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

NOTE: This disposition is nonprecedential.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