CERTIFICATE OF SERVICE

Re: Ruby N. Turner v. United States Postal Service
Docket No. SF-0353-10-0329-I-1

This is to certify that a true and correct copy of the foregoing Agency Response was

mailed by the undersigned postage prepaid by First Class Mail to the following:

" MSPB
Clerk of the Board
Merit Systems Protection Board
5th Floor Mail Room

1615 M Street, N.W.
Washington, DC 20419-0002

APPELLANT

a N. Turner

APPELLANT'S REPRESENTATIVE

Geraldine Manzo

APWU

7700 Edgewater Drive #656
Oakland, CA 94621-3095

Dated: November 19, 2010 |
Janet Luo
Administrative Assistant
‘Law Dept., Pacific Area Office
United States Postal Service
1300 Evans Avenue, Room 217
P.O, Box 883790
San Francisco, CA 94188-3790



IV. CONCLUSION
Petitioner has offered no new evidence nor has she demonstrated judicial
error in her Petition. Therefore, the Agency respectfully requests that the Board

affirm the Initial Decision and deny the Petition for Review.

Please note below the new address for the Agency.

Respectfully submitted,

Robert E. O'Connell

Postal Service Attorney

Law Department, Pacific Area Office
United States Postal Service

1300 Evans Avenue, Room 217
P.O. Box 883790

San Francisco, CA 94188-3790
Telephone: (415) 550-5300

Fax: (415) 550-5416



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RE CEly,
UNITED STATES OF AMERICA sata, A
MERIT SYSTEMS PROTECTION BOARD CURD 94
WASHINGTON, D.C.

RUBY N. TURNER, Docket No. SF-0353-10-0329-I-1

Appellant,
v.

UNITED STATES POSTAL SERVICE, Date: November 19, 2010

Agency.

AGENCY'S RESPONSE TO PETITION FOR REVIEW

|. INTRODUCTION
-sTHe- UNITED. STATES POSTAL SERVICE (hereinafter the “Agency")

fespectfully.sequests:that-ttie. MERUF SYSTEMS .BROTECTION.BOARD.... -.,

(héreinafter the YMSPB". or"Board")-affirm.the Initial Decision, of-the,Board and
deny thé Petition: for Review filed, by Petitioner Ruby N: Turner (hereinafter. sees
“Petitioner”, In her Petition for Review (hereinafter "Petition"), Petitioner
requests that the Initial Decision be reversed. ;

~ The Agency asserts that the Petition fails to state any-new. and material
evidence, and:in the absence of any allegation of judicial error, the Petition is
without merit and therefore Petitioner may not prevail.

7" TL RELEVANT BACKGROUND tate Hoe

‘On Décémber 14,2009, Petitioner-filed an appeal dn_which-she-challenged
the’ Agéiicy's-November-30,:2009 notification: to. her thatthe. Agency,noJonger,
‘Hadopérationally necessary. work: available-for her within hersmedical restrictions

She requésted a hearing. , + ~

9

if ie


On April 16, 2010, a hearing was conducted before Administrative Judge
Craig A. Berg. :

On September 30, 2010, Judge Berg issued an Initial Decision in which he
denied the appeal. Judge Berg found that Petitioner failed to establish by
preponderant evidence that the Agency acted arbitrarily and capriciously in
denying her restoration and that, even if Petitioner was an individual with a
disability, she failed to prove her disability discrimination claim based on
disparate treatment or a failure to accommodate.

, Ill. LAW AND ARGUMENT

A. STANDARD OF REVIEW

The review jurisdiction of the Board is extremely limited, arising only when
a party can show either new and material evidence not previously discoverable,
or judicial error. 5 C.F.R. § 1201.1 15 governs the grounds for review and
Provides as follows:

(d) The Board, after providing the other parties with an opportunity to
‘respond, may grant a petition for review when it is established that:

(1) New and material evidence is available that, despite due
- diligence, was not available when the record closed; or

(2) The decision of the judge is based on an erroneous
interpretation of statute or regulation.

5 C.F.R. § 1201.115(d)


x

B. THE PETITION MUST BE DISMISSED BECAUSE NO NEW
MATERIAL EVIDENCE HAS BEEN INTRODUCED NOR IS JUDICIAL
ERROR ESTABLISHED i

As noted above, the Board may only grant review when it is established
that new and material evidence is available that, despite due diligence, was not
available when the record was closed, or the decision of the presiding official is
based on an erroneous interpretation of statute or regulation. 5 C.F.R. §.
1201.115.

ts Petitioner has failed to establish that new and material evidence is
available that, despite due diligence, was not available when the record was
closed. Therefore, Petitioner has failed to establish any basis under the first of
the two requirements which allows the Board to grant a petition for review.

7 2; Petitioner has also failed to establish that the Decision was based
on an erroneous interpretation by the Administrative Judge of a statute or
regulation. Petitioner merely asserts that the Administrative Judge erred in his
application of the facts to the applicable law and disagrees with that application.

As such, her argument does not meet the criteria established in 5 C.F.R.
§1201.115; Weaver v. Dept. of Navy, 2 MSPR 129 (1980); Schenarts v. Dept. of
Treasury, 30 MSPR 415 (1986). Therefore, Petitioner has failed to establish any

basis under the second of the two requirements which allows the Board to grant.

a petition for review.