                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     SMITA A. PATEL,                                 DOCKET NUMBER
                   Appellant,                        CH-0353-13-0477-I-1

                  v.

     UNITED STATES POSTAL SERVICE,                   DATE: October 9, 2014
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Smita A. Patel, Hoffman Estates, Illinois, pro se.

           Deborah L. Lisy, Esquire, Chicago, Illinois, 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 initial decision, which
     dismissed her 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


     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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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. Except as expressly MODIFIED by this Final
     Order to clarify the administrative judge’s finding on discrimination, we AFFIRM
     the initial decision.

                                         BACKGROUND
¶2         The appellant is an EAS-17 Supervisor of Distribution Operations (SDO) at
     the agency’s Palantine Processing and Distribution Center in Palantine, Illinois.
     Initial Appeal File (IAF), Tab 8, Subtab 4EE. She suffered a compensable injury
     in 2002. 2 Id., Subtab 4A. Thereafter, the appellant worked intermittently and
     received payments from the Office of Workers’ Compensation Programs (OWCP)
     for the periods in which she was unable to work. Id., Subtab 4B. On May 29,
     2009, the appellant requested restoration to her position and presented the agency
     with her doctor’s restrictions. See IAF, Tab 11 at 12.             On June 9, 2009, the
     agency denied the appellant’s request for restoration. See id.
¶3         The appellant filed a restoration appeal with the Board. See IAF, Tab 11 at
     10. After holding a hearing, the administrative judge issued an initial decision

     2
       The initial decision in the appellant’s prior restoration appeal identifies the date of her
     compensable injury as December 2006, see IAF, Tab 11 at 12, as do some documents in
     the agency file, see IAF, Tab 8, Subtab 3, Formal Complaint at 3, Subtab 4S, Subtab
     4Z.
                                                                                      3

     dismissing the appeal for lack of jurisdiction based on her finding that the
     appellant failed to show that the agency’s denial of her request for restoration to
     duty was arbitrary and capricious. Patel v. U.S. Postal Service, MSPB Docket
     No. CH-0353-11-0410-I-1, Initial Decision (Jan. 11, 2012). The initial decision
     became the Board’s final decision on February 15, 2012, when neither party filed
     a petition for review. IAF, Tab 11 at 18. The appellant then filed a request for
     review with the U.S. Court of Appeals for the Federal Circuit, which affirmed the
     Board’s decision.   Patel v. Merit Systems Protection Board, 498 F. App’x 33
     (Fed. Cir. 2012).
¶4        On April 30, 2012, the appellant submitted documentation from her treating
     physician dated April 26, 2012, which modified her work restrictions effective
     April 30, 2012. IAF, Tab 8, Subtab 4BB. After obtaining additional information
     from the appellant’s physician, the agency offered, and the appellant accepted,
     her prior position with modified duties, and the appellant returned to duty on May
     24, 2012. Id., Subtabs 4Y-4AA, 4DD.
¶5        On June 28, 2012, the appellant faxed the agency a work restriction form,
     dated that same day from her physician, which set forth various restrictions,
     including “no excessive twisting, turning, bending, sitting, or standing.” IAF,
     Tab 8, Subtab 4X. On the form, the appellant’s physician also specified that the
     appellant was to have “frequent breaks while standing and/or walking.”          Id.
     Based on these restrictions, on June 29, 2012, the agency instructed the appellant
     not to return to work until notified. See IAF, Tab 8, Subtab 4K, Affidavit B at
     118-19.   Beginning June 29, 2012, the agency asked the appellant to obtain
     further information from her treating physician, including a clarification of what
     he meant by the term “frequent breaks,” so that the agency could identify
     adequate work available within her restrictions. See, e.g., IAF, Tab 8, Subtabs
     4T-4W. The process of obtaining sufficient medical information to enable the
     agency to determine whether there was available work within the appellant’s
     medical restrictions took several months. See id., Subtabs 4N-4W.
                                                                                        4

