Edmond Avakem v. Department of Agriculture ( 2015 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
EDMOND AVAKEM, DOCKET NUMBER
Appellant, SF-0752-13-1461-P-1
v.
DEPARTMENT OF AGRICULTURE, DATE: December 31, 2015
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL *
Joel J. Kirkpatrick, Esquire, Plymouth, Michigan, for the appellant.
Kerri E. Bandics, San Francisco, California, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has petitioned for review of the February 3, 2015 initial
decision in this appeal requesting compensatory damages. Initial Appeal File
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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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(IAF), Tab 19, Initial Decision; Petition for Review (PFR) File, Tab 1. For the
reasons set forth below, we DISMISS the petition for review as settled.
¶2 After the filing of the petition for review, the parties submitted a document
entitled “SETTLEMENT AGREEMENT” signed and dated by the appellant on
June 29, 2015, and by the agency on June 30, 2015. PFR File, Tab 5. The
document provides, among other things, for the withdrawal of the petition for
review. Id., ¶ B.5.
¶3 Before dismissing a matter as settled, the Board must decide whether the
parties have entered into a settlement agreement, understand its terms, and intend
to have the agreement entered into the record for enforcement by the Board. See
Mahoney v. U.S. Postal Service, 37 M.S.P.R. 146, 149 (1988). We find here that
the parties have, in fact, entered into a settlement agreement, that they
understand the terms, and that they want the Board to enforce those terms. PFR
File, Tab 5, ¶ C.12.
¶4 In addition, before accepting a settlement agreement into the record for
enforcement purposes, the Board must determine whether the agreement is lawful
on its face, whether the parties freely entered into it, and whether the subject
matter of this appeal is within the Board’s jurisdiction; that is, whether a law,
rule, or regulation grants the Board the authority to decide such a matter. See
Stewart v. U.S. Postal Service, 73 M.S.P.R. 104, 107 (1997). We find here that
the agreement is lawful on its face, that the parties freely entered into it, and that
the subject matter of this appeal—a motion for compensatory damages—is within
the Board’s jurisdiction under 42 U.S.C. § 1981a and 5 C.F.R. § 1201.204. IAF,
Tab 1. Accordingly, we find that dismissal of the petition for review “with
prejudice to refiling” (i.e., the parties normally may not refile this appeal) is
appropriate under these circumstances, and we accept the settlement agreement
into the record for enforcement purposes.
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¶5 This is the final order of the Merit Systems Protection Board in this appeal.
Title 5 of the Code of Federal Regulation, section 1201.113 (5 C.F.R.
§ 1201.113).
NOTICE TO THE PARTIES OF THEIR
ENFORCEMENT RIGHTS
¶6 If the agency or the appellant has not fully carried out the terms of the
agreement, either party may ask the Board to enforce the settlement agreement
by promptly filing a petition for enforcement with the office that issued the
initial decision on this appeal. The petition should contain specific reasons why
the petitioning party believes that the terms of the settlement agreement have not
been fully carried out, and should include the dates and results of any
communications between the parties. 5 C.F.R. § 1201.182(a).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request further review of this final decision.
Discrimination Claims: Administrative Review
You may request review of this final decision on your discrimination
claims by the Equal Employment Opportunity Commission (EEOC). See title 5
of the U.S. Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you submit your
request by regular U.S. mail, the address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit your request via commercial delivery or by a method requiring a
signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, NE
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Suite 5SW12G
Washington, D.C. 20507
You should send your request to EEOC no later than 30 calendar days after
your receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.
Discrimination and Other Claims: Judicial Action
If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate U.S. district court.
See 5 U.S.C. § 7703(b)(2). You must file your civil action with the district court
no later than 30 calendar days after your receipt of this order. If you have a
representative in this case, and your representative receives this order before you
do, then you must file with the district court no later than 30 calendar days after
receipt by your representative. If you choose to file, be very careful to file on
time. If the action involves a claim of discrimination based on race, color,
religion, sex, national origin, or a disabling condition, you may be entitled to
representation by a court-appointed lawyer and to waiver of any requirement of
prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and
29 U.S.C. § 794a.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.