NOTE: This disposition is nonprecedential.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 Department 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 settled the appeal in March 2004 and entered into a settlement agreement. Under the terms of the agreement, Ms. 

Cullinan began working as a Part-Time Regular Distribution Clerk in the Sydney, Montana Post Office for thirtyeight 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 enforcement 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 limited 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) arbitrary, 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 enforcement of the settlement agreement. 

In Parkman, the Board identified certain considerations 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 agreement, 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 agreement. 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 identified 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 performed 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 concluded that Ms. Cullinan could perform a 2.5 hour afternoon 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 agreement. Nor was window work considered for Ms. Cullinan 

due to her work restrictions. Moreover, even if Ms. 

Cullinan could perform such work, Ms. Castellion represented 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 declaration. 

In his Parkman analysis, the administrative judge 

considered the “overall attendant circumstances,” Parkman, 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 implementation of the NRP was unforeseen at the time Ms. 

Cullinan and USPS entered into the settlement agreement 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 decision, 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 settlement 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 arguments and find that they similarly lack merit. Consequently, the Board’s decision is affirmed. 

COSTS

Each party shall bear its own costs. 

AFFIRMED