                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     JOSEPHINE ACOSTA,                               DOCKET NUMBER
                  Appellant,                         DA-0353-15-0394-I-1

                  v.

     UNITED STATES POSTAL SERVICE,                   DATE: October 20, 2016
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Marcus J. Watson, Dallas, Texas, for the appellant.

           Susan L. LaSalle, Dallas, Texas, 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
     denied her restoration appeal. 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 the facts of the case; the administrative

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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.           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, 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 appellant, a Mail Processing Clerk at the agency’s Dallas Processing
     and Distribution Center, experienced a series of compensable injuries beginning
     in February 2007. Initial Appeal File (IAF), Tab 26 at 20-21; Tab 7 at 47. 2 The
     agency offered the appellant a modified job assignment, and her physician
     subsequently indicated that she could return to work on April 3, 2015, with
     restrictions that, in pertinent part, indicated that she could perform no duties that
     required walking or standing. IAF, Tab 7 at 29-31, 35-37. The appellant reported
     for duty on that date, and the agency gave her ad hoc duties apparently within her
     restrictions for 8 hours each day through April 7, 2015, but it sent her home
     because it had no duties available within her medical restrictions and needed to,
     among other things, process the paperwork concerning her modified job offer.
     IAF, Tab 7 at 34; Tab 23 at 154-55; Tab 26 at 12.              Around this time, the
     Department of Labor (DOL) informed the agency that the modified job offer


     2
       The Office of Personnel Management approved the appellant’s disability retirement
     application in December 2012, and the agency removed her from its rolls; she elected to
     receive Office of Workers’ Compensation Programs benefits until April 7, 2015, after
     which she elected to collect disability retirement benefits. IAF, Tab 7 at 47, 207-12;
     Tab 23 at 154-62; Tab 25 at 15; Tab 26 at 7, 35, 40; Tab 31, Initial Decision at 2 & n.2.
                                                                                      3

     was not suitable in light of the appellant’s restrictions. IAF, Tab 23 at 154-56,
     161, 163-64; Tab 26 at 33.      Three days later, the appellant made another
     restoration request. IAF, Tab 7 at 33. Between June 23 and July 22, 2015, the
     agency unsuccessfully searched the local commuting area for work within the
     appellant’s medical restrictions and then notified her that it had no duties
     available within her medical restrictions. IAF, Tab 9 at 14-15, 17-153.
¶3        The appellant filed an appeal in which she alleged that the agency violated
     her restoration rights. IAF, Tabs 1, 14. The administrative judge found that the
     appellant made nonfrivolous allegations sufficient to establish jurisdiction over
     her appeal. IAF, Tab 31, Initial Decision (ID) at 1. After holding a hearing, the
     administrative judge found that the appellant failed to show by preponderant
     evidence that the agency’s denial of her restoration request was arbitrary and
     capricious. ID at 9. Consequently, he affirmed the agency’s action, denying the
     appellant’s appeal on the merits. ID at 10.
¶4        In her petition for review, the appellant asserts that she was denied the
     opportunity to present a witness she states would have testified that he assigned
     modified/light duty jobs to his female friends rather than to her. Petition for
     Review (PFR) File, Tab 1 at 9-10, 15-17. She also submits a document dated
     after the close of the record below regarding retroactive payments she received
     from the Office of Personnel Management (OPM).          Id. at 12.   The appellant
     claims that she had no choice but to report for duty on April 3, 2015, even though
     the agency’s job offer was not within her medical restrictions, because neither the
     agency nor DOL informed her not to do so. Id. at 14. She further argues that the
     agency failed to conduct a legally sufficient search to find her an alternative
     assignment within her medical restrictions. She asserts, moreover, that she is
     qualified to perform the duties of a dispatch dock clerk or a call center employee
     with or without accommodation. Id. at 14-16. The agency responds in opposition
                                                                                                4

     to the appellant’s petition for review. PFR File, Tab 3. The appellant filed a
     reply to the agency’s response. PFR File, Tab 4. 3

