Baker v. United States

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In the United States Court of Federal Claims
No. 15-343C
FILED
MAR 22 2017
u.s. couHr oF
FEDERAL cLAlMS
(Filed: March 22, 2017)
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PATRICK D. BAKER, *
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PIaintiff, * Cross-Motions for Summary Judgment;
* Claims for Breach of Settlement
v. * Agreement; Agency Assessment of
* Employee Suitability; Failure to Perform
THE UNITED STATES, * aCondition Precedent.
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Defendant.
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Patrick D. Baker, appearing pro se, Texarl123 Fed. Cl. 203, 204 (2015). Following an investigation, Mr. Baker
resigned Upon discovering that his co-worker was allowed to continue empioyment, Mr.
Baker filed a racial discrimination claim against the Army. l_d. On August ll, 2009, Mr.
Baker settled his discrimination claim by executing the Agreement which provided for
“time limited appointment as a Heavy Mobile Equipment Repairer WG-5803~08 in the
Directorate for Maintenance Production, Travel Division effective not later than Septernber
14, 2009.” § Additionally, the Agreement provided that “[Mr. BaiBal 123 Fed. Cl. at 205. While this Court dismissed all of Mr.
Bai477 U.S. 242, 248 (1986). The moving
party bears the initial burden of showing that there exists no genuine dispute as to any
material fact Celotex Corn. v. Catrett, 477 U.S. 317, 323 (1986). Suinmary judgment will
not be granted if the “evidence is such that a reasonable [trier of fact] could return a verdict
for the nonmoving party.” Anderson, 477 U.S. at 248. However, when “the record taken
as a whole could not lead a rational trier of fact to find for the nonmoving party, there is
no ‘genuine issue for trial.”’ Scott v. Harris, 550 U.S. 37 2, 3 80 (2007) (quoting Matsushita
Elec. industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
A. Mr. Baker’s Pending Criminal Charges Rendered him Unsuitable for
Ernployment.
The relevant facts are not in dispute. The sole issue is whether Mr. Baker’s
admission to pending criminal charges in November 2009 rendered him unsuitable for
employment according to the Agreement.
An agency is entitled to “f`ind an individual unsuitable for employment for criminal
or dishonest conduct.” Gravton v. Office of Personnel Mgmt., 411 Fed. App’x 328, 331
(Fed. Cir. 2011) (citing 5 C.F.R. § 731.202(b)(2)). In assessing suitability, an agency may
consider the circumstances surrounding criminal or dishonest conduct and the recency of
the offense. 5 C.F.R. § § 731.202(c)(2), (3), (4); Grayton, 411 Fed. App’x at 331. The
Army explicitly included the suitability requirement in the Agreement as a condition on
hiring Mr. Baker. “[Mr. Baker] understands that his appointment is contingent upon his
meeting physical requirements . . . and meeting all Sui`tabi`li`ty requirements for placement.”
Pl.’s Mot., Att. at l (emphasis added). The Army assesses suitability, in part, with Option
Form 306 which specifically asks whether an applicant has any pending criminal charges
Def.’s Cross~Mot., Att. at 17, 36. According to the Ariny’s Suitability Handbook, an
applicant with pending criminal charges is unsuitable for employment until the “case is
disposed.” I_d. at 30. ln November 2009, Mr. Baker honestly answered that he was
currently facing criminal felony charges. I_d. at 17. Mr. Bal562 U.S. 223, 236 (2011) (“[L]inking independent ideas is the job of a coordinating
junction like ‘and’ . . . .”).
B. Mr. Baker was Unavailable to Perform the Emplovment Contemplated in the
Agreement
Mr. Baker was also unavailable to perform the job contemplated in the Agreement
due to his incarceration and probation, and thus failed to satisfy a condition precedent to
receiving compensation under the Agreement A condition precedent is an act or event
that must occur before a contractual right accrues. Haddon Housing Assocs., LLC v.
United States, 99 Ped. Cl. 311, 326 (2011). ln the case of an agreement to offer
employment the potential employee must actually be able to perform the employment
contemplated in order to bind the potential employer to offer that employment. Otherwise,
“[i]t would indeed be a gross injustice to make the [Governinent] pay damages for failing
to do what cannot be done for the reason that the plaintiff has not made it possible.” 8
CATHi-;RINE M.A. MCCAULIFF, CoRBiN oN CoNTRACTs § 31.2, at 51 (Rev. ed. 1999).
The Agreement stated that the Arrny would provide Mr. Baker with a job offer in
the “Travel Division” no later than September 14, 2009. Pl.’s Mot., Att. at l. Employment
in the Travel Division involves travel abroad to service Ariny needs in Iraq or Afghanistan.
Def.’s Cross-l\/Iot., Att. at l6. Mr. Baker was not released on bail until October 26, 2009.
Ld., Att. at 14. ln December 2009, Mr. Baker was sentenced to twelve months’ probation
during which he would be required to report to a supervising officer and “perniit him or
her to visit [Mi'. Baker] in [his] residence, place of employment or other property.” Pl.’s
Resp., Att. at 2. Given Mr. Baker’s incarceration and probation, he would have been unable
to travel outside the country until at least December 2010, more than a year after he was
meant to report for a tiine-limited position in the Travel Division. Thus, Mr. Baker was
unavailable to perform the employment contemplated by the Agreement
Conclusion
For the above reasons, Mr. Baker’s motion for summary judgment is DENIED and
the Government’s cross-motion for summary judgment is GRANTED. This Opinion
disposes of all remaining issues before this Court on remand Thus, the clerk is directed to
enter final judgment for the Government. No costs.
IT lS SO ORDERED.
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THOMAS C. WHEELER
Judge