UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

CLARK D. WHITLOW,

Appellant,

v.

DEPARTMENT OF THE ARMY,

Agency.

DOCKET NUMBER

CH-3330-12-0422-C-1

DATE: September 23, 2014 

THIS FINAL ORDER IS NONPRECEDENTIAL1

Clark D. Whitlow, Fayetteville, North Carolina, pro se.

Michael J. McHugh, Fort Bragg, North Carolina, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Anne M. Wagner, Vice Chairman

Mark A. Robbins, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which 

denied his petition for enforcement of the parties’ settlement agreement. 

Generally, we grant petitions such as this one only when: the initial decision 

contains erroneous findings of material fact; the initial decision is based on an 

 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A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

erroneous interpretation of statute or regulation or the erroneous application of 

the law to the facts of the case; the 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, and based on the 

following points and authorities, 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). 

¶2 The appellant filed an appeal under the Veterans Employment Opportunities 

Act of 1998, in which he claimed that the agency violated his rights relating to 

veterans’ preference when it failed to give him priority consideration for a 

librarian position at Fort Bragg, North Carolina, and selected another candidate. 

Initial Appeal File (IAF), Tabs 1, 27. The parties subsequently executed a 

settlement agreement in which, among other things, the agency agreed to place 

the appellant into a librarian position at Fort Bragg. IAF, Tab 31 at 2. In her 

November 2012 initial decision, the administrative judge found that the Board 

had jurisdiction over the appeal and dismissed it as settled. IAF, Tab 32, Initial 

Decision. The appellant was appointed to the librarian position in December 

2012, subject to a 1-year probationary period. Compliance File (CF), Tab 3 at 6. 

The agency terminated the appellant during his probationary period in April 2013 

for failure to observe written regulations and/or orders prescribed by the first-line 

supervisor, inappropriate conduct, and marginal performance of job duties. CF, 

Tab 8 at 6. 

¶3 Following his termination, the appellant filed a petition for review of the 

initial decision that dismissed his appeal as settled. He claimed that the agency 
3

terminated him because it was forced into hiring him. He argued that the agency 

never intended to let him keep the job. Petition for Review File, Tab 1 at 4. In 

September 2013, the Board issued a final order denying the appellant’s petition 

for review. MSPB Docket No. CH-3330-12-0422-I-1, Final Order (Sept. 11, 

2013). However, the Board forwarded the appellant’s claims of post-settlement 

harassment and retaliation for docketing as a petition for enforcement of the 

settlement agreement. Final Order at 6. 

¶4 In the compliance proceeding, the appellant argued that the agency 

employed the “hire then fire sucker punch” to offer him a position and then 

terminate his employment. CF, Tab 7 at 3. The appellant also argued that the 

agency was retaliating against him by harassing him, his termination was based 

upon three inaccurate incident reports and fabricated termination memoranda that 

were never provided to him, he should have received a written performance 

evaluation, the agency should have considered the Douglas factors before 

terminating him, and the agency forced him to relocate for his position. CF, Tab 

5 at 1-5, Tab 7 at 17. He also asserted that he is a whistleblower. CF, Tab 7 at 

28-29. In the alternative, the appellant argued that he was not appointed to a 

supervisory position and was therefore not actually offered a position as a 

librarian because all librarians are supervisors. Id. at 7-8. 

¶5 In response to the appellant’s allegations of noncompliance, the agency 

contended that it complied with the settlement agreement by appointing the 

appellant to the librarian position in December 2012. CF, Tab 3 at 4. 

Additionally, the agency stated that the appellant did not present any evidence to 

support his argument of post-settlement harassment and retaliation. Id. at 4-5. 

Finally, the agency stated that it properly terminated the appellant during his 

probationary period after management determined that he failed to demonstrate 

fitness for continued federal employment pursuant to Army Regulations. CF, Tab 

8 at 4-5; see CF, Tab 3 at 11.
4

¶6 In her May 2014 compliance initial decision, the administrative judge 

denied the appellant’s petition for enforcement of the settlement agreement. CF, 

Tab 10, Compliance Initial Decision (CID). She found that the appellant failed to 

show any retaliatory or harassing conduct by the agency in its implementation of 

the settlement agreement; she further found that the appellant’s probationary 

termination after 4 months did not demonstrate bad faith. CID at 5.

¶7 On petition for review, the appellant asserts many of the same arguments he 

raised below; he also argues that the three memoranda that served as the basis for 

his removal were fraudulent and were never provided to him. Compliance 

Petition for Review (CPFR) File, Tab 1 at 4-5. In response, the agency argues 

both that he had the opportunity to request copies of the memoranda in question 

and that the appellant failed to set forth a basis to review the administrative 

judge’s decision. CPFR File, Tab 3 at 5.

¶8 The party who is asserting a breach of a settlement agreement has the 

burden of proving the breach. Hicks v. U.S. Postal Service, 52 M.S.P.R. 561, 564 

(1992). Although the party seeking enforcement has the burden of proof, an

agency must also produce relevant, material, and credible evidence of its 

compliance with an agreement upon the filing of a petition for enforcement by an 

appellant. Eagleheart v. U.S. Postal Service, 110 M.S.P.R. 642, ¶ 9 (2009). 

