UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD

DEBRA M. SHEPARD, Appellant,

v.
DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER AT

- 3443

- 15

- 0689

- I

- 1

DATE: April 13, 2016



### THIS FINAL ORDER IS NONPRECEDENTIAL 1

Debra M. Shepard
, Lawrenceville, Georgia, pro se.

Edith W. Lewis
, Esquire, 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 appeal challenging the agency ’ s alleged breach of an equal employment opportunity (EEO) settlement agreement for lack of jurisdiction

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

1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions.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

contains erroneous finding s 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 ini tial 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 diligenc e, 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 petitioner has not esta blished any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision
, whic h is now the Board ’ s final decis ion. 5 C.F.R. § 1201.113 (b). However, we FORWARD the appellant’s claim of whistleblower
retaliation to the regional office for docketing as a new individual right of action (IRA) appeal

.

DISCUSSION OF ARGUME NTS ON REVIEW ¶2 The appellant, a GS

- 5 Medical Laboratory Technician, entered into a settlement agreement with the agency resolving her EEO complaint on February 9, 2015. Initial Appeal File (IAF), Tab 1 at 1, 7

- 9. The settlement agreement provided that, among other things, the agency agreed to laterally transfer the appellant to the new Lawrenceville Community

- Based Outpatient Clinic (CBOC) “when the e xpansion project is completed.” Id. at 7. The appellant subsequently complained that the agency violated the settlement agreement because, as of April 22, 2015, she had not been transferred to the new
Lawrenceville CBOC

. Id. at 10. In a May 20, 2015 fi nal agency decision (FAD),
the agency’s O ffice of Resolution Management found that the agency had not breached the settlement agreement because the expansion project had not yet been completed. Id. at 11. The FAD informed the appellant of her right to appeal the3

decision to the Equal Employment Opportunity Commission (EEOC) , Office of Federal Operations (OFO) , within 30 days. Id. at 12. It appears that the appellant appealed the FAD to the OFO on or about June 2 2, 2015. IAF, Tab 5,
Attac hment 1. ¶3 On June 30, 2015, t he appellant filed a Board appeal challenging the

agency ’ s alleged breach of the EEO settlement agreement and alleging that the

agency had entered into the settlement agreement with the intent “to su bject her to more physical, mental, and financial hardship [in] retaliation for filing past and present EEO activity [and] for reporting prohibited personnel practices of wrongdoing[.]” IAF, Tab 1 at 1, 3. The administrative judge notified the appellant that the Board lacks jurisdiction to enforce a settlement agreement that
was never entered into the record in an appeal before the Board and ordered her to file evidence and argument showing why the appeal should not be dismissed for lack of jurisdiction w ithout a hearing. IAF
, Tab 4 at 1

- 2 . In response, the appellant asserted that OFO would resolve the question of whether the agency breached the settlement agreement or failed to negotiate in good faith, but that the Board had jurisdiction to consider her claim that the agency was retaliating against her for whistleblowing and protected activity by postponing or withholding her transfer back to the Lawrenceville CBOC. 2 IAF, Tab 5 at 9

- 12. The appellant stated that she had filed complaints with the Office of Special Counsel (OSC) regarding the agency ’ s prohibi ted personnel prac tices and retaliation on August 10, 2012, June 2, 2015 , and July 13, 2015, respectively, but
that OSC had not responded to her complaint s

. Id. at 7

- 8; see id.
, Attachments 6

- 8.

2 The appellant explained that, pursuant to a 2008 settlement agreement, she was stationed at the Lawrenceville CBOC, but that the agency transferred her to her current duty station at Oakwood CBOC in 2012 in retaliation for protected activities. IAF, Tab 5 at 8

- 9. She asserted that the transf er to Oakwood CBOC, which is 35 miles away from her home and not accessible by public transportation, caused her “great physical,

m ental, and financial burdens.” Id.4

¶4 In an October 27, 2015 initial decision, the administrative judge dismissed the appeal for lack of jurisdiction without holding the requested hearing . IAF,
Tab 7, Initial Decision (ID). T he administrative judge explained that , insofar as the appellant was asking the Board to enforce the terms of the EEO settlement agreement, the Board lacked jurisdiction because the appellant had not alleged that the EEO settlement agreement had been previously entered into the record of an appeal before the Board

. ID at 1

- 3. The administrative judge also explained that, insofar as the appellant argued that the agency ’ s failure to effect her lateral
transfer to the new Lawrenceville CBOC constituted a prohibited personnel practice under 5 U.S.C. § 2302 (b) , the Board lacks jurisdiction over claims of prohibited personnel practices absent an action that is otherwise appealable t o the
Board. ID at 3