¶6         On January 3, 2013, OWCP placed the appellant in its Vocational
     Rehabilitation Program. IAF, Tab 8, Subtab 4J. Shortly thereafter, the parties
     were able to identify work within the appellant’s medical restrictions, and the
     agency offered her a limited-duty assignment in the SDO position effective
     January 18, 2013. Id., Subtabs 4F, 4H. Although she did not report to work on
     that date, see id., Subtab 4G, the appellant returned to work in her limited-duty
     assignment effective January 23, 2013, id., Subtabs 4C-4D, 4DD.
¶7         In the meantime, on October 13, 2012, the appellant filed a formal equal
     employment opportunity complaint with the agency, alleging that the agency’s
     action constituted discrimination. IAF, Tab 8, Subtab 3. After the agency issued
     a final agency decision finding no discrimination, id., Subtab 4 at 50-72, the
     appellant filed this restoration appeal with the Board and requested a hearing,
     IAF, Tab 1.
¶8         The appellant alleged that the agency denied her restoration from June 29,
     2012, to January 18, 2013, by instructing her not to report to work due to her
     medical restrictions. IAF, Tabs 1, 10. She also asserted that she is entitled to
     back pay and overtime pay, above the amount of her OWCP compensation, to
     equal the pay she would have received had she worked full time during this
     period. See IAF, Tab 17. The appellant also raised a discrimination claim. IAF,
     Tab 1 at 3.
¶9         Without holding the requested hearing, the administrative judge issued an
     initial decision dismissing the appeal for lack of jurisdiction. IAF, Tab 19, Initial
     Decision (ID) at 2, 6. The administrative judge found that the appellant failed to
     make a nonfrivolous allegation of jurisdiction that the agency acted arbitrarily
     and capriciously in denying restoration.     ID at 4-5.   The administrative judge
     further found that, because the appellant failed to make a nonfrivolous allegation
     that the agency’s actions between June 2012 and January 2013 were arbitrary and
     capricious, she was not entitled to back pay and overtime pay above the amount
     of her OWCP benefits. ID at 5. The administrative judge also found that the
                                                                                           5

      appellant’s discrimination claim could not be addressed because the Board lacks
      jurisdiction over such a claim in the absence of an otherwise appealable action.
      ID at 5.
¶10         The appellant has filed a petition for review. Petition for Review (PFR)
      File, Tab 1. The agency has filed a response to the petition for review. PFR File,
      Tab 5.

                                          ANALYSIS
      The administrative judge correctly dismissed this appeal for lack of jurisdiction.
¶11         The   Federal   Employees’     Compensation     Act   and   its   implementing
      regulations at 5 C.F.R. Part 353 provide that federal employees who suffer
      compensable injuries enjoy certain rights to be restored to their previous or
      comparable positions.     5 U.S.C. § 8151; Latham v. U.S. Postal Service,
      117 M.S.P.R. 400, ¶ 9 (2012); Chen v. U.S. Postal Service, 114 M.S.P.R. 292, ¶ 7
      (2010), overruled on other grounds by Latham, 117 M.S.P.R. 400, ¶ 10. In the
      case of a partially-recovered employee, i.e., one who cannot resume the full range
      of her regular duties but has recovered sufficiently to return to part-time or light
      duty or to another position with less demanding physical requirements, an agency
      must make every effort to restore the individual to a position within her medical
      restrictions and within the local commuting area. Chen, 114 M.S.P.R. 292, ¶ 7;
      5 C.F.R. §§ 353.102, 353.301(d).
¶12         To establish jurisdiction over a restoration appeal as a partially-recovered
      individual, an appellant must prove by preponderant evidence that: (1) she was
      absent from his 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, 117 M.S.P.R. 400, ¶ 10. If the appellant makes
                                                                                           6

      nonfrivolous allegations of jurisdiction concerning all four prongs of the
      jurisdictional standard, she is entitled to a jurisdictional hearing.         Bledsoe,
      659 F.3d 1097 at 1102, 1104.
¶13          Only the last criterion is in dispute in this appeal. As noted above, the
      administrative judge dismissed this restoration appeal without holding the
      requested hearing based on her finding that the appellant failed to make a
      nonfrivolous allegation that the agency’s denial of restoration was arbitrary and
      capricious.   ID at 4-5.      In making this finding, the administrative judge
      considered the record evidence, which documented the agency’s repeated efforts
      to obtain clarification regarding the appellant’s work restrictions so that the
      agency could identify available work within those restrictions. ID at 4; see IAF,
      Tab 8, Subtabs 4N-4W. 3        The administrative judge noted that “[w]hen the
      appellant presented her final medical restrictions . . . the parties were able to
      fashion a set of duties that she could perform in her [SDO] position . . . .” ID at
      4-5.   Under these circumstances, the administrative judge found, the agency’s
      actions were not arbitrary and capricious. ID at 5.
¶14          The appellant challenges this finding on review, arguing that the
      information from her treating physician concerning her work restrictions is “very
      understandable and clear.” PFR File, Tab 1 at 3. We disagree. As previously
      noted, the appellant’s June 28, 2012 work restriction form states that the
      appellant was to take “frequent breaks from standing or walking.” IAF, Tab 8,
      Subtab 4X. Contrary to the appellant’s apparent assertion on review, the meaning
      of the term “frequent breaks” is not clear. Consequently, the agency needed to
      ascertain what the appellant’s physician meant by this term so that it could
      determine whether there was available work within the appellant’s restrictions.
      In particular, the agency needed to determine the duration of the breaks and how