Settlement agreements brought to the Board for enforcement are enforced and 

interpreted in accordance with contract law. Hicks, 52 M.S.P.R. at 564. A 

party’s breach is material when it “relates to a matter of vital importance or goes 

to the essence of the contract.” Caston v. Department of the 

Interior, 108 M.S.P.R. 190, ¶17 (2008). 

¶9 The Board has held that implicit in any settlement agreement, as under other 

contracts, is a requirement that the parties fulfill their respective contractual 

obligations in good faith. Kuykendall v. Department of Veterans 

Affairs, 68 M.S.P.R. 314, 323 (1995). To establish a breach of a settlement 

agreement based on the implied covenant of good faith, the appellant must show 
5

that the agency’s proven retaliatory or harassing actions, under the totality of the 

circumstances, amounted to an unjustified and substantial deprivation of the 

appellant’s rights. Id. at 323-25.

¶10 We find that the appellant’s unsubstantiated allegations do not support a 

finding that the agency breached the covenant of good faith in its implementation 

of the settlement agreement. The settlement agreement required the agency to 

appoint the appellant to the librarian position. IAF, Tab 31 at 2. The agency 

appointed the appellant to that position in December 2012, subject to a 

probationary period of 1 year. CF, Tab 3 at 6. Memoranda from January, 

February, and March 2013 reflect the appellant’s misconduct, including repeating 

a customer’s comments in front of colleagues and customers that female 

colleagues could get raped due to their attire, shouting and giving directives to a 

library technician, and arguing with customers. Id. at 7-9. The appellant was 

terminated in April 2013 for failure to observe written regulations and/or orders 

prescribed by the first-line supervisor, inappropriate conduct, and marginal 

performance of job duties. CF, Tab 8 at 6.

¶11 The settlement agreement required the agency to appoint the appellant to 

the librarian position, but it did not require the agency to continue to employ him 

indefinitely. Where, as here, a settlement agreement is silent as to the time or 

duration of performance, the Board has consistently held that a reasonable time 

under the circumstances will be presumed. See Woods v. U.S. Postal 

Service, 64 M.S.P.R. 156, 159 (1994). The agency’s policy for non-appropriated 

funds personnel, such as the appellant, is that an employee may be separated 

during the probationary period if he/she fails to demonstrate that he/she possesses 

the skills or character traits for satisfactory performance in the position. PFR 

File, Tab 4 at 40. We find that it was not unreasonable for the agency to 

determine after 4 months that the appellant had failed to demonstrate that he 

possessed the skills or character traits for satisfactory performance in the librarian 

position.
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¶12 Although the appellant claims that the memoranda that served as the basis 

for his termination are “fraudulent,” he does not dispute that the incidents 

described therein actually occurred. CPFR File, Tab 1 at 5. Instead, the 

appellant argues that the memoranda mischaracterized the incidents in question. 

CPFR File, Tab 4 at 4-5. He has presented no evidence to demonstrate that the 

agency falsified the documentation, or that his termination was otherwise 

improper. Additionally, although the appellant alleges that the agency engaged in 

post-settlement harassment and retaliation, he has presented no evidence to 

support this argument. We therefore agree with the administrative judge that 

neither the appellant’s termination, nor the agency’s treatment of the appellant 

prior to his termination, provides a basis for finding noncompliance with the 

settlement agreement.

¶13 To the extent that the appellant asserts that the agency breached the 

settlement agreement by failing to appoint him to a supervisory position, CF, Tab 

7 at 7-9, we find that this argument is without merit. According to a February 

2013 memorandum, the appellant’s supervisor, in the context of reprimanding 

him for shouting at a library technician, told the appellant that he did not 

supervise the library technicians. CF, Tab 3 at 9. However, the memorandum 

does not indicate that the appellant’s supervisor addressed his supervisory status 

more generally. Id. In any event, neither the original vacancy announcement nor

the librarian position agreement specified that the librarian position was, or 

would be, supervisory. IAF, Tab 10, Subtab 1, Tab 31 at 2. 

¶14 We have considered the appellant’s remaining arguments, including his 

assertion that he was a whistleblower and his claim that the agency failed to give 

him a performance appraisal. However, we find that those arguments do not 

provide a basis for disturbing the compliance initial decision. See Nance v. 

Department of Transportation, 55 M.S.P.R. 68, 72 (1992) (in a compliance 

action, the appellant’s claims of whistleblower reprisal were material only to the 

extent that they concerned the breach of the settlement agreement); see also
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McFall v. Department of Agriculture, 78 M.S.P.R. 513, 517 (1998) (finding that 

the agency’s failure to provide a performance evaluation did not constitute bad 

faith), aff’d, 178 F.3d 1307 (Fed. Cir. 1998) (Table).

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision by the United 

States Court of Appeals for the Federal Circuit. You must submit your request to 

the court at the following address:

United States Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, DC 20439

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 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 United States 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 United 

States Code, at our website, http://www.mspb.gov/appeals/uscode.htm. 

Additional information 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.

If you are interested in securing pro bono representation for your court 

appeal, you may visit our website at http://www.mspb.gov/probono for a list of 
8

attorneys who have expressed interest in providing pro bono representation for 

Merit Systems Protection Board appellants before the court. 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:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board