                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     MARY H. NARANJO,                                DOCKET NUMBER
                  Appellant,                         SF-0353-15-0263-I-1

                  v.

     UNITED STATES POSTAL SERVICE,                   DATE: March 1, 2016
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Guillermo Mojarro, Upland, California, for the appellant.

           Tuyet T. Nguyen, Esquire, Long Beach, California, 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 her restoration appeal for lack of jurisdiction after a hearing.
     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

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

                        DISCUSSION OF ARGUMENTS ON REVIEW
¶2         In this restoration appeal, the appellant, a clerk at the agency’s La Habra,
     California Post Office, alleged that the agency failed to restore her to duty
     following her partial recovery from a compensable injury. Initial Appeal File
     (IAF), Tab 1. After giving the appellant notice of the elements and burdens of
     establishing jurisdiction over the restoration claim of a partially recovered
     employee, the administrative judge found that the appellant made nonfrivolous
     allegations sufficient to hold a hearing, following which she granted the agency’s
     motion to dismiss the appeal for lack of jurisdiction because the appellant failed
     to establish by preponderant evidence that the agency’s failure to restore her to
     duty was arbitrary and capricious.            IAF, Tab 12; IAF, Tab 50, Initial
     Decision (ID). 2
¶3         To establish jurisdiction over a restoration appeal as a partially recovered
     individual, an appellant must prove by preponderant evidence that: (1) she was

     2
       Because the administrative judge dismissed the appeal for lack of jurisdiction, she
     did not address the agency’s motion to dismiss the appeal as untimely filed. ID at 1
     n.1; IAF, Tab 8 at 9-10. Because we affirm the initial decision herein, we also decline
     to address the timeliness of the appeal.
                                                                                         3

     absent from her position due to a compensable injury; (2) she 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 of her;
     (3) the agency denied her request for restoration; and (4) the denial was arbitrary
     and capricious. Bledsoe v. Merit Systems Protection Board, 659 F.3d 1097, 1104
     (Fed. Cir. 2011); Latham v. U.S. Postal Service, 117 M.S.P.R. 400, ¶ 10 (2012). 3
¶4         Partially recovered employees may not appeal an improper restoration to the
     Board; they may only appeal to the Board for a determination of whether the
     agency acted arbitrarily and capriciously in denying restoration.          See, e.g.,
     Booker v. Merit Systems Protection Board, 982 F.2d 517, 519 (Fed. Cir. 1992);
     Jones v. U.S. Postal Service, 86 M.S.P.R. 464, ¶ 5 (2000).        Under appropriate
     circumstances, a restoration may be deemed so unreasonable as to amount to a
     denial of restoration within the Board’s jurisdiction. Jones, 86 M.S.P.R. 464, ¶ 5.
     For example, a claim that restoration was effectively denied may involve
     allegations that a partially recovered appellant is incapable of performing the job
     duties of the position to which she was restored. Foley v. U.S. Postal Service,
     90 M.S.P.R. 206, ¶ 6 (2001).         However, a dispute about the details and
     circumstances of a restoration actually accomplished are outside the Board’s
     jurisdiction. Latham, 117 M.S.P.R. 400, ¶ 34.
¶5         The record reflects that the appellant suffered what appeared to be a stroke
     at work on March 21, 2014, and she subsequently presented doctors’ notes
     placing her off work until April 21, 2014. IAF, Tab 8 at 43, 54-56, 62-63. On
     April 16, 2014 she requested light duty, which the agency denied because it found
     no work within her medical restrictions, under which she was unable to use her
     left arm and shoulder, and to reach above her shoulder.          Id. at 58-60.    The


     3
       Bledsoe and Latham both apply the “preponderant evidence” standard rather than the
     new “nonfrivolous allegation” standard. The new standard applies only in cases filed
     on or after March 30, 2015, 80 Fed. Reg. 4489-01, 4489-01 (Jan. 28, 2015) (codified at
     5 C.F.R. § 1201.57), and is therefore inapplicable in this appeal.
                                                                                     4

