The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JAN S. STASIUK, DOCKET NUMBER
Appellant, DC-0752-09-0342-C-2
v.
DEPARTMENT OF THE ARMY, DATE: January 7, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Jan S. Stasiuk, Sunrise, Florida, pro se.
Nicole E. Rapone, Fort Lee, Virginia, 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 compliance initial
decision, which denied his petition for enforcement. 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 the erroneous application of the law to
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
the facts of the case; the administrative 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, 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. Except as
expressly MODIFIED by this final order, to state the appellant’s allegations of
breach in his own terms, we AFFIRM the initial decision.
¶2 The appellant filed a Board appeal of his removal from his General
Physician position, alleging whistleblower reprisal. See Stasiuk v. Department of
the Army, 118 M.S.P.R. 1, ¶ 2 (2012). The parties executed a settlement
agreement in which the agency agreed, among other things, to rescind the
removal action, expunge from the appellant’s official personnel file the Standard
Form 50 documenting the removal and the decision notice of removal, reinstate
the appellant to his Medical Officer (Family Practice) position, and detail him to
a clinical support position under the supervision of the Deputy Commander of
Clinical Services. Id. Pursuant to this agreement, the administrative judge
dismissed the removal appeal and retained jurisdiction to enforce the terms of the
agreement. Id.
¶3 On March 31, 2014, the appellant filed a petition for enforcement alleging
that, from July 2012 to March 2014, clinic Commanders and Deputy Commanders
violated the settlement agreement by engaging in the following: (1) unjustifiably
refusing to renew his clinical privileges until ordered to do so following an
internal agency appeal; (2) not reinstating his clinical privileges as ordered by the
appellate authority; (3) prejudicing his performance by forbidding him to address
his second-level supervisor; (4) ordering him not to submit copies of reports of
3
medication interactions; (5) ordering him not to recommend in his written reports
to notify patients that their medications may cause harm; (6) ordering him not to
report that some medications’ interactions potentially cause sudden death
because, in his supervisor’s view, allegedly these complications occur rarely;
(7) forbidding him to make individual reports about cases he identified
concerning medication interactions; (8) failing to support his request that agency
officials engage in damage control after determining that some medications had
harmful interactions; and (9) not supporting his suggested proposal for actions to
protect patients from harm. Compliance File (CF), Tab 1. During proceedings
below, the appellant added a claim that the agency breached the agreement by
taking a number of disciplinary actions, including verbal and written reprimands,
a 3-day suspension, a 12-day suspension, and a threatened removal. CF, Tab 19.
¶4 In an Order and Summary of Telephonic Status Conference, the
administrative judge characterized the appellant’s petition for enforcement as
alleging that: (1) the agency breached the agreement by failing to reinstate the
appellant to the position that he previously held as Administrative Medical
Officer by breaching the implied covenant of good faith as it relates to his
reinstatement as evidenced by the alleged harassment and retaliation that the
appellant suffered; and (2) denying the renewal of the appellant’s clinical
privileges. CF, Tab 13. The appellant responded to the Summary by indicating
that the administrative judge’s characterization of the petition did not reflect the
appellant’s claims. CF, Tab 15.
¶5 The administrative judge issued an initial decision that characterized the
appellant’s petition for enforcement allegations in the same manner that he
characterized them in the Summary. CF, Tab 25, Compliance Initial Decision
(CID) at 2-3. He found the settlement agreement does not address the appellant’s
concerns relating to the renewal of clinical privileges. CID at 4-5. He also found
that the appellant’s claims of harassment and retaliation in connection with the
4
covenant of good faith as it relates to the appellant’s reinstatement to the position
of Administrative Medical Officer are vague and unsubstantiated. CID at 4.
¶6 In his petition, the appellant asserts, as he did below, that the administrative
judge misrepresented the appellant’s petition for enforcement as alleging that the
agency has not reinstated him, and that he did not agree with the administrative
judge’s characterization of his allegations in the Summary. He states that he
is not claiming that the agency failed to reinstate him. He reiterates the
allegations that he made in his petition for enforcement, and characterizes the
allegations as post-settlement mistreatment prejudicing his performance in the
position to which he was reinstated pursuant to the settlement agreement, and
hurting patients. Petition for Review (PFR) File, Tab 11. 2
¶7 An appellant bears the ultimate burden of establishing by preponderant
evidence that the agency breached the settlement agreement. Kuykendall v.
