                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     ESSAQUENA HARRIS,                               DOCKET NUMBER
                 Appellant,                          CH-0353-14-0809-I-1

                  v.

     UNITED STATES POSTAL SERVICE,                   DATE: September 27, 2016
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Essaquena Harris, Highland, Indiana, pro se.

           Deborah L. Lisy, Esquire, Chicago, Illinois, 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 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
     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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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. 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 is a Mail Processing Clerk at the agency’s Chicago
     Processing and Distribution Center who suffered compensable injuries in 1990
     and 1997.    Initial Appeal File (IAF), Tab 4 at 28, Tab 5, Subtabs 4O, 4R-4S.
     Effective June 23, 2014, the appellant began a limited-duty assignment
     performing customer support duties in the Marketing Department. IAF, Tab 5,
     Subtabs 4A, 4H.      The assignment was effectuated as a 3-month detail.         Id.,
     Subtabs 4A, 4G. On August 1, 2014, the appellant was informed that, due to a
     decrease in available work, the agency was rescinding her limited-duty
     assignment. IAF, Tab 1 at 5, 7. The agency also informed the appellant that it
     had searched for work within the local commuting area but found no available
     work within her medical restrictions.     Id. at 12-13.   The agency directed the
     appellant not to report to work until notified by the agency that work had been
     identified. Id. at 13.
¶3         The appellant filed this timely restoration appeal alleging that the agency
     acted arbitrarily and capriciously by rescinding her limited-duty assignment.
     IAF, Tab 1 at 3, 5. She contended, among other things, that her assignment was
     meant to be permanent.       IAF, Tab 7 at 5.     She also alleged that nonclerk
                                                                                          3

     employees assigned to customer support duties were permitted to continue with
     their assignments and, as a clerk, she had a superior right to the assignment of
     those duties. Id. at 6. She further alleged that the agency engaged in disability
     discrimination and retaliated against her based on prior equal employment
     opportunity (EEO) activity and her pending Board appeal. IAF, Tab 1 at 5, Tab 4
     at 5.
¶4           The appellant originally requested a hearing but subsequently withdrew her
     request and asked for a decision on the written record. IAF, Tab 1 at 2, Tab 12.
     After both parties filed closing submissions, the administrative judge dismissed
     the appeal for lack of jurisdiction because the appellant failed to show by
     preponderant evidence that the agency’s action was arbitrary and capricious.
     IAF, Tab 15, Initial Decision (ID) at 9. The administrative judge found that the
     appellant failed to prove that the agency’s search for work was legally
     insufficient or that there was alternative work available within her restrictions.
     ID at 6-8. She also found that the appellant failed to establish that the agency
     transferred the appellant’s duties to other employees in violation of any law, rule,
     or regulation. Id. Finally, the administrative judge considered the appellant’s
     claims of discrimination and retaliation and found that the appellant did not show
     that the agency’s actions were arbitrary and capricious because of discrimination
     and/or retaliation. ID at 8-9.
¶5           The appellant has filed a petition for review, which the agency has opposed.
     Petition for Review (PFR) File, Tabs 1, 3.

                       DISCUSSION OF ARGUMENTS ON REVIEW
¶6           Under the law in effect when this appeal was filed, 2 to establish jurisdiction
     over a restoration appeal as a partially recovered individual, an appellant must

     2
      Effective March 30, 2015, the Board amended its regulations concerning the burden of
     proof for establishing jurisdiction over restoration appeals filed under 5 C.F.R.
     § 353.304. Kingsley v. U.S. Postal Service, 123 M.S.P.R. 365, ¶ 10 (2016); 5 C.F.R.
     § 1201.57(a)(4). The amended regulations do not apply to the instant appeal, however,
                                                                                           4

     prove the following by preponderant evidence:         (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 denial was arbitrary and capricious
     because of the agency’s failure to perform its obligations under 5 C.F.R
     § 352.301(d). Bledsoe v. Merit Systems Protection Board, 659 F.3d 1097, 1104
     (Fed. Cir. 2011); Latham v. U.S. Postal Service, 117 M.S.P.R. 400, ¶ 10 (2012),
     superseded by regulation on other grounds as recognized in Kingsley v. U.S.
     Postal Service, 123 M.S.P.R. 365, ¶ 10 (2016).           The administrative judge
     correctly found that the appellant had satisfied the first three jurisdictional
     elements. ID at 6. Therefore, the only remaining issue in this appeal is whether
     the appellant has proven by preponderant evidence that the denial of restoration
     was arbitrary and capricious. Id.
¶7        In Latham, the Board found that, under agency rules, the U.S. Postal
     Service may discontinue a limited-duty assignment only where the duties of that
     assignment no longer need to be performed by anyone or the duties need to be
     transferred   to   other   employees   to   provide   them   with   sufficient    work.
     Latham, 117 M.S.P.R. 400, ¶ 31.        Thus, the decision to end the appellant’s
     limited-duty assignment will be found to be arbitrary and capricious if she proves
     that work was available for her within her medical restrictions. Id. She can make
     such a showing by proving the following:         (1) the duties of her limited-duty
     assignment still needed to be performed; and (2) if those duties are being
     performed by other employees, the U.S. Postal Service did not need to transfer
     the duties to other employees to provide them with sufficient work. Id., ¶ 33. If
     the employees who absorbed her duties did not have sufficient work, then the



