The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
WANDA L. COBB, DOCKET NUMBER
Appellant, DA-0752-17-0373-I-1
v.
DEPARTMENT OF THE AIR FORCE, DATE: January 27, 2023
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Wanda L. Cobb, Harlingen, Texas, pro se.
Bianca R. Deforest, Goodfellow Air Force Base, Texas, for the agency.
Charles R. Vaith, Esquire, and James T. Hedgepeth, Randolph Air Force
Base, Texas, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her appeal as settled. Generally, we grant petitions such as this one
only in the following circumstances: the initial decision contains erroneous
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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. 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 appellant’s petition for review and AFFIRM the
initial decision to the extent that it dismissed as settled all disputes, issues, and
disagreements between the appellant and the agency that are unrelated to her age
discrimination claim. However, we VACATE the initial decision to the extent
that it dismissed the appellant’s age discrimination claim as settled and REMAND
the appeal for further adjudication of her age discrimination claim in accordance
with this Remand Order.
BACKGROUND
¶2 The agency removed the appellant from her position of Acco unting
Technician. Initial Appeal File (IAF), Tab 10 at 82. She filed a timely appeal
with the Board, alleging among other things that the agency discriminated against
her based on age. IAF, Tab 1 at 5, Tab 39 at 3, Tab 62 at 1. She requested a
hearing. IAF, Tab 1 at 2.
¶3 During the hearing, the parties entered into an oral settlement agreement on
March 29, 2018, and the agency representative read it into the record. IAF,
Tab 65, Hearing Audio at 26:46-35:30, Tab 66, Initial Decision (ID) at 1-2. The
terms of the oral agreement included, inter alia, that the appellant’s removal
would be changed to reflect that she voluntarily resigned, her Official Personnel
3
File would be purged of documents relating to her removal, and the agency would
provide a neutral job reference and pay her $15,000. Hearing Audio at
26:46-35:30. In exchange, the appellant agreed to resolve and dismiss her Board
appeal and her pending equal employment opportunity (EEO) complaints against
the agency. Hearing Audio at 30:49‑31:24. After the agency representative read
the oral agreement into the record, the appellant affirmed that she had no
disagreement with the stated terms of the agreement, that she understood it, and
that she voluntarily entered into the agreement to resolve t he appeal. Hearing
Audio at 35:09-35:41. The administrative judge entered the agreement into the
record for enforcement purposes and dismissed the appeal as settled after making
the following findings: (1) the oral agreement was lawful on its face; (2) the
parties understood the terms of the oral agreement and the only enforceable terms
were those read into the record on March 29, 2018; (3) the parties entered into the
agreement voluntarily; and (4) they asked the Board to enter the agreement into
the record for enforcement purposes. ID at 1-2.
¶4 The appellant has filed a petition for review, the agency has responded in
opposition to her petition, and the appellant has replied. Petition for Review
(PFR) File, Tabs 1, 5-6.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant’s allegation that the agency asked her to sign a written settlement
agreement provides no basis for reversing the initial decision .
¶5 The appellant alleges on review that the agency representative unnecessarily
sent her a written settlement agreement to sign and that the written version
differed from the oral settlement agreement read into the record at the hearing.
PFR File, Tabs 2-3. The appellant’s arguments present no basis to disturb the
initial decision.
¶6 Generally, an oral settlement agreement is valid and binding on the parties
even though the appellant subsequently declines to sign a written document
4
memorializing the terms of the agreement. Schwartz v. Department of Education,
113 M.S.P.R. 601, ¶ 7 (2010). The administrative judge dismissed the appeal
based on the oral settlement agreement, and he properly ensured that the terms of
the agreement were memorialized in the record. ID at 1-2; Hearing Audio
at 26:46-37:17; see Parks v. U.S. Postal Service, 113 M.S.P.R. 60, ¶ 11 (2010)
(explaining that, before dismissing an appeal based on an oral settlement
agreement, the administrative judge should document whether the parties
intended it to be entered into the record for enforcement and ensure that the terms
are memorialized in the record). Moreover, the recording of the oral settlement
agreement clearly indicates that the parties intended the terms read into the record
to be binding and enforceable. Hearing Audio at 26:46-37:17. In any event, the
terms of the oral settlement agreement are identical to those in the agency’s draft
written agreement. Hearing Audio at 26:46‑35:30; PFR File, Tab 1 at 8-10.
