Michel R. Blanding v. United States Postal Service ( 2014 )


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  •                          UNITED STATES OF AMERICA
    MERIT SYSTEMS PROTECTION BOARD
    
    2014 MSPB 43
    Docket No. DE-0752-13-0061-I-1
    Michel R. Blanding,
    Appellant,
    v.
    United States Postal Service,
    Agency.
    June 18, 2014
    Gary E. Laughlin, Esquire, Topeka, Kansas, for the appellant.
    Deborah M. Levine, Esquire, Denver, Colorado, for the agency.
    BEFORE
    Susan Tsui Grundmann, Chairman
    Anne M. Wagner, Vice Chairman
    Mark A. Robbins, Member
    OPINION AND ORDER
    ¶1         The appellant has filed a petition for review of an initial decision that
    dismissed his removal appeal for lack of jurisdiction based on a finding that he
    waived his Board appeal rights when his grievance was settled. For the following
    reasons, we GRANT the petition for review and REMAND the appeal to the
    Denver Field Office for further adjudication of the appellant’s age discrimination
    claim consistent with this Opinion and Order.
    2
    BACKGROUND
    ¶2           The appellant, a preference-eligible rural carrier, was removed from his
    position, effective November 5, 2012, based on a charge of Unacceptable
    Performance/Failure to Work in a Safe Manner. Initial Appeal File (IAF), Tab 7
    at 29-31 (decision letter), 46-49 (proposal notice).        The appellant filed a
    grievance challenging his removal.      
    Id. at 86
    .   He also filed a Board appeal
    challenging his removal and asserting a claim of age discrimination. 1 IAF, Tab 1.
    The appellant subsequently retired and made the effective date of his retirement
    and his removal the same date. IAF, Tab 13 at 20-27. While his Board appeal
    was pending before the administrative judge, the appellant’s union and the agency
    settled his grievance. See id. at 9. In pertinent part, the grievance settlement
    stated that the appellant had retired, the proposed removal would be rescinded, all
    corrective action would be removed from the employee’s Official Personnel File,
    and the parties would “consider the case closed.” Id. Although the appellant did
    not sign the settlement, he has acknowledged that he “agreed to enter it [sic].”
    IAF, Tab 17 at 9.
    ¶3           After affording the parties the opportunity to address the impact of the
    grievance settlement on this appeal, the administrative judge dismissed the appeal
    for lack of jurisdiction without holding a hearing. IAF, Tab 18, Initial Decision
    (ID).    The administrative judge found that the agreement did not expressly
    reserve the appellant’s right to pursue a Board appeal regarding his removal and
    the appellant voluntarily entered into this agreement through his union.          ID
    at 5-6. The administrative judge concluded that the settlement therefore divested
    the Board of jurisdiction over the appellant’s removal appeal.            Id.    The
    administrative judge further reasoned that, absent jurisdiction to review the
    1
    We cannot discern from the record whether the appellant’s grievance included an age
    discrimination claim. The outcome of this matter is not dependent on a resolution of
    that issue.
    3
    underlying removal, the Board could not independently adjudicate the appellant’s
    age discrimination claim, even if the grievance settlement did not comply with
    the requirements of the Older Workers Benefit Protection Act of 1990 (OWBPA)
    concerning waivers of age discrimination claims under the Age Discrimination in
    Employment Act (ADEA). ID at 6. Because the administrative judge found that
    the Board lacks jurisdiction over the appeal, he did not address the issue of
    whether the appeal was rendered moot by the agency’s rescission of the removal
    action. ID at 7.
    ¶4         The appellant has filed a petition for review, and the agency has filed a
    response. Petition for Review (PFR) File, Tabs 1, 3. On review, the appellant
    asserts that the administrative judge made the following errors: (1) he improperly
    interpreted the OWBPA in light of the Board’s decision in Hinton v. Department
    of Veterans Affairs, 
    119 M.S.P.R. 129
     (2013); and (2) he failed to address the
    “mootness” argument despite the fact that, as part of his age discrimination claim,
    the appellant sought back pay (from November 5, 2012, to the present) and
    reinstatement. PFR File, Tab 1. The appellant requests that the Board remand
    this appeal for adjudication of his age discrimination claim only. Id. at 8.
    ANALYSIS
    ¶5         As a preference-eligible postal employee with at least 1 year of current
    continuous service in the same or similar positions, the appellant had the right to
    appeal his removal to the Board under chapter 75. Gordon-Cureton v. U.S. Postal
    Service, 
    105 M.S.P.R. 165
     , ¶ 6 (2007). Preference-eligible employees in the U.S.
    Postal Service, like the appellant, are entitled to simultaneously pursue both a
    grievance and a Board appeal. See Hanna v. U.S. Postal Service, 
    101 M.S.P.R. 461
     , ¶ 8 (2006). However, an appellant may waive his Board appeal rights in the
    process of settling his grievance.    See, e.g., Swidecki v. U.S. Postal Service,
    