     because they apply only to appeals filed on or after March 30, 2015.             80 Fed.
     Reg. 4,489, 4,489 (Jan. 28, 2015).
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      appellant must prove that reassigning her former duties to them violated a law,
      rule, regulation, or contractual provision. Id.
¶8          The administrative judge found that the appellant’s assignment was not
      intended to be permanent and that the agency terminated the appellant’s
      assignment earlier than anticipated due to a drastic reduction in the workload. ID
      at 6-8. She further found that the appellant failed to prove that the agency acted
      arbitrarily and capriciously in terminating her assignment. ID at 9.
¶9          On review, the appellant continues to argue that her assignment was
      intended to be permanent and that the agency subsequently decided to terminate
      the assignment due to her continued pursuit of her Board appeal. PFR File, Tab 1
      at 7-9; IAF, Tab 7 at 5.     We agree with the administrative judge that the
      appellant’s argument is not supported by the record. ID at 7-8. The Assignment
      Order signed by the appellant specifically states that her detail to the Marketing
      Unit would end after 3 months, and the limited-duty offer explicitly stated that
      her assignment could be revised based on the availability of work. ID at 6; IAF,
      Tab 5, Subtabs 4A, 4G, Subtab 4H at 2.       Furthermore, the unrebutted evidence
      indicates that the agency’s decision to terminate the appellant’s assignment was
      based on operational reasons. ID at 6-7; IAF, Tab 5, Subtab 4A. The appellant
      has submitted no evidence indicating that the agency official who terminated her
      assignment had any knowledge of her Board appeal or EEO activity or that he
      was motivated by retaliation.
¶10         On review, the appellant reasserts her argument that, as a clerk, she had a
      superior right to the customer support duties and, therefore, the agency should
      have terminated the customer support assignments of nonclerk employees prior to
      terminating her assignment. PFR File, Tab 1 at 5-6; IAF, Tab 7 at 6-7. We have
      reviewed the initial decision and the submissions below, and we agree with the
      administrative judge that, to the extent that the agency permitted other nonclerk
      employees to continue performing their consumer support assignments, the
      appellant failed to establish that the agency violated a law, rule, regulation, or
                                                                                      6

      contractual provision in doing so. ID at 8. Although the issue was not raised on
      review, we also find no indication that the agency transferred the appellant’s
      duties to employees who had sufficient work.
¶11        Next, the appellant argues that the administrative judge improperly denied
      her motion to compel the agency to respond to her discovery requests. PFR File,
      Tab 1 at 4-5, 9-10. The administrative judge denied the motion because, among
      other things, it was untimely filed.    IAF, Tab 11 at 2.   Pursuant to 5 C.F.R.
      § 1201.73(d)(1), parties generally must serve their initial discovery requests
      within 30 days after the date on which the administrative judge issues an order to
      the respondent agency to produce the agency file and response. A party must
      serve a response to discovery requests promptly, but no later than 20 days after
      the date of service of the request. 5 C.F.R. § 1201.73(d)(2). Any motion for an
      order to compel must be filed with the administrative judge within 10 days of the
      date of service of objections or, if no response is received, within 10 days after
      the time limit for response has expired.         5 C.F.R. § 1201.73(d)(3).    The
      administrative judge explained the discovery process to the appellant in a
      September 8, 2014 acknowledgment order and directed the appellant to refer to
      regulations for further information. IAF, Tab 2 at 5.
¶12        The appellant received the agency’s objections to her discovery request on
      November 4, 2014, IAF, Tab 9 at 4, and, therefore, any motion to compel must
      have been filed within 10 days of that or by November 14, 2014, 5 C.F.R.
      § 1201.73(d)(3).   The appellant filed her motion to compel on November 26,
      2014, and she provided no evidence or argument establishing good cause for the
      delay. IAF, Tabs 9, 11. Accordingly, we agree with the administrative judge that
      the appellant’s motion to compel was untimely. IAF, Tab 11 at 2. We further
      agree with the administrative judge that the information requested by the
      appellant was not reasonably calculated to lead to the discovery of admissible
      evidence. Id. Administrative judges have broad discretion in ruling on discovery
      matters, and, absent a showing of an abuse of discretion, the Board will not find
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      reversible     error   in    such   rulings.      Lee   v.   Environmental   Protection
      Agency, 115 M.S.P.R. 533, ¶ 7 (2010).            We discern no abuse of discretion in
      this matter.
¶13         Finally, because the Board does not have jurisdiction over the appellant’s
      restoration claim, this appeal is not a mixed-case appeal. Latham, 117 M.S.P.R.
      400, ¶ 58. Consequently, the initial decision should not have included notice of
      mixed-case appeal rights.        ID at 13.     Correct notice of the appellant’s appeal
      rights is set forth below.

                        NOTICE TO THE APPELLANT REGARDING
                           YOUR FURTHER REVIEW RIGHTS
            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
      title 5 of the U.S. 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 U.S. 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
                                                                                 8

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.
