Tyeshia Muniz v. Department of Veterans Affairs

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

TYESHIA R. MUNIZ, DOCKET NUMBER

Appellant, NY-0752-15-0282-C-1

v.

DEPARTMENT OF VETERANS DATE: July 21, 2022

AFFAIRS,

Agency.

THIS ORDER IS NONPRECEDENTIAL 1

Tyeshia R. Muniz, Albany, New York, pro se.

Mark Williams, Jr., Buffalo, New York, for the agency.

Thien-Nga Nguyen, Albany, New York, 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 compliance initial

decision, which denied her petition for enforcement for failure to show that the

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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agency materially breached the settlement agreement. For the reasons discussed

below, we GRANT the appellant’s petition for review and REMAND the case to

the New York Field Office for further adjudication in accordance with this Order.

BACKGROUND

¶2 The appellant filed a removal appeal with the Board, which the parties

settled. Muniz v. Department of Veterans Affairs, MSPB Docket No. NY-0752-

15-0282-I-1, Initial Appeal File (IAF), Tab 1 at 4, 6, Tabs 12-13. In relevant

part, the agency agreed to rescind the July 10, 2015 removal decision and issue a

new removal letter for medical inability to perform. IAF, Tab 13 at 1.

¶3 After determining that the settlement agreement was within the Board’s

jurisdiction, voluntarily entered into, understood by the parties, and lawful on its

face, the administrative judge entered it into the record for enforcement purposes

and dismissed the appeal as settled. IAF, Tab 14, Initial Decision (ID) at 2-3.

She also notified the appellant of her right to file a petition for review of the

initial decision if she believed that the settlement agreeme nt was unlawful,

involuntary, or the result of fraud or mutual mistake. ID at 4. The initial

decision became final on February 25, 2016, after neither party filed a petition for

review. Id.

¶4 Approximately 5 months later, the appellant filed a petition for

enforcement, in which she made bare assertions that the agency breached the

settlement agreement and that she was misled into settling her appeal.

Compliance File (CF), Tab 1 at 1. In response, the agency alleged that it had

fully complied with its obligations under the agreement and submitted supporting

argument and evidence. CF, Tab 5 at 6, 15, 17-18, 21-38, 40.

¶5 During a telephonic status conference, the appellant elabora ted on her

noncompliance claims. CF, Tab 6. She alleged that the agency had breached the

“clean paper” provision of the settlement agreement by disclosing to prospective

employers that she had been “fired.” Id. She also claimed that, although the

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agency had submitted her disability retirement paperwork to the Office of

Personnel Management, its delay in doing so constituted a breach of its promise

to assist her in applying. Id. Finally, she argued that the written agreement was

incomplete and attributed her failure to address all of her concerns during

negotiations to her inexperience with settlement matters, as she appeared pro se.

Id. The administrative judge indicated that the settlement agreement contained

neither of the provisions referenced by the appellant; but, she nonetheless

permitted the appellant to supplement her petition for enforcement with those

additional allegations. Id.

¶6 After the appellant failed to further supplement her petition for

enforcement, the administrative judge issued a compliance initial decision ,

denying it. CF, Tab 7, Compliance Initial Decision (CID) at 2, 4. She found that

the “promises” referenced by the appellant were not in the agreement and that the

appellant failed to establish a violation of the agreement’s express terms. CID

at 3-4. She also found that the agency showed that it had complied with its

obligations. CID at 4.

¶7 The appellant filed a petition for review of the compliance initial decision.

Compliance Petition for Review (CPFR) File, Tab 1. The agency has filed a

response. CPFR File, Tab 3.

DISCUSSION OF ARGUMENTS ON REVIEW

¶8 The Board has the authority to enforce a settlement agreement that has been

entered into the record in the same manner as a final Board decision or order.

