See IAF, Tab 1 at 16-32. The record shows
that he has accepted a series of modified job assignments and worked within his
medical limitations since June 2014. See IAF, Tab 7 at 35; see also IAF, Tab 8,
Exhibit (Ex.) 5. For instance, he accepted a modified job assignment dated July
22, 2014, for 1 to 2 hours of “casing on open routes.” IAF, Tab 7 at 111. In
3
addition to these tasks, his time and attendance records from June 1, 2014,
through January 16, 2015, as well as a declaration from his supervisor, reflect
that he has performed miscellaneous sedentary assignments, worked in the post
office box section, and made deliveries, as these additional duties have become
available. Id. at 34-35, 39-100.
¶4 The appellant updated his medical documentation on August 15, 2014,
listing his work restrictions. Id. at 32. Restricted activities included performing
tasks requiring repetitive kneeling, stooping, squatting, or bending. Id. He also
was restricted from prolonged standing, walking, or stair climbing for more than
1 hour without a 15-minute rest break. Id. He additionally was restricted from
repetitive pushing, pulling, lifting, and carrying. Id. On September 15, 2014, the
agency provided the appellant with a written modified job assignment based on
these most recent restrictions. Id. at 37. He was assigned to 1 hour of casing
mail for route 4349 and 1 hour of carrier duties at 109th and 110th Western Ave.
See id. at 37. The appellant accepted that assignment “under protest.” Id. at 37.
He also grieved the matter. Id. at 103-08.
¶5 During grievance proceedings, the agency maintained that the appellant’s
lifting, pushing, and pulling restrictions prevented him from delivering mail on
the street and that his kneeling, bending, stooping, and squatting restrictions
prevented him from working in the post office box section. Id. at 111. The
agency showed that it had conducted daily work searches for the appellant and
identified appropriate work within his local commuting area at other stations in
need of limited or light duty employees. Id. at 112. The appellant did not refute
that he had refused to go to another station. He argued instead that management
should assign him areas with flat terrain from various Morgan Park Station routes
so as to avoid violating his climbing restrictions. Id. The agency countered that
having to mount and dismount a vehicle continuously would violate his climbing
restrictions. Id. The grievance was resolved, and no violation of the agency’s
Employee and Labor Relations Manual was shown. Id. at 110-13.
4
¶6 The appellant filed the instant appeal. IAF, Tab 1. He maintained that
management should assign him 8 hours of work per day, 5 days per week, rather
than the 2 to 4 hours of work per day documented in the modified job assignment.
IAF, Tab 1 at 3, Tab 8, Subtab 2. Because he had not been assigned 8 hours of
work per day, he alleged that the agency failed to properly restore him to duty. IAF,
Tab 1. The administrative judge decided the appeal on the written record, finding
that the appellant failed to allege sufficient facts to entitle him to a jurisdictional
hearing and dismissing the appeal for lack of jurisdiction. IAF, Tab 10, Initial
Decision (ID) at 2, 10. The appellant filed this petition for review. Petition for
Review (PFR) File, Tab 1.
ANALYSIS
¶7 The administrative judge decided this appeal correctly. An agency must
make every effort to restore a partially recovered employee to a position within
his medical restrictions and within the local commuting area. Chen v. U.S. Postal
Service, 114 M.S.P.R. 292, ¶ 7 (2010), overruled on other grounds by Latham v.
U.S. Postal Service, 117 M.S.P.R. 400 (2012); 5 C.F.R. § 353.301(d). A partially
recovered employee is one who cannot resume the full range of regular duties but
has recovered sufficiently to return to part-time or light duty or to another
position with less demanding physical requirements. Chen, 114 M.S.P.R. 292,
¶ 7; 5 C.F.R. § 353.102. An individual who is partially recovered from a
compensable injury may appeal to the Board for a determination of whether the
agency acted arbitrarily and capriciously in denying restoration.
Chen, 114 M.S.P.R. 292, ¶ 8; 5 C.F.R. § 353.304(c).
¶8 To establish jurisdiction over an alleged denial of restoration rights, a
partially recovered employee must prove by preponderant evidence that: (1) he
was absent from work due to a compensable injury; (2) he recovered sufficiently
to return to duty on a part-time basis or to return to work in a position with less
demanding physical requirements than those previously required; (3) the agency
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denied his request for restoration; and (4) the denial was arbitrary and capricious
because of the agency’s failure to perform its obligations under 5 C.F.R.