      3
       As the administrative judge noted in the initial decision, ID at 2 n.1, the appellant
      does not dispute the accuracy of pages 33-210 of the agency’s response file (i.e., IAF,
      Tab 8, Subtabs 3, 4A-4FF); see IAF, Tab 10 at 6.
                                                                                             7

      often breaks should be taken. See id., Subtab 4T.         The agency did not receive
      clarification on these questions until August 2012, and it then determined that
      there was no available work within the appellant’s restrictions. Id., Subtab 4K,
      Affidavit B at 120, Subtab 4S.
¶15         On review, the appellant also reiterates her argument from below that her
      work restrictions did not prevent her from performing the duties of her SDO
      position because the position description does not indicate that the job requires 8
      hours of standing and walking. 4 PFR File, Tab 1 at 3; IAF, Tab 10; see IAF, Tab
      8, Subtab 4EE. We find this argument unavailing for two reasons. First, the
      Duty Status Report for the position identifies continuous walking and standing for
      8 hours per day as among the usual work requirements of that position. IAF, Tab
      8, Subtab 4U. The appellant acknowledged the accuracy of this document in her
      response to the agency’s motion to dismiss. IAF, Tab 10 at 6.
¶16         Second, as the administrative judge explained in her initial decision in the
      appellant’s prior restoration appeal, the physical requirements of the SDO
      position can be derived from the duties of the position and where these duties are
      to be performed. IAF, Tab 11 at 13. In affirming the Board’s decision in the
      appellant’s prior restoration appeal, our reviewing court specifically noted that,
      after considering the hearing testimony and the submitted evidence, “the
      [administrative judge] found that the SDO position requires ‘continuous walking
      and standing to check mail and mail volume . . . .” Patel, 498 F. App’x at 34.
      We discern no reason to revisit that finding.

      The administrative judge, for the most part, correctly decided the appellant’s
      allegation of discrimination.
¶17         The appellant also reiterates her discrimination claim on review. PFR File,
      Tab 1 at 3, 5. As the administrative judge explained, the Board lacks jurisdiction

      4
       The administrative judge explained that she had found this argument without merit in
      her initial decision in the appellant’s prior restoration appeal and would not address it
      again in this appeal. ID at 2 n.3; see IAF, Tab 11 at 13.
                                                                                        8

      over such claims per se in the absence of an otherwise appealable action. ID at 5
      (citing Latham, 117 M.S.P.R. 400, ¶ 58). However, the administrative judge
      should have considered the appellant’s claims in this regard to the extent that they
      pertain to the jurisdictional issue. Latham, 117 M.S.P.R. 400, ¶ 58. We have
      fully considered the appellant’s allegations of discrimination and find that she has
      not made a nonfrivolous allegation that the agency’s actions were arbitrary and
      capricious due to prohibited discrimination.

      The appellant failed to prove her allegation of judicial bias.
¶18         Finally, the appellant raises an apparent claim of judicial bias on review,
      alleging that the administrative judge is on the “agency[’s] side.” PFR File, Tab
      1 at 3.   In making a claim of bias or prejudice against an administrative judge, a
      party must overcome the presumption of honesty and integrity that accompanies
      administrative adjudicators. Oliver v. Department of Transportation, 1 M.S.P.R.
      382, 386 (1980). An administrative judge’s conduct during the course of a Board
      proceeding warrants a new adjudication only if her comments or actions evidence
      a deep-seated favoritism or antagonism that would make fair judgment
      impossible. See Smets v. Department of the Navy, 117 M.S.P.R. 164, ¶ 15 (2011),
      aff’d, 498 F. App’x 1 (Fed. Cir. 2012). The appellant’s allegations on review,
      which do not relate to any extrajudicial conduct by the administrative judge,
      neither overcome the presumption of honesty and integrity that accompanies an
      administrative judge, nor establish that the administrative judge showed a
      deep-seated favoritism or antagonism that would make fair judgment impossible.

                       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:
                                                                                  9

                          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 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
                                                                           10

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.
