UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

ESSAQUENA HARRIS,

Appellant,

v. 

UNITED STATES POSTAL SERVICE,

Agency. 

DOCKET NUMBER

CH-0353-14-0178-I-1

DATE: May 18, 2016

THIS FINAL ORDER IS NONPRECEDENTIAL1

Essaquena Harris, Highland, Indiana, pro se. 

Deborah L. Lisy, Esquire, and Shannon L. Wilson, 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 for lack of jurisdiction her appeal alleging that the agency denied her 

restoration to duty from November 24, 2012, through June 23, 2014, following 

partial recovery from a compensable injury. Generally, we grant petitions such as 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

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 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 suffered a compensable injury to her shoulder in 1990 while 

working as a Mail Processor and thereafter worked in a series of assignments

tailored to her medical restrictions. Initial Appeal File (IAF), Tab 8,

Subtabs 4SS, 4UU, 4WW-4XX, 4ZZ. Beginning in June 2010, she was assigned 

to work in the NIXIE Unit performing rewrap duties for 2 hours per day. Id.,

Subtab 4SS. Later, the NIXIE (“nixed” or undeliverable mail) Unit was 

abolished, and she was assigned to work in a standby status. IAF, Tab 8, 

Narrative Response at 8, 13, Subtabs 4GGG-4HHH. On or about June 26, 2012, 

while working in this 2-hour per day assignment, she suffered a 

compensable injury to her back, which resulted in an extended absence. Id.,
3

Subtabs 4GG-4HH, 4KK; IAF, Tab 44 at 12.

2

 After a 5-month absence, she 

requested restoration and submitted medical documentation listing her updated 

work restrictions and indicating that she could work up to 8 hours per day. IAF,

Tab 8, Subtabs 4EE-4FF, Tab 44 at 12. 

¶3 The agency searched for work within the appellant’s restrictions and offered 

her an assignment performing 3 hours of manual casing duties per day. IAF,

Tab 8, Subtabs 4W, 4CC, Tab 32, Exhibit 2. The Office of Workers’ 

Compensation Programs found the work to be within the appellant’s restrictions 

but deemed the assignment unsuitable because it did not provide her 8 hours of 

work per day. IAF, Tab 8, Subtabs 4M, 4U-4V. The appellant also rejected a 

May 15, 2013 assignment due to its part-time nature and a March 27, 2014 

assignment due to the commuting distance. Id., Subtab 4O; IAF, Tab 42 at 68-70. 

The appellant accepted an offer of assignment dated May 30, 2014, and returned 

to 8 hours of work per day effective June 23, 2014. IAF, Tab 42 at 74, Tab 44 

at 12-13. 3

 

¶4 In the meantime, the appellant filed an equal employment opportunity 

complaint alleging, among other things, that the agency discriminated against her 

based on her disability and retaliated against her, by failing to restore her to duty 

beginning on November 24, 2012. IAF, Tab 1 at 7. The agency issued a final 

agency decision finding no discrimination and informing the appellant of her 

right to appeal to the Board pursuant to 29 C.F.R. § 1614.302(d). IAF, Tab 1

at 7, 29. The appellant filed the instant appeal and alleged that the agency 

arbitrarily and capriciously failed to restore her to 8 hours of work per day

 

2 The agency did not provide evidence to support its assertion that the appellant was 

placed on standby after the NIXIE Unit was closed. IAF, Tab 8 at 18. Nevertheless, 

the appellant did not dispute this fact. 

3 The May 30, 2014 offer was later rescinded and the appellant filed another appeal,

which is being adjudicated separately. IAF, Tab 44 at 12-13; Harris v. U.S. Postal 

Service, MSPB Docket No. CH-0353-14-0809-I-1. 
4

between November 24, 2012, and June 23, 2014. IAF, Tab 1 at 5, Tab 44 

at 12-13. 