                       DISCUSSION OF ARGUMENTS ON REVIEW
¶5         The Federal Employees’ Compensation Act and OPM’s implementing
     regulations at 5 C.F.R. part 353 provide, inter alia, that Federal employees who
     suffer compensable injuries enjoy certain rights to be restored to their previous or
     comparable positions.       5 U.S.C. § 8151(b); Kingsley v. U.S. Postal Service,
     123 M.S.P.R. 365, ¶ 9 (2016); 5 C.F.R. § 353.301.             Under OPM’s regulations,
     such employees have different substantive rights based on whether they have
     fully recovered, partially recovered, or are physically disqualified from their
     former or equivalent positions.          Kingsley, 123 M.S.P.R. 365, ¶ 9; 5 C.F.R.
     § 353.301.    Partially recovered employees, like the appellant, are those who,
     “though not ready to resume the full range” of duties, have “recovered
     sufficiently to return to part-time or light duty or to another position with less
     demanding physical requirements.” Kingsley, 123 M.S.P.R. 365, ¶ 9; 5 C.F.R.
     § 353.102.
¶6         OPM’s regulations require that agencies “make every effort to restore in the
     local commuting area, according to the circumstances in each case, an individual
     who has partially recovered from a compensable injury and who is able to return
     to limited duty.” 5 C.F.R. § 353.301(d). The Board has jurisdiction to review
     whether an agency’s denial of restoration to a partially recovered employee was
     arbitrary and capricious. Bledsoe v. Merit Systems Protection Board, 659 F.3d
     1097, 1103-04 (Fed. Cir. 2011); 5 C.F.R. § 353.304(c).              As noted above, the

     3
       The appellant filed an additional pleading on June 8, 2016. The Board’s regulations
     do not provide for pleadings other than a petition for review, a cross petition for review, a
     response to the petition for review or cross petition for review, and a reply to a response.
     PFR File, Tab 5; see 5 C.F.R. § 1201.114(a)(5). Because the appellant failed to file a
     motion with and obtain leave from the Clerk of the Board prior to filing her additional
     pleading, the pleading was rejected and returned to the appellant without consideration.
     PFR File, Tab 5.
                                                                                        5

     appellant established jurisdiction over her restoration claim by making the
     requisite nonfrivolous allegations, IAF, Tab 14, and she must prove the merits of
     her appeal by preponderant evidence, 4 Kingsley, 123 M.S.P.R. 365, ¶ 12; 5 C.F.R.
     § 1201.57(a)(4), (b). We agree with the administrative judge that the appellant
     established the first three elements of her restoration claim. ID at 5. To that end,
     the record reflects that: (1) the appellant was absent from her position due to a
     compensable injury; (2) she recovered sufficiently to return to duty on a part-time
     basis or return to work in a position with less demanding physical requirements
     than those previously required of her; and (3) she requested restoration and the
     agency denied her request. ID at 5; Bledsoe, 659 F.3d. at 1104. Neither party
     challenges these findings on review, and we see no reason to disturb them.
¶7        Concerning the fourth element, whether the agency’s denial of the
     appellant’s restoration request was arbitrary and capricious, the administrative
     judge found that the appellant failed to show that work within her restrictions was
     available or that the agency’s search for work was not sufficient. ID at 5. We
     agree with the administrative judge that the appellant failed to show that the
     ad hoc duties she performed in the security shack and the damaged mail unit
     between April 3 and 7, 2015, were either necessary or within her medical
     restrictions and that, as a result, the agency never reemployed her such that she
     was performing duties pursuant to a valid modified assignment. ID at 5-8 & n.7.
     On review, she asserts that she was not told that the DOL had determined that the
     agency’s modified job offer was not acceptable in light of her medical restrictions
     and explains that she reported for duty on April 3, 2015, because she thought she
     was required to do so. PFR File, Tab 1 at 14. Nevertheless, the administrative
     judge found it undisputed that the agency’s modified job offer did not meet the
     appellant’s medical restrictions. ID at 6; IAF, Tab 7 at 35-42.

