                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     KALWINDER S. BAJWA,                             DOCKET NUMBER
                   Appellant,                        SF-0353-15-0126-I-1

                  v.

     UNITED STATES POSTAL SERVICE,                   DATE: September 2, 2016
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Samuel Cisneros, Hayward, California, for the appellant.

           Deborah C. Winslow, Esquire, San Francisco, 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 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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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, 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 alleged that the agency denied him restoration to duty for the
     period from September 17, 2014, to January 12, 2015, following his partial
     recovery from a compensable injury. 2 The appellant is a Mail Processing Clerk
     who sustained an on-the-job injury to his lower back in 2003, for which he has
     received compensation from the Office of Workers’ Compensation Programs. A
     medical report issued by the appellant’s treating physician on September 12,
     2014, stated that, beginning September 17, 2014, the appellant could perform
     light-duty work on a part-time basis with significant medical restrictions. The
     treating physician issued an updated report on September 24, which stated that
     the appellant’s condition had worsened and declared that the appellant had
     reached maximum medical improvement.                The physician submitted another
     medical note on September 29, which indicated that the appellant could do
     sedentary work for 2 hours with no standing or walking.              Following a new
     medical report dated January 5, 2015, in which the appellant’s medical

     2
       The information in this paragraph is taken from the initial decision and is not
     in dispute.
                                                                                        3

     restrictions were lessened, the agency offered the appellant a limited-duty
     assignment, which he accepted on January 12, 2015.
¶3         The administrative judge found that the appellant was entitled to a
     jurisdictional hearing because he had made nonfrivolous allegations of
     jurisdiction. Initial Appeal File (IAF), Tab 52, Initial Decision (ID) at 5-6. The
     administrative judge found that three of the jurisdictional requirements were
     established; namely, that: (1) the appellant was absent from his position due to a
     compensable injury; (2) he recovered sufficiently to return to duty on a part-time
     basis, or to return to work with less demanding physical duties than those
     previously required of him; and (3) the agency denied his request for restoration.
     ID at 16-17.   The issue was whether that denial was arbitrary and capricious
     during the period from September 17, 2014, to January 12, 2015. Following the
     jurisdictional hearing, the administrative judge found that the agency had fulfilled
     its obligation to make every effort to restore the appellant to a position within his
     medical restrictions and within the local commuting area.        In so finding, the
     administrative judge examined numerous types of work assignments that the
     appellant had contended were available—certified mail for which second notices
     needed to be issued, undeliverable bulk business mail (UBBM), nixie mail work, 3
     post office box work, answering phones or performing secretarial work, and work
     in the mark-up section—and found that no work within the appellant’s medical
     restrictions was available during the period at issue. ID at 17-21. In making
     these findings, the administrative judge made credibility determinations,
     including ones based on the demeanor of witnesses. Id.




     3
       According to Wikipedia, nixie mail is mail that is undeliverable as addressed.
     https://en.wikipedia.org/wiki/Nixie_(postal).
                                                                                             4

                         DISCUSSION OF ARGUMENTS ON REVIEW
     The administrative judge correctly found that the agency did a proper search and
     found no work within the appellant’s medical restrictions.
           Certified Mail, UBBM, Post Office Box, and Mark-up Work
¶4           We observe that the appellant’s petition for review makes no direct
     challenges to the administrative judge’s findings concerning the availability of
     several types of work:         certified mail for which second notices needed to be
     issued, UBBM mail work, post office box work, and work in the mark-up section.
     He      does,   however,     allege    that   the   administrative   judge’s   credibility
     determinations regarding a particular supervisor (B.M.) 4 are wrong, arguing that
     B.M. contradicted himself by stating that he did not have clear medical
     restrictions for the appellant on September 16, 2014, but that he conducted a
     search for work within the appellant’s medical restrictions the same day. Petition
     for Review (PFR) File, Tab 1 at 3. As indicated in the agency’s response, PFR
     File, Tab 3 at 5-6, there is nothing contradictory about finding the appellant’s
     statements of his limitations less than clear and making a search based on what
     the supervisor believes the limitations to be. 5 Even if there were some basis for
     challenging B.M.’s credibility in one respect, the administrative judge described
     the testimony of the pertinent witnesses in detail, ID at 8-16, made thorough
     findings explaining why he found some witnesses more credible than others, and
     relied in part on the demeanor of the witnesses, ID at 16-21.            Nothing in the


     4
         Supervisors’ initials are used rather than full names.
     5
       The notes and reports provided by the appellant’s treating physician were not entirely
     consistent with one another. On September 12, 2014, the physician said the appellant
     was no longer totally disabled and could return to work, albeit with significant
     restrictions. IAF, Tab 8 at 30-31. On September 24, 2014, the physician stated that the
     appellant’s condition had worsened, increased his work restrictions, and declared that
     the appellant had reached maximum medical improvement.              Id. at 25‑28.    On
     September 29, the physician stated that the appellant could do sedentary work for
     2 hours with no standing or walking. IAF, Tab 14, Exhibit A6. On January 5, 2015, the
     physician indicated that the appellant’s condition had improved and lessened the
     applicable work restrictions. IAF, Tab 48 at 4.
                                                                                       5

     appellant’s petition for review leads us to question the administrative judge’s
     findings that there was no available work within the appellant’s restrictions as to
     certified mail for which second notices needed to be issued, UBBM mail work,
     post office box work, and work in the mark-up section, and we affirm those
     findings.   See Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 105-06 (1997)
     (indicating that the Board will not disturb an administrative judge’s findings
     when she 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).