- 4. T he administrative judge further noted that both the June 2, 2015 and July 13, 2015 complaints to OSC contained allegations about the

agency ’ s alleged breach of the February 2015 EEO settlement agreement, among
numerous other all eg ations of agency wrongdoing. ID at 4 n.1. To the extent that the appellant ’ s appeal could be construed as an IRA appeal, t he administr ative judge found that the July 13, 2015 comp laint was premature because 120 days
had not passed since the appellant fil ed the complaint and she had not submitted
to the Board any notice from OSC stating that it had completed its investigation.
Id. The administrative judge informed the appellant of her right to file a n IRA appeal regarding her June 2, 2015 OSC complaint a nd advised her of her burden to establish Board j urisdiction over such a claim. Id. ¶5 The appellant has filed a petition for review of the initial decision
, asserting
that she is not asking the Board to enforce the settlement agreement, but rather filing an IRA appeal challenging the agency ’ s failure to restore her to her prior duty station in Lawrenceville . Petition for Review (PFR) File, Tab 1 at 1

- 2. She

asserts that the agency transferred her to her current duty station from
Lawrenceville in 2012 and that she reported this “retaliatory act” to OSC in August 2012

. Id. at 1

- 2. The appellant argues that she exhausted her5

administrative remed ies concerning th e transfer because it ha s been over 3 years since she filed the OSC complaint, and OSC had not i ssued a decision. Id. at 5

- 6,
8. She further claim s that she ha s exhausted her administrative remed ies as to her July 2015 OSC complaint, which alleged, among other things
, that the agency breached the 2015 settlement agreement
, be cause it had been more than 120 days since she filed the complaint and OSC ha s not issued a decision

. See id. at 2,
11

- 13

. Additionally, she argues that the Board has jurisdiction to hear her appeal
as a mixed

- case appeal and to hear the “non

- EEO matters

. ” Id. at 3

- 5 , 16

- 17. The agency did not respond to the appellant ’ s petition for review. ¶6 As the administrative judge correctly explained, t he Board may not enforce a settlement agreement that has not been entered into the Board ’ s record for enforcement purposes

. See Kreusch v. U.S. Postal Service
, 85 M.S.P.R. 125
, ¶ 4 (2000); 5 C.F.R. § 1201.41 (c)(2). There is no indication in the record, and the appellant has not alleged, that the February 2015 settlement agreement was ever entered into the record of any prior Board proceeding. Accordingly, we agree with the administrative ju dge that the Board has no jurisdiction to enforce the
terms of the February 2015 EEO settlement agreement. ¶7 Furthermore, contrary to the appe llant ’ s argument on review, this is not a mixed case
, and the Board lacks jurisdiction to consider her claim under
mixed

- case procedures. PFR File, Tab 1 at 15. A mixed case involves both a claim of discrimination and a personnel action that is normally appealable to the
Board. 29 C.F.R. § 1614.302 (a)(2); see 5 U.S.C. § 7702 (a)(1)

. Here, the challenge d agency action s

— t he alleged breach of a settlement agreement or the

agency ’ s failure to transfer the appellant to her prior duty station

— are not actions
that are otherwise appealable to the Board. See 5 U.S.C. § 7702 (a) ; King v.
Reid
, 59 F.3d 1215 , 1218

- 19 ( Fed. Cir. 1995) ; 5 C.F.R. § 1201.3

. Because the appellant has not shown that she suffered any otherwise appealable action, the
Board does not have jurisdict ion ov er her appeal as a mixed case

. Likewise, a s the administrative judge correctly explained, the Board lacks jurisdiction over the6

appellant’s claim that the agency committed a prohibited personnel practice by delaying or withholding the transfer becau se, a bsent an otherwise a ppealable action, the appellant’ s claim of a prohibited personnel practice does not provide an independent basis for finding Board jurisdiction. ID at 3; see Davis v. Department of Defense , 103 M.S.P.R. 516
, ¶ 11 (2006). ¶8 T he Board may have jurisdiction , however, to consider the appellant ’ s claim that the agency has delayed or withheld her transfer to Lawrenceville in the
context of an IRA appeal in which she alleges retaliation under the Whistleblower
Protection Act as amended by the Whistleblower Protection Enhancement Act

. See 5 U.S.C. § 1221 ; Becker v. Department of Veterans Affairs
, 107 M.S.P.R.
327 , ¶ 5 (2007)

. The Board has jurisdiction over an IRA appeal if the appellant
has exhausted her administrative re medies before OSC and makes non frivolous

a llegations that: (1) s he engaged in whistleblowing activity by making a protected disclosure, and (2) the disclosure was a contributing factor in the

agency ’ s decision to take or fail to take a personnel action. Yunus v. Department of Veterans Affairs , 242 F.3d 1367 , 1371 (Fed. Cir. 2001). An appellant raising a claim in an IRA appeal can establish that she exhausted her remedies before OSC by showing that she filed a request for corrective action and either OSC has notified her that it was terminating its investigation of her allegations or 120 calendar days have passed since she first sought corrective action. 5 U.S.C. § 1214 (a)(3); Becker
, 107 M.S.P.R. 327 , ¶ 6; 5 C.F.R. § 1209.5 (a). ¶9 On review , the appellant appears to argue that the agency has refused to transfer her to the Lawrenceville CBOC in retaliation for her protected activity and protected disclosures and that she exhausted her administrative remedies with
OSC

