The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARLO C. BROWN, DOCKET NUMBER
Appellant, CH-0752-14-0352-I-1
v.
DEPARTMENT OF COMMERCE, DATE: December 9, 2014
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Jeremy Lannan, Louisville, Kentucky, for the appellant.
Henry Young, Esquire, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed as settled the appeal of her removal. Generally, we grant petitions such
as this one only when: the initial decision contains erroneous findings of material
fact; the initial decision is based on an erroneous interpretation of statute or
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
regulation or the erroneous application of the law to the facts of the case; the
judge’s rulings during either the course of the appeal or the initial decision were
not consistent with required procedures or involved an abuse of discretion, and
the resulting error affected the outcome of the case; or new and material evidence
or legal argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. See Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, and based on the following points and authorities, we conclude that the
petitioner has not established any basis under section 1201.115 for granting the
petition for review. Therefore, we DENY the petition for review and AFFIRM
the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
¶2 The appellant, a GS-4 Statistical Clerk, was removed from her position,
effective August 28, 2013, based on 25 specifications of absence without leave.
Initial Appeal File (IAF), Tab 1. She had filed an equal employment opportunity
(EEO) complaint on April 18, 2013, alleging that various actions taken by the
agency were based on disability discrimination, and on September 2, 2013, she
amended her EEO complaint to include her removal. IAF, Tab 14 at 5. On
January 31, 2014, the agency issued a final agency decision finding no
discrimination. 2 Id. at 30-56. On March 7, 2014, the appellant filed a timely
appeal challenging the removal. IAF, Tab 1. The agency moved for dismissal of
the appeal on the basis that, on December 4, 2013, 3 the parties reached a
settlement of the appellant’s EEO complaint pursuant to which she waived the
right to appeal her removal. IAF, Tab 10. The administrative judge ordered the
2
The parties acknowledge that the appellant received the final agency decision on
February 5, 2014. IAF, Tabs 7, 9.
3
Although the parties signed the agreement on November 27, 2013, IAF, Tab 10
at 14-15, paragraph 8 provided that the appellant had 7 days in which to revoke the
agreement and that it would not become effective or enforceable until the revocation
period had expired, id. at 12.
3
appellant to show cause why her appeal should not be dismissed based on the
settlement agreement. IAF, Tab 12. In response, she argued that the agreement
only specifically referenced her first EEO complaint, not her amended complaint
which included her removal, and therefore she did not knowingly waive her right
to appeal that action. IAF, Tab 14. She further argued that the agency
fraudulently misled her into signing the settlement agreement, resulting in her
making a “mutual mistake.” Id.
¶3 The administrative judge issued an initial decision dismissing the appeal as
settled. IAF, Tab 16, Initial Decision (ID) at 2, 8. She found that the appellant
knowingly and voluntarily signed the settlement agreement that was reached in
the EEO process and that, because it provided a clear waiver of her right to file an
appeal of her removal, the appeal must be dismissed as settled. ID at 3-8.
¶4 The appellant has filed a petition for review, Petition for Review (PFR)
File, Tab 1, to which the agency has responded in opposition, PFR File, Tab 3.
¶5 In the appellant’s petition, she reiterates verbatim the arguments she made
below in her response to the administrative judge’s show cause order. Compare
PFR File, Tab 1, with IAF, Tab 14. In that regard, her petition lacks sufficient
specificity to enable the Board to ascertain whether there is a serious evidentiary
challenge to the initial decision, justifying a complete review of the record. See
Tines v. Department of the Air Force, 56 M.S.P.R. 90, 92 (1992).
¶6 Nonetheless, we agree with the administrative judge’s disposition in this
case. It is well established that the Board will consider a settlement agreement,
even if it is reached outside of a Board proceeding, to determine its effect on the
4
Board appeal and any waiver of Board appeal rights. 4 Swidecki v. U.S. Postal
Service, 101 M.S.P.R. 110, ¶ 7 (2006). The appellant may challenge the validity
of the settlement agreement if she believes that it was unlawful, involuntary, or
resulted from fraud or mutual mistake, id., ¶ 13, and she may also challenge the
enforceability of any waiver of Board appeal rights. Such a waiver is enforceable
if its terms are comprehensive, freely made, and fair, and if the execution of the
waiver did not result from agency duress or bad faith. Id., ¶ 17.
¶7 The waiver provision at issue provided in pertinent part that the appellant
agreed to waive, release, and discharge the agency from any claims, demands, or
causes of action which she has or may have arising from her employment with the
agency including, but not limited to, her first EEO complaint. The release
includes, but is not limited to, a release of any right to administrative relief or of
any claim to back pay, reinstatement, damages or compensation, except for the
agency’s agreement to pay the appellant a lump sum of $8000 in consideration.
