Lisa Barnes v. Department of the Navy

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LISA M. BARNES, DOCKET NUMBER
Appellant, AT-0752-16-0686-I-1
v.
DEPARTMENT OF THE NAVY, DATE: March 21, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Lisa M. Barnes, Summerville, South Carolina, pro se.
Thomas J. Tangi, Jacksonville, Florida, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member 2
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her removal appeal as settled. Generally, we grant petitions such as
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
Member Leavitt’s name is included in decisions on which the three -member Board
completed the voting process prior to his March 1, 2023 departure.
2
this one only in the following circumstances: 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 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. 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 revie w and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
¶2 The appellant filed an appeal of the agency’s action removing her base d on
a charge of medical inability to perform the essential duties of her position.
Initial Appeal File (IAF), Tab 1 at 3, 7-9, 13. During the appeal process, the
parties engaged in mediation and, with the assistance of a Board Mediator, they
entered into a settlement agreement. IAF, Tabs 14-15. Under the terms of the
agreement, the agency was to pay the appellant a lump sum of $30,000, in
exchange for which the appellant agreed to a dismissal of her appeal with
prejudice. IAF, Tab 15 at 1-2. After finding that the settlement agreement was
lawful on its face and the parties entered into it voluntarily, the administrative
judge entered the agreement into the record for enforcement purposes and
dismissed the appeal as settled. IAF, Tab 16, Initial Decision (ID) at 1-2. He
advised the parties that the deadline for filing a petition for review was
January 16, 2017. ID at 3.
3
¶3 The appellant has filed a petition for review, which she submitted on
January 18, 2017, arguing that she was pressured into signing the agreement.
Petition for Review (PFR) File, Tab 1 at 4. She also has filed a motion requesting
that the Board waive the deadline for filing her petition. PFR File, Tab 4. The
agency did not respond to either the petition or the motion.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant has shown good cause for her untimely petition for review.
¶4 The appellant admits that her petition for review is untimely. PFR File,
Tab 1 at 4, Tab 4 at 2. Because the January 16, 2017 deadline for filing fell on a
holiday, it advanced to the next business day, or January 17, 2017. See 5 C.F.R.
§ 1201.23 (providing that a deadline that falls on a Federal holiday is extended to
include the following workday). Thus, the appellant’s January 18, 2017 petition
for review was 1 day late. PFR File, Tab 1.
¶5 In a sworn declaration, the appellant, who is pro se, states that between the
time she signed the settlement agreement and filed her petition for review, she
was bedridden due to medical conditions. PFR File, Tab 4 at 2. She also submits
statements from her psychiatrist stating, inter alia, that he has been treating the
appellant for some of these conditions and that she has been “unable to manage
usual activities and reports.” Id. at 4-5. He indicates that following the
mediation that led to the settlement agreement, the appellant’s symptoms
worsened. Id. at 5. In light of the appellant’s sworn statement and medical
evidence, the shortness of her delay, and her pro se status, we find good cause to
waive her 1‑day filing delay. See Lacy v. Department of the Navy, 78 M.S.P.R.
434, 437 (1998) (observing that the Board will find good cause for a filing delay
when an appellant demonstrated that he suffered from an illness that affected his
ability to file on time); Moorman v. Department of the Army, 68 M.S.P.R. 60,
62-63 (1995) (reflecting factors relevant to determining if an appellant has shown
good cause for his filing delay, including the length of the delay, whether the
4
appellant is proceeding pro se, and whether he has presented evidence of
circumstances beyond his control that affected his ability to comply with the time
limits), aff’d per curiam, 79 F.3d 1167 (Fed. Cir. 1996) (Table). Further, the
agency has not alleged any prejudice resulting from a waiver of the time limit.
Moorman, 68 M.S.P.R. at 63.
The appellant has not met her burden to show that the agency engaged in coercion
or that she did not voluntarily sign the agreement.
¶6 In her petition for review, the appellant requests the Board to review the
“low settlement that [she] felt pressured to sign.” PFR File, Tab 1 at 5. A party
may challenge the validity of a settlement agreement if she believes that the
agreement is unlawful, involuntary, or the result of fraud or mutual mistake .