The appellant has not shown a basis for reversing t he initial decision dismissing
her non-age discrimination claims as settled.
¶7 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. Bruhn v. Department of Agriculture, 124 M.S.P.R. 1, ¶ 18
(2016). The party challenging the validity of a settlement agreement bears a
heavy burden of showing a basis for invalidation. Id. For the reasons stated
below, we find that the appellant has not shown a basis for reversing the initial
decision dismissing her non-age discrimination claims as settled pursuant to the
terms of the parties’ oral settlement agreement.
¶8 The appellant alleges on review that the settlement agreement is unlawful
because the term prohibiting her from applying for Air Force jobs for 3 years
from the effective date of her resignation violates the Texas Statute of Frauds.
PFR File, Tab 1 at 3-4. The relevant code section requires that certain types of
promises or agreements be in writing and signed by the party to be charged with
fulfilling the promise. See Texas Business & Commercial Code Annotated
5
§ 26.01(b). However, we are not persuaded by her argument. Oral settlement
agreements are valid before the Board. Futrell-Rawls v. Department of Veterans
Affairs, 115 M.S.P.R. 322, ¶ 8 (2010); see U.S. Const. art. VI, cl. 2 (the
Supremacy Clause). Moreover, the appellant’s post-settlement remorse or change
of heart about one of the mutually agreed upon terms is an insufficient basis for
invalidating the agreement. Hinton v. Department of Veterans Affairs,
119 M.S.P.R. 129, ¶ 4 (2013). Similarly, to the extent that the appellant
expresses regret for having raised a claim in her removal appeal t hat the agency
violated the Uniformed Services Employment and Reemployment Rights Act of
1994 (codified as amended at 38 U.S.C. §§ 4301‑4335), this regret does not form
a basis for finding the global nature of the agreement invalid. PFR File, Tab 1
at 3. Nor has the appellant explained how her misunderstanding as to the Board’s
lack of quorum period caused her to include her USERRA claim in her underlying
appeal. PFR File, Tab 1 at 4. In any event, her unilateral misunderstanding is not
a basis to invalidate the agreement for a mutual mistake of fact. Krzewinski v.
U.S. Postal Service, 72 M.S.P.R. 353, 362 (1996).
¶9 The appellant also suggests that the agreement is unlawful because the
administrative judge has no jurisdiction over her EEO claims. PFR File, Tab 1
at 3-4. We disagree. The Board retains jurisdiction under 5 U.S.C. § 1204(a)(2)
to enforce an agreement if it has been entered into the record for that purpose.
Delorme v. Department of the Interior, 124 M.S.P.R. 123, ¶ 16 (2017). Here, the
parties agreed to settle both the appeal and the appellant’s pending EEO
complaints. Hearing Audio at 28:37-29:34. The administrative judge entered the
agreement into the record for enforcement purposes at the parties’ request.
Hearing Audio at 26:46-37:17. Therefore, the Board retains jurisdiction to
enforce the entire agreement. 2
2
But see the discussion below regarding oral waivers of age discrimination claims.
6
¶10 The appellant also alleges that the settlement agreement was the result of
the administrative judge falsely claiming an equipment failure during the hearing
so that he could discuss settlement with the parties. PFR File, Tab 1 at 3. To
prove an allegation of coercion by an administrative judge, a party must present
evidence that she involuntarily accepted the terms of another, the circumstances
permitted no other alternative, and the circumstances resulted from the
administrative judge’s coercive acts. Brown v. Department of Defense,
94 M.S.P.R. 669, ¶ 11 (2003). The hearing audio reflects that the video portion
of the videoconferencing was “dropped” at various points , substantiating that
there were equipment failures during the hearing. E.g., Hearing Audio at
26:00-26:21. The appellant does not otherwise provide evidence that the
administrative judge was dishonest as to these equipment failures. Further,
administrative judges are permitted to engage in frank settlement discussions with
the parties. Herman v. Department of Justice, 119 M.S.P.R. 642, ¶ 11 (2013).
