                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD
                                      2016 MSPB 21

                             Docket No. SF-0353-15-0511-I-1

                                  Doreen K. Kingsley,
                                        Appellant,
                                             v.
                             United States Postal Service,
                                         Agency.
                                       May 25, 2016

           Guillermo Mojarro, Upland, California, for the appellant.

           Rebecca Simon-Pearson, Esquire, Long Beach, California, for the agency.

                                         BEFORE

                             Susan Tsui Grundmann, Chairman
                                Mark A. Robbins, Member



                                 OPINION AND ORDER

¶1         The appellant petitions for review of an initial decision that denied her
     restoration appeal. For the reasons set forth below, we DENY the petition for
     review and AFFIRM the initial decision AS MODIFIED regarding the basis for
     denying the appellant’s discrimination claims.

                                     BACKGROUND
¶2         The appellant was employed by the agency as a City Carrier.        Initial
     Appeal File (IAF), Tab 8 at 100.     She suffered multiple compensable injuries
     between March 9, 2005, and March 2, 2012. IAF, Tab 30 at 10, Tab 40 at 10-23.
     On March 14, 2012, the agency gave her a limited-duty assignment as a modified
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Letter Carrier within her medical restrictions at the Corona Post Office in Corona,
California.   IAF, Tab 30 at 10-12.         However, in June 2012, her medical
restrictions increased.    Compare id. at 10 (reflecting the appellant’s medical
restrictions as of March 2012 as 2 hours of simple grasping and 2 hours of lifting
not to exceed 10 pounds), with IAF, Tab 41 at 8 (reflecting the appellant’s
June 22, 2012 restrictions as lifting up to 10 pounds, 4 hours of sitting, 6 hours of
standing, 4 hours of walking, 1 hour of climbing, 1 hour of kneeling, and no
stooping, pushing, or pulling, with the necessary use of a cane). 1 The agency
searched the relevant 50-mile commuting area, but was unable to locate any work
within her new restrictions. IAF, Tab 41 at 8-11, 19-87. On August 2, 2012, the
agency advised the appellant of the lack of available work and sent her home. Id.
at 10. The appellant provided new medical restrictions in November 2012. IAF,
Tab 30 at 15 (reflecting the appellant’s November 7, 2012 restrictions as
10 pounds of lifting intermittently, 4 hours of sitting, 2 hours of standing or
walking, 1 to 2 hours of twisting, and no climbing, kneeling, pushing, or pulling).
In December 2012, the agency searched for work within the appellant’s facility
that she could perform within the November 2012 restrictions, but was
unsuccessful in finding any. Id. However, the agency subsequently expanded its
search, and, in January 2013, the agency located a rehabilitation position for the
appellant as a Customer Care Agent at the Los Angeles Customer Care Center
(CCC). IAF, Tab 30 at 17; Hearing Compact Disc (HCD) (testimony of C.C.).
She served in this position from March 2013 until her removal in March 2015. 2
IAF, Tab 8 at 58-61, 96.

