The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANGEL D. WALKER, DOCKET NUMBER
Appellant, DA-0752-20-0452-I-2
v.
DEPARTMENT OF THE ARMY, DATE: May 7, 2024
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Amanda Moreno , Esquire, Stephen Goldenzweig , Esquire, and Michael
Kleinman , Esquire, Houston, Texas, for the appellant.
Everett F. Yates , Esquire, Houston, Texas, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her removal appeal for lack of jurisdiction. For the reasons discussed
below, we GRANT her petition for review, VACATE the initial decision, and
REMAND the case to the regional office for further adjudication in accordance
with this Remand Order.
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
BACKGROUND
The appellant was employed as an Office Automation Assistant at the
agency’s William Beaumont Army Medical Center. Walker v. Department of the
Army, MSPB Docket No. DA-0752-20-0452-I-1, Initial Appeal File (IAF), Tab 17
at 14. Effective June 18, 2020, the agency removed her based on a charge of
inability to maintain a regular work schedule and absence without leave. Id. On
July 16, 2020, the appellant, who was represented at the time, filed the instant
appeal of her removal. IAF, Tab 1 at 3-4. On July 29, 2020, the parties entered
into a settlement agreement to resolve an Equal Employment Opportunity (EEO)
complaint filed by the appellant, which was pending before the Equal
Employment Opportunity Commission (EEOC) and identified as Agency No.
ARBLISS17APR01429 and EEOC No. 450-2020-00076X. Walker v. Department
of the Army, MSPB Docket No. DA-0752-20-0452-I-2, Appeal File (I-2 AF),
Tab 18 at 8-10. 2 In that agreement, the agency agreed to pay the appellant’s
attorney $65,000 and to assist her with medical retirement. Id. at 8. The
appellant agreed to withdraw her EEO complaint and waive “any and all further
or additional relief, remedies, and causes of action of any and all kinds against
the Agency,” but not “future claims that arise after the date of [the] [a]greement.”
Id. at 9. 3 On April 18, 2022, the agency filed a motion to dismiss the instant
appeal pursuant to the waiver provision because the appellant’s removal had
become effective prior to the date of the EEO settlement agreement. Id. at 4-5.
The administrative judge issued an order to show cause that advised the
appellant that she may have waived her right to pursue the instant appeal and set
2
The agency submitted a list of accepted claims in the appellant’s EEO complaint,
showing that the appellant did not amend her EEO complaint to include her removal.
I-2 AF, Tab 18 at 11-12.
3
The appellant’s initial appeal was dismissed without prejudice to enable the appellant
to focus on her medical issues and a potential disability retirement application. IAF,
Tab 30, Initial Decision at 1-2. Just prior to the dismissal, a new agency counsel was
added to the appeal. IAF, Tab 27. Upon refiling her appeal, the appellant also retained
new counsel. I-2 AF, Tab 5.
3
deadlines for the parties to respond to the order. I-2 AF, Tab 22. The appellant
responded, arguing, among other things, that the settlement agreement did not
contain a global release and that the parties intended only to settle her EEO
complaint. I-2 AF, Tab 24 at 4-6. The agency then moved to withdraw its
motion, stating that “it had been the Agency’s intent only to settle the EEO case
and not for it to be a global settlement.” I-2 AF, Tab 26 at 4. Without holding a
hearing, the administrative judge issued an initial decision dismissing the appeal
for lack of jurisdiction based on the waiver contained in the EEOC settlement
agreement. I-2 AF, Tab 30, Initial Decision (I-2 ID) at 1, 5.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has filed a response to the petition. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
On review, the appellant reargues that the waiver provision in her EEO
settlement agreement does not bar the instant removal appeal, which was pending
when the agreement was executed, because the parties only intended to settle the
EEO complaint and not her instant appeal. PFR File, Tab 1 at 7. The
administrative judge found that the waiver language in the agreement is
unambiguous. I-2 ID at 5-6. She considered the parties’ assertions that they did
not intend to waive the appellant’s removal appeal. Id. Nevertheless, she found
that, because she gave the parties an opportunity to amend the agreement and they
did not do so, the appellant had waived her right to challenge her removal before
the Board. I-2 ID at 5-6. On review, the agency counsel restates that “the
original agency counsel intended only to settle the EEOC case with [the
settlement agreement],” but ultimately he agrees with the administrative judge
that the waiver language is unambiguous, and, therefore, it is “inappropriate” to
consider evidence of the parties’ intent. PFR File, Tab 3 at 6-7.
It is well settled that the Board may review a settlement agreement reached
outside of a Board proceeding to determine its effect on a Board appeal and any
4
waiver of Board appeal rights. E.g., Lee v. U.S. Postal Service, 111 M.S.P.R.
551, ¶ 4 (2009), aff’d per curiam, 367 F. App’x 137 (Fed. Cir. 2010); Swidecki v.
U.S. Postal Service, 101 M.S.P.R. 110, ¶ 7 (2006). The appellant may challenge
the validity of a settlement agreement if she believes that the agreement was
unlawful, involuntary, or resulted from fraud or mutual mistake.