Hinton v. Department of Veterans Affairs, 119 M.S.P.R. 129, ¶ 4 (2013). To
establish that a settlement was fraudulent as a result of coercion or duress, a party
must prove that she involuntarily accepted the other party’s terms, that
circumstances permitted no alternative, and that such circumstances were the
result of the other party’s coercive acts. Id. The party challenging the validity of
the settlement agreement bears a “heavy burden.” Asberry v. U.S. Postal Service,
692 F.2d 1378, 1380 (Fed. Cir. 1982). An appellant’s mere post-settlement
remorse or change of heart cannot serve as a basis for setting aside a valid
settlement agreement. Hinton, 119 M.S.P.R. 129, ¶ 4.
¶7 The appellant asserts that, since entering into the settlement agreement, her
medical conditions have deteriorated. PFR File, Tab 4 at 2. However, she does
not claim that her medical conditions caused her to sign the agreement or to not
understand what the settlement provided when she signed the agreement . Id.Instead, she argues that she felt “pressured, almost forced” to sign the agreement
because the mediator stated that he needed to get to the airport, the agency
attorney said he needed a “final answer then,” and her husband wanted her to
begin the healing process. Id. We do not find that these are allegations that the
agency representative engaged in coercive acts or of circumstances that left the
5
appellant with no alternative but to accept the agreement as presented by the
agency. Furthermore, the agreement specifically states that it is “not based on
any harassment, threats, coercion, or intimidation and [the parties] acknowledge
that they enter into this Agreement knowingly, voluntarily and of their own free
will.” IAF, Tab 15 at 2-3. To the extent the appellant may be trying to assert that
her medical conditions prevented her from understanding the terms of the
agreement, the agreement also explicitly states that she “does not suffer from any
mental disease or defect that impairs her ability to thin k, analyze, and understand
the terms and conditions of this agreement.” Id. at 3. Moreover, the record
reflects that the appellant was represented during the mediation process by her
husband, who signed the settlement agreement as her representative. Id. Thus,
we find that the appellant has not, by her challenges to the validity of the
agreement, met her burden of proving that the settlement agreement was coerced
or that she did not freely enter into the agreement.
¶8 The appellant also suggests that the parties verbally agreed that she would
be awarded a disability retirement as a result of signing the settlement
agreement. 3 PFR File, Tab 1 at 5. However, the settlement agreement contains
no such term, and further provides that it is a “full and final settlement of . . . all
issues related to [the appellant’s] employment.” IAF, Tab 15 at 1. Similarly, it
plainly provides that the lump sum payment to the appellant “represents full
settlement of this matter and all relief sought by [the] Appellant.” Id. at 1-2; see
Birdsong v. Department of the Navy, 75 M.S.P.R. 524, 528 (1997) (explaining
that parol evidence only is admissible to show the parties’ intent if the terms of
an agreement are ambiguous). Thus, the appellant waived her rights to claim any
additional damages associated with her employment with the agency. See
3
We offer no opinion as to whether the appellant is eligible to file for disability
retirement with the Office of Personnel Management, which has its own filing
deadlines.
6
Swidecki v. U.S. Postal Service, 101 M.S.P.R. 110, ¶ 25 (2006) (finding that a
settlement agreement providing that it was a “full and final release of all matters”
in the appeal constitutes a waiver of the right to move for payment of attorney
fees).
¶9 While the appellant would like to revoke the settlement agreemen t, her
post-settlement remorse cannot serve as a basis for setting aside a valid
settlement agreement. Hinton, 119 M.S.P.R. 129, ¶ 4. Further, her arguments
that the agency caused the medical conditions that led to her removal, should
have permitted her to take leave instead of removing her, and “harm[ed] [her]
reputation” after she left her job are not relevant to the dispositive issues in this
appeal. PFR File, Tab 1 at 5.
¶10 Accordingly, we conclude that the appellant has provided no basis upon
which to disturb the initial decision dismissing this appeal as settled .
NOTICE OF APPEAL RIGHTS 4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights descri bed below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow al l
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
4
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
7
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
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, 10, and 11.
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 v isit 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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination. This option applies to you only if you have claimed that you
8
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims—by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. 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.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
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Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC 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, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2 302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction. 5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
5
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
10
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
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, 10, and 11.
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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the 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.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.