1
   The appellant submitted three sets of restrictions in June 2012, each one
corresponding to a different compensable injury. IAF, Tab 41 at 8. The specific
restrictions varied, but were all similarly severe. Id.
2
 The appellant’s removal is not at issue in this appeal. IAF, Tab 19 at 1. Therefore,
we do not address it further.
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¶3         The appellant filed this appeal, alleging that her removal was improper.
     IAF, Tab 1 at 4.       She also claimed that the agency denied her restoration
     following her removal. Id. She alleged disability and age discrimination. IAF,
     Tab 1 at 4, Tab 24 at 4. As to disability discrimination, she claimed both that the
     agency denied her reasonable accommodation and that its actions were motivated
     by her disability. Id. at 6-8.
¶4         The agency filed a motion to dismiss the appeal. IAF, Tab 8 at 7-8, 13-26.
     In pertinent part, the agency argued that the appellant was not a U.S. Postal
     Service employee with the right to appeal her removal because she was not a
     preference eligible, a management or supervisory employee, or an employee
     engaged in personnel work in other than a purely nonconfidential clerical
     capacity. Id. at 13-14; see Toomey v. U.S. Postal Service, 71 M.S.P.R. 10, 12
     (1996) (discussing these jurisdictional requirements for chapter 75 appeals filed
     by U.S. Postal Service employees). After the appellant responded to this motion,
     the administrative judge held a status conference and then issued a written status
     conference order, in which she clarified with the parties that the appellant was not
     appealing her removal.      IAF, Tab 9, Tab 19 at 1.      She also found that the
     appellant had a made a nonfrivolous allegation that the agency denied her request
     for restoration. Id. at 1-2. The administrative judge advised the parties that they
     should focus on the timeframe between June 2012, when the appellant alleged she
     first sought restoration, and March 2013, when she was appointed to a position at
     the CCC. IAF, Tab 19 at 1-2.
¶5         In a written prehearing conference order, the administrative judge again
     identified the June 2012 to March 2013 timeframe as the relevant period for
     purposes of the appellant’s restoration claim. IAF, Tab 37 at 3. Both in the
     status and prehearing conference orders, the administrative judge provided the
     parties with deadlines to object and advised that objections received after the
     deadlines would be “deemed waived.”        IAF, Tab 19 at 6, Tab 37 at 6.       The
     appellant objected to portions of both of the orders, but did not challenge the
                                                                                         4

     restoration timeframe identified by the administrative judge. IAF, Tabs 22, 42.
     In fact, the appellant agreed with the administrative judge that her discovery
     requests “should be limited to the referenced time frames.” IAF, Tab 19 at 2,
     Tab 22 at 4.
¶6         After holding a hearing, the administrative judge found that the agency had
     denied the appellant restoration in July 2012, but, because it conducted adequate
     searches in the relevant commuting area for available work within her medical
     restrictions and found no vacant position for which she was qualified, the denial
     was not arbitrary and capricious. IAF, Tab 50, Initial Decision (ID) at 9-10. The
     administrative judge also rejected the appellant’s claim that her rehabilitation
     position at the CCC was so unreasonable that it was effectively a denial of
     restoration. ID at 10-11. She reasoned that the agency offered to modify the
     position to meet the appellant’s medical restrictions and that she agreed to give
     the position a try. ID at 10. Based on her finding that the appellant failed to
     show that the agency’s denial of her restoration requests was arbitrary and
     capricious, the administrative judge denied the appellant’s request for corrective
     action. ID at 11, 13.
¶7         The      administrative   judge   also   denied   the   appellant’s   reasonable
     accommodation claim.        She found that the appellant met the definition of an
     individual with a disability but that she had failed to articulate a reasonable
     accommodation under which she could perform the essential functions of a
     position to which she could be reassigned. ID at 11-12. Although the appellant
     identified an Address Management System Technician position for which she
     alleged she was qualified, the administrative judge found that the agency could
     not assign the appellant to this bid position without violating the applicable
     collective bargaining agreement. ID at 10, 12; IAF, Tab 24 at 6; HCD (testimony
     of the appellant).      The administrative judge similarly rejected the appellant’s
     claims of disparate treatment based on age and disability, finding that she failed
                                                                                           5

     to identify any comparator whose employment situation was sufficiently similar
     and who was treated more favorably. ID at 12-13.
¶8            In her petition for review, the appellant contends that the administrative
     judge erred in rejecting her restoration and reasonable accommodation claims,
     arguing that the agency required her to sit or stand for longer than her medical
     restrictions allowed.    Petition for Review (PFR) File, Tab 3 at 4-5. She also
     contends that the record does not reflect that the administrative judge considered
     all of the pleadings in making her decision.        Id. at 5.   Finally, the appellant
     alleges that the administrative judge erred in denying her motion to compel
     discovery. Id. The agency has responded to the petition for review. PFR File,
     Tab 5.

                                          ANALYSIS
¶9            The Federal Employees’ Compensation Act and the implementing
     regulations of the Office of Personnel Management (OPM) 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); Scott v. U.S. Postal Service, 118 M.S.P.R. 375, ¶ 6 (2012); 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.             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.” 3 5 C.F.R. § 353.102.