Lee, 111 M.S.P.R. 551, ¶ 4. The appellant may also challenge the enforceability
of any waiver of Board appeal rights. Id. Such a waiver is enforceable if its
terms are comprehensive, freely made, and fair, and execution of the waiver did
not result from agency duress or bad faith. Id.
We agree with the administrative judge that the language of the waiver
provision at issue here is unambiguous. The words of the agreement are of
paramount importance in determining the parties’ intent when they contracted,
and parol or extrinsic evidence will be considered only if the agreement is
ambiguous. Id., ¶ 6; see Dunn v. Department of the Army, 100 M.S.P.R. 89, ¶ 9
(2005) (noting that the Board will not imply a term in an unambiguous
agreement). Ambiguity exists if the settlement agreement’s terms are reasonably
susceptible to more than one interpretation. Lee, 111 M.S.P.R. 551, ¶ 6. When
the parties’ intended meaning is not apparent from the face of the agreement, it is
appropriate to examine extrinsic evidence of intent. Id.; Brown v. Department of
the Interior, 86 M.S.P.R. 546, ¶ 17 (2000).
The settlement agreement stated, as relevant here:
Complainant will withdraw the aforementioned matter.
Complainant waives and releases any and all further or additional
relief, remedies, and causes of action of any and all kinds against
the Agency and any and all of its officers, managers, supervisors,
and employees. Complainant hereby agrees to a settlement of the
above-styled matter. This release does not include future claims
that arise after the date of this Agreement.
I-2 AF, Tab 18 at 9. We agree with the administrative judge that the language of
the agreement is clear that the settlement extends beyond the issues raised in the
appellant’s EEO complaint and encompasses her removal since it is a cause of
5
action that arose on June 18, 2020, prior to the July 29, 2020 effective date of the
settlement agreement. IAF, Tab 17 at 14, Tab 18 at 9-10. To the extent that the
appellant argues that the provision in question is ambiguous, she has not shown
that the terms are susceptible to more than one interpretation. See Lee,
111 M.S.P.R. 551, ¶ 7 (finding that, pursuant to the settlement agreement’s
release “from all claims,” the appellant waived his right to appeal his constructive
suspension to the Board).
However, since the parties appear to agree that they signed the agreement
under the incorrect assumption that they were not waiving the appellant’s right to
pursue the instant removal appeal, we find that the parties are essentially alleging
mutual mistake. A settlement agreement may be set aside on the basis of mutual
mistake of fact if there is a shared, mistaken belief of the parties regarding a
material assumption of fact underlying their agreement. Vance v. Department of
the Interior, 114 M.S.P.R. 679, ¶¶ 12, 14, 16 (2010) (setting aside a settlement
agreement when it was premised on the mutual mistake of fact that it was
possible to give the appellant a clean employment record). Similarly, a
settlement agreement must also be set aside if it is tainted with invalidity by a
mutual mistake of law under which both parties acted. Potter v. Department of
Veterans Affairs, 111 M.S.P.R. 374, ¶ 9 (2009); Adkins v. U.S. Postal Service,
86 M.S.P.R. 671, ¶¶ 9-10 (2000) (setting aside a settlement agreement due to
mutual mistake of law because the parties believed that the agreement would be
entered into the Board’s record for enforcement purposes, but the Board was
unable to do so).
An appellant’s waiver of any causes of action against the agency is a
material term of a settlement agreement. See Gill v. Department of Veterans
Affairs, 85 M.S.P.R. 541, ¶ 5 (2000) (finding a draft settlement agreement that
contained an exception to a general waiver of claims constituted a material
change to a draft without such an exception). Thus, we need not decide whether
the parties’ mistake was a mutual mistake of fact or mutual mistake of law
6
because we decline to enforce the provision waiving the appellant’s Board appeal
right.
Here, the parties’ settlement agreement was reached in another forum, i.e.,
the EEOC. The Board does not have authority to invalidate a settlement
agreement reached in another forum. See Lee, 111 M.S.P.R. 551, ¶ 4 n.2. The
agreement provides that it should be entered into the record of the EEOC and that
the EEOC retains jurisdiction for purposes of enforcement. I-2 AF, Tab 18 at 10.
Accordingly, because the Board does not have the authority to invalidate the
terms of the EEOC settlement agreement, we do not do so. Nevertheless, since it
is undisputed that the waiver of the appellant’s Board appeal was a mutual
mistake, we find that the appellant’s waiver of her right to appeal her removal
cannot be enforced before the Board. Accordingly, we vacate the initial decision
and remand this matter to the regional office for a full adjudication. 4
ORDER
For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
4
The appellant also reasserts that the agency breached the settlement agreement. PFR
File, Tab 1 at 7-8. Allegations of breach are a matter of enforcement. See Lopez v. U.S.
Postal Service, 71 M.S.P.R. 461, 463 (1996). The settlement agreement between the
parties provides in ¶ 9 that the EEOC retains jurisdiction for purposes of enforcing
compliance with the terms of the agreement. IAF, Tab 18 at 10. Therefore, any
allegations of breach must be presented to the EEOC.