Generette v. MSPB , 681 F. App'x 929 ( 2017 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
DIANE B. GENERETTE,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2017-1074
______________________
Petition for review of the Merit Systems Protection
Board in No. PH-3443-16-0060-I-1.
______________________
Decided: March 10, 2017
______________________
DIANE B. GENERETTE, Philadelphia, PA, pro se.
CALVIN M. MORROW, Office of the General Counsel,
Merits Systems Protection Board, Washington, DC, for
respondent. Also represented by BRYAN G. POLISUK,
KATHERINE M. SMITH.
______________________
Before NEWMAN, CLEVENGER, and TARANTO, Circuit
Judges.
2 GENERETTE v. MSPB
PER CURIAM.
Diane Generette applied for a position as a Casual
Mail Handler with the U.S. Postal Service in 2015. The
Postal Service rejected her application in part because,
many years earlier, she had been removed from a position
as a Postal Service Distribution Clerk for unsatisfactory
attendance. She appealed her rejection to the Merit
Systems Protection Board on various grounds. The Board
dismissed her appeal for lack of jurisdiction. Generette v.
U.S. Postal Serv., No. PH-3443-16-0060-I-1 (MSPB July
21, 2016) (became final Aug. 25, 2016). We affirm.
I
The facts related to this appeal span many years and
involve several overlapping proceedings. In February
1987 the Postal Service hired Ms. Generette as a Distri-
bution Clerk. In October of that year, she suffered a
work-related back injury, for which she received compen-
sation from the Office of Workers’ Compensation Program
in the U.S. Department of Labor (Office or OWCP).
Ms. Generette successfully made several claims for com-
pensation for recurrences of her disability for various
periods between July 1, 1988, and December 11, 1990.
On April 29, 1991, Ms. Generette filed another notice
of recurrence of her disability, seeking compensation for
the period from December 14, 1990, through April 29,
1991. The Office denied her claim on November 26, 1991.
It found that her back pain was not related to her 1987
work-related injury.
While her request for reconsideration was pending
with the Office, or perhaps even before April 1991,
Ms. Generette appears to have returned to work, with her
duties modified in some way from what they originally
were. In October 1992, Ms. Generette asked the Postal
Service to put her on permanent light duty, but the Postal
Service denied her request. It explained that “the medical
GENERETTE v. MSPB 3
evidence submitted by [Ms. Generette] is so restrictive
that productive light duty work is not available” and that
she should not report to work until medically approved to
do so. Resp’t’s App. 19. Ms. Generette challenged the
denial by filing a grievance under the collective bargain-
ing agreement. It is not clear from the record before this
court whether or in what capacity Ms. Generette subse-
quently returned to work, although the PS Form 50 dated
March 24, 1998, shows that her last day in pay status was
February 4, 1993. Resp’t’s App. 21.
As to the Office’s decision denying her injury compen-
sation, the Office refused reconsideration of that denial on
October 22, 1993, and Ms. Generette then appealed to
U.S. Department of Labor Employees’ Compensation
Appeals Board. As to Ms. Generette’s permanent-light-
duty grievance, a “Pre-Arbitration Settlement Agreement”
was signed on December 29, 1993, the signatories appar-
ently being a union representative and a Postal Service
management representative. That Agreement stated: “If
employee’s claim is accepted by OWCP, employee will be
reimbursed by OWCP, therefore, case would be resolved,
if not, employee will be paid for all lost hours from
10/15/92 until accommodated, or until permanently
disabled” and “[i]f this case has been formerly re-
solved/settled, then this agreement is null and void.”
Resp’t’s App. 20.
On May 23, 1995, while the injury compensation ap-
peal to the Employees’ Compensation Appeals Board was
pending, the Postal Service proposed to remove
Ms. Generette for unsatisfactory work attendance and
being absent without leave. Ms. Generette filed a griev-
ance challenging the proposed removal.
On December 7, 1995, the Employees’ Compensation
Appeals Board in the U.S. Department of Labor affirmed
the Office’s denial of Ms. Generette’s claims for compensa-
4 GENERETTE v. MSPB
tion for the recurrence of her injury during the December
1990 to April 1991 period.
Ms. Generette’s removal was the subject of an arbitra-
tion hearing that stretched from July 18, 1997, to January
15, 1998. On February 28, 1998, the arbitrator issued a
decision finding that the Postal Service had shown just
cause to remove Ms. Generette, and she was removed on
March 23, 1998.