     3
       The administrative judge found, and the parties do not dispute, that the appellant was
     a partially recovered employee. ID at 6; IAF, Tab 6 at 4, Tab 8 at 18-19.
                                                                                              6

¶10         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). Until
      recently, an appellant alleging a denial of restoration was required to prove Board
      jurisdiction by preponderant evidence.         Bledsoe, 659 F.3d at 1102, 1103-04
      (citing Garcia v. Department of Homeland Security, 437 F.3d 1322, 1330,
      1335-37, 1340, 1344 (Fed. Cir. 2006) (en banc)); Latham v. U.S. Postal Service,
      117 M.S.P.R. 400, ¶ 10 (2012).        However, the Board issued a new regulation
      effective March 30, 2015, that adopted a nonfrivolous allegation standard for
      restoration appeals. 4    Practices and Procedures, 80 Fed. Reg. 4,489, 4,496
      (Jan. 28, 2015) (codified in pertinent part at 5 C.F.R. § 1201.57(a)(4), (b));
      Practices and Procedures, 79 Fed. Reg. 18,658, 18,659-61 (Apr. 3, 2014); see
      Garcia, 437 F.3d at 1338, 1343 (indicating that the Board may adopt a
      nonfrivolous allegation standard for an appeal by changing its regulations on
      jurisdiction in accordance with notice and comment rulemaking procedures).
      Because the appellant filed her Board appeal after the March 30, 2015 effective
      date of that new regulation, she was required only to make nonfrivolous
      allegations of jurisdiction to obtain a hearing on the merits.                  5 C.F.R.
      § 1201.57(a)(4), (b); IAF, Tab 1.
¶11         Thus, to establish jurisdiction over her claim that she was denied
      restoration as a partially recovered employee, the appellant was required to make


      4
        A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
      issue. 5 C.F.R. § 1201.4(s).
                                                                                          7

      nonfrivolous allegations that: (1) she was 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 agency’s denial was arbitrary and capricious.
      Latham, 117 M.S.P.R. 400, ¶ 10; 5 C.F.R. § 1201.57(a)(4), (b).           The record
      reflects that the administrative judge correctly applied the Board’s new
      jurisdictional regulation in this matter, finding that the appellant made
      nonfrivolous allegations of jurisdiction sufficient to entitle her to a hearing on the
      merits of her restoration claim.        IAF, Tab 19 at 2; ID at 6; 5 C.F.R.
      § 1201.57(a)(4), (b).
¶12         An appellant must prove the merits of her restoration claim by a
      preponderance of the evidence. 5     5 C.F.R. § 1201.57(c)(4).     After holding the
      hearing, the administrative judge found it undisputed that the appellant satisfied
      the first two elements of her claim, i.e., that she was both absent from her official
      position due to a compensable injury and that she was able to return to duty in a
      position with less demanding physical requirements.         ID at 7.   Based on the
      agency’s searches for work within the appellant’s restrictions, the administrative
      judge determined that the appellant had requested restoration and found that the
      agency had denied her requests, satisfying the third element. ID at 8-9. On the
      fourth element, the administrative judge determined that the agency conducted
      adequate searches for vacant positions within the appellant’s medical restrictions.
      ID at 9; see Latham, 117 M.S.P.R. 400, ¶ 12 (observing that, at a minimum, an
      agency must conduct a commuting area search for vacant positions to which it can
      restore a partially recovered employee). The appellant does not challenge this

      5
       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).
                                                                                           8