     4
      A preponderance of the evidence is the degree of relevant evidence that a reasonable
     person, considering the record as a whole, would accept as sufficient to find that a
     contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).
                                                                                             6

¶8         We also agree with the administrative judge that the agency’s search for a
     job within the appellant’s medical restrictions did not result in an arbitrary and
     capricious denial of restoration.      ID at 8-9.    In her petition for review, the
     appellant challenges the agency’s search as insufficient.             PFR File, Tab 1
     at 13-16.   She does not assert on review that the agency’s search failed to
     encompass the appropriate geographical area, nor does she challenge the
     administrative judge’s finding that the agency’s delay in performing its search
     was not so lengthy as to represent an arbitrary and capricious denial of
     restoration. ID at 9. Her arguments instead focus on her unsupported allegation
     that the agency investigated the individual who conducted the search for allegedly
     giving jobs to his female friends and her contention that the agency could have
     assigned her to one of those jobs. 5 Id. at 15-17. The appellant raises this issue
     for the first time on review, claiming that she learned around the time of the
     hearing that the agency forced the individual who was investigated to resign over
     the allegations. Id. at 10. The appellant offers no support for her assertion, and
     she fails to explain the source of this information or why the information was not
     available to her despite her due diligence prior to the close of the record below.
     The Board will not consider 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



     5
       The appellant also claims that she was denied the opportunity to present the testimony
     of this individual, who she asserts would have confirmed her allegations. PFR File,
     Tab 1 at 10. The appellant, however, did not propose this individual as a witness. IAF,
     Tab 24 at 7. The record instead reflects that only the agency proposed this witness, but
     it did not call him to testify at the hearing and that the appellant only proposed herself
     as a witness on her own behalf. Id.; IAF, Tab 23 at 13-14; PFR File, Tab 3 at 13.
     Moreover, our review of the record, including the hearing compact disc (HCD),
     does not reflect that the appellant, who was represented in her appeal below, lodged any
     objection concerning this witness. IAF, Tab 29, HCD. The appellant’s failure to timely
     object to rulings on witnesses below precludes her from doing so on review. Tarpley v.
     U.S. Postal Service, 37 M.S.P.R. 579, 581 (1988).
                                                                                          7

      the Air Force, 4 M.S.P.R. 268, 271 (1980). The appellant makes no such showing
      here, and so we will not consider it further.
¶9          The appellant also argues on review that she is able perform the duties of a
      dispatch dock clerk and to work at the call center in Coppell, Texas, with or
      without accommodation. PFR File, Tab 1. at 16.            We point out that Coppell,
      Texas, is within the local commuting area that the agency searched for positions
      meeting the appellant’s medical restrictions and the record reflects that the
      agency searched at least six facilities there during that search. IAF, Tab 9 at 25.
      Moreover, the appellant fails to identify any purportedly vacant positions in
      Coppell. See, e.g., Clark v. U.S. Postal Service, 123 M.S.P.R. 466, ¶ 10 (2016)
      (citing Bledsoe, 639 F.3d at 1100, 1104-06) (finding that the appellant failed to
      meet the fourth element in establishing jurisdiction over her restoration appeal
      because she failed to specifically identify any vacant positions that she was able
      to perform that were available within her commuting area). In any event, even if
      she were able to identify a vacant position, we need not consider the argument
      because she raises it for the first time on review and failed to show that it is based
      on new and material evidence not previously available to her despite her
      due diligence. E.g., Banks, 4 M.S.P.R. at 271.
¶10         Accordingly, we find that the administrative judge correctly affirmed the
      agency’s denial of the appellant’s restoration request.

                      NOTICE TO THE APPELLANT REGARDING
                         YOUR FURTHER REVIEW RIGHTS
            You have the right to request review of this final decision by the U.S.
      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
                                                                                  8

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 an appeal to
the U.S. 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
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:                            ______________________________
                                          Jennifer Everling
                                          Acting Clerk of the Board
Washington, D.C.
