Cullinan v. United States Postal Service , 442 F. App'x 560 ( 2011 )


Menu:
  •        NOTE: This disposition is nonprecedential.
    United States Court of Appeals
    for the Federal Circuit
    __________________________
    DANA G. CULLINAN,
    Petitioner,
    v.
    UNITED STATES POSTAL SERVICE,
    Respondent.
    __________________________
    2011-3186
    __________________________
    Petition for review of the Merit Systems Protection
    Board in case no. DE0752030500-C-1.
    __________________________
    Decided: December 14, 2011
    __________________________
    DANA G. CULLINAN, of Glendive, Montana, pro se.
    CHRISTOPHER A. BOWEN, Trial Attorney, Commercial
    Litigation Branch, Civil Division, United States Depart-
    ment of Justice, of Washington, DC, for respondent. With
    him on the brief were TONY WEST, Assistant Attorney
    General, JEANNE E. DAVIDSON, Director, and STEVEN J.
    GILLINGHAM, Assistant Director.
    __________________________
    CULLINAN   v. USPS                                       2
    Before LOURIE, SCHALL, and PROST, Circuit Judges.
    PER CURIAM.
    Dana G. Cullinan appeals from a decision of the Merit
    Systems Protection Board (“Board”) finding that the
    United States Postal Service (“USPS”) did not breach a
    2004 settlement agreement with Ms. Cullinan when it
    reduced her schedule from thirty-eight hours to twelve
    hours per week.         Cullinan v. U.S. Postal Serv.,
    DE0752030500-C-1 (M.S.P.B. Oct. 20, 2010) (“Initial
    Decision”), petition for review denied, (M.S.P.B. May 27,
    2011) (“Final Order”). For the reasons set forth below, we
    affirm.
    I. BACKGROUND
    Ms. Cullinan began working for USPS in 1987. In
    2002, she suffered an on-the-job injury to her back that
    led to certain medical restrictions. In early 2004, Ms.
    Cullinan was subjected to an adverse action that resulted
    in an appeal to the Board. Ms. Cullinan and USPS set-
    tled the appeal in March 2004 and entered into a settle-
    ment agreement. Under the terms of the agreement, Ms.
    Cullinan began working as a Part-Time Regular Distribu-
    tion Clerk in the Sydney, Montana Post Office for thirty-
    eight hours per week. The agreement does not specify its
    duration. In 2010, USPS reduced Ms. Cullinan’s hours
    from thirty-eight to twelve hours per week purportedly
    because of its National Reassessment Process (“NRP”).
    On April 7, 2010, Ms. Cullinan filed a petition for en-
    forcement of the settlement agreement, arguing that
    USPS breached its obligations under the agreement by
    reducing her weekly hours. An administrative judge at
    the Board issued the Initial Decision on October 20, 2010,
    denying the petition. The judge found that the implemen-
    3                                          CULLINAN   v. USPS
    tation of the NRP was a legitimate management action
    that was not contemplated by the parties when they
    entered into the settlement agreement in 2004 and that
    the reduction in Ms. Cullinan’s hours “as part of the NRP
    was an independent and legitimate management action
    which was not precluded by the terms of the settlement
    agreement.” Initial Decision, slip op. at 4. Ms. Cullinan
    then filed a petition for review, and the Board denied her
    petition on May 27, 2011. Final Decision, slip op. at 5.
    The decision of the administrative judge then became the
    decision of the Board.
    II. DISCUSSION
    This court’s review of a decision of the Board is lim-
    ited by statute. 
    5 U.S.C. § 7703
    (c); O’Neill v. Office of
    Pers. Mgm’t, 
    76 F.3d 363
    , 364-65 (Fed. Cir. 1996). We
    may reverse a decision of the Board only if it is “(1) arbi-
    trary, capricious, an abuse of discretion, or otherwise not
    in accordance 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). On appeal, Ms. Cullinan asks us to review the
    arguments she made in her Petition for Review of Initial
    Decision. Ms. Cullinan additionally contends that the
    administrative judge’s analysis of Parkman v. U.S. Postal
    Service, 
    66 M.S.P.R. 410
     (1995), was incorrect. Based on
    our review of Ms. Cullinan’s petition and the relevant
    record in this case, we conclude that the Board did not
    commit reversible error in denying her petition for en-
    forcement of the settlement agreement.
    In Parkman, the Board identified certain considera-
    tions for determining whether an agency breached a
    settlement agreement that is “silent as to the time or
    duration of performance”:
    CULLINAN   v. USPS                                       4
    Where, as here, a settlement agreement is silent
    as to the time or duration of performance, the
    Board has consistently held that a reasonable