      finding on review. Instead, she appears to reassert her argument that the CCC
      position that the agency offered her in January 2013 was so unreasonable as to
      amount to a denial of restoration. PFR File, Tab 3 at 4-5; IAF, Tab 6 at 28, 30.
¶13            A   partially recovered   employee    “may not     appeal   the   details   or
      circumstances of her restoration”; she may appeal to the Board only for a
      determination of whether the agency acted arbitrarily and capriciously in denying
      restoration. Booker v. Merit Systems Protection Board, 982 F.2d 517, 519 (Fed.
      Cir. 1992); 5 C.F.R. § 353.304(c). Nevertheless, under certain circumstances, a
      restoration may be deemed so unreasonable as to amount to a denial of restoration
      within the Board’s jurisdiction. Jones v. U.S. Postal Service, 86 M.S.P.R. 464,
      ¶ 5 (2000). 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). We agree with the administrative judge
      that the offer of the CCC position was not an effective denial of restoration. ID
      at 10.
¶14            The appellant testified that, when she first arrived at the CCC, the manager
      allowed injured employees like her to get up to stretch and walk around the
      cubicles but that changed such that the position no longer met her medical
      restrictions. HCD (testimony of the appellant). Similarly, on petition for review,
      the appellant contends that the CCC position was not within her medical
      restrictions and constituted a “failure to properly reinstate” her. PFR File, Tab 3
      at 4-5. Both in the status and prehearing conference orders, the administrative
      judge limited the scope of this restoration appeal to the period from June 2012
      through the appellant’s placement in the CCC position on March 11, 2013. IAF,
      Tab 19 at 1-2, Tab 37 at 3-4. The appellant failed to object to this scope, despite
      being provided the opportunity to do so. IAF, Tab 19 at 6, Tab 37 at 6. Because
      this claim concerns the period after she began the CCC position in March 2013,
      we decline to adjudicate for the first time on review the agency’s actions after the
                                                                                        9

appellant began working in the position.             See Crowe v. Small Business
Administration, 53 M.S.P.R. 631, 635 (1992) (finding that the appellant’s failure
to object to the exclusion of an issue in response to an order allowing him to do
so prevents him from raising the issue on review). Further, although the appellant
originally claimed a denial of restoration following her removal in March 2015,
she did not preserve this claim below and has not raised it on review. See id.
Therefore, we also decline to address the appellant’s claims regarding the
agency’s actions after her removal. Petition for Review (PFR) File, Tab 3 at 4-5. 6



6
  On review, the appellant summarily states that the administrative judge’s denial of her
disparate treatment claims was legal error. PFR File, Tab 3 at 5. This statement,
without more, is insufficient to warrant review. See Weaver v. Department of the Navy,
2 M.S.P.R. 129, 133 (1980) (observing that, before the Board will undertake a complete
review of the record, the petitioning party must explain why the challenged factual
determination is incorrect, and identify the specific evidence in the record which
demonstrates the error), review denied, 669 F.2d 613 (9th Cir. 1982) (per curiam).
Shortly before the initial decision was issued, the Board issued a decision that clarified
the evidentiary standards and burdens of proof under which the Board analyzes
Title VII claims. Savage v. Department of the Army, 122 M.S.P.R. 612, ¶¶ 42-43, 51
(2015). We find that applying the analytical framework in Savage would not change the
result in this case. Thus, based on the existing record, and for the reasons contained in
the initial decision, we affirm the administrative judge’s finding that the appellant did
not meet her burden of proving these claims.

The administrative judge also found that the appellant failed to establish her claim that
she was denied reasonable accommodation during the period at issue in this appeal, and
the appellant does not challenge this finding on review.           ID at 12-13.      The
administrative judge found, in pertinent part, that the agency was not required to assign
the appellant to the Address Management System Technician position because doing so
would have violated a collective bargaining agreement. ID at 12; HCD (testimony of
the appellant). We previously have found that an accommodation that would violate a
collectively bargained seniority system is generally unreasonable unless the appellant
can show that “special circumstances” exist. Bean v. U.S. Postal Service, 120 M.S.P.R.
397, ¶ 15 (2013). The appellant did not identify any special circumstances. HCD
(testimony of the appellant). We therefore affirm the administrative judge’s denial of
the appellant’s reasonable accommodation claim. However, we modify this finding to
eliminate the reference to the appellant’s failure to prove her “prima facie” case. ID
at 12; see Savage, 122 M.S.P.R. 612, ¶ 46.
                                                                                      10