     appellant subsequently filed a claim with the Office of Workers’ Compensation
     Programs (OWCP), id. at 55-56, and, in a September 12, 2014 letter, OWCP
     accepted the appellant’s injury claim with an incident date of March 21, 2014,
     IAF, Tab 16 at 25-30. In October 2014, OWCP determined that the appellant was
     entitled to compensation beginning June 26, 2014. IAF, Tab 8 at 41-42. The
     agency subsequently offered the appellant a modified window clerk position,
     which she accepted under protest.     Id. at 47-48.    She then filed the instant
     restoration appeal. IAF, Tab 1.
¶6        The administrative judge found that the appellant met the first two Latham
     criteria, in that she was absent from her position due to a compensable injury as
     of the day that the OWCP accepted her claim for compensation, June 26, 2014,
     and that by September 18, 2014, she had recovered sufficiently to return to duty
     on either a part-time basis or in a position with less demanding physical
     requirements than previously required. ID at 6; Latham, 117 M.S.P.R. 400, ¶ 10.
     Relying on the timeline to which the appellant testified at the hearing, the
     administrative judge found that following OWCP’s acceptance of her claim, the
     appellant went to the La Habra Post Office on September 30, 2014, to submit her
     CA-17 duty status report and to ask the Officer in Charge (OIC) if there were any
     jobs available for her; on October 7, the appellant’s supervisor notified her of a
     job offer, which the appellant accepted under protest and started on October 11
     because of medical appointments scheduled for October 8 and 10. ID at 7; IAF,
     Tab 8 at 47-50.
¶7        Regarding the third Latham element—whether the appellant requested
     restoration—the record reflects that she first asked to return to work in an
     April 2014 light duty request, which, as noted above, the agency denied because
     it had no work available within her restrictions.     IAF, Tab 8 at 58, 60.   The
     appellant subsequently submitted numerous CA-17 duty status reports showing an
     ability to resume work, but because she also submitted a leave request with each
     one, and made no further light duty requests, the administrative judge found that
                                                                                    5

the OIC “believed the appellant was presenting the forms to support her continued
absence from work.”         ID at 6-10.   The administrative judge found that the
appellant was not absent due to a compensable injury until June 26, 2014, the date
OWCP accepted her claim, and that the agency therefore had no obligation to
restore her prior to that date.     ID at 5.   Because the agency did not learn of
OWCP’s award of compensation until September 18, the administrative judge
further found that the agency did not unreasonably deny the appellant’s request
for restoration before that date or delay any search for work from June 26 to
September 18, 2014. 4 ID at 5. Although it was not clear when the OIC actually
learned that the appellant’s injury was compensable, the administrative judge
credited the appellant’s assertion that, following the OWCP’s award of
compensation, she first requested restoration on September 30, 2014, establishing
the third Latham element. ID at 12. Nevertheless, the administrative judge found
that the appellant failed to establish the fourth Latham element because she
determined that the agency acted promptly to restore the appellant to duty after
the OIC received notice of the appellant’s OWCP compensation award. ID at 12.
The administrative judge also rejected the appellant’s claim that the agency failed
to fully restore her in the limited-duty assignment she accepted under protest,
finding that the appellant failed to allege any facts that would establish that her
restoration was so unreasonable as to amount to an arbitrary and capricious denial
of restoration. ID at 12.




4
  The administrative judge also found that, even if the agency had an obligation to
search for work during the time between the date OWCP accepted the appellant’s claim,
June 26, 2014, and the date on which OWCP awarded her compensation, September 18,
2014, it was not arbitrary and capricious for it to forgo searching during that period
because it reasonably expected to receive a favorable suitability rating from OWCP. ID
at 5-6 (citing Paszko v. U.S. Postal Service, 119 M.S.P.R. 207, ¶ 10 (2013)).
                                                                                             6