    101 M.S.P.R. 110
     , ¶ 14 (2006); Laity v. Department of Veterans Affairs,
    
    61 M.S.P.R. 256
     , 261-62 (1994). The Board will give due effect to the express
    4
    terms of a valid agreement waiving Board appeal rights. See Laity, 61 M.S.P.R.
    at 261-62.   In addition, an appellant waives his Board appeal rights when a
    grievance settlement contains a broad and general waiver that encompasses the
    claim raised before the Board, and does not specifically reserve the right to file
    an appeal.   See Hanna, 
    101 M.S.P.R. 461
     , ¶ 8; Swidecki, 
    101 M.S.P.R. 110
     ,
    ¶¶ 14-16; Laity, 61 M.S.P.R. at 263.
    ¶6         On review, the appellant does not challenge the administrative judge’s
    findings that the grievance settlement did not expressly reserve his Board appeal
    right, that the agreement effectively waived his right to contest the merits of his
    removal before the Board, and that he was bound by the agreement reached by
    union in this matter. ID at 4-6; PFR File, Tab 1. Thus, we accept for purposes of
    our decision that, by virtue of the grievance settlement, the appellant generally
    waived his right to continue pursuing his pending adverse action appeal with the
    Board regarding his removal.     See Hanna, 
    101 M.S.P.R. 461
     , ¶ 8; Swidecki,
    
    101 M.S.P.R. 110
     , ¶¶ 14-16; Laity, 61 M.S.P.R. at 263.
    ¶7         The appellant argues, however, that the grievance settlement did not
    constitute a valid waiver of his pending age discrimination claim because the
    agreement did not satisfy the requirements for such a waiver as set forth in the
    OWBPA. For the following reasons, we agree that the grievance settlement fails
    to comply with the OWBPA and that the Board therefore retains jurisdiction to
    adjudicate the pending age discrimination claim, even though the grievance
    settlement effectively resolved the appellant’s other pending claims.
    ¶8         The OWBPA mandates that a settlement agreement satisfy certain
    minimum requirements before it may be considered an effective waiver of any
    right or claim under the ADEA.          See, e.g., 
    29 U.S.C. § 626
     (f)(1), (f)(2)
    (concerning waiver of rights under the ADEA); Schwartz v. Department of
    Education, 
    113 M.S.P.R. 601
     , ¶¶ 11-12 (2010) (setting forth the requirements of
    the OWBPA). The OWBPA applies to the appellant’s age discrimination claim,
    which was raised under the ADEA. See 29 U.S.C. § 633a (a) (making the ADEA
    5
    applicable to the U.S. Postal Service); Schwartz, 
    113 M.S.P.R. 601
     , ¶ 12. The
    record clearly shows that the grievance settlement does not satisfy the
    requirements of the OWBPA. For instance, the grievance settlement does not
    specifically refer to a waiver of claims arising under the ADEA. IAF, Tab 13
    at 9; see 
    29 U.S.C. § 626
     (f)(1)(B); Schwartz, 
    113 M.S.P.R. 601
     , ¶ 12.     Nor is
    there any evidence that the appellant was advised in writing to consult with an
    attorney prior to executing the agreement.      IAF, Tab 13 at 9; see 
    29 U.S.C. § 626
     (f)(1)(E); Schwartz, 
    113 M.S.P.R. 601
     , ¶ 12.
    ¶9          The Board has held that, before accepting a settlement agreement in an
    appeal where age discrimination has been alleged, the Board must first verify that
    the agency has complied with the waiver requirements in the OWBPA. Hinton v.
    Department of Veterans Affairs, 
    119 M.S.P.R. 129
     , ¶ 7 (2013); Schwartz,
    
    113 M.S.P.R. 601
     , ¶ 11.     In such circumstances, the Board has held that
    noncompliance with the OWBPA only invalidates the waiver of the age
    discrimination claim and does not impact an otherwise valid waiver of an
    appellant’s remaining claims, including a challenge to the merits of the
    underlying appealable adverse action under 5 U.S.C. chapter 75.            Hinton,
    
