                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     ERIC L. ZICKEFOOSE,                             DOCKET NUMBER
                    Appellant,                       PH-3443-13-4329-I-1

                  v.

     UNITED STATES POSTAL SERVICE,                   DATE: January 9, 2015
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Eric L. Zickefoose, Pittsburgh, Pennsylvania, pro se.

           Robert L. Sawicki, Philadelphia, Pennsylvania, 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 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


     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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 and AFFIRM the initial decision, which is now the
     Board’s final decision. 5 C.F.R. § 1201.113(b).

                                      BACKGROUND
¶2         The appellant is a mail handler. Initial Appeal File (IAF), Tab 1 at 1, Tab 6
     at 28.    In 2004, the Office of Workers’ Compensation Programs (OWCP)
     approved the appellant’s workers’ compensation claim for plantar fasciitis, and he
     was given a limited-duty assignment within his medical restrictions. IAF, Tab 6
     at 6, 66.     In September 2009, the agency moved the appellant from his
     limited-duty assignment to a light duty assignment, which entailed a change to his
     work schedule to 3:00 p.m. to 11:30 p.m. Id. at 41. In 2010, OWCP approved a
     claim for tarsal tunnel syndrome, noting that it should have been accepted in
     2008. Id. at 37. On November 3, 2011, the agency offered, and the appellant
     accepted under protest, a limited-duty assignment which involved the same
     3:00 p.m. to 11:30 p.m. schedule as he had under the light duty assignment. Id. at
     25-26. On January 9, 2012, OWCP ruled that this limited-duty assignment was
     appropriate, and the appellant has remained in that assignment to the present
     time. Id. at 22, 8.
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¶3         In the instant appeal filed in August 2013, the appellant objected to his
     change of work schedule in 2009 and sought restoration of the daytime shift
     (6:00 a.m. to 2:30 p.m.) he had enjoyed from 2004 to 2009. See IAF, Tab 1 at 3.
     He also challenged an arbitration decision that found the limited-duty assignment
     to be proper. IAF, Tab 5 at 5. The administrative judge found that the appellant
     failed to make a nonfrivolous allegation that he had been denied restoration. She
     found that he was simply disagreeing with the details of his return to the
     workplace, which is not appealable to the Board. Initial Decision (ID) at 5-7.
     The administrative judge found that the Board was without jurisdiction to review
     the correctness of the arbitration decision. ID at 7-8.

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶4         A claim for restoration to duty under 5 C.F.R. § 353.304(c) as an employee
     who has partially recovered from a compensable injury requires, among other
     things, that the agency have denied the employee’s request for restoration.
     Latham v. U.S. Postal Service, 117 M.S.P.R. 400, ¶ 10 (2012).         A partially
     recovered employee has no right to appeal the details or circumstances of a
     restoration. E.g., Hogarty v. U.S. Postal Service, 101 M.S.P.R. 376, ¶ 7 (2006);
     Miller v. U.S. Postal Service, 82 M.S.P.R. 170, ¶ 5 (1999).
¶5         In his petition for review, the appellant reiterates his argument that he is
     entitled to restoration of the limited-duty assignment he was given in 2004,
     including the work hours associated with that assignment, i.e., 6:00 a.m. to
     2:30 p.m. Petition for Review (PFR) File, Tab 1 at 3. That assertion is incorrect;
     an agency may assign a partially-recovered employee from one set of modified
     duties to another. Paszko v. U.S. Postal Service, 119 M.S.P.R. 207, ¶ 10 n. 4
     (2013). A challenge to such an action does not ordinarily concern a denial of
     restoration; it pertains merely to the “details and circumstances” of the
     restoration, which are not appealable. See id.
                                                                                          4

¶6          Determinations of the suitability of an offered position are within the
     exclusive domain of OWCP, and suitability determinations by OWCP are binding
     on the Board.    Bynum v. U.S. Postal Service, 112 M.S.P.R. 403, ¶ 23 (2009),
     aff’d, 382 F. App’x 934 (Fed. Cir. 2010). Because the appropriateness of the
     agency’s November 3, 2011 limited-duty assignment has been conclusively
     established by OWCP, the administrative judge correctly found that the appellant
     did not establish that he was denied restoration but was merely challenging the
     circumstances or details of that restoration. 2
¶7          The appellant also contests the administrative judge’s finding that the Board
     lacks jurisdiction to review the June 2013 arbitration decision. PFR File, Tab 1 at
     7-8.   Generally, the Board has jurisdiction under 5 U.S.C. § 7121(d) over a
     request for review of an arbitration decision when: (1) the subject matter is one
     over which the Board has jurisdiction; (2) the appellant either (i) raised a claim of
     discrimination under 5 U.S.C. § 2302(b)(1) with the arbitrator in connection with
     the underlying action, or (ii) raises a claim of discrimination in connection with
     the underlying action under 5 U.S.C. § 2302(b)(1) for the first time with the
     Board if such allegations could not be raised in the negotiated grievance
     procedure; and (3) a final decision has been issued. 5 U.S.C. § 7121(d); 5 C.F.R.
     § 1201.155; see Jones v. Department of Energy, 120 M.S.P.R. 480, ¶ 8 (2013),
     aff’d, Nos. 2014-3072 & 2014-3081, 2014 WL 5002185 (Fed. Cir. Oct. 8, 2014).
     Postal employees are excluded from the coverage of section 7121(d), however.
     Milligan v. U.S. Postal Service, 106 M.S.P.R. 414, ¶ 7 (2007); Waters v. U.S.
     Postal Service, 36 M.S.P.R. 683, 684 (1988); 5 C.F.R. § 1201.155(a)(2).




     2
       The appellant reiterates arguments he made below that an agency employee provided
     false information to OWCP and that the agency wrongly claimed that his original
     OWCP had been closed. PFR File, Tab 1 at 3-7. These arguments are irrelevant to the
     correct disposition of this case, as OWCP has determined that the limited duties of the
     position to which the appellant is assigned are suitable.
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                 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:
                          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
                                                                           6

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.
