                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     TARA T. FOSTER,                                 DOCKET NUMBER
                   Appellant,                        DA-0353-15-0025-I-1

                  v.

     UNITED STATES POSTAL SERVICE,                   DATE: February 25, 2016
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           John Valente, Mastic Beach, New York, for the appellant.

           Yvette K. Bradley, Esquire, Dallas, Texas, 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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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. 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).
¶2          The appellant is a City Carrier for the agency who suffered a compensable
     injury on October 22, 2013.       Initial Appeal File (IAF), Tab 5 at 25, 51.     On
     October 25, 2013, the appellant returned to work part time without a formal
     limited duty assignment.      Hearing Compact Disc (HCD) (testimony of the
     appellant).   On February 11, 2014, the appellant accepted an 8-hour per day
     limited duty assignment. IAF, Tab 5 at 43. It appears that she worked in this
     capacity until July 2014, when she was awarded a new bid assignment pending
     medical qualification and transferred to a new facility. IAF, Tab 8, Exhibit (Ex.)
     10 at 3; HCD (testimony of Manager of Customer Services) (testimony of the
     appellant).
¶3         On October 5, 2014, the appellant filed the instant Board appeal, alleging
     that the agency denied her restoration.       IAF, Tab 1.     After a hearing, the
     administrative judge dismissed the appeal for lack of jurisdiction, finding that the
     appellant failed to prove by preponderant evidence that the agency denied her
     restoration, or that any such denial was arbitrary and capricious. IAF, Tab 21,
     Initial Decision (ID) at 10-11.
¶4         The appellant has filed a petition for review, arguing that the agency’s
     limited duty job offers were outside her medical restrictions, Petition for Review
                                                                                         3

     (PFR) File, Tab 1 at 7-10, 11-12, and the agency failed to perform an adequate
     search for work, id. at 10-11. The agency has filed a response. PFR File, Tab 3.
¶5        It is undisputed that the appellant is a “partially recovered” individual
     within the meaning of 5 C.F.R. § 353.304(c). To establish jurisdiction over her
     appeal under that section, the appellant must prove by preponderant evidence
     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. 2         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).
¶6        In this case, we agree with the administrative judge that the appellant failed
     to prove by preponderant evidence that the agency denied her restoration. ID
     at 10-11. We find that this appeal is best viewed as involving four distinct time
     periods. The first period began on October 25, 2013, when the appellant first
     returned to work after her injury and was apparently released to work full time,
     and ended on November 11, 2013, when the appellant was restricted to part-time
     work. IAF, Tab 5 at 35, 38. We find that the agency did not afford the appellant
     full-time work during this period, and that under some circumstances this might
     constitute a denial of restoration for purposes of Board jurisdiction. See, e.g.,
     Boutin v. U.S. Postal Service, 115 M.S.P.R. 241, ¶ 13 (2010); Kinglee v. U.S.
     Postal Service, 114 M.S.P.R. 473, ¶ 14 (2010). However, this time period lasted
     only until November 11, 2013, when the appellant’s doctor recommended that she
     continue working part time. IAF, Tab 5 at 37. As explained below, we find

     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. 5 C.F.R. § 1201.57(a)(4) (2015). The amended regulations do not apply to
     the instant appeal, however, because they apply only to appeals filed on or after
     March 30, 2015. 80 Fed. Reg. 4489, 4489 (Jan. 28, 2015).
                                                                                      4

     insufficient evidence to conclude that the appellant was denied restoration on
     November 11, 2013, or any time thereafter.      Thus, we find that the agency’s
     provision of less than full-time work for approximately 2 weeks between
     October 25, 2013 and November 11, 2013, constituted at most a brief delay in
     restoration rather than a denial of restoration. Cf. Chen v. U.S. Postal Service,
     114 M.S.P.R. 292, ¶ 11 (2010) (explaining that a delay in restoring an employee
     to duty may amount to a denial of restoration if the delay is extreme and
     unexplained), overruled on other grounds by Latham, 117 M.S.P.R. 400, ¶ 9.
¶7        The second time period is from November 11, 2013 to February 9, 2014.
     During this 3-month period, the appellant was released to work part time, first for
     2 hours per day, and later for 4 hours per day. IAF, Tab 5 at 31-34, 36-37. It
     appears to be undisputed that the agency provided the appellant at least some
     work to perform each day during this time period.         HCD (testimony of the
     appellant). Although the record contains numerous requests for notification of
     absence showing that the appellant took some leave almost every day because
     there was “no work available” for her, this documentation generally does not
     show how many hours of leave that the appellant took each day. IAF, Tab 7
     at 14-79.   We therefore find that the appellant failed to provide sufficient
     information for us to conclude that the agency denied her restoration by failing to
     afford her the full allotment of part-time work that she requested between
     November 11, 2013 and February 9, 2014.
¶8        The third time period is from February 10, 2014, to an unspecified date in
     July, 2014, when the appellant transferred to a different facility pursuant to her
     bid award. On February 10, 2014, the appellant’s physician released her to work
     full time with restrictions, and the very next day, the agency offered her a
     full-time limited duty assignment, which the appellant’s doctor approved as being
     within her medical restrictions. IAF, Tab 5 at 30, 43; HCD (testimony of the
     appellant). Despite having this full-time limited duty assignment, the appellant
     continued to take some amount of leave almost every day, with the requests for
                                                                                        5

