                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     HONG T. VUONG,                                  DOCKET NUMBER
                  Appellant,                         SF-0353-13-0525-I-2

                  v.

     UNITED STATES POSTAL SERVICE,                   DATE: December 16, 2014
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Zepuor Parsanian, Tujunga, California, for the appellant.

           Nina Paul, Esquire, Long Beach, 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 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


     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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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, a Mail Processing Clerk, suffered a work-related injury on
     July 21, 2011, and the Office of Workers’ Compensation Programs (OWCP)
     accepted her claim of injury on September 29, 2011. Initial Appeal File (IAF),
     Tab 3 at 97.   “Duty Status Reports” were submitted regarding the appellant’s
     medical condition and work restrictions on July 27, and December 12, 2011. Id.
     at 103, 95. The agency conducted searches in the appellant’s local commuting
     area for available work within the appellant’s medical restrictions on
     November 21, and December 16, 2011, which did not disclose available work
     within the appellant’s medical restrictions. Id. at 96, 40. On January 26, 2012,
     the agency issued the appellant an “Employee Leave Information Letter,
     Complete Day,” which advised her that it had no work within her medical
     restrictions and sent her home.    Id. at 35.   An April 9, 2012 medical report
     ordered by OWCP concluded that the appellant’s current medical problems and
     restrictions related to non-work injuries she had sustained in 2006 and 2009, plus
     a longstanding condition of rheumatoid arthritis. Id. at 30. On October 1, 2012,
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     OWCP terminated the appellant’s medical benefits and compensation for wage
     loss on the basis that any work restrictions were no longer related to work-related
     injury.   Id. at 23. In December 2012, the appellant’s physician wrote a letter
     indicating that the appellant still had significant work restrictions because of her
     medical condition, and an agency search found no suitable work available. Id. at
     17, 13.    On March 7, 2013, the appellant’s physician wrote a new report
     indicating that the appellant could return to work with no medical restrictions,
     and the appellant was returned to work. Id. at 10; IAF, Tab 1 at 29, Tab 4 at 10.
¶3         In a lengthy initial decision, the administrative judge addressed three issues:
     (1) whether the agency arbitrarily and capriciously denied the appellant
     restoration as an employee who had partially recovered from a compensable
     injury during the period from January 26, 2012, to October 1, 2012; (2) whether
     the agency improperly denied the appellant restoration as an employee who has
     fully recovered from a compensable injury during the period between October 1,
     2012, and March 7-8, 2013; and (3) whether the agency was guilty of disability
     discrimination in violation of the Rehabilitation Act. The administrative judge
     resolved each of these issues in the negative. IAF, Tab 20, Initial Decision (ID).
¶4         The appellant has filed a timely petition for review in which she makes
     several allegations of error. Petition for Review (PFR) File, Tab 1. 2 The agency
     has filed a timely response. PFR File, Tab 5.

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶5         The appellant contests the administrative judge’s finding that she failed to
     make a nonfrivolous allegation that the agency arbitrarily and capriciously denied
     her restoration rights as an employee who has partially recovered from a
     compensable injury. She contends, among other things, that she was working up


     2
       The appellant has not challenged the administrative judge’s finding that the agency
     did not commit disability discrimination against her, and we see no reason to question
     that finding.
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     until December 26, 2011, at tasks within her medical restrictions, similar to
     restrictions she had been working under in 2009 and 2010, and that she was on a
     “stand-by status” for an unspecified period thereafter. PFR File, Tab 1 at 2-4.
     The extent to which the appellant was working during the period prior to her
     being sent home on January 26, 2012, and the particular duties she was
     performing, are not documented in the record. 3 The administrative judge found
     that, although the agency provided the appellant with provisional assignments or
     placed her on “stand-by status” until OWCP approved her claim, the appellant
     failed to establish that any work provided constituted a limited duty assignment. 4
     ID at 18.
¶6        Without knowing with specificity what duties the appellant was performing
     until she was sent home on January 26, 2012, and whether those duties continued
     to be performed by other employees after that date, we agree with the
     administrative judge’s conclusion that the appellant failed to establish that such
     work constituted a limited duty assignment that the agency arbitrarily and
     capriciously terminated. See Latham v. U.S. Postal Service, 117 M.S.P.R. 400,
     ¶ 31 (2012). Nor has she introduced any evidence that the several job searches
     conducted by the agency after January 26, 2012, which found no available job
     duties within the appellant’s medical restrictions, were incomplete or improper.
     Under these circumstances, we agree with the administrative judge’s finding that
     the appellant failed to make a nonfrivolous allegation that the agency arbitrarily
     and capriciously denied her restoration as an employee who has partially
     recovered from a compensable injury.
     3
       The agency moved to compel discovery from the appellant on this point. IAF, Tab 9
     at 6-8. The appellant responded, IAF, Tab 11, and the administrative judge ruled that
     the matter was moot, IAF, Tab 14.
     4
       The administrative judge further found that the appellant’s medical restrictions
     deteriorated significantly after OWCP approved her claim. ID at 19. The appellant
     disputes this finding on review. PFR File, Tab 1 at 3-4. Whether the appellant’s
     medical condition deteriorated significantly following OWCP’s decision approving her
     claim does not alter the correct disposition of this appeal.
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¶7         Regarding the appellant’s contention that the administrative judge erred in
     finding that she failed to establish jurisdiction over a denial of restoration as an
     employee who has fully recovered from a compensable injury, the appellant
     alleged that the administrative judge ignored her documentary evidence regarding
     her alleged requests to return to work provided to her supervisor and the Injury
     Compensation Office.     PFR File, Tab 1 at 2, 4-6.       The administrative judge
     assumed, without finding, that the appellant nonfrivolously alleged that she
     timely requested priority consideration as a fully-recovered employee and was
     eligible under 5 C.F.R. § 353.301(b).     ID at 26.    This allegation of error is
     therefore without merit. The critical fact regarding any alleged failure to restore
     the appellant to work as a fully-recovered employee is that the agency did restore
     her to employment as soon as her physician said she was able to return to work
     without restrictions.

                     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 United States 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

           If you submit your request via commercial delivery or by a method
     requiring a signature, it must be addressed to:
                                                                                    6

                           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 United States
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
representation by a court-appointed lawyer and to waiver of any requirement of
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prepayment of fees, costs, or other security.   See 42 U.S.C. § 2000e5(f) and
29 U.S.C. § 794a.




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