¶5 In her appeal, the appellant did not argue that she should have been 

provided NIXIE rewrap duties or that the manual casing duties offered to her 

were outside her medical restrictions. Instead, she argued that the agency should 

have restored her to 8 hours per day of the manual casing duties she was provided

in a previous assignment dated August 2001. IAF, Tab 1 at 5, Tab 44 at 5-8. She 

contended that other employees with compensable injuries were performing the 

manual duties that should have been assigned to her and that the agency 

improperly prevented her from obtaining bid jobs in the manual unit. IAF,

Tab 44 at 16. She also argued that the agency’s local commuting area search

documents were fictitious and that the agency’s actions were motivated by 

retaliation and disability discrimination. Id. at 17-18. 

¶6 The appellant initially requested a hearing but then withdrew her request 

and asked that her appeal be decided on the written record. IAF, Tab 43. After 

both parties submitted closing briefs, the administrative judge issued an initial 

decision finding no jurisdiction. IAF, Tab 46, Initial Decision (ID) at 10-11. 

¶7 In her initial decision, the administrative judge found that the appellant had 

satisfied the first three jurisdictional elements set forth in Latham v. U.S. Postal 

Service, 117 M.S.P.R. 400, ¶ 10 (2012), but failed to prove by preponderant 

evidence that the denial of restoration was arbitrary and capricious.

4 ID at 7,

10-11. The administrative judge found that the appellant failed to establish that 

there were any additional manual casing or other duties available within the local 

commuting area and within her restrictions. ID at 8, 10. She also found that the 

 

4 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). 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). 
5

agency conducted an adequate search for work within the local commuting area. 

ID at 8. The administrative judge further found that the record evidence 

contradicted the appellant’s claims that the agency improperly precluded her from 

bidding or wrongly awarded bid assignments to less senior bidders. ID at 8-9. 

She also found that the appellant failed to establish that the agency violated any 

law, rule, or regulation when assigning manual tasks to other employees with 

compensable injuries. ID at 9. Finally, the administrative judge found that the 

appellant failed to show that the agency’s denial of restoration was arbitrary and 

capricious on the basis of discrimination or retaliation. 5

 ID at 10. 

DISCUSSION OF ARGUMENTS ON REVIEW

¶8 In her petition for review, the appellant argues that the administrative judge 

erred by not stating that a USPS Rehabilitation Job Offer she accepted in 

August 2001 was permanent. Petition for Review (PFR) File, Tab 1 at 5. The 

appellant, however, does not explain how this relates to her restoration claim. To 

the extent that she is arguing that the manual casing and other duties listed in the 

2001 assignment were still her assigned duties during the time period relevant to 

this appeal, we find that her argument is belied by the evidence of record. The 

assigned duties listed in the 2001 offer were tailored to work restrictions related 

to the appellant’s 1990 shoulder injury, and the offer specifically states that the 

assignment may change due to future operational needs of the agency. IAF,

Tab 8, Subtab WW. Moreover, there is no dispute that the appellant had been 

 

5 As noted by the administrative judge, the Board has adopted a three-step inquiry as a 

framework to analyze cases where the appellant requests restoration after the agency 

rescinded a modified assignment. ID at 6; Latham, 117 M.S.P.R. 400, ¶¶ 31-33. This 

analysis does not apply here because the appellant was in an off-duty status when she 

requested restoration. Furthermore, application of this analysis would not change the 

outcome of this case. The administrative judge properly found that the NIXIE Unit, 

where the appellant worked pursuant to the June 2010 offer, had been dismantled in 

June 2012. ID at 7-8. The appellant does not contend that the NIXIE duties were 

available when she requested restoration. 
6

working in a different assignment from June 17, 2010, through June 26, 2012, or 

that her June 26, 2012 back injury resulted in new restrictions. 6 IAF, Tab 8,

Subtabs 4EE, 4SS, 4WW. Accordingly, we find no reason to disturb the 

administrative judge’s finding in this regard. 

¶9 The appellant also argues that the administrative judge erred in finding that 

manual casing duties were no longer a necessary task. PFR File, Tab 1 at 6. 

Upon our review of the record, we find that the appellant has misconstrued the 

administrative judge’s ruling. The administrative judge did not find that manual 

casing was not a necessary task. Instead, she correctly found that manual casing 

duties decreased along with the decrease in mail volume at the appellant’s facility 

and that there were no mail casing duties available for her outside the duties 

already offered to her. ID at 7-8. 