§ 353.301(d). Bledsoe v. Merit Systems Protection Board, 659 F.3d 1097, 1104
(Fed. Cir. 2011); Latham, 117 M.S.P.R. 400, ¶ 10. If an appellant makes
nonfrivolous allegations of jurisdiction with respect to all four prongs of the
jurisdictional standard, he is entitled to a jurisdictional hearing. Bledsoe, 659
F.3d at 1102. If he establishes the Board’s jurisdiction, he automatically prevails
on the merits of his appeal. See Latham, 117 M.S.P.R. 400, ¶ 10 n.9. 2
¶9 The parties do not dispute that the appellant suffered multiple compensable
injuries, the latest of which occurred in June 2014. See IAF, Tab 7 at 13-15,
17-18, 20-23, 25-27, 29-30. They also do not dispute that, despite his medical
limitations, the appellant has recovered sufficiently to return to duty on a
part-time basis and that he has in fact accepted and returned to work pursuant to
modified job assignments. See id. at 34-35, 39-101, 111. As we note above, less
than 3 months before he received the modified job assignment that he challenges
in this appeal, the appellant accepted a modified job assignment for 1 to 2 hours
of work “casing on open routes.” Id. at 111. The assignment he challenges is for
2 hours of casing and carrying. Id. at 37. The appellant thus satisfied his burden
for the first two prongs.
¶10 As for the third prong, the appellant did not claim that the agency denied
outright his request for restoration. Rather, he argued that the agency improperly
restored him when his modified job assignment did not provide him with a full
2
The administrative judge’s jurisdictional order directed the appellant to establish
jurisdiction but did not inform him how he could do so. IAF, Tab 3; see Burgess v.
Merit Systems Protection Board, 758 F.2d 641, 643-44 (Fed. Cir. 1985) (holding that an
appellant must receive explicit information on what is required to establish an
appealable jurisdictional issue). However, any defect was cured by the agency’s motion
to dismiss, which set forth the elements that an appellant must prove to establish Board
jurisdiction under Latham. IAF, Tab 7 at 8; see Scott v. Department of Justice, 105
M.S.P.R. 482, ¶ 6 (2007) (finding that an administrative judge’s failure to provide an
appellant with proper Burgess notice can be cured if the agency’s pleadings contain the
notice that was lacking).
6
8 hours of work per day. See IAF, Tab 8, Ex. 2. He asserted that working fewer
than 8 hours per day affects his accrual of leave and prospects for retirement.
IAF, Tab 1 at 3. Nevertheless, he presented no authority supporting the
proposition that the agency’s failure to assign him 8 hours of work per day
constitutes a failure to restore him as a partially recovered employee. Had he
shown that the agency eliminated his limited duty schedule, he would have made
a nonfrivolous allegation that it denied his request for restoration. See Brehmer v.
U.S. Postal Service, 106 M.S.P.R. 463, ¶ 9 (2007). Likewise, had the agency
partially eliminated previously afforded limited duty, he would have
nonfrivolously alleged that the agency denied his restoration request. 3 See
Kinglee v. U.S. Postal Service, 114 M.S.P.R. 473, ¶ 14 (2010). A partially
recovered employee, however, may not appeal an allegedly improper restoration,
such as an agency’s decision not to afford restoration to a full-time schedule.
Zysk v. U.S. Postal Service, 108 M.S.P.R. 520, ¶ 6 (2008). He may only appeal
from an agency’s denial of restoration and only on the grounds that such a denial
was arbitrary and capricious. Id.
¶11 Although there are circumstances in which restoration of a partially
recovered employee may be deemed so unreasonable as to amount to a denial of
restoration within the Board’s jurisdiction, Foley v. U.S. Postal
Service, 90 M.S.P.R. 206, ¶ 6 (2001), the appellant has not come forward with
sufficient facts to meet the fourth prong of the jurisdictional standard. To show
that an agency’s denial of restoration is arbitrary and capricious, an appellant
must either: (1) identify a vacant position, or positions, within the local
commuting area that he could perform within his medical restrictions; or (2) set
forth facts showing that either the agency did not search the entire local
commuting area for vacant positions or that the agency’s claim that there are no
vacant positions available for him within the local commuting area is in some
3
Successfully making a nonfrivolous allegation does not establish jurisdiction over the
appellant’s claim but rather merely entitles him to a jurisdictional hearing.
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way untrue. Latham, 117 M.S.P.R. 400, ¶ 66; Patino v. U.S. Postal Service, 115
M.S.P.R. 124, ¶ 9 (2010); Urena v. U.S. Postal Service, 113 M.S.P.R. 6, ¶ 13
(2009); Hogarty v. U.S. Postal Service, 101 M.S.P.R. 376, ¶¶ 10-11 (2006).
¶12 The record shows that the agency continued to find available work for the
appellant within his medical restrictions to the extent that such work existed,
including during the period following the agency’s September 2014 offer of a
modified job assignment. See IAF, Tab 7 at 34-35, 39-101. He has continued to
receive work within his restrictions, including ad hoc tasks that allow him to
work significantly more than 2 hours per day. Id. During the grievance
proceedings, the agency presented evidence establishing that it had examined the
entire local commuting area in determining whether there was available work
within his medical restrictions and that the appellant had declined to take on
additional duties at stations other than Morgan Park. Id. at 112.
