Alma B. Hinton v. Department of Veterans Affairs

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ALMA B. HINTON, DOCKET NUMBER
Appellant, AT-1221-15-0655-W-1
v.
DEPARTMENT OF VETERANS DATE: February 10, 2016
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Alma B. Hinton, Martinez, Georgia, pro se.
Edith W. Lewis, Columbia, South Carolina, 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 as it
is barred by the terms of an earlier settlement agreement. Generally, we grant
petitions such as this one only when: the initial decision contains erroneous
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of 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 appellant 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’s appeal of her 2011 removal was settled by an agreement
reached by the parties, resulting in an initial decision by the administrative judge
dismissing the appeal as settled. On the appellant’s petition for review of the
decision, she challenged the validity of the agreement. The Board denied the
appellant’s petition and affirmed the initial decision as to all matters but one.
The Board found that the appellant had raised an age discrimination claim below
but that the administrative judge had failed, as is required, to make any findings
regarding whether the settlement agreement complied with the provisions of the
Older Workers Benefit Protection Act (OWBPA). The Board found that the
agreement did not, in fact, comply with OWBPA, and that that failure invalidated
any waiver of the appellant’s age discrimination claim. Therefore, the Board
remanded the appeal for further adjudication of that claim, noting that the
appellant’s waiver of her other, non-age discrimination claims remained in effect.
Hinton v. Department of Veterans Affairs, 119 M.S.P.R. 129, ¶¶ 4-10 (2013). On
remand, the administrative judge found that the appellant failed to prove her age
discrimination claim, and on the appellant’s petition for review, the full Board
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agreed. Hinton v. Department of Veterans Affairs, MSPB Docket No. AT-0752-
11-0476-B-1, Final Order (Dec. 24, 2013).
¶3 A year and a half later, the appellant filed an IRA appeal in which she
alleged that the agency retaliated against her for reporting patient abuse over her
17-year career, by mistreating her, causing her to suffer a significant loss in
wages, and wrongfully removing her. Initial Appeal File (IAF), Tab 1. She
stated that she had exhausted her remedy before the Office of Special Counsel
(OSC), id. at 1, but she did not submit any documentation from OSC. She
requested a hearing. IAF, Tab 3. The administrative judge issued an order to
show cause on the basis that the settlement agreement that resolved the appeal of
the appellant’s removal, apart from her age discrimination claim, included a
provision which precluded the initiation of any claims in any forum which arose
or could have been asserted through the last date of the last signature of the
agreement (January 9, 2012). The administrative judge ordered the appellant to
show cause why her appeal should not be dismissed for lack of jurisdiction based
on that provision of the settlement agreement. IAF, Tab 5. In response, the
appellant appeared to challenge the validity of the agreement. IAF, Tab 6. She
also repeated her claim that she was retaliated against for her whistleblowing,
including being wrongfully removed, and she raised allegations of prohibited
discrimination. She referenced irregularities that allegedly occurred during her
hearing before the Equal Employment Opportunity Commission, and she enclosed
a newspaper article that focused on certain problems at the clinic where she had
been employed. 2 Id.
¶4 In an initial decision based on the written record the administrative judge
dismissed the appeal for lack of jurisdiction, finding that the appellant’s claims
constituted an impermissible collateral attack on the settlement agreement. IAF,
Tab 7, Initial Decision (ID) at 1, 5.
2
Other than designating a representative, IAF, Tab 4, the agency did not respond to the
appellant’s appeal.
4
¶5 On review, the appellant has submitted a closure letter from OSC. Petition
for Review (PFR) File, Tab 1 at 8-9. She repeats her claim that the agency
retaliated against her for disclosing incidents of patient abuse and otherwise
treated her unfairly over her 17 years of employment, and she seems to challenge
the validity of certain provisions of the settlement agreement. 3 Id. at 4-6.
¶6 None of the appellant’s arguments address the basis upon which the
administrative judge dismissed her appeal, that is, because it is barred by the
explicit terms of the settlement agreement. The agreement clearly provided that it
was in complete settlement of the appeal, an equal employment opportunity
matter, “and all other claims or allegations of any nature which Appellant has or
could have asserted against the Agency up through the effective date” of the
agreement and that “all issues arising or which may arise from the facts,
circumstances, charges, liabilities, transactions or occurrences that are the subject
matter of this appeal and this Settlement Agreement are resolved.” Because the
appellant could have raised the claim of retaliation for whistleblowing prior to
January 9, 2012, the administrative judge correctly found that it is subsumed
under the terms of the settlement agreement and the appellant is precluded from
raising the issue in a new appeal. See Coker v. Department of Commerce,
111 M.S.P.R. 523, ¶ 9, aff’d, 355 F. App’x 421 (Fed. Cir. 2009). That is so,
notwithstanding OSC’s closure letter advising the appellant of her right to seek
corrective action for the Board.
¶7 Nor can the Board entertain the appellant’s challenges to the validity of the
settlement agreement as that issue was resolved in the Board’s Opinion and
Order. Hinton, 119 M.S.P.R. 129, ¶ 5.
¶8 With her petition, the appellant has submitted numerous documents,
including correspondence with her credit union regarding the check that was
provided to her by the agency in accordance with the settlement agreement, PFR
3
The agency did not respond to the appellant’s petition for review.
5
File, Tab 1 at 12, and a transcript showing certain courses she took, id. at 24.
Although new, this evidence is not material to the dispositive jurisdictional issue
in this case. See Russo v. Veterans Administration, 3 M.S.P.R. 345, 349 (1980).
The appellant also has submitted documents relating to her removal, PFR File,
Tab 1 at 14-23, Standard Form 50s going back as far as the 1960s, id. at 25-39,
handwritten notes relating to her employment, id. at 43-46, and a newspaper
article about whistleblowers, id. at 49. None of these documents is material. See
Russo, 3 M.S.P.R. at 349. Another newspaper article the appellant has submitted
is part of the record below, compare PFR File, Tab 1 at 47, with IAF, Tab 6 at 6,
and it therefore does not constitute new evidence, see Meier v. Department of the
Interior, 3 M.S.P.R. 247, 256 (1980).
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
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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 U.S. 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 U.S. 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 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.