Thus, we disagree that the administrative judge engaged in coercion .
The appellant has not shown that she lacked the mental capacity to enter into a
valid settlement agreement.
¶11 On review, the appellant appears to argue that the settlement agreement was
invalid because the agency and the administrative judge knew that she had
received treatment for mental health issues resulting from workplace stress. PFR
File, Tab 1 at 4. A party to a settlement agreement is presumed to have full legal
capacity to contract unless she is mentally disabled, and the mental disability is
so severe that she cannot form the necessary intent. Parks, 113 M.S.P.R. 60, ¶ 8.
We find that the appellant has not overcome the presumption of capacity.
¶12 Although the appellant alleges that she required medical treatment and
mental health counseling for stress caused by the agency, the appellant offer s no
evidence or argument that she had a severe mental disability that prevented her
from forming the necessary intent when she entered into the oral settlement
agreement. PFR File, Tab 1 at 4. The appellant’s unsupported claim that her
7
mental state precluded her from entering into a valid settlement agreement is
outweighed by her demonstrated ability to pursue her case pro se on appeal and
on review. 3 For example, she filed more than 22 pleadings on appeal, including
motions, objections, and prehearing submissions. IAF, Tabs 30-31, 34-37, 41-46,
48-50, 53, 56-60, 64. She also filed a pro se petition for review and replied to the
agency’s response in opposition to her petition. PFR File, Tabs 1, 6. We
therefore find that the appellant has not met her burden of showing that her
mental state precluded her from entering into a valid settlement agreement. See
generally Parks, 113 M.S.P.R. 60, ¶ 8.
The appellant’s allegation of adjudicatory error and her arguments challenging
the merits of her removal provide no basis for invalidating the settlement
agreement.
¶13 The appellant alleges on review that the administrative judge abused his
discretion by allowing the agency to recall witnesses to testify against her at the
hearing and she argues the merits of her appeal. PFR File, Tab 1 at 2 -3. The
record reflects that the administrative judge granted the agency’s request to recall
two witnesses to provide testimony on the appellant’s additional claims accepted
during the hearing. IAF, Tab 62 at 1. The appellant did not identify those claims
prior to or at the prehearing conference. 4 Id. We find that the appellant’s
allegations challenging the administrative judge’s ruling on the agency’s motion
3
At the hearing, the administrative judge observed that the agency representative
reviewed the terms of the oral agreement with the appellant before reading it into the
record. Hearing Audio at 26:47-27:30. The appellant also affirmed on the record that
she understood the terms of the agreement, that she had no disagreement with the terms
of the agreement as read into the record by the agency representative, and that she
voluntarily entered into the agreement to resolve the appeal. H earing Audio at
35:09-35:41.
4
In granting the agency’s motion, the administrative judge limited the witnesses’
testimony to relevant and material testimony related to the new claims raised by the
appellant at the hearing. IAF, Tab 62 at 1. We find that the administrative judge acted
within his discretion in granting the agency’s motion. See 5 C.F.R. § 1201.41(a)-(b)(8),
10 (authorizing administrative judges to rule on motions and witness lists and order the
appearance of witnesses whose testimony would be relevant and material).
8
to recall two witnesses to testify about new claims she raised at the hearing, and
her additional arguments challenging the merits of her appeal, 5 provide no basis
to disturb the initial decision because her arguments do not concern the validity
of the oral settlement agreement. Here, the appellant agreed to dismissal of her
appeal as settled, divesting the Board of jurisdiction to review the merits of her
case. Hearing Audio at 30:49-31:23; see Nease v. Department of the Army,
103 M.S.P.R. 118, ¶ 17 (2006) (explaining that an appellant’s waiver of her
appeal right in a settlement agreement divested the Board of jurisdiction to
review the merits of that appeal).
The appellant’s oral agreement to waive her age discrimination claim is invalid
because the agency did not comply with the requirements of the Older Workers
Benefit Protection Act of 1990 (OWBPA).
