Kafele v. United States Postal Service , 513 F. App'x 987 ( 2013 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
LINDA L. KAFELE,
Petitioner,
v.
UNITED STATES POSTAL SERVICE,
Respondent.
______________________
2013-3041
______________________
Petition for review of the Merit Systems Protection
Board in No. DA0353110390-B-1.
______________________
Decided: May 14, 2013
______________________
LINDA L. KAFELE, of Irving, Texas, pro se.
J. HUNTER BENNETT, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for respondent. With him
on the brief were STUART F. DELERY, Principal Deputy
Assistant Attorney General, JEANNE E. DAVIDSON, Direc-
tor, and KENNETH M. DINTZER, Assistant Director.
______________________
2 LINDA KAFELE v. USPS
Before DYK, LINN, and PROST, Circuit Judges.
PER CURIAM.
Linda L. Kafele petitions for review of a decision of
the Merit Systems Protection Board (“Board”) dismissing
her appeal for lack of jurisdiction. See Kafele v. U.S.
Postal Serv., No. DA–0353–11–0390–B–1 (M.S.P.B. Sept.
12, 2012). We affirm.
BACKGROUND
Kafele was employed as a mail processing clerk by the
U.S. Postal Service (“the agency”) in Coppell, Texas.
During her career, she suffered several compensable
work-related injuries resulting in extensive permanent
medical restrictions on her activity, including prohibitions
against “reaching above the shoulder,” “repetitive simple
grasping,” and “repetitive fine manipulation.” Id., slip op.
at 2–3. In late 2009, Kafele had right shoulder surgery,
which did not resolve her medical restrictions. When she
returned to work, the agency twice offered her positions
casing (sorting) letter mail, but she declined them as
outside her medical restrictions. On September 14, 2010,
the agency informed Kafele that it was unable to find her
work meeting her medical restrictions and that she was
being placed on leave without pay.
Kafele appealed to the Board, claiming that she was
entitled to restoration as a partially-recovered employee
pursuant to 5 C.F.R. § 353.304(c). The agency did not
appear to dispute that Kafele had satisfied some of the
elements of a restoration claim, but argued that the
agency’s denial of restoration was not arbitrary and
capricious because work meeting Kafele’s medical re-
strictions was not available. Kafele argued that the
agency should have assigned her “nixie mail” or “MPE
watch” duties. Nixie mail involved handling damaged or
undeliverable mail. MPE watch consisted of monitoring a
computer screen for error messages produced by a mail
LINDA KAFELE v. USPS 3
sorting machine. Kafele also contended that the agency’s
denial of her restoration was based on discrimination
because two younger Hispanic employees had received
modified job assignments, and Kafele had not. After a
hearing, the administrative judge (“AJ”) concluded that
MPE watch duties were unavailable because Kafele
“could not identify any employee that actually performed
the duties and . . . did not rebut the agency’s evidence
that those tasks are incidental to supervisors’ duties,” and
that “nixie mail duties were outside [Kafele’s] medical
restrictions” because they “requir[ed] reaching and ma-
nipulating small pieces of mail set out on trays.” Kafele,
No. DA–0353–11–0390–B–1, slip op. at 9–10. The AJ also
found that Kafele’s discrimination claims lacked merit
because the employees who she claimed had been given
preferential treatment had “much less restrictive” medical
limitations and were therefore not “similarly situated” to
Kafele. Id., slip op. at 13–14. The AJ thus concluded that
Kafele had not established that the agency’s denial of
restoration was arbitrary and capricious, and that the
Board therefore lacked jurisdiction over her appeal.
Kafele chose not to appeal to the full Board, so the
AJ’s decision became the Board’s decision. Kafele timely
appealed to this court.
DISCUSSION
We review de novo the Board’s conclusion that it
lacked jurisdiction. Bledsoe v. Merit Sys. Prot. Bd., 659
F.3d 1097, 1101 (Fed. Cir. 2011). While we generally lack
jurisdiction to review Board decisions in cases involving
discrimination allegations, see 5 U.S.C. § 7703(b); Kloeck-
ner v. Solis, 568 U.S. ___, 133 S. Ct. 596 (2012), we have
held that rule inapplicable to matters of Board jurisdic-
tion. See Conforto v. Merit Sys. Prot. Bd., No. 2012-3119,
2013 WL 1668969, at *7 (Fed. Cir. Apr. 18, 2013). This
panel is obligated to follow the earlier panel decision in
4 LINDA KAFELE v. USPS
Conforto. Therefore, we hold that we have jurisdiction
under 5 U.S.C. § 7703(b)(1).