Doe v. Department of the Army, 116 M.S.P.R. 160, ¶ 7 (2011). On review, the

appellant asserts that the agency materially breached the “clean paper” settlement

agreement by defaming her character and requests an agency contact that can

provide a neutral reference. CPFR File, Tab 1 at 6. We remand this claim. 2

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The appellant does not further challenge the validity of the settlement agreement or

reargue her claims of agency delay concerning her retirement application. We decline

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¶9 The appellant is essentially arguing that the settlement agreement contained

a nondisclosure provision. CPFR File, Tab 1 at 6; CF, Tab 6. Both the

U.S. Court of Appeals for the Federal Circuit and the Board have construed

settlement agreements that call for rescission of a removal for cause and issuance

of a Standard Form 50 reflecting a resignation to also contain implied provisions

for expungement of removal-related documents from the employee’s Official

Personnel File and nondisclosure to third parties—in other words, a “clean

record” settlement. Conant v. Office of Personnel Management, 255 F.3d 1371,

1376 (Fed. Cir. 2001); Doe, 116 M.S.P.R. 160, ¶ 8.

¶10 We find this principle equally applicable to the instant case. Here, the

settlement agreement calls for the appellant to accept a removal for medical

inability to perform in exchange for the rescission of the removal for cause. IAF,

Tab 13 at 1. In Conant, an agency agreed to replace an employee’s

conduct-based proposed removal with a resignation “for personal reasons .”

255 F.3d at 1373. In both situations, by agreeing to rescind and replace the prior

removals, the agencies effectively agreed to erase them. Id. at 1376; IAF, Tab 13

at 1. The substitution of a disability-based removal for a removal for cause is

analogous to the substitution of a resignation. To find otherwise would unfairly

relieve the agency from its responsibility to comply with the implicit clean-record

provision and deny the appellant her reasonably anticipated benefit of the

bargain. See Pagan v. Department of Veterans Affairs, 170 F.3d 1368, 1371-72

(Fed. Cir. 1999) (explaining that appellants must receive the benefit of the

bargain despite the potential enforcement problems that may arise with clean

record settlement agreements). As a result, we find that the settlement agreement

contained an implied nondisclosure provision. The nondisclosure provision

generally prevents the agency from discussing information related to the

to disturb the administrative judge’s finding that the agreement was enforceable and her

implicit finding that the agreement did not obligate the agency to take any particular

action concerning the appellant’s disability retirement application. CID at 3-4.

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appellant’s rescinded removal with third parties. 3 Doe, 116 M.S.P.R. 160,

¶¶ 9-11.

¶11 Although the appellant clarified her “clean record agreement” claims during

the status conference, the administrative judge did not issue an order summarizing

those claims. Similarly, the administrative judge, in the compliance initial

decision, did not analyze the question of whether the agency’s potential

disclosure of information regarding the rescinded adverse action constituted a

material breach of the implied nondisclosure provision of the clean record

settlement agreement. Because this essential question cannot be resolved based

on the information in the record, we must vacate the compliance initial decision

and remand the appeal. See Doe, 116 M.S.P.R. 160, ¶¶ 11-12 (ordering the case

to be remanded because the administrative judge did not fully address the

appellant’s claims of breach of the implied nondisclosure provision of the clean

record agreement).

ORDER

¶12 For the reasons discussed above, we remand this case to the Board’s field

office for further adjudication in accordance with this Remand Order. On

remand, the administrative judge shall address the issues discussed above and

allow the parties to submit further evidence and argument as to whether the

agency breached the settlement agreement. It appears that the appellant wishes to

enforce the terms of the agreement. PFR File, Tab 1 at 6. However, on remand,

the administrative judge also should provide the appellant, who is pro se, with the

opportunity to make an informed election between enforcement and rescission of

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Additionally, under 5 C.F.R. § 293.311, an agency is limited as to what information

may be shared from agency files regarding a former agency employee.

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the agreement in the event that a breach is found. See Zumwalt v. Department of

Veterans Affairs, 118 M.S.P.R. 574, ¶ 14 (2012).

FOR THE BOARD: /s/ for

Jennifer Everling

Acting Clerk of the Board

Washington, D.C.