Seven years later, on July 29, 2005, Ms. Generette
appealed her 1998 removal to the Merit Systems Protec-
tion Board. She alleged breach of the Pre-Arbitration
Settlement Agreement; denial of a right to restoration to
an earlier position, or the nearest position in status and
pay for which she was qualified, after recovery from a
compensable injury; and disability discrimination. On
December 5, 2005, an administrative judge dismissed her
appeal for lack of jurisdiction. The full Board denied
Ms. Generette’s petition to review the administrative
judge’s decision on April 27, 2006, and that decision was
not further appealed.
Nine years later, Ms. Generette applied for a position
as a Casual Mail Handler with the Postal Service, which
rejected her application on November 10, 2015, after the
hiring official learned of Ms. Generette’s earlier removal
from the Postal Service. Ms. Generette appealed to the
Merit Systems Protection Board on November 11, 2015.
She claimed that (1) the rejection was a denial of her
restoration rights, (2) her 1998 removal was improper,
(3) the Postal Service owed her money under the Pre-
Arbitration Settlement Agreement, and (4) the Postal
Service had discriminated against her based on her age
and disability.
The administrative judge ordered Ms. Generette to
show why the Board had jurisdiction over her claims and
explained in detail what she would have to show to estab-
lish Board jurisdiction over her restoration claim. On
GENERETTE v. MSPB 5
July 21, 2016, the administrative judge dismissed the
appeal for lack of jurisdiction. Generette v. U.S. Postal
Serv., No. PH-3443-16-0060-I-1 (MSPB July 21, 2016).
That decision became the final Board decision on August
25, 2016, when the time for petitioning the Board for
review ran out. See 5 C.F.R. § 1201.113. Ms. Generette
timely appealed to this court. Ms. Generette appeals only
the denial of Board jurisdiction. We have jurisdiction to
hear the appeal. 28 U.S.C. § 1295(a)(9); Conforto v. Merit
Sys. Prot. Bd., 713 F.3d 1111, 1119–20 (Fed. Cir. 2013).
II
This court is required to “set aside any agency action,
findings, or conclusions found to be (1) arbitrary, capri-
cious, an abuse of discretion, or otherwise not in accord-
ance with law; (2) obtained without procedures required
by law, rule or regulation having been followed; or
(3) unsupported by substantial evidence.” 5 U.S.C.
§ 7703(c). We review the question of whether the Board
had jurisdiction de novo. Bledsoe v. Merit Sys. Prot. Bd.,
659 F.3d 1097, 1101 (Fed. Cir. 2011). In general, the
appellant has the burden to show jurisdiction by a pre-
ponderance of the evidence. Id.; see 5 C.F.R.
§ 1201.56(b)(2). For a claim of failure to restore under 5
C.F.R. § 353.304, under a regulation whose application to
this case Ms. Generette accepts, “in order to establish
jurisdiction, an appellant who initiates an appeal . . .
must make nonfrivolous allegations (as defined in
§ 1201.4(s)) with regard to the substantive jurisdictional
elements applicable to the particular type of appeal he or
she has initiated.” 5 C.F.R. § 1201.57(b) (effective Mar.
30, 2015). A nonfriviolous allegation is one that “(1) is
more than conclusory; (2) is plausible on its face; and
(3) is material to the legal issues in the appeal.” 5 C.F.R.
§ 1201.4(s).
6 GENERETTE v. MSPB
A
Ms. Generette’s primary claim is that the Postal Ser-
vice’s refusal to hire her in 2015 constituted an improper
denial of her restoration rights. An employee who has
suffered a compensable injury that renders her unable to
perform all the duties of her position or an equivalent one
has certain rights to be restored to her job depending on
the extent and timing of her recovery. 5 U.S.C. § 8151(b);
5 C.F.R. § 353.301. “Agencies must make every effort to
restore in the local commuting area, according to the
circumstances in each case, an individual who has partial-
ly recovered from a compensable injury and who is able to
return to limited duty.” 5 C.F.R. § 353.301(d). “An indi-
vidual”—including an employee or former employee of the
Postal Service—“who is partially recovered from a com-
pensable injury may appeal to MSPB for a determination
of whether the agency is acting arbitrarily and capricious-
ly in denying restoration.” 5 C.F.R. § 353.304(a), (c).
