Boutin v. U.S. Postal Service , 482 F. App'x 583 ( 2012 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
GERALD R. BOUTIN,
Petitioner,
v.
UNITED STATES POSTAL SERVICE,
Respondent.
__________________________
2012-3018
__________________________
Petition for review of the Merit Systems Protection
Board in case no. PH0353110064-I-1.
__________________________
Decided: June 8, 2012
__________________________
GERALD R. BOUTIN, of Providence, Rhode Island, pro
se.
MICHAEL N. O’CONNELL, JR., Trial Attorney, Commer-
cial Litigation Branch, Civil Division, United States
Department of Justice, of Washington, DC, for respon-
dent. With him on the brief were STUART F. DELERY,
Acting Assistant Attorney General, JEANNE E. DAVIDSON,
Director, and STEVEN J. GILLINGHAM, Assistant Director.
BOUTIN v. USPS 2
__________________________
Before NEWMAN, LOURIE, and PROST, Circuit Judges.
PER CURIAM.
Gerald R. Boutin appeals from a final order of the
Merit Systems Protection Board (“Board”), affirming that
the United States Postal Service (“USPS”) did not violate
Mr. Boutin’s restoration rights pursuant to 5 C.F.R.
§ 353.304(c). For the reasons set forth below, we affirm.
I. BACKGROUND
Mr. Boutin is a mailhandler at the Providence, Rhode
Island, Processing Distribution Center for the USPS. On
June 15, 1984, he was injured while on duty. Due to
ongoing medical restrictions related to his injuries, Mr.
Boutin worked in modified duty assignments from the
1980’s until 2009. On June 10, 2009, after reviewing Mr.
Boutin’s current medical restrictions and considering
potential suitable tasks that he could perform, USPS
informed Mr. Boutin that there was “no available opera-
tionally necessary work for him to perform that complied
with his stated [medical] restrictions.” Boutin v. U.S.
Postal Serv., PH0353110064-I-1, slip op. at 2 (M.S.P.B.
Feb. 25, 2011) (“Initial Decision”). As a result, Mr. Boutin
was placed out of work effective June 10, 2009.
On August 10, 2009, USPS offered Mr. Boutin a part-
time, four-hour per day position, which he accepted.
USPS asserts that on January 8, 2010, it offered Mr.
Boutin a full-time, eight-hour per day position that was
consistent with his medical restrictions, which he never
accepted or declined. As discussed below, the January 8,
2010 offer is the subject of this appeal. On March 19,
2010, USPS again offered Mr. Boutin a full-time position
3 BOUTIN v. USPS
that was consistent with his restrictions and was, accord-
ing to USPS, identical to the January 8, 2010 offer except
that his shift would start and end two and one-half hours
earlier. Mr. Boutin accepted the March 19, 2010 offer and
began work on April 10, 2010.
On October 28, 2010, Mr. Boutin filed an appeal with
the Board in which he alleged that USPS violated his
restoration rights pursuant to 5 C.F.R. § 353.304(c) by
offering a full-time position to another mail handler with
less seniority on February 17, 2010, which was before Mr.
Boutin received and accepted his March 19, 2010 full-time
employment offer from USPS. Specifically, Mr. Boutin
sought pay for an additional four hours per work day for
the time period between February 17, 2010, and April 9,
2010. In other words, Mr. Boutin sought the difference in
pay between a part-time and full-time schedule during
this time period. An administrative judge held a hearing
on February 11, 2011. At the hearing, Mr. Boutin admit-
ted that USPS offered him a full-time position on January
8, 2010. Mr. Boutin argued, however, that USPS with-
drew this original offer, then later re-offered it, this time
making it contingent upon him settling an appeal that he
had previously filed with the Board. In a February 25,
2011 initial decision, the administrative judge found that
USPS did in fact offer Mr. Boutin a full-time position on
January 8, 2010, that USPS did not withdraw the offer,
that the offer remained open for at least fourteen days,
and that USPS did not make the offer contingent upon
him accepting USPS’s settlement offer in a prior appeal. 1
Initial Decision at 9.
1 Mr. Boutin has not appealed the administrative
judge’s ruling that he also failed to demonstrate reprisal
for equal employment opportunity activity.
BOUTIN v. USPS 4
The administrative judge based his findings, in large
part, on the testimony of Marian Varone, a health and
resource management manager at USPS. Id. at 6-8. Ms.
Varone testified that she sent Mr. Boutin a series of
letters between December 16, 2009, and January 7, 2010,
requesting a meeting. Ms. Varone further testified that,
upon meeting with Mr. Boutin on January 8, 2010, she
presented him with a written offer for full-time work that
was consistent with the medical restrictions Mr. Boutin
had submitted to USPS on July 20, 2009. Mr. Boutin,
however, presented Ms. Varone with an updated list of
new medical restrictions. Ms. Varone testified that she
modified the offer to reflect his new medical restrictions
and at the very same January 8, 2010 meeting, made Mr.
Boutin this revised offer. According to Ms. Varone, Mr.
