Bonnie I. Bautz v. Department of the Treasury ( 2016 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BONNIE I. BAUTZ, DOCKET NUMBER
Appellant, AT-1221-15-0577-W-1
v.
DEPARTMENT OF THE TREASURY, DATE: April 18, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Bonnie I. Bautz, Oak Ridge, Tennessee, pro se.
Danae Remmert, Esquire, Washington, D.C., 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 individual right of action (IRA) appeal for lack of jurisdiction.
Generally, we grant petitions such as this one only when: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
erroneous interpretation of statute or regulation or the erroneous application of
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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).
¶2 The appellant, a GS-14 Program Manager, filed an equal employment
opportunity (EEO) complaint in 2008, which she amended in 2009 to include a
claim that she was denied a career-ladder promotion to a GS-15 in 2008 based on
her opposition to discriminatory practices at the agency. Initial Appeal File
(IAF), Tab 4 at 24. On February 20, 2012, the parties entered into a settlement
agreement, which provided, in pertinent part, that the agency would pay the
appellant’s attorney fees and compensatory damages, totaling $35,000, and
restore 21 days of leave to her account, and that she would withdraw the EEO
complaint with prejudice and “abandon any right to pursue any administrative or
judicial remedies related to the issues raised in the complaint.” IAF, Tab 12 at
18.
¶3 On September 30, 2014, the appellant filed a complaint with the Office of
Special Counsel (OSC) in which she alleged that the agency denied her a
career-ladder promotion to a GS-15 in 2008 in retaliation for her having reported
to the agency’s Office of the Inspector General that the then-union president
allegedly had falsified his time and attendance records. IAF, Tab 1 at 7-15. On
May 1, 2015, OSC notified the appellant that it had closed its investigation into
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the matter and that she could seek corrective action from the Board, id. at 16-17,
which she did. She requested a hearing before the Board. Id. at 2.
¶4 In response, the agency moved that the appellant’s IRA appeal be dismissed
for lack of jurisdiction, arguing, inter alia, that the appeal is precluded by the
settlement agreement. IAF, Tab 7. The appellant disagreed on the basis that
OSC’s closure letter gave her the right to appeal to the Board, and she questioned
the validity of the agreement. IAF, Tab 12.
¶5 In an initial decision based on the written record, the administrative judge
dismissed the appeal for lack of jurisdiction. IAF, Tab 13, Initial Decision (ID)
at 1, 7. He found that the appellant had exhausted her remedy before OSC
regarding her whistleblowing claim, ID at 2, but that, to the extent the settlement
agreement was not otherwise invalid, the operative clause served to waive Board
jurisdiction over this appeal, ID at 2-4. He then considered, but found unproven,
the appellant’s claim that the agreement was invalid based on duress and
coercion. ID at 4-7.
¶6 The appellant has filed a petition for review, Petition for Review (PFR)
File, Tab 1, to which the agency has responded, PFR File, Tab 3, and the
appellant has filed a reply thereto, PFR File, Tab 4.
¶7 In considering the impact of a prior settlement agreement on a pending
appeal, the Board will consider the agreement to determine the effect on the
Board appeal and any waiver of Board appeal rights, even where, as here, the
agreement was reached outside of a Board proceeding. Swidecki v. U.S. Postal
Service, 101 M.S.P.R. 110, ¶ 7 (2006). The appellant may challenge the validity
of the settlement agreement if she believes that it was unlawful, involuntary, or
resulted from fraud or mutual mistake. Id., ¶ 13. She also may challenge the
enforceability of any waiver of Board appeal rights. 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., ¶ 17. The words of a
settlement agreement are of paramount importance in determining the parties’
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intent when they contracted. Greco v. Department of the Army, 852 F.2d 558,
560 (Fed. Cir. 1988).
¶8 The administrative judge found that the appellant’s agreement “to abandon
any right to pursue any administrative or judicial remedies related to the issues in
the [EEO] complaint” was sufficiently broad to constitute a waiver of Board
appeal rights in this instance and precluded her from relitigating in any
administrative or judicial forum the “issue” here in question, i.e., the agency
allegedly denying her a career-ladder promotion to a GS-15, at any time on or
before the date of the agreement. ID at 3-4. In her reply to the agency’s response
to her petition for review, the appellant argues that the authority of the Equal
Employment Opportunity Commission (EEOC) is separate from that of OSC.
PFR File, Tab 4. Notwithstanding, a complaint filed with the EEOC and an IRA
appeal stemming from an OSC complaint are but different procedural avenues to
vindicate the appellant’s right to challenge the agency’s alleged failure to afford
her a career-ladder promotion in 2008. To the extent that pursuing this claim
through an EEO complaint and an IRA appeal could implicate different rights, the
Board has found that any such differences do not significantly alter the nature of
the underlying cause of action and do not preclude a finding that a settlement
agreement in the former can serve to waive the appellant’s right to continue
contesting the issue in the latter. Laity v. Department of Veterans Affairs,
61 M.S.P.R. 256, 260-63 (1994).
¶9 The appellant has not challenged on review the administrative judge’s
finding that the language in the settlement agreement here broadly provides for
waiving the appellant’s Board appeal rights as they relate to the issue raised in
her amended EEO complaint, i.e., the agency denying her a career-ladder
promotion to a GS-15 in 2008, and we discern no error in that finding. ID at 3;
see Laity, 61 M.S.P.R. at 263; see also Vogel v. Department of the Navy,
106 M.S.P.R. 451, ¶ 5 (2007). That is so even though the operative provision in
the settlement agreement did not explicitly refer to the filing of a Board appeal.