¶13 The appellant failed to nonfrivolously allege that the agency had not
conducted such a search. See Urena, 113 M.S.P.R. 6, ¶ 13 (finding that, in
response to the agency’s evidence, an appellant may come forward with
nonfrivolous allegations that the agency did not actually search the local
commuting area as required by 5 C.F.R. § 353.301(d)). Although he generally
asserted that some similarly situated employees were given more hours than he
had been given, such vague assertions are insufficient to meet his jurisdictional
burden. He did not, for example, allege that the other employees faced medical
restrictions similar to his own restrictions or that they worked full 8-hour days
during the same pay periods that he did not. We also note that he did not
acknowledge that his time and attendance records show that he often worked
considerably more than 2 hours per day. Accordingly, even if the appellant had
met the third prong of the jurisdictional standard and had nonfrivolously alleged
that the agency had denied him restoration, he failed to meet the fourth prong and
nonfrivolously allege that the denial was arbitrary and capricious.
8
¶14 On review, the appellant argues that the agency did not make the modified
job assignments in good faith, nor did these assignments allow him to work to his
maximum capabilities. Petition for Review (PFR) File, Tab 1 at 4. He argues
that he could perform work within his medical restrictions as a carrier by carrying
a lighter mail bag on routes where he could walk less and drive more. Id. at
9. He argues that the frequent dismounting of his vehicle that would be required
on such routes would not violate his medical restrictions. Id. He further argues
that casing additional routes would not violate his medical restrictions. Id. As
the administrative judge noted, however, these issues were resolved during the
appellant’s grievance, where the agency explained that continuously entering and
exiting a delivery vehicle could violate his climbing restrictions. IAF, Tab 7
at 112; see ID at 4.
¶15 The appellant’s argument also relies on an unsworn statement he made after
the close of the record below that he submitted with the petition for review. PFR
File, Tab 1 at 9-11. Under 5 C.F.R. § 1201.115, the Board will not consider
evidence submitted for the first time with the petition for review absent a showing
that it was unavailable before the record was closed despite the party’s due
diligence. Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980). As the
information set forth in the statement was addressed below, it would not meet the
Board’s definition of new evidence. See Grassell v. Department of
Transportation, 40 M.S.P.R. 554, 564 (1989) (holding that, to constitute new and
material evidence, the information contained in the documents, not just the
documents themselves, must have been unavailable despite due diligence when
the record closed).
¶16 For the same reason, the appellant’s other arguments raised in the statement
and attached documents do not support granting the petition for review. The
appellant alleges that the agency did not identify the dates upon which he refused
assignments at other stations and that he did not take these positions because he
had a physician’s excuse for not taking them. PFR File, Tab 1 at 10. He argues
9
that the positions were “temporary” ones in any event. Id. In support of these
arguments, he included with his petition for review selected pages from various
agency manuals, a physician’s note for absences between August 22 and
August 27, 2014, and an unsworn statement from his union steward stating that he
had never declined an assignment. Id. at 13-21. These documents or the
information therein would have been available to the appellant prior to the close
of the record, and he has not explained why he was unable to submit them.
¶17 Finally, the appellant argues that that he was unaware that another
employee had filed an equal employment opportunity (EEO) complaint in which
he was a comparator. Id. at 3. He additionally argues that he was not aware that
he could request a reasonable accommodation for his condition under the
Rehabilitation Act. Id. In support of his argument, he submitted an investigative
affidavit from the EEO complaint. Id. at 12. To the extent that the appellant is
trying to raise new arguments on review, the Board will not consider such an
argument raised for the first time in a petition for review absent a showing that it
is based on new and material evidence not previously available despite the party’s
due diligence. Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271
(1980); 5 C.F.R. § 1201.115(d). These arguments rely on factual matters of
which the appellant was likely aware before the record closed, and he has not
explained why this information was unavailable to him before that time. See
Grassell, 40 M.S.P.R. at 564. In any event, we also note that the record includes
an informal EEO complaint that the appellant filed, invoking his rights under the
Rehabilitation Act. IAF, Tab 8, Ex. 8. For all of these reasons, we deny the
appellant’s petition for review and affirm the initial decision.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
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United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information is available at the court’s
website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide
for Pro Se Petitioners and Appellants,” which is contained within the
court’s Rules of Practice, and Forms 5, 6, and 11.
If you are interested in securing pro bono representation for your appeal to
the Court of Appeals for the Federal Circuit, you may visit our website
at http://www.mspb.gov/probono for information regarding pro bono
representation for Merit Systems Protection Board appellants before the Federal
Circuit. The
11
Merit Systems Protection Board neither endorses the services provided by any
attorney nor warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.