Jurisdiction of the Board over a restoration-rights chal-
lenge by a partially recovered employee requires nonfrivo-
lous allegations of: “(1) absence due to a compensable
injury; (2) sufficient recovery from the injury to return to
duty on a part time basis or in a less physically demand-
ing position; (3) agency denial of a request for restoration;
and (4) denial of restoration rendered arbitrary and
capricious by agency failure to perform its obligations
under 5 C.F.R. § 353.301(d).” Bledsoe, 659 F.3d at 1104; 5
C.F.R. § 1201.57(b).
Here, Ms. Generette has not made a nonfrivolous al-
legation that her absence from her job was due to her
compensable injury. Ms. Generette was removed in 1998
for cause, based on poor attendance, and that removal
was upheld by an arbitrator. Accordingly, her absence
since at least 1998 was “due to” that removal and not her
injury. Minor v. Merit Sys. Prot. Bd., 819 F.2d 280, 282
(Fed. Cir. 1987). Moreover, even if Ms. Generette had
alleged that her poor attendance traced back to her disa-
GENERETTE v. MSPB 7
bility, the 1995 Employees’ Compensation Appeals Board
decision establishes that her injury has not been compen-
sable since December 1990. Therefore, the Postal Ser-
vice’s refusal to hire her in 2015 is not an action within
the Board’s jurisdiction. 1
B
Ms. Generette argued to the Board that the denial of
her request for permanent light duty in 1992 was a con-
structive suspension. The Board has jurisdiction to hear
appeals from certain suspensions, see 5 U.S.C. § 7512(2),
but only if the appellant is an “employee,” 5 U.S.C.
§ 7513(d). The statute excludes a Postal Service worker
from the definition of “employee” unless the individual is
a preference-eligible veteran, 5 U.S.C. § 7511(a)(1)(B), or
is a manager, a supervisor, or an employee engaged in
confidential personnel work, 39 U.S.C. § 1005(a). 5 U.S.C.
§ 7511(b)(8). As Ms. Generette does not come within any
of those exceptions, the Board lacked jurisdiction over this
claim. To the extent that Ms. Generette is attempting to
appeal her 1998 removal, the Board lacked jurisdiction
over that claim for the same reason.
C
Ms. Generette asked the Board to grant her back pay
under the Pre-Arbitration Settlement Agreement. But
while the Board has jurisdiction to enforce “the terms of a
1 It is not clear if Ms. Generette claims that the re-
fusal to place her on permanent light duty in 1992 is an
appealable denial of restoration. To the extent that she
makes such a claim, she has not established the Board’s
jurisdiction. At a minimum, she makes no nonfrivolous
allegation that the Postal Service was arbitrary and
capricious in determining that “the medical evidence
submitted by [her] is so restrictive that productive light
duty work is not available.” Resp’t’s App. 19.
8 GENERETTE v. MSPB
settlement agreement that has been entered into the
record for the purpose of enforcement in an order or
decision under the Board’s appellate jurisdiction,” 5
C.F.R. § 1201.182(a); see 5 U.S.C. § 1204(a)(2), it lacks
jurisdiction to enforce settlement agreements reached in
another forum, see 5 C.F.R. § 1201.3; Calhoun v. Gen.
Servs. Admin., 636 F. App’x 571, 574 (Fed. Cir. 2016);
Johnson v. U.S. Postal Serv., 108 M.S.P.R. 502, 506 n.5
(2008), aff’d, 315 F. App’x 274 (Fed. Cir. 2009). The Pre-
Arbitration Settlement Agreement Ms. Generette claims
entitles her to back pay was reached through a collective
bargaining grievance procedure and therefore is not
enforceable by the Board.
D
Finally, Ms. Generette alleged to the Board that the
Postal Service discriminated against her because of her
age and disability. The Board correctly determined that it
did not have jurisdiction over this claim in the absence of
an otherwise-appealable action. Garcia v. Dep’t of Home-
land Sec., 437 F.3d 1322, 1325 (Fed. Cir. 2006) (“[T]he
Board may not reach discrimination issues in mixed cases
unless jurisdiction is established with respect to the
adverse action alleged”).
E
In her notice of appeal to this court, Ms. Generette
complains that the administrative judge was disrespectful
of her, and she requests that he be investigated and
reprimanded. Ms. Generette does not allege that the
decision before us was infected by any bias; nor did she
move for the administrative judge to disqualify himself
according to 5 C.F.R. § 1201.42. In the absence of an
alleged defect in the decision, this court does not have the
authority to entertain Ms. Generette’s complaint here.
GENERETTE v. MSPB 9
III
Because Ms. Generette has not carried her burden to
show that the Board had jurisdiction over her appeal, we
affirm the Board’s dismissal.
No costs.
AFFIRMED