The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARGARETT L. HARMON- DOCKET NUMBER
DAWKINS, CH-0752-14-0250-I-1
Appellant,
v.
DATE: April 15, 2015
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL 1
Oliver Sanders, Ecorse, Michigan, for the appellant.
Wayne A. Hales, Detroit, Michigan, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed the appeal as settled. 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 regulation or
1
A nonprecedential order is one that the Board has determined does not add
sign ificantly 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 Parties may cite nonprecedential orders,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).
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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 agency removed the appellant from the GS-9 position of Social Worker
for failure to maintain the requirements of her position, specifically, failure to
obtain certification at the independent master’s level within 3 years of her
appointment. Initial Appeal File (IAF), Tab 8, Subtabs 4b-4c, 4f. The appellant
appealed the agency’s action, IAF, Tab 1, and, during proceedings before the
administrative judge, the parties entered into a settlement agreement, IAF,
Tab 27. The agreement provided that the appellant would withdraw her appeal
with prejudice in return for the agency’s rescinding the removal, accepting the
appellant’s resignation for medical reasons, and agreeing to assist, support and
provide relevant documentation in its possession concerning the appellant with
respect to her applications for disability retirement and the State of Michigan
unemployment benefits. Id. The administrative judge found that the agreement
was entered into freely by the parties and was lawful on its face. IAF, Tab 28,
Initial Decision (ID). The administrative judge entered the settlement agreement
into the record for enforcement and dismissed the appeal with prejudice. ID at 2.
¶3 In her petition for review, the appellant alleges that on the day after she
signed the settlement agreement, she learned that, prior to the parties’ entering
3
into the agreement, the agency had attempted to block her receipt of
unemployment benefits. Petition for Review (PFR) File, Tab 1. She states that
she notified the administrative judge and asked him to rescind the agreement. Id.
She asserts that the administrative judge’s dismissing the appeal as settled after
she contacted him asking to rescind the agreement constitutes bias on his part.
Id. The agency has responded in opposition to the petition. PFR File, Tab 3.
The appellant has not replied to the agency’s response.
¶4 A party may challenge the validity of a settlement agreement if the party
believes that the agreement is unlawful, involuntary, or the result of fraud or
mutual mistake. Wade v. Department of Veterans Affairs, 61 M.S.P.R. 580, 583
(1994). Here, there is no assertion that the agreement was unlawful or
involuntary. The settlement agreement was signed by both the appellant and her
representative. IAF, Tab 27; see, e.g., Swidecki v. U.S. Postal
Service, 101 M.S.P.R. 110, ¶ 18 (2006). Further, the appellant has not asserted
that she was mentally impaired or unable to either understand the agreement or to
assist her representative. Thus, the appellant has not shown that she involuntarily
entered into the agreement. See, e.g., Swidecki, 101 M.S.P.R. 110, ¶¶ 17-19.
Therefore, it appears that the appellant is seeking to set aside the agreement on
the basis of fraud or mutual mistake. A party seeking to set aside a settlement
agreement on the basis that it was tainted by fraud or mutual mistake bears a
heavy burden. See Cassidy v. U.S. Postal Service, 65 M.S.P.R. 86, 90 (1994).
¶5 In this case, the settlement agreement changed the basis of the appellant’s
separation from removal for failure to meet a condition of her employment to
voluntary resignation. The agency agreed, in effect, to change its posture
regarding the appellant’s unemployment benefits claim to reflect the basis of her
separation provided in the settlement. The appellant has not asserted that the
agency failed to comply with the provision of the agreement that it would assist
her to obtain unemployment benefits on the basis of her resignation. Indeed, the
record shows that, after she filed her petition for review, the State of Michigan
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awarded the appellant unemployment benefits. PFR File, Tab 3, Subtab E. The
appellant’s assertions on review fail to establish that the agency acted
fraudulently or in bad faith concerning her claim to unemployment benefits
before the basis of her separation became a resignation. See Hoffman v.
Department of the Navy, 71 M.S.P.R. 484, 486 (1996).
¶6 Likewise, the appellant’s discontent with the administrative judge’s alleged
action of issuing the initial decision after she had contacted him about wanting to
rescind the settlement does not provide a basis for disturbing the initial decision
or setting aside the agreement. The administrative judge properly found that the
agreement was entered into freely by the parties and was lawful on its face and
thus properly entered the agreement into the record and dismissed the appeal as
settled. See Futrell-Rawls v. Department of Veterans Affairs, 115 M.S.P.R. 322,
¶ 8 (2010) (before dismissing an appeal as settled, an administrative judge must
document for the record that the parties reached a settlement agreement,
understood its terms, and agreed whether it was to be enforceable by the Board);
see also Mahoney v. U.S. Postal Service, 37 M.S.P.R. 146, 148-49 (1988) (same).
To the extent that the appellant claims that the administrative judge was biased,
the appellant’s conclusory claims of bias, none of which involve extrajudicial
conduct, do not overcome the presumption of honesty and integrity that
accompanies a hearing officer. See Wadley v. Department of the
Army, 90 M.S.P.R. 148, ¶ 6 (2001). 2
2
On review, the appellant also contends that, since she entered into the agreement, the
agency has refused to help her with “disability assistance.” Id. In its response to the
petition, the agency states that it remains ready, willing, and able to assist the appellant
with her application for disability benefits. PFR File, Tab 3. Further, attached to the
agency’s response, is a copy of an email sent on January 9, 2015, after the appellant
filed her petition for review, in which an agency official indicates that he sent the
appellant by certified mail documents that the agency had prepared for her to submit
with her application for disability retirement. Id. We find that, under these
circumstances, it is appropriate not to treat this action as a petition for enforcement
based on the appellant’s bare assertion, made before the date of the email, that the
agency failed to comply with the provision of the settlement to assist her in apply ing for
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NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request further review of this final decision.
Discrimination Claims: Administrative Review
You may request review of this final decision on your discrimination
claims by the Equal Employment Opportunity Commission (EEOC). See Title 5
of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you
submit your request by regular U.S. mail, the address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit your request via commercial delivery or by a method requiring a
signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, NE
Suite 5SW12G
Washington, D.C. 20507
You should send your request to EEOC no later than 30 calendar days after
your receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.
Discrimination and Other Claims: Judicial Action
If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
disability retirement. Cf. Secrist v. U.S. Postal Service, 115 M.S.P.R. 199, ¶ 9 (2010)
(the Board forwards an appellant’s allegations of noncompliance with a settlement
agreement, made in a petition for review, to the regional office for processing as a
petition for enforcement).
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discrimination claims and your other claims in an appropriate United States
district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with
the district court no later than 30 calendar days after your receipt of this order. If
you have a representative in this case, and your representative receives this order
before you do, then you must file with the district court no later than 30 calendar
days after receipt by your representative. If you choose to file, be very careful to
file on time. If the action involves a claim of discrimination based on race, color,
religion, sex, national origin, or a disabling condition, you may be entitled to
representation by a court-appointed lawyer and to waiver of any requirement of
prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f)
and 29 U.S.C. § 794a.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.