The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CHRISTINA DIANE HAYES, DOCKET NUMBER
Appellant, CH-0752-17-0038-C-1
v.
DEPARTMENT OF VETERANS DATE: June 24, 2024
AFFAIRS,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Christina Diane Hayes , Gahanna, Ohio, pro se.
Demetrious A. Harris , Esquire, Dayton, Ohio, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
REMAND ORDER
The appellant has filed a petition for review of the compliance initial
decision, which denied her petition for enforcement of the May 17, 2017
settlement agreement resolving her removal appeal. For the reasons discussed
below, we GRANT the appellant’s petition for review, VACATE the compliance
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
initial decision, and REMAND the case to the regional office for further
adjudication in accordance with this Remand Order.
The agency removed the appellant from her Nursing Assistant position
effective September 16, 2016, for refusing a reasonable suspicion drug test.
Hayes v. Department of Veterans Affairs, MSPB Docket No.
CH-0752-17-0038-I-1, Initial Appeal File (IAF), Tab 1 at 8-16. She timely
appealed her removal to the Board. IAF, Tab 1. On May 16, 2017, the parties
entered into a settlement agreement resolving the appeal. IAF, Tab 16. In
relevant part, the settlement agreement provided that the appellant would
withdraw her appeal and other pending actions against the agency and that the
agency would take the following actions: (1) convert the basis for the appellant’s
removal to “Medical Inability to Perform” and process the applicable Standard
Form (SF) 50 reflecting this change within 20 business days of the execution of
the settlement; (2) rescind any previous SF-50 or SF-52 referencing the previous
basis for the removal; and (3) assist the appellant with applying for disability
retirement, defining “assist” as advising her about the disability retirement
process and completing the agency portion of any forms needed to apply for this
type of retirement. Id. On June 23, 2017, the administrative judge issued an
initial decision accepting the settlement agreement into the record for purposes of
enforcement and dismissing the appeal as settled. Hayes v. Department of
Veterans Affairs, MSPB Docket No. CH-0752-17-0038-I-1, Initial Decision
(June 23, 2017); IAF, Tab 21.
On March 5, 2019, the appellant filed a petition for enforcement of the
settlement agreement but did not specify how she believed the agency breached
the agreement. Hayes v. Department of Veterans Affairs, MSPB Docket No.
CH-0752-17-0038-C-1, Compliance File (CF), Tab 1. The administrative judge
issued a compliance acknowledgment order informing the appellant that it was
her burden to prove by preponderant evidence that the agency breached the
settlement agreement, ordering the agency to submit proof of compliance within
3
15 days, and allowing the appellant 15 additional days to respond to the agency’s
submission. CF, Tab 2. In response, the agency argued that it had complied with
the settlement agreement and submitted two SF-50s dated within 20 days of the
settlement agreement reflecting that the agency cancelled the appellant’s prior
removal and replaced it with one for medical inability to perform, both effective
September 16, 2016. CF, Tab 3. The appellant did not respond.
Approximately 1 month later, the administrative judge issued an order
scheduling a preliminary status conference and instructing the parties to dial the
provided call-in number and enter a particular participant code to participate in
the teleconference. CF, Tab 4. The agency moved to reschedule the status
conference due to a conflict and provided three alternate dates, along with
evidence showing that the agency representative consulted the appellant by email
about her availability and that she stated she was available on April 24, 2019.
CF, Tab 5. The administrative judge rescheduled the preliminary status
conference to April 24, 2019, at 2 p.m., and again provided the call-in number
and participant code for the parties to join the teleconference. CF, Tab 6. The
appellant did not appear for the status conference. CF, Tab 7, Compliance Initial
Decision (CID) at 3. The administrative judge indicated that she called the
appellant at the number provided to the Board but that she received a message
stating that the number was not in service. Id.
In a compliance initial decision dated April 25, 2019, the administrative
judge found that the agency produced relevant, material, and credible evidence of
its compliance with the settlement agreement. Id. On the other hand, she found
that the appellant failed to meet her burden to show breach, explaining that she
offered “nothing, not even a statement as to which, if any, terms she contends the
agency breached.” Id. Accordingly, she denied the appellant’s petition for
enforcement. CID at 4.
The appellant has timely filed a petition for review of the compliance
initial decision, asserting that she was ready and available on the dates and times
4
proposed by the agency representative for the rescheduled status conference but
that she did not receive a call. Hayes v. Department of Veterans Affairs, MSPB
Docket No. CH-0752-17-0038-C-1, Compliance Petition for Review (CPFR) File,
Tab 1. The agency has not responded.
As noted in the July 12, 2019 order issued by the Acting Clerk of the
Board, it appears that the pleadings and issuances from the compliance
proceeding below were not electronically served on the appellant at the new email
address she provided in her petition for enforcement. CPFR File, Tab 4. On
review, the Office of the Clerk of the Board served the appellant with all
issuances and pleadings in this compliance matter at her new designated email
address and informed her that she could also access all pleadings and issuances
via e-Appeal. Id. Because it appears that the appellant did not receive any
pleadings or issuances in the compliance proceeding below or the phone call from
the administrative judge, we find it appropriate to vacate the compliance initial
decision and to remand this compliance appeal for further adjudication. On
remand, the administrative judge shall reissue the order setting forth the
applicable law and the appellant’s burden of proof and afford her another
opportunity to respond to that order and to the agency’s evidence of compliance
before issuing a new compliance initial decision.
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ORDER
For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.