Jimmie Rogers v. Department of Veterans Affairs ( 2022 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JIMMIE H. ROGERS, DOCKET NUMBERS
Appellant, DE-0432-14-0637-C-1
DE-0432-14-0352-C-1
v.
DEPARTMENT OF VETERANS
AFFAIRS, DATE: December 21, 2022
Agency.
THIS ORDER IS NONPRECEDENTIAL *
Jimmie H. Rogers, Fountain, Colorado, pro se.
Melissa Lynn Binte Lolotai, Denver, Colorado, 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 his petition for enforcement. For the reasons discussed
below, we GRANT the appellant’s petition for review and REMAND the case to
the field office for further adjudication in accordance with this Remand Order.
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
¶2 The parties settled the appellant’s joined appeals : MSPB Docket
Nos. DE-0432-14-0637-I-1 and DE-0432-14-0352-I-1. Rogers v. Department of
Veterans Affairs, MSPB Docket No. DE-0432-14-0352-I-1, Initial Appeal File
(IAF), Tab 29, Initial Decision. The initial decision dismissing the appeals as
settled became the Board’s final decision after neither party filed a petition for
review. 5 C.F.R. § 1201.113. The appellant filed a petition to enforce the
parties’ settlement agreement on May 1, 2015, in which he argued that the agency
had breached its obligations to allow him to inspect his Official Personnel File
and to remove documents concerning the rescinded personnel actions from it.
Rogers v. Department of Veterans Affairs, MSPB Docket No. DE-0432-14-0637-
C-1, Compliance File (CF), Tab 1. He also contended that the agency was trying
to collect a debt from him, despite having waived all pending and potential claims
in the parties’ agreement. Id.¶3 In response to the administrative judge’s close-of-record order, the
appellant further alleged that an employer had contacted him to report that ,
despite having called the correct telephone number and speaking with the
individual designated in the parties’ settlement agreement to respond to any
employment inquiries, the designated individual did not provide the information
agreed upon in the settlement. CF, Tab 14. The administrative judge issued a
show cause order instructing the appellant to file a declaration from the “unnamed
employer” that “should be very specific about who the declarant is, when the
conversation occurred with the unnamed agency employee . . . and details of the
conversation between the declarant and the unnamed agency employee.” CF,
Tab 18 at 2. In response, the appellant submitted a declaration from the unnamed
employer, M.K., in which M.K. averred that “I called [the designated individual]
. . . on or about August 7, 2015. She said that she had no information about [the
appellant], but she has 3,500 employees to try to keep track of. She said to call a
[different individual] at [a different telephone number].” CF, Tab 19 at 2.
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¶4 In her compliance initial decision, the administrative judge denied the
appellant’s petition for enforcement, finding that the appellant failed to make a
nonfrivolous allegation that the agency breached the pa rties’ agreement in any
way. CF, Tab 30, Compliance Initial Decision (CID). In pertinent part, she
found that he failed to nonfrivolously allege a breach of t he employment inquiries
provision because M.K.’s declaration “failed to identify who [M.K.] was and
whether he was a prospective employer conducting a reference check.” CID at 4.
¶5 The appellant, who is pro se in this matter, argues in his petition for review
that he followed the administrative judge’s order “to the letter,” contending that
the administrative judge’s statements indicate that she already knew that M.K.
was an employer. Rogers v. Department of Veterans Affairs, MSPB Docket
No. DE-0432-14-0637-C-1, Compliance Petition for Review (CPFR) File, Tab 1.
The agency responds in opposition to the appellant’s petition for review. CPFR
File, Tab 4.
DISCUSSION OF ARGUMENTS ON REVIEW
¶6 The Board has authority to enforce a settlement agreement that has been
entered into the record for enforcement purposes in the same manner as any final
Board decision or order. E.g., Vance v. Department of the Interior, 114 M.S.P.R.
679, ¶ 6 (2010). A settlement agreement is a contract, and the Board will
therefore adjudicate a petition to enforce a settlement agreement in accorda nce
with contract law. Id. When an appellant alleges noncompliance with a
settlement agreement, the agency must produce relevant, material, and credible
evidence of its compliance with the agreement. Id. The ultimate burden,
however, remains with the appellant, as the party seeking enforcement, to prove
breach by a preponderance of the evidence. Id.4
The appellant nonfrivolously alleged that the agency failed to comply with the
parties’ agreement.
¶7 In rejecting the declaration the appellant submitted i n support of his
allegation that the agency breached the parties’ agreement, the administrative
judge cited the appellant’s failure to “identify who [M.K.] was and whether he
was a prospective employer conducting a reference check.” CID at 4. However,
her order did not instruct the appellant to state whether the declarant was a
prospective employer and, by “who [M.K.] was,” we presume that the
administrative judge meant for the declarant to identify the employer on whose
behalf M.K. made his inquiry, but she did not explain her intent either in the
compliance initial decision or in the show cause order to which the appellant
responded. Id.; CF, Tab 18 at 2. Under these circumstances, we agree with the
appellant that M.K.’s declaration meets the letter of the administrative judge’s
order. CPFR File, Tab 1 at 1; CF, Tabs 18-19.
¶8 Further, the parties’ agreement required the appellant to direct any
employment inquiries to a particular designated individual. IAF, Tab 28 at 4-5;
CF, Tabs 14, 19. The agreement further required that, for a period of 2 years
following the agreement, if that individual or her designee received an
employment inquiry regarding the appellant, she would provide the dates of his
service, his rate of pay, a description of his duties, and that he resigned for
personal reasons. IAF, Tab 28 at 5. In his unrebutted declaration, M.K. averred
that the designated individual responded by stating that she had no information
about the appellant and referring him to someone else. CF, Tab 19 at 2. We find
that the appellant’s allegations constitute nonfrivolous allegations that the agency
breached the provision of the agreement pertaining to employment inquiries. See,
e.g., Miller v. Department of Health & Human Services, 41 M.S.P.R. 385, 386-88,
391-92 (1989) (finding breach when an individual other than the one identified in
the agreement provided a negative reference to the appellant’s prospective
employer). Accordingly, we must remand this petition for enforcement to the
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field office for the agency to produce relevant, material, and credible evidence of
its compliance with the parties’ settlement agreement, and for the administrative
judge to determine whether the appellant established by preponderant evidence
that the agency breached the parties’ agreement. Vance, 114 M.S.P.R. 679, ¶ 6.
ORDER
¶9 For the reasons discussed above, we remand this case to the field office for
further adjudication in accordance with this Remand Order.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.