         Nixie and Telephone Work
¶5        The appellant challenges the administrative judge’s findings as to nixie
     work and telephone work. PFR File, Tab 1 at 3-4. Regarding nixie mail, the
     administrative judge cited E.O.’s and B.M.’s testimony that nixie work was
     beyond the appellant’s medical restrictions.     ID at 18.   He also cited B.M.’s
     testimony that assigning nixie work to the appellant would be inappropriate, as
     someone other than the appellant would need to be assigned to move the mail
     after the appellant had performed whatever work could be done on it while
     sitting. Id. The appellant argues that the agency should not have precluded him
     from performing nixie work “merely because assigning this work to him would
     necessitate double handling of the mail with someone else doing the tasks the
     appellant could not do,” citing a court decision for the proposition that an
     accommodation may not be considered unreasonable merely because it requires
     the employer to assume “more than a de mimimis cost.” PFR File, Tab 1 at 3
     (citing Lyons v. Legal Aid Society, 68 F.3d 1512 (2d Cir. 1995)).
¶6        Citing a disability discrimination case such as Lyons is not particularly
     pertinent to this case because, as the administrative judge noted, the concept of an
     “affirmative defense” does not apply to a restoration appeal; an appellant’s claims
     of discrimination should be understood as an alternative way to show that the
     denial of restoration was arbitrary and capricious. Latham v. U.S. Postal Service,
                                                                                           6

     117 M.S.P.R. 400, ¶ 58 n.27 (2012). 6 Moreover, the appellant has not cited any
     reason to conclude that having other employees assist him in nixie work would
     involve no more than a de minimis cost.
¶7         The administrative judge found that “no work was available answering
     phones or performing secretarial work, as that work was already being performed
     by supervisors or the clerk assigned to it.” ID at 19. However, the appellant
     argues that a Local Memorandum of Understanding requires assignments to
     accommodate injured clerks, including telephone work. PFR File, Tab 1 at 4. In
     so concluding, the administrative judge relied not only on B.M.’s testimony that
     telephone work was assigned to the supervisors, but also cited E.O.’s testimony
     that no work answering phones was available as the supervisors answered their
     own phones. ID at 15-16. We conclude that the appellant has not shown that
     telephone work was available.
     The appellant’s other contentions of error are without merit.
¶8         The appellant notes that B.M.’s certification of his efforts to find work for
     the appellant included the name of another employee along with his own, and
     contends that this shows that the agency “has virtually no evidence that a search
     for work was ever conducted for him.”               PFR File, Tab 1 at 2-3.        The
     administrative judge addressed this matter in the initial decision, noting that B.M.
     testified that the inclusion of the other employee’s name was a mistake that
     occurred because the certification form is in an electronic format but that B.M.
     prepared the form specifically for the appellant using his current medical
     restrictions, not the other employee’s.      ID at 13 n.11.    The appellant has not
     shown reversible error in this regard.

     6
        The absence of disability discrimination as an affirmative defense negates the
     appellant’s contention that the agency failed to honor its obligation to engage in an
     interactive process with him. PFR File, Tab 1 at 3-4. “Interactive process” is a term of
     art relating to claims of disability discrimination. 29 C.F.R. § 1630.2(o)(3); see
     Rosario-Fabregas v. Department of the Army, 122 M.S.P.R. 468, ¶ 13 (2015); Brown v.
     Department of the Interior, 121 M.S.P.R. 205, ¶ 21 (2014).
                                                                                                7

¶9         The appellant contends that the agency did not to perform its obligations by
     failing to conduct further searches for work after receiving additional medical
     information from him on September 29. PFR File, Tab 1 at 3. The administrative
     judge credited B.M.’s testimony that no other search was conducted after the
     agency received additional medical information from the appellant following the
     September 24, 2014 report because no subsequent reports (until January 2015)
     indicated that he could perform additional work. ID at 13. The appellant has
     offered no reason to question that conclusion.             Accordingly, we affirm the
     initial decision.

                         NOTICE TO THE APPELLANT REGARDING
                            YOUR FURTHER REVIEW RIGHTS 7
            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

     7
       In the initial decision, the administrative judge provided the appellant with mixed-case
     appeal rights. Based on the disposition of this case, such review rights are not appropriate.
     Caros v. Department of Homeland Security, 122 M.S.P.R. 231, ¶ 22 (2015). The proper
     appeal rights are provided here.
                                                                                  8

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.
