Debra M. Shepard v. Department of Veterans Affairs

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

DEBRA M. SHEPARD, DOCKET NUMBER

Appellant, AT-3443-15-0689-I-1

v.

DEPARTMENT OF VETERANS DATE: April 13, 2016

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Debra M. Shepard, Lawrenceville, Georgia, pro se.

Edith W. Lewis, Esquire, Columbia, South Carolina, 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 her appeal challenging the agency’s alleged breach of an equal

employment opportunity (EEO) settlement agreement for lack of jurisdiction.

Generally, we grant petitions such as this one only when: the initial decision

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

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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 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 and

AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.

§ 1201.113(b). However, we FORWARD the appellant’s claim of whistleblower

retaliation to the regional office for docketing as a new individual right of action

(IRA) appeal.

DISCUSSION OF ARGUMENTS ON REVIEW

¶2 The appellant, a GS-5 Medical Laboratory Technician, entered into a

settlement agreement with the agency resolving her EEO complaint on

February 9, 2015. Initial Appeal File (IAF), Tab 1 at 1, 7-9. The settlement

agreement provided that, among other things, the agency agreed to laterally

transfer the appellant to the new Lawrenceville Community-Based Outpatient

Clinic (CBOC) “when the expansion project is completed.” Id. at 7. The

appellant subsequently complained that the agency violated the settlement

agreement because, as of April 22, 2015, she had not been transferred to the new

Lawrenceville CBOC. Id. at 10. In a May 20, 2015 final agency decision (FAD),

the agency’s Office of Resolution Management found that the agency had not

breached the settlement agreement because the expansion project had not yet been

completed. Id. at 11. The FAD informed the appellant of her right to appeal the

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decision to the Equal Employment Opportunity Commission (EEOC), Office of

Federal Operations (OFO), within 30 days. Id. at 12. It appears that the appellant

appealed the FAD to the OFO on or about June 22, 2015. IAF, Tab 5,

Attachment 1.

¶3 On June 30, 2015, the appellant filed a Board appeal challenging the

agency’s alleged breach of the EEO settlement agreement and alleging that the

agency had entered into the settlement agreement with the intent “to subject her

to more physical, mental, and financial hardship [in] retaliation for filing past and

present EEO activity [and] for reporting prohibited personnel practices of

wrongdoing[.]” IAF, Tab 1 at 1, 3. The administrative judge notified the

appellant that the Board lacks jurisdiction to enforce a settlement agreement that

was never entered into the record in an appeal before the Board and ordered her

to file evidence and argument showing why the appeal should not be dismissed

for lack of jurisdiction without a hearing. IAF, Tab 4 at 1-2. In response, the

appellant asserted that OFO would resolve the question of whether the agency

breached the settlement agreement or failed to negotiate in good faith, but that the

Board had jurisdiction to consider her claim that the agency was retaliating

against her for whistleblowing and protected activity by postponing or

withholding her transfer back to the Lawrenceville CBOC. 2 IAF, Tab 5 at 9-12.

The appellant stated that she had filed complaints with the Office of Special

Counsel (OSC) regarding the agency’s prohibited personnel practices and

retaliation on August 10, 2012, June 2, 2015, and July 13, 2015, respectively, but

that OSC had not responded to her complaints. Id. at 7-8; see id.,

Attachments 6-8.

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The appellant explained that, pursuant to a 2008 settlement agreement, she was

stationed at the Lawrenceville CBOC, but that the agency transferred her to her current

duty station at Oakwood CBOC in 2012 in retaliation for protected activities. IAF,

Tab 5 at 8-9. She asserted that the transfer to Oakwood CBOC, which is 35 miles away

from her home and not accessible by public transportation, caused her “great physical,

mental, and financial burdens.” Id.

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¶4 In an October 27, 2015 initial decision, the administrative judge dismissed

the appeal for lack of jurisdiction without holding the requested hearing. IAF,

Tab 7, Initial Decision (ID). The administrative judge explained that, insofar as

the appellant was asking the Board to enforce the terms of the EEO settlement

agreement, the Board lacked jurisdiction because the appellant had not alleged

that the EEO settlement agreement had been previously entered into the record of

an appeal before the Board. ID at 1-3. The administrative judge also explained

that, insofar as the appellant argued that the agency’s failure to effect her lateral

transfer to the new Lawrenceville CBOC constituted a prohibited personnel

practice under 5 U.S.C. § 2302(b), the Board lacks jurisdiction over claims of

prohibited personnel practices absent an action that is otherwise appealable to the

Board. ID at 3-4. The administrative judge further noted that both the June 2,

2015 and July 13, 2015 complaints to OSC contained allegations about the

agency’s alleged breach of the February 2015 EEO settlement agreement, among

numerous other allegations of agency wrongdoing. ID at 4 n.1. To the extent that

the appellant’s appeal could be construed as an IRA appeal, the administrative

judge found that the July 13, 2015 complaint was premature because 120 days

had not passed since the appellant filed the complaint and she had not submitted

to the Board any notice from OSC stating that it had completed its investigation.

