                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     DANIEL A. THIBEAULT,                            DOCKET NUMBER
                   Appellant,                        SF-0752-13-0646-I-1

                  v.

     UNITED STATES POSTAL SERVICE,                   DATE: August 13, 2014
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Daniel A. Thibeault, El Cajon, California, pro se.

           Sherilyn A. DeNinno, Esquire, San Diego, California, 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 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


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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, 2 which is now the Board’s
     final decision. 5 C.F.R. § 1201.113(b).
¶2         The agency employed the appellant as a mail handling machine operator
     with a shift of 3:30 p.m. to midnight. Initial Appeal File (IAF), Tab 8 at 20. In
     late 2012, the agency replaced the mail handling machines and, when the
     appellant did not bid on another assignment, it gave him an assignment to a shift
     that ran from 8:00 p.m. to 4:30 a.m. on a small parcel sorter. Id. at 19, 84. The
     appellant objected to this assignment, claiming that he could not perform it
     because he suffered from psoriatic arthritis that his doctor advised would be
     exacerbated by his exposure to cold temperatures while traveling during the
     coldest part of the day at 4:30 a.m. Id. at 50, 67-68, 83; IAF, Tab 39 at 42-43.
     He requested as reasonable accommodation that he be given an assignment on a
     different shift.   IAF, Tab 8 at 52, 60-62.     The agency did not offer such an
     assignment.    The appellant began using sick leave in January 2013 and then
     retired when he exhausted his sick leave in June 2013. Id. at 20, 26-49.


     2
       After the close of the record on petition for review, the appellant filed a motion to
     submit an additional pleading. Petition for Review (PFR) File, Tab 6. After review of
     the appellant’s motion, we find that the appellant has not established a need for the
     pleading, and we deny it.
                                                                                        3

¶3         The appellant filed an appeal alleging that his sick leave constituted an
     involuntary suspension and that his retirement was involuntary. IAF, Tab 1. The
     administrative judge found that the appellant failed to prove that any assignment
     that would have accommodated his disability was available to which the agency
     could assign him without violating the collective bargaining agreement from the
     time that he began using sick leave until his retirement.      IAF, Tab 42, Initial
     Decision (ID) at 5. Thus, the administrative judge found that the appellant failed
     to prove that the agency’s failure to accommodate the appellant’s disability was a
     wrongful act that caused him to take sick leave and that the agency did not
     constructively suspend him.       ID at 7.     Regarding the appellant’s alleged
     involuntary retirement, the administrative judge also found that the appellant
     failed to prove that the agency took any wrongful action that rendered his
     retirement involuntary. ID at 8. As with the alleged involuntary suspension, the
     administrative judge found there was no position available prior to the appellant’s
     retirement to which the agency could assign the appellant as an accommodation
     without violating the collective bargaining agreement.            ID at 8.       The
     administrative judge also found that, to the extent that the appellant retired out of
     frustration with the agency’s handling of his equal employment opportunity
     (EEO) complaints and grievances, he did not show that, because of the agency’s
     actions, he lacked a meaningful choice of whether to continue working. ID at 9.
¶4         In his petition for review, the appellant alleges that he became aware “after
     the final close” that the agency failed to comply with all of its rules. PFR File,
     Tab 1. It appears that the appellant is asserting that, after the close of the record
     below, he became aware that the agency violated a memorandum of
     understanding regarding light-duty bidding involving employees who have
     suffered a compensable injury when it failed to send him for a medical evaluation
     of whether he could perform the duties of a small parcel sorter machine operator.
     In addition to suffering from psoriatic arthritis, the appellant apparently suffered
     a compensable injury, a herniated disc, in 2000. Id. at 5. The Board generally
                                                                                     4

