Generette v. Merit Systems Protection Board
681 F. App'x 929
| Fed. Cir. | 2017Background
- Generette worked for USPS, injured her back in 1987, and sought OWCP compensation for recurrences through the early 1990s; OWCP ultimately denied coverage for the Dec 1990–Apr 1991 recurrence, and the denial was affirmed by the Employees’ Compensation Appeals Board in 1995.
- Generette sought permanent light duty in 1992; USPS denied it as medical evidence showed no productive light-duty work available; a pre‑arbitration settlement under the collective‑bargaining grievance process was later signed addressing potential back pay depending on OWCP outcomes.
- USPS proposed removal for unsatisfactory attendance in 1995; an arbitrator upheld removal for cause in 1998.
- Generette appealed the 1998 removal to MSPB in 2005; the Board dismissed for lack of jurisdiction and that decision became final in 2006.
- In 2015 Generette applied for a Casual Mail Handler position; USPS rejected her application after learning of the 1998 removal. She appealed to MSPB alleging denial of restoration rights, wrongful 1998 removal, breach of the pre‑arbitration settlement (back pay), and age/disability discrimination; the MSPB dismissed for lack of jurisdiction and this appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether MSPB has jurisdiction over denial of restoration claims based on USPS refusing to hire Generette in 2015 | Generette: refusal to hire in 2015 was an improper denial of restoration under 5 U.S.C. § 8151 and 5 C.F.R. § 353.301/.304 | USPS: Generette’s absence was due to a 1998 removal for cause and OWCP had not covered the relevant period since 1990, so restoration jurisdiction is lacking | Court: No jurisdiction — absence traced to removal and OWCP denial, so restoration claim fails (no nonfrivolous allegation of compensable‑injury absence) |
| Whether MSPB may treat the 1992 denial of permanent light duty as a constructive suspension appealable to MSPB | Generette: denial of permanent light duty was a constructive suspension | USPS: Postal workers are generally excluded from 5 U.S.C. § 7511(b)(8) definitions that confer suspension appeal rights unless they meet narrow exceptions | Court: No jurisdiction — Generette is not within statutory employee exceptions, so MSPB cannot hear suspension claim |
| Whether MSPB can enforce the pre‑arbitration settlement to award back pay | Generette: settlement entitles her to back pay | USPS: settlement arose from collective‑bargaining grievance procedure and is not within MSPB enforcement jurisdiction | Court: No jurisdiction — Board cannot enforce settlement agreements made in another forum (collective‑bargaining grievance) |
| Whether MSPB has jurisdiction over age and disability discrimination claims | Generette: discrimination occurred when USPS refused to hire her in 2015 | USPS: discrimination claims must be tied to an otherwise‑appealable adverse action for MSPB jurisdiction | Court: No jurisdiction — mixed‑case discrimination issues require an appealable adverse action first |
| Complaint about administrative judge’s conduct | Generette: judge was disrespectful and should be investigated/reprimanded | USPS: (not directly addressed) | Court: Declined to address conduct complaint because no allegation that decision was biased and no disqualification motion was filed; court lacks authority absent an alleged defect in decision |
Key Cases Cited
- Conforto v. Merit Sys. Prot. Bd., 713 F.3d 1111 (Fed. Cir.) (jurisdiction to review MSPB jurisdiction questions)
- Bledsoe v. Merit Sys. Prot. Bd., 659 F.3d 1097 (Fed. Cir.) (elements required to establish MSPB jurisdiction over restoration claims)
- Minor v. Merit Sys. Prot. Bd., 819 F.2d 280 (Fed. Cir.) (absences due to removal are not compensable‑injury absences for restoration jurisdiction)
- Garcia v. Department of Homeland Sec., 437 F.3d 1322 (Fed. Cir.) (MSPB cannot reach discrimination issues in mixed cases absent jurisdiction over an adverse action)
- Calhoun v. General Services Admin., [citation="636 F. App'x 571"] (Fed. Cir.) (MSPB lacks jurisdiction to enforce settlement agreements reached in another forum)