¶10 The appellant submits three documents for the first time on review. 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); 5 C.F.R. § 1201.115. Documents are 

deemed new evidence only if the information contained in the documents, not just 

the documents themselves, was unavailable despite due diligence when the record 

closed. 5 C.F.R. § 1201.115(d). Evidence is material if it is of sufficient weight 

to warrant an outcome different from that of the initial decision. Russo v. 

Veterans Administration, 3 M.S.P.R. 345, 349 (1980); 5 C.F.R. § 1201.115(a)(1). 

As discussed below, the documents submitted by the appellant do not provide a 

basis for disturbing the initial decision. 

 

6 The propriety of the agency’s June 2010 decision to change the appellant’s duties and 

reduce her work hours was the subject of a separate mixed complaint and is not at issue 

here. IAF, Tab 8, Subtab 4AAA at 16-19; Harris v. U.S. Postal Service, EEOC Appeal 

No. 0120121505, 2012 WL 2356843 (June 4, 2012). 
7

¶11 The appellant submits for the first time on review a document dated July 2, 

2014, which she purports to be a list of agency facilities that were wrongly 

omitted from the agency’s local commuting area search. PFR File, Tab 1 at 7, 

13-15. The list is dated several months before the close of record below, and the 

appellant does not explain why the document, or the information provided 

therein, was otherwise unavailable to her previously. Accordingly, we will not 

address this evidence or argument on review. See Banks, 4 M.S.P.R.

at 271; 5 C.F.R. § 1201.115(d). 

¶12 The appellant also submits for the first time on review a copy of a 

December 12, 2014 Global Settlement Remedy Agreement between the agency

and the American Postal Workers Union, and a December 12, 2014 news article 

discussing the settlement. PFR File, Tab 1 at 16-18. Although these documents

are new in that they postdate the close of record, the appellant fails to show that 

the information provided in the documents was not available to her prior to the 

close of record. The settlement resolves issues arising out of two national-level 

grievance awards. Id. The agency submitted evidence in its response revealing 

that the grievance arbitration awards discussed in the settlement were issued in 

November 2010 and March 2013, and the grievances themselves were argued 

years prior. PFR File, Tab 5 at 14-15, 18. As the appellant has not shown that 

she could not have obtained information about these contractual issues before the 

close of record, we need not consider it now. Moreover, the appellant fails to 

show how the evidence is material because it does not provide any indication that 

work was available within her local commuting area, during the relevant time 

period, and within her medical restrictions. Davis v. U.S. Postal 

Service, 120 M.S.P.R. 122, ¶ 12 (2013). Therefore, even if we were to consider 

the documents on review, the information contained therein does not warrant a 

different outcome in the case. 
8

¶13 In addition, the appellant submits for the first time on review a copy of a 

May 2002 Memorandum of Understanding, which she contends will help clarify 

her argument that all clerks are classified as mail processing clerks. PFR File,

Tab 1 at 10, 19-22. There is no evidence indicating that the document or 

information was unavailable to her prior to the close of record or that it is 

material to the restoration issues in this case. 

¶14 Finally, the appellant reasserts her arguments that the agency wrongly 

prevented her from obtaining bid jobs and that the agency’s local commuting area 

search documents were fictitious. Id. at 7, 10. We note that the administrative 

judge properly addressed and rejected these arguments in the initial decision. ID

at 8-9. The appellant’s arguments on review constitute mere disagreement with 

the administrative judge’s findings, which we find no reason to disturb. 

Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 105-06 (1997) (finding no reason 

to disturb the administrative judge’s findings where she considered the evidence 

as a whole, drew appropriate inferences, and made reasoned conclusions); 

Broughton v. Department of Health & Human Services, 33 M.S.P.R. 357, 359 

(1987) (same). Moreover, we have reviewed the record and considered the 

remainder of the appellant’s arguments on review, and we discern no error with 

the initial decision. 

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
9

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 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. 
10

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:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board