    time under the circumstances will be presumed.
    However, in deciding whether the agency has
    complied with the terms of the agreement, the
    Board will look beyond simply the length of time
    of compliance and make an assessment of the
    overall attendant circumstances, including the
    motives of the agency in reassigning the employee
    following a settlement agreement and its efforts to
    minimize any harmful effects on him.
    66 M.S.P.R. at 413 (citations omitted). Additionally, as
    the party asserting the breach of the settlement agree-
    ment, Ms. Cullinan bears the burden of proving that
    USPS breached the agreement. Id. at 412.
    In this case, substantial evidence supports the Board’s
    decision that USPS did not breach the settlement agree-
    ment. Before the administrative judge, USPS presented
    evidence through the declaration of USPS Health and
    Resource Management Specialist, Shantel Castellion, that
    USPS implemented the NRP in response to declining mail
    volume and increased and improved automation. The
    purpose of the NRP, according to Ms. Castellion, was to
    ensure that employees with on-the-job injuries were
    performing operationally necessary work. Ms. Castellion
    further stated that in the first phase of the NRP process,
    the District Assessment Team (“DAT”) responsible for
    implementing the NRP in the Sidney Post Office identi-
    fied limited-duty employees and provided them with an
    interim work assignment based on the available work and
    the employee’s medical restrictions. DAT identified Ms.
    Cullinan as a limited-duty employee and determined that
    approximately five hours of her day was inefficiently
    5                                         CULLINAN   v. USPS
    spent performing administrative duties normally per-
    formed by a postmaster.
    According to Ms. Castellion, DAT reviewed Ms.
    Cullinan’s medical restrictions and the necessary work
    available at the Sidney Post Office and ultimately con-
    cluded that Ms. Cullinan could perform a 2.5 hour after-
    noon shift which would reduce her hours on an interim
    basis from thirty-eight to twelve hours per week. Ms.
    Castellion also explained that DAT concluded that other
    shift options, such as a split morning and afternoon shift,
    were not an option for Ms. Cullinan because of certain
    provisions in the applicable collective bargaining agree-
    ment. Nor was window work considered for Ms. Cullinan
    due to her work restrictions. Moreover, even if Ms.
    Cullinan could perform such work, Ms. Castellion repre-
    sented that the funding to train Ms. Cullinan for window
    work was not available under the first phase of the NRP.
    USPS also submitted additional documentation to the
    administrative judge in support of Ms. Cullinan’s declara-
    tion.
    In his Parkman analysis, the administrative judge
    considered the “overall attendant circumstances,” Park-
    man, 66 M.S.P.R. at 413, based on the evidence presented
    and determined that USPS did not breach the settlement
    agreement. The judge emphasized that USPS complied
    with the settlement agreement for six years. Initial
    Decision, slip op. at 5. He further found that the imple-
    mentation of the NRP was unforeseen at the time Ms.
    Cullinan and USPS entered into the settlement agree-
    ment and that the NRP provided a legitimate reason, i.e.
    motive, for reducing the hours previously afforded to Ms.
    Cullinan under the agreement. Id. at 6. As the Board
    explained in discussing the administrative judge’s deci-
    sion, the implementation of the NRP is relevant under
    CULLINAN   v. USPS                                      6
    Parkman for assessing whether USPS acted in bad faith
    in reducing Ms. Cullinan’s hours. Final Order, slip op. at
    4.
    The administrative judge’s analysis was consistent
    with Parkman, and, based on our review of the record, we
    conclude that the judge’s factual findings are supported
    by substantial evidence. Thus, the Board’s decision to
    deny Ms. Cullinan’s petition for enforcement of the set-
    tlement agreement was not arbitrary, capricious, an
    abuse of discretion or otherwise not in accordance with
    the law. In light of the deference we must afford to the
    Board, we find no reason to reverse the Board’s decision.
    We have considered Ms. Cullinan’s remaining argu-
    ments and find that they similarly lack merit. Conse-
    quently, the Board’s decision is affirmed.
    COSTS
    Each party shall bear its own costs.
    AFFIRMED
    

Document Info

Docket Number: 2011-3186

Citation Numbers: 442 F. App'x 560

Judges: Lourie, Schall, Prost

Filed Date: 12/14/2011

Precedential Status: Non-Precedential

Modified Date: 10/19/2024