“An individual who is partially recovered from a com-
pensable injury may appeal to [the Board] for a determi-
nation of whether the agency is acting arbitrarily and
capriciously in denying restoration.” 5 C.F.R.
§ 353.304(c). However:
to establish jurisdiction under 5 C.F.R.
§ 353.304(c) the petitioner must prove by prepon-
derant evidence . . . denial of restoration rendered
arbitrary and capricious by agency failure to per-
form its obligations under 5 C.F.R. [§ ]353.301(d).
Bledsoe, 659 F.3d at 1104. Here, the Board found that
Kafele had not proven that the agency’s denial of restora-
tion was arbitrary and capricious for failure to comport
with 5 C.F.R. § 353.301(d). 1
Kafele appears to argue that the Board erred by rely-
ing on “false testimony” that nixie mail processing “was
no longer being performed at the facility” where she
worked. However, the Board found that “nixie mail
duties were outside [Kafele’s] medical restrictions when
she was sent home even if such work had been available.”
Kafele, No. DA–0353–11–0390–B–1, slip op. at 10. Alt-
hough Kafele had previously performed nixie mail duties,
the Board observed that those “medical limitations be-
came more restrictive over time.” Id. Kafele does not
dispute that nixie mail “requir[ed] reaching and manipu-
lating small pieces of mail set out on trays,” nor that her
“medical limitations . . . ultimately prohibited [Kafele]
1 Section 353.301(d) requires agencies to “make
every effort to restore in the local commuting area, ac-
cording to the circumstances in each case, an individual
who has partially recovered from a compensable injury
and who is able to return to limited duty.”
LINDA KAFELE v. USPS 5
from any repetitive simple grasping and repetitive fine
manipulation.” Id. Kafele appears to argue that her
doctor expected her to recover from her medical re-
strictions following her surgery. However, the letter she
cites refers only to additional, temporary medical re-
strictions relating to her surgery, and does not address
her permanent medical restrictions, including those on
repetitive simple grasping and fine manipulation, which
the AJ found incompatible with nixie mail duties. Accord-
ingly, we agree with the Board’s conclusion that the
agency’s refusal to restore Kafele to nixie duty was not
arbitrary and capricious.
With respect to MPE watch, Kafele argues that the
agency witnesses who testified that MPE watch duties
were incidental duties performed by supervisors “lie[d]
under oath.” However, the Board credited that testimony
and its credibility determinations are “virtually unre-
viewable on appeal.” See King v. Dep’t of Health & Hu-
man Servs., 133 F.3d 1450, 1453 (Fed. Cir. 1998) (internal
quotation marks omitted). We therefore see no basis to
disturb the Board’s conclusion that MPE watch duties
were also unavailable.
Regarding discrimination, Kafele appears to argue
that the Board erred by failing to recognize that other
employees were treated more favorably in job assign-
ments. However, even if Kafele were treated differently,
she must show that the employees who allegedly received
better treatment were similarly situated to herself. See,
e.g., Gen. Motors Corp. v. Tracy, 519 U.S. 278, 298 (1997).
Here, the Board found that the other employees were not
similarly situated because their medical limitations were
less restrictive. The Board also found that Kafele’s su-
pervisor’s allegedly insensitive comments regarding a
Mexican cartoon character and the fact that at least one
employee did not have to report to a standby unit did not
evidence discriminatory intent. Kafele identifies no error
6 LINDA KAFELE v. USPS
in those findings, and we can find none. The Board
therefore properly rejected Kafele’s discrimination claims.
We have considered Kafele’s other arguments and
find them to be without merit. Because Kafele failed to
establish that the agency’s denial of restoration was
arbitrary and capricious, the Board correctly determined
that it lacked jurisdiction over her appeal. See Bledsoe,
659 F.3d at 1104.
AFFIRMED
COSTS
No costs.