                           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             THIS FINAL ORDER IS NONPRECEDENTIAL 1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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
                                                                                            5

      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.
                                                                                      7

      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:
                                                                                       10

                           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.
