                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     KATHY L. DAVIS,                                 DOCKET NUMBER
                   Appellant,                        DA-0752-10-0393-C-1

                  v.

     UNITED STATES POSTAL SERVICE,                   DATE: September 24, 2014
                   Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL 1

           James C. Latham, Amarillo, Texas, for the appellant.

           Paul C. Wolf, Esquire, Dallas, Texas, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the compliance initial
     decision, which denied her petition for enforcement.            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


     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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     interpretation of statute or regulation or the erroneous application of the law to
     the facts of the case; the 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).
¶2        The appellant filed a petition for enforcement alleging that the agency has
     failed to comply with the final decision in her restoration appeal in which the
     Board ordered the agency to restore the appellant, effective April 27, 2010, to her
     former modified assignment, and to pay the appellant the correct amount of back
     pay, interest on back pay, and other benefits under the Back Pay Act and/or U.S.
     Postal Service Regulations, as appropriate. Compliance File (CF), Tab 1. During
     the proceedings below, the appellant alleged that the agency failed to comply
     with the Board’s Order because: (a) it failed to restore her to the former modified
     assignment that she held effective April 27, 2010; (b) it failed to correctly
     calculate the amount of back pay owed to her as a result of deducting health
     insurance premiums twice; (c) it failed to correctly calculate the interest on the
     back pay owed to her; and (d) it incorrectly calculated the night differential
     portion of the back pay owed her. See CF, Tab 15. The administrative judge
     found that the agency restored the appellant, effective April 27, 2010, to the
     former modified assignment that she held.         CF, Tab 18, Compliance Initial
     Decision (CID) at 3-5.     The administrative judge also found that the agency
     properly deducted the insurance premiums paid by the Office of Workers’
                                                                                     3

     Compensation Programs (OWCP) from the back pay she was entitled to receive,
     and that the agency properly calculated the interest on the back pay owed the
     appellant. CID at 5-6. Finally, the administrative judge found that the agency
     established that it properly calculated the night differential portion of the back
     pay owed to the appellant.    CID at 7.    Accordingly, the administrative judge
     found that the agency was in full compliance with the Board’s order and denied
     the appellant’s petition for enforcement. CID at 8.
¶3        On review, the appellant reasserts her claim that the agency has failed to
     comply with the Board’s final decision.      We have considered the appellant’s
     arguments on review concerning the administrative judge’s weighing of the
     evidence; however, we discern no reason to reweigh the evidence or substitute
     our assessment of the record evidence for that of the administrative judge. See
     Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 105-106 (1997) (finding no reason
     to disturb the administrative judge’s findings when the administrative judge
     considered the evidence as a whole, drew appropriate inferences, and made
     reasoned conclusions); Broughton v. Department of Health & Human Services,
     33 M.S.P.R. 357, 359 (1987) (same).       In this case, the administrative judge
     thoroughly addressed the issue of whether the agency was in compliance with the
     settlement agreement, and, while the appellant reiterates the arguments she raised
     below, we agree with the administrative judge that the appellant has failed to
     establish that the agency has not complied with the Board’s final order.
¶4        Specifically, the appellant reasserts on review that she was not returned to
     the status quo ante because the duties of her new modified assignment differ from
     those of the one she held on April 27, 2010. Compliance Petition for Review
     (CPFR) File, Tab 1. However, the administrative judge found that the agency
     offered the appellant a modified assignment, which the appellant accepted, and
     that the appellant “agrees that the duties she now performs are the same or very
     similar to the ones she performed April 27, 2010.”            CID at 4-5.     The
     administrative judge further found that the record reflects that the new modified
                                                                                      4

