The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROSALINDA CRISPIN, DOCKET NUMBER
Appellant, SF-0353-13-0349-I-2
v.
UNITED STATES POSTAL SERVICE, DATE: October 22, 2015
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Guillermo Mojarro, Upland, California, for the appellant.
Nina Paul, San Francisco, California, for the agency.
Rebecca Simon-Pearson, Long Beach, California, 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 for lack of jurisdiction her appeal of the agency’s alleged denial of her
request for restoration following her partial recovery from a compensable injury.
Generally, we grant petitions such as this one only when: the initial decision
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 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, 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).
¶2 The appellant filed an appeal contending that she is a partially recovered
employee and the agency improperly denied a request for restoration from
January 23, 2013, to February 13, 2013, by assigning her to a limited duty
position that required her to work beyond her medical restrictions. Crispin v.
U.S. Postal Service, MSPB Docket No. SF-0353-13-0349-I-1, Initial Appeal File
(I-1 IAF), Tab 1. The administrative judge found that the appellant made
nonfrivolous allegations of jurisdiction and he convened a hearing, after which he
found: (1) the appellant failed to show that she was absent from her position
between January 23, 2013, and February 13, 2013, due to a compensable injury;
(2) she was partially recovered from her compensable injury and could return to
work in a limited capacity; (3) she failed to show that the agency denied a request
for restoration; and (4) she failed to show that the agency acted arbitrarily and
capriciously by making a limited duty offer that was so unreasonable as to
amount to a denial of restoration. Crispin v. U.S. Postal Service, MSPB Docket
No. SF-0353-13-0349-I-2, Initial Appeal File, Tab 9, Initial Decision (ID)
at 22-29. He dismissed the appeal for lack of jurisdiction. ID at 2, 29.
3
¶3 To establish jurisdiction over a restoration appeal as a partially recovered
individual, an 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 denial was arbitrary
and capricious. 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). 2
Partially recovered employees may not appeal an improper restoration to the
Board; they only may appeal to the Board for a determination of whether the
agency acted arbitrarily and capriciously in denying restoration. See, e.g., Booker
v. Merit Systems Protection Board, 982 F.2d 517, 519 (Fed. Cir. 1992); Jones v.
U.S. Postal Service, 86 M.S.P.R. 464, ¶ 5 (2000). Under appropriate
circumstances, a restoration may be deemed so unreasonable as to amount to a
denial of restoration within the Board’s jurisdiction. Jones, 86 M.S.P.R. 464,
¶ 5. For example, a claim that restoration was effectively denied may involve
allegations that a partially recovered appellant is incapable of performing the job
duties of the position to which she was restored. Foley v. U.S. Postal
Service, 90 M.S.P.R. 206, ¶ 6 (2001). However, a dispute about the details and
circumstances of a restoration actually accomplished are outside the Board’s
jurisdiction. Latham, 117 M.S.P.R. 400, ¶ 34.
¶4 At issue in this appeal is the appellant’s February 2012 shoulder injury,
which was found to be compensable by the Office of Workers’ Compensation
Programs (OWCP). Both the appellant’s physician and a physician who provided
a second medical opinion requested by OWCP indicated that the appellant’s
2
Bledsoe and Latham both apply the “preponderant evidence” standard rather than the
new “nonfrivolous allegation” standard. The new standard applies only in cases filed
on or after March 30, 2015, 80 Fed. Reg. 4489-01, 4489-01 (Jan. 28, 2015) (codified at
5 C.F.R. § 1201.57), and is therefore inapplicable in this appeal.
4
condition limited her to reaching above the shoulder no more than 2 hours per
day. I-1 IAF, Tab 9 at 29, Tab 46 at 49, 53, 55. The appellant contends that,
regardless of the literal terms of the limited duty offer, the actual duties of the
position required her to reach above her shoulder more than 2 hours per day.
¶5 After considering the evidence of record, including the testimony of the
various witnesses at the hearing, the administrative judge determined that the
agency’s witnesses were credible, whereas the appellant’s witnesses were not.
Based on his credibility determinations, the administrative judge found that the
appellant failed to prove that the duties of the position required her to reach
above the shoulder more than 2 hours per day. He concluded that the duties of
the position were within the appellant’s medical restrictions and the appellant
therefore failed to prove that the agency denied a request for restoration or that
the offered position was so unreasonable as to amount to a denial of restoration.
¶6 On review, the appellant disputes the administrative judge’s credibility
determinations. Where, as here, an administrative judge’s credibility
determinations are based, explicitly or implicitly, on the observation of the
demeanor of witnesses testifying at a hearing, the Board must give those
determinations deference and may overturn them only when it has “sufficiently
sound” reasons for doing so. Haebe v. Department of Justice, 288 F.3d 1288,
1301 (Fed. Cir. 2002) . Although the appellant disagrees with the administrative
judge’s assessment of the witnesses’ credibility, she does not proffer a
“sufficiently sound” reason for us to disturb them, and we decline to do so. We
find, therefore, that the appellant has failed to present specific, independent
evidence corroborating her claim that the position required her to work outside
her medical restrictions and was so unreasonable as to amount to a denial of
restoration. Scott v. U.S. Postal Service, 59 M.S.P.R. 245, 248-49 (1993).
¶7 Finally, the appellant argues for the first time on review that the agency’s
Employee and Labor Relations Manual requires the agency to take concurrent
noncompensable medical conditions into account when fashioning a limited duty
5
job offer. Petition for Review File, Tab 3 at 5-6. The Board 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 not explained why she could not have made this
argument before the administrative judge. Moreover, the argument is not relevant
to the issue of whether the appellant’s position required her to reach above her
shoulder more than 2 hours per day. Therefore, the argument is neither new nor
material to the outcome of this appeal. See Banks, 4 M.S.P.R. at 271; Russo v.
Veterans Administration, 3 M.S.P.R. 345, 349 (1980) (finding that the Board will
not grant a petition for review based on new evidence absent a showing that it is
of sufficient weight to warrant an outcome different from that of the initial
decision).
¶8 In light of our disposition of this appeal, we need not decide whether the
administrative judge correctly found that the appellant failed to show that she was
absent from her position due to a compensable injury.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS 3
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
3
The administrative judge afforded the appellant mixed-case review rights. ID
at 33-34. However, in the absence of Board jurisdiction, this is not a mixed case. We
have provided the appellant the proper review rights here. See, e.g., Axsom v.
Department of Veterans Affairs, 110 M.S.P.R. 605 (2009).
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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 appeal to
the United States 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
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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.