¶14 The appellant raised a claim of age discrimination below, and she generally
disputes the inclusion of her claims of EEO discrimination in the settlement
agreement. PFR File, Tab 1 at 2-3; IAF, Tab 39 at 3. Before accepting a
settlement agreement of an appeal in which age discrimination has been alleged,
the Board must first verify that the agency has complied with the provisions of
the OWBPA. See 29 U.S.C. § 626(f)(1)(A)‑(E), (f)(2); Hinton,
119 M.S.P.R. 129, ¶ 7. As relevant here, the OWBPA requires that a waiver of
rights or claims under the Age Discrimination in Employment Act be in writing,
and the appellant be advised in writing to consult with an attorney before
executing the agreement and given a reasonable amount of time to consider it.
29 U.S.C. § 626(f)(1)(A)‑(E), (f)(2). Here, the agreement does not meet these
requirements because it is oral and there is no indication that the agency advised
the appellant to consult with an attorney. Because the agency’s failure to comply
with the OWBPA invalidated the appellant’s waiver of the appellant’s age
5
For example, the appellant argues that the administrative judge failed to address the
merits of the claims she raised on appeal, and she claims that her removal and a
nonselection were prohibited personnel practices. PFR File, Tab 1 at 2 -3.
9
discrimination claim, we remand the appeal for further adjudication of that claim
only. Hinton, 119 M.S.P.R. 129, ¶ 9. The appellant’s waiver of her other claims
remains in effect. Id. Thus, on remand, the merits of the removal action are not
at issue except to the extent that the administrative judge needs to address them to
decide whether the appellant can prove her affirmative defense of age
discrimination.
The appellant’s claim of agency noncompliance is premature.
¶15 On review, the appellant also raises a claim of agency noncompliance,
arguing that she has not received payment under the terms of the agreement and
her attorney fees remain unpaid. PFR File, Tab 1 at 3. This claim is premature
because the initial decision in the underlying appeal was not yet final when she
raised this claim on review. See generally Walker v. Department of Health &
Human Services, 99 M.S.P.R. 367, ¶ 8 (2005) (finding that the appellant filed a
petition for review of the initial decision prior to filing a petition for enforcement
and therefore the initial decision was not a final decision and the petiti on for
enforcement was premature).
¶16 We also decline to consider the appellant’s claim that the agency breached
her “rights to privacy and confidentiality by sending [her] an email” regarding its
request that she sign a written version of the agreement. PFR File, Tab 1 at 3. To
the extent that the appellant argues the agency breached the confidentiality
provision of the agreement, her claim is premature. Hearing Audio
at 29:30-30:16. To the extent that she is raising a new claim that the agency
violated Federal privacy laws, that claim is not properly before the Board. See
5 C.F.R. § 1201.115 (discussing the criteria for granting a petition for review). 6
6
On February 14, 2019, June 4, 2019, June 17, 2019, September 9, 2019, November 30,
2019, and July 11, 2020, the appellant filed motions to submit new evidence. PFR File,
Tabs 12, 15, 18, 20, 22, 25. In her motions, the appellant proffers that the agency has
failed to update her personnel records. PFR File, Tab 12, Tab 15 at 1, Tab 25 at 2. She
further avers that the agency has provided her a negative job reference, has “hurt [her]
financially with false information,” has committed both fraud and “breach of contract ,”
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ORDER
¶17 For the reasons discussed above, we affirm the initial decision to the extent
that it dismissed as settled the appellant’s non-age discrimination claims. We
remand this case to the Dallas Regional Office for further adjudication of her age
discrimination claim in accordance with this Remand Order. On remand, the
administrative judge shall afford the appellant the opportunity between
(1) pursuing her age discrimination claim and (2) ratifying the waiver of that
claim in a written agreement that complies with the requirements of the OWBPA.
See Schwartz, 113 M.S.P.R. 601, ¶¶ 13-14 (explaining an appellant’s option to
elect between these alternatives).
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.
and has “violated the [OWBPA].” PFR File, Tab 15 at 2-3, Tab 18 at 2, Tab 20 at 1,
Tab 25 at 1-2. We deny the appellant’s motions because she has not explained how the
proposed evidence concerns the validity of the parties’ settlement agreement , apart from
her assertions regarding the OWBPA addressed above, or would affect the outcome of
her appeal. Moreover, her evidence of alleged agency noncompliance is premature.
See Walker, 99 M.S.P.R. 367, ¶ 8.