    119 M.S.P.R. 129
     , ¶ 9; Schwartz, 
    113 M.S.P.R. 601
     , ¶ 13; Harris v. Department
    of the Air Force, 
    98 M.S.P.R. 261
     , ¶ 8 (2005) (the agreement “is still in effect”
    regarding all but the appellant’s age discrimination claim). After invalidating a
    waiver of a pending age discrimination claim in such circumstances, the Board
    retains jurisdiction to adjudicate the age discrimination claim as appropriate. See
    Hinton, 
    119 M.S.P.R. 129
     , ¶ 9; Schwartz, 
    113 M.S.P.R. 601
     , ¶ 13; Harris,
    
    98 M.S.P.R. 261
     , ¶ 8. The question before us is whether that reasoning applies
    when the Board is considering the impact of a grievance settlement reached while
    an appellant has a pending adverse action appeal before the Board that includes a
    claim under the ADEA.
    ¶10         We agree with the appellant that the Board’s analysis in Hinton is
    instructive, and we extend the reasoning in Hinton to this matter. Indeed, there
    6
    are many similarities between the two cases. For instance, Ms. Hinton, like the
    appellant, appealed her removal, alleged age discrimination, and subsequently
    entered into a settlement agreement. Hinton, 
    119 M.S.P.R. 129
     , ¶ 2. The Board
    in Hinton found that, because the settlement agreement did not comply with the
    OWBPA, Ms. Hinton’s waiver of her Board appeal right to challenge her removal
    was valid, but her age discrimination claim was not waived; thus, only her age
    discrimination claim should be remanded for further adjudication. Id., ¶¶ 9-10.
    Such a result is consistent with the well-established principle that the Board’s
    jurisdiction is determined by the nature of an agency’s action at the time an
    appeal is filed with the Board, see, e.g., Hagan v. Department of the Army,
    
    99 M.S.P.R. 313
     , ¶ 6 (2005); Himmel v. Department of Justice, 
    6 M.S.P.R. 484
     ,
    486 (1981), and the Board’s retention of jurisdiction to adjudicate discrimination
    claims even when the underlying appealable action is canceled or rescinded while
    a Board appeal is pending, see, e.g., Antonio v. Department of the Air Force,
    
    107 M.S.P.R. 626
     , ¶¶ 9 (2008). There is no dispute that the appellant’s adverse
    action appeal and attendant age discrimination claim were within the Board’s
    jurisdiction under 5 U.S.C. chapter 75 at the time he filed his appeal. The Board
    was not divested of jurisdiction over the age discrimination claim because of the
    subsequent grievance settlement, which did not contain an effective waiver of his
    ADEA claim as required by the OWBPA. 2              See Hinton, 
    119 M.S.P.R. 129
     ,
    ¶¶ 9-10.
    2
    The fact of the appellant’s retirement does not render moot his requests for
    reinstatement and back pay as part of his age discrimination claim. See, e.g., Paula v.
    Social Security Administration, 
    119 M.S.P.R. 138
    , ¶¶ 2, 11-14 (2013) (finding that
    
    5 U.S.C. § 7701
    (j) does not limit the relief that may be awarded to an appellant who
    retires based on an agency’s final decision to remove him but whose removal is
    subsequently reversed by the Board). We note that these remedies are available under
    the ADEA, and the appellant did not receive these remedies as part of his grievance
    settlement. 
    29 U.S.C. § 626
    (b); see IAF, Tab 13 at 5-6, 9.
    7
    ¶11         For these reasons, we remand the appeal to the Denver Field Office for the
    administrative judge to adjudicate the appellant’s age discrimination claim only.
    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 his affirmative defense of age discrimination.      Id., ¶ 10.   The appellant
    claimed below that he was entitled to back pay and reinstatement as part of his
    age discrimination claim.   See IAF, Tab 1 at 3, Tab 17 at 13.         We note that
    compensatory damages are not available in an age discrimination claim.          See
    Simonton v. U.S. Postal Service, 
    85 M.S.P.R. 189
     , ¶ 14 (2000).
    ORDER
    ¶12         For the reasons discussed above, we REMAND the appeal for further
    adjudication in accordance with this Opinion and Order.
    FOR THE BOARD:
    ______________________________
    William D. Spencer
    Clerk of the Board
    Washington, D.C.
    

Document Info

Filed Date: 6/18/2014

Precedential Status: Precedential

Modified Date: 3/2/2020