Id. The administrative judge informed the appellant of her right to file an IRA

appeal regarding her June 2, 2015 OSC complaint and advised her of her burden

to establish Board jurisdiction over such a claim. Id.

¶5 The appellant has filed a petition for review of the initial decision, asserting

that she is not asking the Board to enforce the settlement agreement, but rather

filing an IRA appeal challenging the agency’s failure to restore her to her prior

duty station in Lawrenceville. Petition for Review (PFR) File, Tab 1 at 1-2. She

asserts that the agency transferred her to her current duty station from

Lawrenceville in 2012 and that she reported this “retaliatory act” to OSC in

August 2012. Id. at 1-2. The appellant argues that she exhausted her

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administrative remedies concerning the transfer because it has been over 3 years

since she filed the OSC complaint, and OSC had not issued a decision. Id. at 5-6,

8. She further claims that she has exhausted her administrative remedies as to her

July 2015 OSC complaint, which alleged, among other things, that the agency

breached the 2015 settlement agreement, because it had been more than 120 days

since she filed the complaint and OSC has not issued a decision. See id. at 2,

11-13. Additionally, she argues that the Board has jurisdiction to hear her appeal

as a mixed-case appeal and to hear the “non-EEO matters.” Id. at 3-5, 16-17.

The agency did not respond to the appellant’s petition for review.

¶6 As the administrative judge correctly explained, the Board may not enforce

a settlement agreement that has not been entered into the Board’s record for

enforcement purposes. See Kreusch v. U.S. Postal Service, 85 M.S.P.R. 125, ¶ 4

(2000); 5 C.F.R. § 1201.41(c)(2). There is no indication in the record, and the

appellant has not alleged, that the February 2015 settlement agreement was ever

entered into the record of any prior Board proceeding. Accordingly, we agree

with the administrative judge that the Board has no jurisdiction to enforce the

terms of the February 2015 EEO settlement agreement.

¶7 Furthermore, contrary to the appellant’s argument on review, this is not a

mixed case, and the Board lacks jurisdiction to consider her claim under

mixed-case procedures. PFR File, Tab 1 at 15. A mixed case involves both a

claim of discrimination and a personnel action that is normally appealable to the

Board. 29 C.F.R. § 1614.302(a)(2); see 5 U.S.C. § 7702(a)(1). Here, the

challenged agency actions—the alleged breach of a settlement agreement or the

agency’s failure to transfer the appellant to her prior duty station—are not actions

that are otherwise appealable to the Board. See 5 U.S.C. § 7702(a); King v.

Reid, 59 F.3d 1215, 1218-19 (Fed. Cir. 1995); 5 C.F.R. § 1201.3. Because the

appellant has not shown that she suffered any otherwise appealable action, the

Board does not have jurisdiction over her appeal as a mixed case. Likewise, as

the administrative judge correctly explained, the Board lacks jurisdiction over the

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appellant’s claim that the agency committed a prohibited personnel practice by

delaying or withholding the transfer because, absent an otherwise appealable

action, the appellant’s claim of a prohibited personnel practice does not provide

an independent basis for finding Board jurisdiction. ID at 3; see Davis v.

Department of Defense, 103 M.S.P.R. 516, ¶ 11 (2006).

¶8 The Board may have jurisdiction, however, to consider the appellant’s claim

that the agency has delayed or withheld her transfer to Lawrenceville in the

context of an IRA appeal in which she alleges retaliation under the Whistleblower

Protection Act as amended by the Whistleblower Protection Enhancement Act.

See 5 U.S.C. § 1221; Becker v. Department of Veterans Affairs, 107 M.S.P.R.

327, ¶ 5 (2007). The Board has jurisdiction over an IRA appeal if the appellant

has exhausted her administrative remedies before OSC and makes nonfrivolous

allegations that: (1) she engaged in whistleblowing activity by making a

protected disclosure, and (2) the disclosure was a contributing factor in the

agency’s decision to take or fail to take a personnel action. Yunus v. Department

of Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001). An appellant raising a

claim in an IRA appeal can establish that she exhausted her remedies before OSC

by showing that she filed a request for corrective action and either OSC has

notified her that it was terminating its investigation of her allegations or 120

calendar days have passed since she first sought corrective action. 5 U.S.C.

§ 1214(a)(3); Becker, 107 M.S.P.R. 327, ¶ 6; 5 C.F.R. § 1209.5(a).