¶8          In her timely filed petition for review, 5 the appellant argues that the record
      does not indicate that the administrative judge reviewed all the evidence in
      making her decision. Petition for Review (PFR) File, Tab 3 at 5-6. The appellant
      also argues that the administrative judge made “improper determinations”
      regarding the availability of limited-duty assignments at the Los Angeles Call
      Center (LACC) and the agency’s failure to accommodate her, reiterating that her
      April 2014 light-duty requests put the agency on notice that she wanted to return
      to work. Id. at 6-7. The agency responds in opposition to the appellant’s petition
      for review. PFR File, Tab 5.
¶9          Although the appellant asserts that the administrative judge failed to review
      or consider all of the pleadings, she does not identify which of those pleadings
      the administrative judge neglected in her review of the evidence. PFR File, Tab 1
      at 5-6.   Nevertheless, the administrative judge’s failure to mention all of the
      evidence of record does not mean that she did not consider it in reaching her
      decision. Marques v. Department of Health & Human Services, 22 M.S.P.R. 129,
      132 (1984), aff’d, 776 F.2d 1062 (Fed. Cir. 1985) (Table).               Similarly, the
      appellant fails to describe why the administrative judge’s determination that she
      was ineligible for limited-duty assignments at the LACC was incorrect. PFR File,
      Tab 1 at 6-7; ID at 12-13. Moreover, as the following discussion indicates, we
      find no reason to disturb the administrative judge’s conclusions because the
      initial decision reflects that the administrative judge considered the evidence as a
      whole, drew appropriate inferences, and made reasoned conclusions on issues of
      credibility.   See Broughton v. Department of Health & Human Services,
      33 M.S.P.R. 357, 359 (1987).
¶10         On the merits of the appellant’s restoration claim, we agree with the
      administrative judge that the appellant established the first two jurisdictional

      5
       The record reflects that the appellant requested, and the Clerk of the Board granted, an
      extension of time to file her petition for review, which the appellant filed before the
      new deadline. Petition for Review File, Tabs 1-3.
                                                                                             7

      elements, that she was absent from her position due to a compensable injury and
      that she recovered sufficiently to return to duty with less demanding physical
      requirements. ID at 5-6. We also agree with the administrative judge that the
      first time that the appellant requested restoration following OWCP’s acceptance
      of her March 21, 2014 injury was on September 30, 2014, when she went to the
      La Habra Post Office and spoke with the OIC. ID at 7. The appellant challenges
      this finding in her petition for review, arguing that she requested restoration in
      “April 2014 and ongoing” by contacting the agency “in person, via telephone, and
      through her union representative.” PFR File, Tab 1 at 6. 6
¶11         The administrative judge found that the appellant’s account of her purported
      requests did not establish that she requested to be returned to work and instead
      indicated that her submissions comprised support for her continued absence from
      work. ID at 6-7, 11. The administrative judge’s determination is consistent with
      hearing testimony she cited that the OIC understood that the appellant had
      submitted “documentation ‘putting her off work,’” rather than a request to return
      to work. ID at 8, 10. Furthermore, the administrative judge found a significant
      credibility gap in the appellant’s sworn declaration regarding her purported
      restoration requests in that the Postmaster whom the appellant swore that the OIC
      consulted in order to find out whether any jobs were available within the
      appellant’s medical restrictions did not even work at the La Habra Post Office,
      and did not speak with the OIC or the appellant’s supervisor, during the time of
      the events the appellant recounted.         ID at 11.      Thus, we agree with the


      6
        The appellant also describes the agency’s denial of her light-duty requests, i.e, those
      made in April 2014, which occurred before OWCP accepted her injury as compensable
      and during a period for which OWCP did not award her compensation, as a failure to
      accommodate. PFR File, Tab 1 at 6-7. However, the administrative judge found that
      the appellant did not request accommodation prior to October 8, 2014. ID at 9.
      Nevertheless, as we have noted, the agency did not have any work within the
      appellant’s significant medical restrictions when she made those April 2014 light-duty
      requests, and the appellant identifies nothing on review that would cast doubt on the
      administrative judge’s findings in this regard.
                                                                                  8

administrative judge that the appellant failed to establish by preponderant
evidence that she requested restoration prior to September 30, 2014. Although
the appellant does not contest the point on review, we also agree with the
administrative judge that the agency did not unreasonably delay its response to
the appellant’s request, but instead acted promptly, making the appellant an offer
within 9 days of her request. ID at 11-12. Moreover, as the administrative judge
found, the limited-duty assignment the appellant accepted did not require her to
work outside of her medical restrictions and was therefore not so unreasonable as
to amount to an arbitrary and capricious denial of restoration.           ID at 12.
Accordingly, we agree with the administrative judge’s determination that the
appellant failed to establish jurisdiction over her claim that the agency violated
her restoration rights as a partially recovered individual.

                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

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
                                                                                  9

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:                            ______________________________
                                          William D. Spencer
                                          Clerk of the Board
Washington, D.C.