Department of Veterans Affairs, 68 M.S.P.R. 314, 328 (1995). The Board may
consider any allegation that is relevant in determining noncompliance with a
particular settlement term. Id. at 322. The agency’s obligation to implement an
employee’s reinstatement is not necessarily fully satisfied the moment it
technically and facially reinstates the employee to the position in question. Id. It
is well settled that implicit in any settlement agreement is a requirement that the
parties fulfill their respective contractual obligations in good faith. Id. at 323.
2
After he received the compliance initial decision, the appellant wrote to the Director
of the Board’s Washington Regional Office (WRO) asking for a copy of his appeal file,
and alleging that the administrative judge had failed to address the allegations made in
his petition for enforcement. PFR File, Tab 1. WRO forwarded the appellant’s
correspondence to the Clerk of the Board for docketing as a petition for review.
Subsequently, the appellant objected to treating his correspondence with WRO as a
petition for review, and attempted to submit what he called his actual petition for
review. PFR File, Tab 7. The Clerk afforded the appellant the opportunity to submit a
supplement to his petition for review. PFR File, Tab 8. The appellant then submitted
what he states is his petition for review. PFR File, Tab 10. In this final order, we
address the arguments raised in the submission that the appellant indicates is his
petition for review.
5
To prove that the agency acted in bad faith, the appellant must show that the
agency’s proven post-settlement retaliatory/harassing actions, under the totality
of the circumstances, amounted to an unjustified and substantial deprivation of
his rights as an incumbent of the position in question. Id. at 325.
¶8 In its response to the appellant’s petition for enforcement, the agency
submitted the affidavit of the appellant’s supervisor. CF, Tab 18 at 22. The
appellant’s supervisor averred that he asked for an independent review of
20 cases in which the appellant alleged harmful medication interactions, and the
independent reviewer agreed with the supervisor’s conclusion that the appellant’s
concerns were generally unwarranted. Id. at 23. The appellant’s supervisor also
stated that he asked the appellant not to forward his concerns about drug
interactions to higher managers, and they in turn asked the appellant to
discontinue forwarding his concerns over the head of his supervisor. Id. at 24.
The supervisor stated that the appellant continued to refuse to follow supervisory
instructions, and eventually, the supervisor found it necessary to issue a letter of
warning, and two suspensions. Id.
¶9 We agree with the administrative judge that the settlement agreement
did not provide for reinstatement of the appellant’s clinical privileges. However,
to the extent that the agency’s failure to do so could be viewed as post-settlement
retaliatory/harassment actions, we have considered the appellant’s allegation. In
the appellant’s supervisor’s affidavit, he explained that the appellant had clinical
privileges upon his reinstatement, but pursuant to the agency’s policy that clinical
privileges be renewed every 24 months, the appellant had to reapply for clinical
privileges in August 2012, and he did so. Id at 26. At first, the review board
denied the appellant’s application; however, on February 27, 2014, the Army
Surgeon General ordered the reinstatement of the appellant’s privileges. Id. The
appellant’s supervisor, with the aid of the Credentials Coordinator, explained to
the appellant that, although the privileges had been ordered reinstated, the
appellant must complete the online application for privileges for them to be
6
effective. Id. The appellant’s supervisor stated that the appellant refused to
complete the application and for this reason the reinstatement order was never
effected. Id.
¶10 The appellant responded to the agency’s submissions, generally disagreeing
with them. CAF, Tabs 19-20. However, he failed to submit any independent
documentation, such as witness statements or affidavits, to support any of his
allegations of retaliation and harassment. A mere showing of some frictions,
misunderstandings, or unpleasantness between the appellant’s and other
employees or managers is insufficient to meet the appellant's burden of proving
bad faith. Kuykendall, 68 M.S.P.R. at 325. The record evidence and the
applicable law support the finding that the appellant failed to prove that the
agency breached the settlement agreement by acting in bad faith by engaging in
post-settlement retaliatory/harassing actions that amounted to an unjustified and
substantial deprivation of his rights as an incumbent of the position in to which
he was reinstated. Accordingly, we affirm the compliance initial decision
denying the appellant’s petition for enforcement as modified by this
nonprecedential final order.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You have the right to
request review of this final decision by the U.S. 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,
7
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 U.S. Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. Dec. 27,
2012). You may read this law as well as other sections of the U.S. 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 an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website
at http://www.mspb.gov/probono for information regarding pro bono
representation for Merit Systems Protection Board appellants before the Federal
Circuit. 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.