¶9 On review, the appellant appears to argue that the agency has refused to

transfer her to the Lawrenceville CBOC in retaliation for her protected activity

and protected disclosures and that she exhausted her administrative remedies with

OSC. 3 PFR File, Tab 1 at 1-2, 4-16. The record reflects that the appellant filed

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Although the appellant did not raise this argument below, we find it appropriate to

consider her argument for the first time on review because the administrative judge

did not put the appellant on notice of her burden to establish Board jurisdiction over an

IRA appeal until the initial decision. ID at 4 n.1; see Burgess v. Merit Systems

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complaints with OSC on August 10, 2012, June 2, 2015, and July 13, 2015, which

contain numerous allegations of agency wrongdoing. 4 IAF, Tab 5,

Attachments 7-8. In the initial decision, the administrative judge explained that

the appellant could file an IRA appeal in connection with her June 2, 2015 OSC

complaint and set forth the appellant’s burden to establish Board jurisdiction over

such a claim. ID at 4 n.1. The administrative judge further explained that an IRA

appeal based on the July 13, 2015 OSC complaint was premature because, as of

the date of the initial decision (October 27, 2015), 120 calendar days had not

elapsed since the appellant filed the complaint and she had not shown that OSC

had terminated its investigation into her allegations. Id.

¶10 The evidence shows that the appellant filed a complaint with OSC on

July 13, 2015, and there is no indication in the record that the appellant received

a termination or close out letter from OSC. IAF, Tab 5, Attachment 8 at 1. Thus,

we find no error in the administrative judge’s determination that an IRA appeal

arising from the July 13, 2015 complaint was premature when the initial decision

was issued on October 27, 2015. See 5 U.S.C. § 1214(a)(3); Jundt v. Department

of Veterans Affairs, 113 M.S.P.R. 688, ¶ 6 (2010). Although the appellant has not

Protection Board, 758 F.2d 641, 643-44 (Fed. Cir. 1985) (stating that an appellant must

receive explicit information on what is required to establish Board jurisdiction).

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Although the Board may have jurisdiction over an IRA appeal based on the 2015 OSC

complaints, the Board lacks jurisdiction to consider the appellant’s potential IRA appeal

concerning her 2012 OSC complaint. Pursuant to the terms of the February 2015 EEO

settlement agreement, the appellant agreed to “release[] and forever discharge[] the

Agency, its officers, agents and employees, from any and all claims, demands, damages,

actions or suits in equity, of whatever kind or nature, whether heretofore accruing,

known or unknown.” IAF, Tab 1 at 8. The Board has interpreted such a release to

preclude subsequently-filed IRA appeals based on matters occurring prior to the

settlement agreement. See Vogel v. Department of the Navy, 106 M.S.P.R. 451, ¶ 8

(2007). Here, the plain meaning of the settlement agreement’s terms encompasses

claims arising from the 2012 transfer, and we find that the appellant waived her right

under the agreement to raise this claim in an appeal before the Board. See Lee v. U.S.

Postal Service, 111 M.S.P.R. 551, ¶ 7 (2009) (finding that a claim that arose prior to the

execution of a settlement agreement was waived under the agreement’s general release

of all employment claims), aff’d 367 F. App’x 137 (Fed. Cir. 2010).

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alleged on review that OSC has terminated its investigation into her complaint,

120 days have elapsed since she filed her July 13, 2015 OSC complaint.

Accordingly, the appellant’s IRA appeal is now ripe for adjudication. Because

the Board’s practice is to adjudicate an appeal that was premature when it was

filed but becomes ripe while pending with the Board, we forward this IRA appeal

to the regional office for adjudication. See Jundt, 113 M.S.P.R. 688, ¶ 7. After

docketing this appeal, the administrative judge shall fully inform the appellant of

the jurisdictional requirements in an IRA appeal and determine whether the Board

has jurisdiction over this matter as an IRA appeal and then, if appropriate,

determine the merits. In making this determination, the administrative judge

should consider both the July 13, 2015 and the June 2, 2015 OSC complaints.

IAF, Tab 5, Attachments 7-8.

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision by the U.S. Court

of Appeals for the Federal Circuit.

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 want to request review of the Board’s decision concerning your

claims of prohibited personnel practices under 5 U.S.C. § 2302(b)(8),

(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge

the Board’s disposition of any other claims of prohibited personnel practices, you

may request review of this final decision by the U.S. Court of Appeals for the

Federal Circuit or any court of appeals of competent jurisdiction. The court of

appeals must receive your petition for review within 60 days after the date of this

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order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If you choose

to file, be very careful to file on time. You may choose to request review of the

Board’s decision in the U.S. Court of Appeals for the Federal Circuit or any other

court of appeals of competent jurisdiction, but not both. Once you choose to seek

review in one court of appeals, you may be precluded from seeking review in any

other court.

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 about

the U.S. Court of Appeals for the Federal Circuit 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. Additional information about

other courts of appeals can be found at their respective websites, which can be

accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

If you are interested in securing pro bono representation for your 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

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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.