     assignment affords the appellant the same hours of work and that the duties of the
     assignment are within the appellant’s medical restrictions. CID at 4-5. While the
     appellant asserts that the documents she submits on review show that she was not
     returned to the status quo ante, most of these documents were previously
     submitted into the record below and were considered by the administrative judge.
     See Initial Appeal File, Tab 19, Subtabs F, L; CF, Tabs 5, 11. To the extent that
     the appellant has submitted additional documents for a first time on review, these
     documents are not new and the appellant has made no showing that they were
     unavailable before the record closed despite her due diligence.       See 5 C.F.R.
     § 1201.115; see also Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214
     (1980).
¶5         Moreover, even if the appellant had established that she exercised due
     diligence in obtaining this evidence, she has not demonstrated that it is of
     sufficient weight to warrant an outcome different from that of the compliance
     initial decision.   Specifically, the appellant claims that the remaining documents
     she submits on review show either that she was not returned to the status quo ante
     or that the modified job offer does not comply with OWCP regulations. CPFR
     File, Tab 1. However, the documents, which she claims identifies the duties of
     her position, are immaterial to whether she was returned to the status quo ante
     because they relate to the duties for the positions of a Mail Processing Clerk and
     a Sales, Service Distribution Associate. Id. The appellant, though, is employed
     under a “modified” job offer, in a position which includes modified duties from
     both of these positions. Thus, because the duties identified in the documents are
     not the same as the duties in her “modified” position, these documents are not
     material.
¶6         Further, to the extent that the appellant argues that the modified job offer,
     which OWCP found to be suitable within her medical restrictions, does not
     comply with OWCP regulations, the Board has found that decisions on the
     suitability of an offered position are within the exclusive domain of OWCP, and it
                                                                                        5

     is that agency and not the Board that possesses the requisite expertise to evaluate
     whether a position is suitable in light of that employee’s particular medical
     condition. Paszko v. U.S. Postal Service, 119 M.S.P.R. 207, ¶ 9 (2013). Thus,
     because the Board does not have jurisdiction over OWCP’s determination that the
     appellant’s modified job is suitable within her medical restrictions, any
     documents relating to this argument are not material to whether the appellant has
     been returned to the status quo ante. Accordingly, the record reflects that the
     administrative judge properly considered all of the record evidence and made
     well-reasoned findings in determining that the appellant was returned to the status
     quo ante, and the appellant has provided no basis upon which to disturb those
     findings. See CID at 3-5.
¶7         The appellant also argues that the agency failed to provide her the correct
     back pay because it underpaid her approximately $2,400 as a result of her OWCP
     benefits.   CPFR File, Tab 1.         However, the agency provided a detailed and
     well-reasoned explanation for its calculation of the back pay owed to the
     appellant and its use of the “gross pay” she received from OWCP benefits. CF,
     Tab 17.     Based on the record, the administrative judge correctly found that,
     because the appellant was required to pay the insurance premium, the agency
     properly deducted the insurance premiums paid by OWCP from the back pay she
     was entitled to receive.
¶8         Finally, the appellant argues that she is entitled to 6 hours of night
     differential pay per week, as opposed to the 5 hours she received from the agency.
     The Board has held that overtime back pay may be computed based on either
     pre-removal    overtime     history    or   average   overtime   hours   worked   by
     similarly-situated employees during the removal period. Chacon v. Department
     of Agriculture, 115 M.S.P.R. 313, ¶ 10 (2010). The Board will not nullify the
     method chosen by the agency absent a showing that it is unreasonable or
     unworkable. Id. Here, the agency explained that the appellant’s schedule would
     frequently change according to the agency’s needs and that the agency used an
                                                                                   6

average of the appellant’s hours for the past year to calculate the appellant’s night
differential pay. CID at 7; CF, Tab 17 at 10-11. The agency also included a copy
of the calculations used to determine the night differential. CF, Tab 17, Subtab
A-14. While the appellant disagrees with the agency’s determination to rely on a
year’s worth of her work schedule instead of the last 4 months, the appellant has
not identified any error in this methodology. Accordingly, we agree with the
administrative judge that the agency is in full compliance with the Board’s final
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:
                            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.
                                                                                7

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 court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The 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.