Boutin neither accepted nor affirmatively declined the
offer, and Ms. Varone told him that the offer would re-
main open for fourteen days. Additionally, Mr. Varone
testified that on January 26, 2010, Mr. Boutin called her
and asked if the offer was still open (despite the fact that
the fourteen day acceptance deadline had passed), and
she responded that it was. Mr. Boutin, however, still did
not accept or affirmatively decline the offer. While Ms.
Varone was aware that Mr. Boutin had an ongoing Board
appeal, she testified that she never made the January 8,
2010 offer contingent upon settlement of that prior ap-
peal. Relying on this testimony, the administrative judge
determined that Mr. Boutin had no basis to complain
about a subsequent offer to a less senior employee be-
cause USPS’s January 8, 2010 offer was sufficient to
comply with its restoration obligations under 5 C.F.R.
§ 353.304(c).
Mr. Boutin filed a petition for review with the full
Board. In that petition, Mr. Boutin contended that Ms.
Varone testified falsely when she stated that she had
5 BOUTIN v. USPS
made Mr. Boutin an employment offer at a January 8,
2010 meeting. Rather, Mr. Boutin contended that his
meeting with Ms. Varone actually took place on January
6, 2010. In its final decision, however, the Board noted
that this argument contradicted Mr. Boutin’s own testi-
mony at the hearing where he, like Ms. Varone, had
testified that the meeting took place on January 8, 2010.
Boutin v. U.S. Postal Serv., PH0353110064-I-1, slip op. at
3 (M.S.P.B. Aug. 25, 2011) (“Final Decision”). The Board
went on to hold that Mr. Boutin had failed to provide any
sufficiently sound reasons for overturning the administra-
tive judge’s decision, which was based on credibility
determinations. Id. The Board denied Mr. Boutin’s
petition for review and held that, except as modified by
the Board’s final order, the initial decision was the
Board’s final decision. Id. This appeal followed. We have
jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
II. DISCUSSION
Our review of the Board’s decisions is narrow and lim-
ited by statute. Under 5 U.S.C. § 7703(c), we may only
set aside the Board’s decision if it is “(1) arbitrary, capri-
cious, an abuse of discretion, or otherwise not in accor-
dance with law; (2) obtained without procedures required
by law, rule, or regulation having been followed; or (3)
unsupported by substantial evidence.” Substantial evi-
dence is “such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Con-
sol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938).
On appeal, Mr. Boutin asserts that he met with Ms.
Varone on January 6, 2010—not on January 8, 2010.
While Mr. Boutin claims that Ms. Varone offered him a
full-time position at the alleged January 6, 2010 meeting,
he also claims that she withdrew that offer at the very
BOUTIN v. USPS 6
same meeting. Finally, Mr. Boutin argues that the offer
discussed with Ms. Varone on January 26, 2010 was
contingent upon him settling his previously filed appeal
before the Board.
Having considered Mr. Boutin’s arguments, we con-
clude that substantial evidence supports the administra-
tive judge’s findings that USPS offered Mr. Boutin a full-
time position on January 8, 2010, which remained open
for at least fourteen days, and which was not contingent
upon settlement of his prior appeal. The administrative
judge relied on written copies of USPS’s January 8, 2010
employment offers—both the offer reflecting Mr. Boutin’s
medical restrictions as of July 20, 2009 and the updated
offer reflecting his restrictions as of January 8, 2010.
Notably, each offer was dated January 8, 2010 and nei-
ther offer contained a requirement that Mr. Boutin settle
his prior appeal before the Board. The contents of the
written offers are further corroborated by Ms. Varone’s
testimony. The administrative judge found that Ms.
Varone was a “credible witness based on the straightfor-
ward manner in which she testified, the consistency of her
testimony with other record evidence, and the fact that
her version of events was not at all inherently improb-
able.” Initial Decision at 9. In contrast, the administra-
tive judge found portions of Mr. Boutin’s testimony to be
“inconsistent with other record evidence and, in some
cases, his claims were inherently improbable.” Id. This
court has held that “an evaluation of witness credibility is
within the discretion of the Board and that, in general,
such evaluations are ‘virtually unreviewable’ on appeal.”
King v. Dep’t of Health & Human Servs.,133 F.3d 1450,
1453 (Fed.Cir.1998) (quoting Clark v. Dep’t of the Army,
997 F.2d 1466, 1473 (Fed.Cir.1993)). Mr. Boutin provides
no basis for this court to disturb the administrative
judge’s credibility determination. In particular, Mr.
7 BOUTIN v. USPS
Boutin does not explain the significance that he places
upon the precise date of his meeting with Ms. Varone or
why this should change the Board’s central finding that
USPS did not make its offer contingent upon settlement
of his prior appeal. Indeed, as there is no dispute that
USPS offered him a full-time position in January 2010, it
does not matter whether that offer was first made on
January 6, 2010, or January 8, 2010. Accordingly, we find
that substantial evidence supports the Board’s conclusion
that USPS complied with its restoration obligations under
5 C.F.R. § 353.304(c).
COSTS
Each party shall bear its own costs.
AFFIRMED