     will not consider an argument raised for the first time in a petition for review
     absent a showing that it is based on new and material evidence not previously
     available despite the party’s due diligence.    Banks v. Department of the Air
     Force, 4 M.S.P.R. 268, 271 (1980). The appellant has made no such showing.
     All of the submissions in support of his assertion were available before the close
     of the record. See PFR File, Tab 1 (letters to the appellant dated in the years
     2000 and 2008). In any event, the agency’s failure to send the appellant for a
     medical evaluation of whether he had recovered sufficiently from his herniated
     disc compensable injury to be able to perform the duties of a small parcel sorter
     operator is not probative of whether a position was available from January to
     July 2013 on a shift that would accommodate his disability. Thus, such evidence
     is not relevant to whether the agency wrongfully failed to assign the appellant to
     a position as accommodation of his disability.     The evidence of agency error
     submitted on petition for review is not of sufficient weight to warrant an outcome
     different from that of the initial decision. See Russo v. Veterans Administration,
     3 M.S.P.R. 345, 349 (1980).
¶5         The appellant also asserts that the administrative judge erred in not
     allowing the appellant to submit the statement of a resolution specialist who was
     trying to resolve the appellant’s EEO complaint regarding his assignment to the
     small parcel sorter machine operator position with a shift from 8:00 p.m. to
     4:30 a.m.   PFR File, Tab 1 at 2.     The appellant asserts that the resolution
     specialist would have established that the appellant sought to work from
     8:00 p.m. to 12:30 a.m., but the agency would not allow him to work a part-time
     position.   Id.   The record shows that the administrative judge denied the
     appellant’s motion to compel discovery regarding the resolution specialist,
     finding that the appellant had not adequately explained how information from the
     resolution specialist would relate to the issues in the appeal. IAF, Tab 29 at 2.
     By the appellant’s admission, the resolution specialist was working on seeking to
                                                                                         5

     have the agency make the small parcel sorter machine operator position a part-
     time position for the appellant.
¶6         Making the small parcel sorter machine operator position a part-time
     position would have required that the agency create a new position because the
     small parcel sorter machine operator position was full-time. It is well-established
     that the Rehabilitation Act imposes no obligation on the agency to create
     modified work assignments or to create a new position for an employee in order
     to provide reasonable accommodation.              Bennett v. U.S. Postal Service,
     118 M.S.P.R. 271, ¶ 10 (2012); Gonzalez–Acosta v. Department of Veterans
     Affairs, 113 M.S.P.R. 277, ¶ 11 (2010). The agency was not required to create a
     part-time small parcel sorter machine operator position to accommodate the
     appellant’s disability.    The agency’s refusal to create a part-time position for the
     appellant, the information that the appellant sought through the discovery of the
     resolutions specialist’s efforts to resolve the appellant’s EEO complaint,
     would not have established an improper or wrongful act that caused the appellant
     to take sick leave.       Thus, it would not have been sufficient evidence for the
     appellant to establish jurisdiction over his constructive suspension claim.       See
     Bean v. U.S. Postal Service, 120 M.S.P.R. 397, ¶¶ 9-11 (2013) (finding that
     certain   employee-initiated     absences   may    be   appealable   as   constructive
     suspensions where the appellant shows that: (1) he lacked a meaningful choice;
     and (2) the absence was caused by the agency’s improper actions). To the extent
     that the administrative judge erred in denying the appellant’s motion to compel
     information regarding the resolutions specialist’s efforts to resolve the appellant’s
     EEO complaint, his error did not harm the appellant’s substantive rights and
     provides no basis to reverse the initial decision. See Panter v. Department of the
     Air Force, 22 M.S.P.R. 281, 282 (1984).
¶7         Finally, the appellant contends that the administrative judge erred in finding
     that the agency did not commit an improper act that caused his retirement by
     failing to accommodate his disability by assigning him to one of several full-time
                                                                                 6

mail-handler positions posted in September 2013 on the non-overnight shift. In
his petition, the appellant contends that these mail-handler positions were the
subject of a grievance as early as November 2012 and that his seniority would
have entitled him to one of these positions. PFR File, Tab 1 at 19. However, the
appellant has presented no evidence to show that this grievance was resolved
before he retired and that the mail-handler positions were available for
assignment prior to his retirement.     Consequently, he failed to show that the
agency’s failure to offer him one of these positions as an accommodation was a
wrongful act by the agency that caused his retirement. As a result, we find that
the administrative judge properly found that the agency committed no wrongful
act by failing to offer the appellant one of the mail-handler positions that became
available for assignment after the appellant’s retirement. See Bean, 120 M.S.P.R.
397, ¶¶ 9-11.

                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).
                                                                                  7

      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
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.