     notification of absence often citing the reason “no work available.” IAF, Tab 7
     at 80-202. The record does not adequately explain the appellant’s need to take
     this type of leave on a daily basis in light of her having a full-time limited duty
     assignment within her medical restrictions and a release to do full-time work.
     IAF, Tab 5 at 27-30, 43, Tab 8, Ex. 2 at 8-9, 14. The appellant generally testified
     that her supervisor would send her home for the day when she expressed her
     inability to perform certain tasks. HCD. In contrast, the Manager of Customer
     Services testified that the appellant was extremely difficult and would
     “cherry-pick” the tasks that she was willing to perform.       HCD.     Because the
     record does not reveal exactly what tasks the appellant was refusing to perform
     that caused her tours of duty to be cut short, we cannot conclude that they were
     outside her medical restrictions. In the face of an apparently proper limited duty
     assignment in effect during this time, the appellant’s vague testimony does not
     establish that the agency effectively denied her restoration by assigning her duties
     outside her medical restrictions. Cf. Foley v. U.S. Postal Service, 90 M.S.P.R.
     206, ¶ 6 (2001).
¶9         The fourth time period begins sometime in July 2014, after the appellant
     transferred to the new facility. After her transfer, the appellant was still released
     to work full time with restrictions, but was eventually restricted to part-time work
     again.   IAF, Tab 5 at 26, Tab 8, Tab 8, Ex. 2 at 16-17.              The record is
     poorly-developed regarding this time period.      It is not clear exactly when the
     appellant transferred to the new facility, what duties the appellant was performing
     during that time, or why she continued to take leave on a daily basis even while
     she was cleared for full-time work. IAF, Tab 1 at 179- 257. In any event, the
     appellant has made no specific complaints about this time period, and expressed
     that she was generally satisfied with the work that she was being provided at the
     new facility. HCD (testimony of the appellant). The appellant has not shown that
     she was denied restoration during this time period.
                                                                                        6

¶10        Turning to the appellant’s petition for review, we find immaterial her
      argument that the December 9, 2013 and December 16, 2013 job offers were
      outside her medical restrictions.   PFR File, Tab 1 at 7-10; IAF, Tab 5 at 47, 49.
      As explained above, we agree with the administrative judge that the agency
      provided the appellant work throughout the November to February time period
      notwithstanding the absence of a formal limited duty assignment. Supra ¶ 7; ID
      at 10. The fact that the appellant spent this time period working on an ad hoc
      basis rather than under a formal limited duty assignment is immaterial to the
      jurisdictional issue because it pertains to the details and circumstances of the
      restoration rather than to a denial of restoration. See Booker v. Merit Systems
      Protection Board, 982 F.2d 517, 519 (Fed. Cir. 1992) (discussing that matters
      pertaining to the details and circumstances of a restoration actually accomplished
      are outside the Board’s 5 C.F.R. § 353.304(c) jurisdiction); Bolton v. U.S. Postal
      Service, 115 M.S.P.R. 230, ¶ 10 (2010) (same).
¶11        The appellant also argues that the agency failed to offer her a full 8 hours of
      work (presumably in the February to July time period), and that the work she
      allegedly “refused to perform” was not within her medical restrictions. PFR File,
      Tab 1 at 11.    The appellant argues that the record was insufficient for the
      administrative judge to conclude that the work offered was within her medical
      restrictions because there is no evidence of what specific work she was offered.
      Id. at 11-12. This argument does not help the appellant’s case because it is her
      burden—not the agency’s—to establish jurisdiction over this appeal. See Latham,
      117 M.S.P.R. 400, ¶ 10.      To the extent that the record was not sufficiently
      developed for the administrative judge to determine whether the work that the
      appellant refused was within her medical restrictions, the appellant failed to carry
      her burden. As explained above, we find nothing in the record to indicate that the
      agency failed to offer the appellant 8 hours of work per day within her medical
      limitations from February 11 through July 2014. Supra ¶ 8.
                                                                                        7

¶12        Finally, the appellant argues that the agency failed to search the local
      commuting area for work.       PFR File, Tab 1 at 10-11.         We agree with the
      administrative judge, however, that the appellant failed to show that the agency
      was required to conduct such a search because she failed to show that the agency
      denied her restoration at her local duty station. ID at 10-11.

                      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
      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.
                                                                                  8

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