Adrian Gilliard v. Department of Veterans Affairs

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ADRIAN C. GILLIARD, DOCKET NUMBER
Appellant, DA-0714-18-0143-I-1
v.
DEPARTMENT OF VETERANS DATE: November 29, 2023
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Adrian C. Gilliard , Groesbeck, Texas, pro se.
Sean A. Safdi , Esquire, Denver, Colorado, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his removal appeal as settled. Generally, we grant petitions such as
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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 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 review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
¶2 The agency removed the appellant from his GS-5 Contact Representative
position for inappropriate conduct and failure to follow leave requesting
procedures. Initial Appeal File (IAF), Tab 8 at 11-14. He appealed his removal
to the Board alleging procedural error and discrimination based on disability.
IAF, Tab 1. While the appeal was pending, the parties entered into a settlement
agreement, in which the appellant agreed, among other things, to withdraw his
appeal and to provide the agency medical documentation regarding his
post-traumatic stress disorder and any other qualifying disability within 45 days
of signing the agreement. IAF, Tab 14 at 6. In exchange, the agency agreed to
change the reason for his removal from “removal for conduct” to “removal for
medical inability to perform” and to not controvert his claim for disability
retirement with the Office of Personnel Management. Id. at 6-7. The appellant
further agreed that, if he failed to submit the required medical documentation
within 45 days, he waived the right to challenge his removal and “removal for
conduct” would remain the reason for his removal. Id. at 6. The settlement
agreement provided that it constituted the “entire agreement” and that it could be
3
“modified only by a written agreement signed by Appellant . . . and the
authorized representative of Agency.” Id. at 7. It further provided the following:
Solely as to any claim of discrimination based on age, 40 years or
older , Agency and Appellant agree that this Agreement complies
with the Requirements of the Age Discrimination in Employment Act
and the Older Workers Benefit Protection Act. In particular,
Appellant is hereby advised of the following . . . he has seven
(7) days from the date that all Parties have signed this Agreement to
revoke this Agreement.
Id. at 8-9 (emphasis in original). The agency official signed the agreement on
March 2, 2018, and the appellant signed it on March 5, 2018. Id. at 9.
¶3 In an initial decision dated March 5, 2018, the administrative judge found
that the agreement was lawful on its face and that the parties understood its terms
and freely entered into it. IAF, Tab 15, Initial Decision (ID) at 1. Pursuant to the
terms of the agreement, the administrative judge entered it into the record for
purposes of enforcement by the Board. Id.; IAF, Tab 14 at 8. She then dismissed
the appeal as settled. ID at 2.
¶4 On April 4, 2018, the appellant filed a petition for review of the initial
decision. Petition for Review (PFR) File, Tab 1. He states that he revoked the
settlement agreement on March 9, 2018, and provided a copy of an unsigned,
handwritten note dated March 7, 2018, stating that he wished to revoke the
settlement agreement. Id. at 2, 5. In addition, he appears to argue that the
settlement agreement was invalid and should be set aside. Id. at 2-4. In response,
the agency argues that the revocation clause in the settlement agreement applied
only to claims of age discrimination, which are not raised in this appeal, and that
the appellant has failed to provide any basis for setting aside the settlement
agreement. PFR File, Tab 3.
ANALYSIS
¶5 A settlement agreement is a contract, the interpretation of which is a matter
of law. Jackson v. Department of the Army, 123 M.S.P.R. 178, ¶ 6 (2016). In
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construing a settlement agreement, the Board “assign[s] to words their ordinary
and commonly accepted meaning unless it is shown that the parties intended
otherwise.” Id. (quoting Perry v. Department of the Army, 992 F.2d 1575, 1579
(Fed. Cir. 1993)). Here, as noted above, the settlement provided that the
appellant could revoke the agreement within 7 days “ [s]olely as to any claim of
discrimination based on age, 40 years or older .” IAF, Tab 14 at 8-9 (emphasis in
original). Thus, pursuant to the plain language of the agreement, the appellant
could revoke his agreement to waive his age discrimination claims within 7 days.
Id. However, the appellant has not raised any age discrimination claim. The
agreement does not contain any provision permitting the appellant to revoke the
settlement agreement with respect to his other, non-age discrimination claims,
IAF, Tab 14, and the settlement agreement therefore remains in effect despite his
attempt to revoke it. 2
¶6 A party may challenge the validity of a settlement agreement if he believes
that it 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 he involuntarily accepted the other party’s terms, that
circumstances permitted no other alternative, and that such circumstances were
the result of the other party’s coercive acts. Id. To establish that a settlement
agreement resulted from fraud based on misinformation from the agency, the
appellant must show that the agency knowingly concealed a material fact or
intentionally misled him. See Harris v. Department of Veterans Affairs, 142 F.3d
1463, 1468 (Fed. Cir. 1998). The party challenging the validity of the settlement
agreement bears a heavy burden. Hinton, 119 M.S.P.R. 129, ¶ 4. An appellant’s
2
Even if the appellant could revoke the entire settlement agreement, he has not
provided any evidence showing that he complied with the revocation provision by
sending a written request to the Office of Chief Counsel—Continental District West at
the address provided. PFR File, Tab 1; IAF, Tab 14 at 9.
5
mere post-settlement remorse or change of heart cannot serve as a basis for
setting aside a valid settlement agreement. Id.¶7 Here, the appellant alleges that the agency used “high pressure ta[c]tic[s]”
and made “erroneous statements” to coerce him to sign the agreement. PFR File,
Tab 1 at 2. He also argues that the agency “reworded” part of the settlement
agreement at an unspecified time. Id. He further argues that the agency provided
him misinformation regarding the handling of his equal employment opportunity
complaint. Id. at 2-3. These vague and unsupported allegations, however, are
insufficient to meet the appellant’s heavy burden of showing that the settlement
agreement is invalid. See Hinton, 119 M.S.P.R. 129, ¶ 4.
¶8 The appellant also argues that 45 days was not enough time to obtain the
medical documentation, that the agency did not inform him where to send his
medical documentation, and that the agency did not reasonably accommodate him.
PFR File, Tab 1 at 3. Even if true, however, these arguments provide no basis to
set aside the settlement agreement because they do not establish, or even suggest,
that the agreement was unlawful, involuntary, or the result of fraud or mutual
mistake. See Hinton, 119 M.S.P.R. 129, ¶ 4.
¶9 In light of the foregoing, we find that the appellant has not shown any basis
to set aside the settlement agreement. Thus, the administrative judge properly
dismissed the appeal as settled.
NOTICE OF APPEAL RIGHTS 3
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
3
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.
6
appropriate for your situation and the rights described 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 all
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.
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 visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
7
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
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. 420 (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
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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:
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 2302(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. 4 The court of appeals must receive your petition for
4
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.
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review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.