The agreement provided that the appellant did not waive any rights or claims that
may arise subsequent to the effective date of the agreement. IAF, Tab 14
at 13-14.
¶8 The administrative judge considered the appellant’s claim that because the
settlement agreement did not specifically refer to her amended complaint, the one
dealing with her removal, the agency has engaged in fraud and misrepresentation
by now arguing that an appeal of her removal is precluded under the terms of the
agreement. The administrative judge found, and we agree, that the language of
4
We note the administrative judge’s statement that “[t]he Board will enforce a
settlement agreement, even if it is reached outside of a Board proceeding.” ID at 3. In
fact, the Board has no authority to enforce a settlement agreement reached in another
forum. See, e.g., Johnson v. U.S. Postal Service, 108 M.S.P.R. 502, ¶ 8 n.5 (2008),
aff’d, 315 F. App’x 274 (Fed. Cir. 2009); Goodwin v. Department of the Treasury,
52 M.S.P.R. 136, 139 n.2 (1991), aff’d, 983 F.2d 226 (Fed. Cir. 1992). The Board may,
however, under certain circumstances as described in this decision, enforce a waiver of
Board appeal rights. See Lee v. U.S. Postal Service, 111 M.S.P.R. 551, ¶¶ 4, 8 (2009),
aff’d, 367 F. App’x 137 (Fed. Cir. 2010).
5
the agreement is clear that the settlement extends beyond the issues involved in
the appellant’s first EEO complaint and encompasses her removal since it is a
matter that arose out of her employment with the agency prior to the effective
date of the agreement, ID at 5-6. To the extent that the appellant argues that the
provision in question is ambiguous, she has not shown that the terms are
susceptible to more than one interpretation. See Johnson, 108 M.S.P.R. 502, ¶ 8.
Contrary to her claim that there was mutual mistake regarding the scope of the
agreement, she has alleged at best only a unilateral mistake, and such a claim
does not provide a basis for setting aside the agreement. See, e.g., Washington v.
Department of the Navy, 101 M.S.P.R. 258, ¶ 18 (2006).
¶9 We further agree with the administrative judge that the waiver of Board
appeal rights is enforceable, even though the agreement does not specifically
refer to a Board appeal. See Landers v. Department of the Air Force,
117 M.S.P.R. 109, ¶ 15 (2011); see also Lee, 111 M.S.P.R. 551, ¶ 7. The
appellant has failed to show that the settlement agreement was not freely made,
was unfair, or resulted from agency duress or bad faith. See Swidecki,
101 M.S.P.R. 110, ¶ 17. She has not alleged that she was mentally impaired or
otherwise lacked the capacity to enter into a contract. For a waiver of Board
appeal rights to be enforceable, the agency must provide some consideration to
the appellant in exchange for the waiver. Hughes v. Social Security
Administration, 99 M.S.P.R. 67, ¶ 7 (2005). Here, as noted, the agreement
provided that the agency would pay the appellant a lump sum of $8000, IAF,
Tab 14 at 11, and she has not argued that the agency failed to pay her this amount
of money. It is also significant that the agreement was signed by the appellant
and two representatives. Id. at 14. While it does not appear that those
representatives were attorneys, the agreement specifically provided that the
appellant was aware of her right to representation by an attorney and was
encouraged to have an attorney review the agreement prior to signing. And, as
noted, the agreement also afforded the appellant 7 days in which to revoke the
6
agreement prior to its becoming effective. Id. Under these circumstances, there
is sufficient evidence in the record to find that the appellant signed the settlement
agreement with the belief that the consideration provided by the agreement was
more beneficial than the preservation of her rights to bring additional claims
against the agency. See Landers, 117 M.S.P.R. 109, ¶ 15.
¶10 In sum, we find that the appellant has not shown error in the administrative
judge’s findings that the settlement agreement reached in the EEO proceeding is
valid, that the appellant knowingly and voluntarily signed it, that it encompassed
the matters raised in this removal appeal, that the provision in which she waived
her Board appeal rights concerning the removal is enforceable, and that therefore
this appeal must be dismissed as settled. See Swidecki, 101 M.S.P.R. 110, ¶ 26.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
7
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information is available at the court's website, www.cafc.uscourts.gov.
Of particular relevance is the court's "Guide for Pro Se Petitioners and
Appellants," which is contained within the court's Rules of Practice, and Forms 5,
6, and 11.
If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.