¶15         The appellant further argues that the administrative judge failed to consider
      all of the evidence in this appeal.         PFR File, Tab 3 at 5.   However, 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.      E.g., 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).        In any event, the appellant has not
      identified any particular evidence that the administrative judge may have
      overlooked that might affect the outcome of this appeal.            See Panter v.
      Department of the Air Force, 22 M.S.P.R. 281, 282 (1984) (finding that an
      adjudicatory error that is not prejudicial to a party’s substantive rights provides
      no basis to reverse an initial decision).
¶16         Similarly, the appellant challenges the administrative judge’s rulings on
      discovery, but she fails to identify any specific items that she was unable to
      obtain in discovery or how those items would have enabled her to meet her
      burden of proof or otherwise provide her with information that was reasonably
      calculated to lead to the discovery of admissible evidence. PFR File, Tab 3 at 5;
      see 5 C.F.R. § 1201.72(a). An administrative judge has broad discretion in ruling
      on discovery matters, and absent an abuse of discretion the Board will not find
      reversible error in such rulings.      E.g., Rodgers v. Department of the Navy,
      122 M.S.P.R. 559, ¶ 21 (2015). We find no abuse of discretion in this matter.
¶17         The record reflects that both parties filed motions to compel discovery,
      IAF, Tabs 10, 15, and that the administrative judge subsequently limited the focus
      of the parties’ requests to the period of June 2012 to March 2013, instructed the
      parties to confer on this limited period to resolve their disputes, and invited the
      parties to file additional motions if needed, IAF, Tab 19 at 2. The parties each
      renewed their motions to compel, and the administrative judge denied the
      renewed motions because the parties failed to specify the particular responses
      which needed further supplementation and also failed to meet and confer in a
      good faith effort to resolve their disputes as required under the Board’s discovery
                                                                                      11

      regulations. IAF, Tabs 27, 35, 37 at 2-3; see 5 C.F.R. §§ 1201.73(c)(1), .74(a)
      (requiring parties to confer in good faith and permitting an administrative judge
      to deny a motion to compel if a party fails to comply with this requirement); see
      also Latham, 117 M.S.P.R. 400, ¶ 73 (finding that an administrative judge did not
      abuse her discretion in denying an appellant’s motion to compel because, in
      pertinent part, there was no evidence that the parties had made a good faith effort
      to resolve a discovery dispute on their own).      Moreover, notwithstanding the
      administrative judge’s denial of the parties’ motions to compel, she ordered the
      agency to supplement its prehearing submission with a document showing the
      vacant positions available in the appellant’s local commuting area during the
      timeframe to which she limited the appeal.       IAF, Tab 37 at 3.     Under these
      circumstances, we find that the administrative judge did not abuse her discretion
      in denying the motions to compel.

                                           ORDER
¶18         This is the final decision of the Merit Systems Protection Board in this
      appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R.
      § 1201.113(c)).

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

      Discrimination Claims: Administrative Review
            You may request review of this final decision on your discrimination
      claims by the Equal Employment Opportunity Commission (EEOC). See title 5
      of the U.S. Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you submit your
      request by regular U.S. mail, the address of the EEOC is:
                               Office of Federal Operations
                        Equal Employment Opportunity Commission
                                     P.O. Box 77960
                                Washington, D.C. 20013
                                                                                12

If you submit your request via commercial delivery or by a method requiring a
signature, it must be addressed to:
                           Office of Federal Operations
                    Equal Employment Opportunity Commission
                                131 M Street, NE
                                  Suite 5SW12G
                            Washington, D.C. 20507

        You should send your request to EEOC no later than 30 calendar days after
your receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.

Discrimination and Other Claims: Judicial Action
        If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate U.S. district court.
See 5 U.S.C. § 7703(b)(2). You must file your civil action with the district court
no later than 30 calendar days after your receipt of this order. If you have a
representative in this case, and your representative receives this order before you
do, then you must file with the district court no later than 30 calendar days after
receipt by your representative. If you choose to file, be very careful to file on
time.    If the action involves a claim of discrimination based on race, color,
religion, sex, national origin, or a disabling condition, you may be entitled to
                                                                           13

representation by a court-appointed lawyer and to waiver of any requirement of
prepayment of fees, costs, or other security.   See 42 U.S.C. § 2000e-5(f) and
29 U.S.C. § 794a.



FOR THE BOARD:


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