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Lee v. U.S. Postal Service, 111 M.S.P.R. 551, ¶ 7 (2009), aff’d, 367 F. App’x 137
(2010).
¶10 On review, the appellant renews her argument that the settlement agreement
is invalid. PFR File, Tab 1 at 5-9, Tab 4 at 7-9; IAF, Tab 12 at 13-14. She
alleges that she accepted the terms because of the coercive acts of the agency
representative and was allowed no other alternative except to accept and sign the
settlement that day, PFR File, Tab 1 at 5, even though the agreement itself
provided that she had 21 days to consider it and 7 days to revoke it, id. at 5-6.
She contends that the agency representative did not explain the time frames
regarding the settlement and that her attorney stated simply that the language is
“boilerplate.” Id. at 6, PFR File, Tab 4 at 8. She also argues that she received no
additional consideration in exchange for the waiver. 2 PFR File, Tab 1 at 6-7.
Finally, the appellant argues that her attorney pressured her into signing the
agreement by stating that, if she decided to revoke it, he would no longer
represent her. Id. at 10, PFR File, Tab 4 at 9. With her petition for review, the
appellant has submitted copies of emails exchanged between her and her attorney
during the days following her signing of the agreement. PFR File, Tab 4 at 9-13.
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These claims relate to a series of provisions in the settlement agreement pursuant to
which the appellant agreed to waive any rights or claims under the Age Discrimination
in Employment Act (ADEA) provisions, which purport to comply with the requirements
of the Older Workers Benefit Protection Act of 1990 concerning waivers of age
discrimination claims under the ADEA. IAF, Tab 12 at 19-20. The appellant
acknowledges, however, that her claim had nothing to do with the ADEA, PFR File,
Tab 1 at 12, and she does not suggest, nor does it otherwise appear, that she raised an
age discrimination claim in connection with this matter. Nor would she have been able
to, since the Board lacks jurisdiction to adjudicate the merits of a personnel action at
issue in an IRA appeal and lacks the authority to decide, in conjunction with an IRA
appeal, the merits of an appellant’s allegation of prohibited discrimination. Newcastle
v. Department of the Treasury, 94 M.S.P.R. 242, ¶ 12 (2003). As the appellant’s
attorney explained, the ADEA is applicable to all agreements for employees over age
40. PFR File, Tab 1 at 9. For these reasons, we find misplaced the appellant’s reliance
on the provisions of the settlement agreement related to the ADEA to support her claim
that the agreement is itself invalid.
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¶11 In deciding whether the appellant freely and voluntarily entered into the
settlement agreement, the Board will consider whether she was represented,
whether she has demonstrated that she was mentally impaired when the agreement
was reached, and whether she has otherwise shown that she was unable to
understand the nature of the settlement agreement fully. Swidecki, 101 M.S.P.R.
110, ¶ 17. Here, the appellant was represented by counsel during settlement
negotiations, and both she and her attorney signed the settlement agreement.
IAF, Tab 12 at 21. Such representation is significant in determining the validity
of an appeal-rights waiver. Clede v. Department of the Air Force, 72 M.S.P.R.
279, 285 (1996), aff’d, 113 F.3d 1257 (Fed. Cir. 1997) (Table). The agreement
specifically provided that the appellant and the agency entered into it voluntarily,
without coercion or duress. IAF, Tab 12 at 18. The appellant has not alleged that
she suffered from any mental impairment when she signed the agreement,
although she argues that she was under duress, stressed, exhausted, and fatigued,
and that she felt pressured, hammered, and trapped. PFR File, Tab 1 at 11-13.
Notwithstanding, there is evidence that the appellant did not wish to revoke the
agreement. 3 IAF, Tab 12 at 30, 33. While she noted below that she felt she had
no recourse but to sign the agreement because she “really could not afford to not
have [her] lawyer’s fees paid,” id. at 16, it is well settled that having to choose
between unpleasant alternatives does not render the resulting choice involuntary,
Soler-Minardo v. Department of Defense, 92 M.S.P.R. 100, ¶ 5 (2002).
¶12 In sum, we agree with the administrative judge that the settlement
agreement reached in the appellant’s EEO complaint is valid, that the appellant
knowingly and voluntarily signed it, and that she thereby waived her Board
appeal rights to pursue this IRA appeal. Accordingly, we find that the
administrative judge properly dismissed the appeal for lack of jurisdiction.
3
Pursuant to the parties’ agreement, however, and based on the appellant’s wishes, the
agreement was amended by deleting and rewriting a provision. IAF, Tab 4 at 11.
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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
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 United States 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 United
States 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
8
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 an 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
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.