NOTE: This disposition is nonprecedential.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 Distribution Clerk. In October of that year, she suffered a 

work-related back injury, for which she received compensation from the Office of Workers’ Compensation Program

in the U.S. Department of Labor (Office or OWCP). 

Ms. Generette successfully made several claims for compensation 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 bargaining agreement. It is not clear from the record before this 

court whether or in what capacity Ms. Generette subsequently 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 compensation, 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-lightduty grievance, a “Pre-Arbitration Settlement Agreement” 

was signed on December 29, 1993, the signatories apparently 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 resolved/settled, then this agreement is null and void.” 

Resp’t’s App. 20.

On May 23, 1995, while the injury compensation appeal 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 grievance 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 arbitration 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 Protection 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 PreArbitration 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 establish 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, 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). 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 preponderance 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 Service’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 partially recovered from a compensable injury and who is able to 

return to limited duty.” 5 C.F.R. § 353.301(d). “An individual”—including an employee or former employee of the 

Postal Service—“who is partially recovered from a compensable injury may appeal to MSPB for a determination 

of whether the agency is acting arbitrarily and capriciously in denying restoration.” 5 C.F.R. § 353.304(a), (c). 

Jurisdiction of the Board over a restoration-rights challenge by a partially recovered employee requires nonfrivolous 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 demanding 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 allegation 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 compensable since December 1990. Therefore, the Postal Service’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 constructive 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 refusal 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 PreArbitration 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 Homeland 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