. 3 PFR File, Tab 1 at 1

- 2, 4

- 16 . The record reflects that the appellant filed

3 Although the appellant did not raise this argument below, we find it appropr iate to

cons ider her argument for the first time on review because the administrative judge did not put the appellant on notice of her burden to establish Board jurisdiction over an IRA appeal until the initial decision. ID at 4 n.1; see Burgess v. Merit Systems7

complaints with OSC on August 10, 2012, June 2, 2015, and July 13, 2015, which contain numerous allegations of agency wrongdoing

. 4 IAF, Tab 5,
A ttachments 7

- 8. In the initial decision, the administrative judge explained that the appellant could file an IRA app eal in connection with her June 2, 2015 OSC complaint and set forth the appellant ’ s burden to establish Board jurisdiction over

suc h a claim. ID at 4 n.1. The administrative judge further explained that an IRA appeal based on the July 13, 2015 OSC complaint was premature because, as of
the date of the initial decision (October 27, 2015), 120 calendar days had not elapsed since the a ppellant filed the complaint and she had not shown that OSC
had terminated its inve stigation into her allegations. Id. ¶10 The evidence shows that the appel lant filed a complaint with OSC on July 13, 2015 , and there is no indication in the record that the a ppellant received
a termination or close out letter from OSC

. IAF, Tab 5, Attachment 8 at 1

. Thus,

w e find no error in the administrative judge ’ s determination that an I RA appeal arising from the July 13, 2015 complaint was premature when the initial decision
was issued on October 27, 2015

. See 5 U.S.C. § 1214 (a)(3); Jundt v. Department of Veterans Affairs , 1 13 M.S.P.R. 688 , ¶ 6 (2010). Although the appellant has not

Protection Board
, 758 F.2d 641 , 643

- 44 (Fed. Cir. 1985 ) ( stating that an appellant must receive explicit information on what is required t o estab lish Board jurisdiction ).

4 Although the Board may have jurisdiction over an IRA appeal based on the 2015 OSC complaints, the Board lacks jurisdiction to consider the appellant’s potential IRA appeal concerning her 2012 OSC complaint . Pursuant to the te rms of the February 2015 EEO settlement agreement, the appellant agreed to “release[] and forever discharge[] the Agency, its officers, agents and employees, from any and all claims, demands, damages, actions or suits in equity, of whatever kind or nature, whether heretofore accruing, known or unknown.” IAF, Tab 1 at 8. The Board has interpreted such a release to preclude subs equently

- filed IRA appeals based on matters occurring prior to the settlement agreement. See Vogel v. Department of the Navy
, 106 M.S.P.R. 451 , ¶ 8 (2007). Here, the plain mean ing of the settlement agreement’ s terms encompasses claims arising from the 2012 transfer, and we find that the appellant waiv ed her right under the agreement to raise this claim in an appeal before the Board. See Lee v. U.S. Postal Service
, 111 M.S.P.R. 551 , ¶ 7 (2009) (finding that a claim that arose prior to the execution of a settlement agreement was waived under the agreement ’ s ge neral release of all employment claims)
, aff’d 367 F. App’x 137 (Fed. Cir. 2010)

.8

alleged on review that OSC has terminated its investigation into her complaint,
120 days have elapsed since s he filed her J uly 13, 2015 OSC complaint. Accordingly, the appellant’ s IRA appeal is now ripe for adjudication. Because
the Board ’ s practice is to adjudicate an appeal that was premature when it was filed but becomes rip e while pending with the Board , we forward this IRA appeal to the regional office for adjudication

. See Jundt
, 113 M.S.P.R. 688 , ¶ 7

. After docketing this appeal, the administrative judge shall fully inform the appellant of the jurisdictional requirements in an IRA appeal and determine whet her the Board has jurisdiction over this matter as an IRA appeal and then, if appropriate,
determine the merits . In making this determination, the administrative judge
should consider both the July 13, 2015 and the June 2, 2015 OSC complaints. IAF, Tab 5 , Attachments 7

- 8.

NOTICE TO THE APPELL ANT 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.
T he 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 dis missed. 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 c oncerning 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 this9

order. See 5 U.S.C. § 7703 (b)(1)(B) (as rev. eff. Dec. 27, 2012). If you choose to file, be very careful to file on time. You may choose to reques t 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 i n 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 . Ad ditional 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 your 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. The10

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