UNITED STATES OF AMERICA 

MERIT SYSTEMS PROTECTION BOARD 

2007 MSPB 134 

Docket No. AT-0752-06-0968-I-1 

Mitchell G. Johnson, 

Appellant, 

v. 

United States Postal Service, 

Agency. 

May 9, 2007 

Albert Lum, Esquire, Maspeth, New York, for the appellant. 

Edward M. Gilgor, Esquire, Atlanta, Georgia, for the agency. 

BEFORE 

Neil A. G. McPhie, Chairman 

Mary M. Rose, Vice Chairman 

Barbara J. Sapin, Member 

OPINION AND ORDER

¶1 The appellant has timely filed a petition for review of an initial decision 

dismissing his appeal of his demotion for lack of jurisdiction. For the reasons set 

forth below, we GRANT the petition under 5 C.F.R. § 1201.115, VACATE the 

initial decision, and REMAND the appeal for further adjudication. 

BACKGROUND

¶2 On December 8, 2003, the appellant and the agency entered into a 

settlement agreement whereby the agency agreed to change the appellant’s 

proposed reduction in grade and pay to “a letter of warning in lieu of a 30-day 

suspension.” Initial Appeal File (IAF), Tab 4, Ex. 1 at 1-3. In exchange, the 
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appellant agreed not to engage in conduct including, but not limited to, 

“inappropriate remarks of a sexual, offensive[,] or other improper nature and/or 

inappropriate physical contact with customers or postal employees.” Id. at 2. 

The appellant also agreed that “any further similar incidents of improper conduct 

. . . [would] result in [his] immediate reduction in grade and pay to a Level 05/O 

PTF clerk position, without avenue of appeal.” Id. 

¶3 On May 25, 2006, the agency proposed to reduce the appellant from 

Supervisor, Customer Services, EAS-17, to Part Time Flexible Sales and 

Service/Distribution Associate, level 5/O. IAF, Tab 4, Ex. 2 at 1-3. The 

agency’s proposed reduction in grade and pay was based on a single charge of 

“improper conduct – violation of resolution of proposed adverse action.” Id. at 1 

(capitalization omitted). The charge brought against the appellant was based on 

the allegations of Rural Carrier Shirley Hallman. Id. at 1-2. The charge specified 

that on or about December 5, 2005, Ms. Hallman contacted the North Florida 

District Equal Employment Opportunity Office and alleged that, in the past, the 

appellant subjected her to inappropriate comments and unwelcome touching. Id. 

Ms. Hallman also alleged that she was the victim of third-party sexual harassment 

based on the appellant’s conduct toward Rural Carrier Associate Julia White. Id. 

After an investigation of Ms. Hallman’s allegations, the agency decided to 

demote the appellant. IAF, Tab 4, Ex. 3 at 1-2. 

¶4 The appellant appealed his demotion to the Board’s Atlanta Regional 

Office and requested a hearing. IAF, Tab 1 at 4. The agency filed a motion to 

dismiss the appeal for lack of jurisdiction arguing that the appellant waived his 

right to appeal in the December 2003 settlement agreement. IAF, Tab 4 at 1. The 

administrative judge issued an Order to Show Cause directing the appellant to 

show why his appeal should not be dismissed for lack of jurisdiction. IAF, Tab 5 

at 1-2. The appellant argued, inter alia, that he did not violate the settlement 

agreement and that his waiver of appeal rights in the settlement agreement was no 
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longer effective at the time of the alleged misconduct.*

 IAF, Tab 6 at 1-2, Tab 7 

at 1-3. The agency argued that the settlement agreement was still in effect when 

it proposed his demotion and that the appellant’s “blanket” denial of the 

allegation in the notice of proposed action did not constitute a nonfrivolous 

allegation of jurisdiction. IAF, Tab 8 at 4-6, 8-9. The administrative judge 

issued an initial decision that dismissed the appeal for lack of jurisdiction finding 

that, under the settlement agreement, the appellant waived his right to appeal the 

demotion if he violated the settlement agreement within three years of its 

execution. IAF, Tab 9, Initial Decision (ID) at 2-3. 

¶5 The appellant has filed a timely petition for review of the initial decision. 

Petition for Review File (PFRF), Tab 1. The agency has filed a timely response 

opposing the appellant’s petition for review. PFRF, Tab 3. 

ANALYSIS

¶6 The appellant bears the burden of proving that his appeal is within the 

Board’s jurisdiction. See 5 C.F.R. § 1201.56(a)(2)(i); Hamiter v. U.S. Postal 

Service, 96 M.S.P.R. 511, ¶ 8 (2004). To establish that a waiver of appeal rights 

in a settlement agreement should not be enforced, an appellant must show one of 

the following: He complied with the agreement; the agency materially breached 

the agreement; he did not voluntarily enter into the agreement; or the agreement 

was the result of fraud or mutual mistake. See Zordel v. Department of Defense, 

99 M.S.P.R. 554, ¶ 13 (2005); Hamiter, 96 M.S.P.R. 511, ¶ 8. Where an 

appellant raises a nonfrivolous factual issue of compliance with a settlement 

 

*

 The appellant also argued that the agency’s motion to dismiss for lack of jurisdiction 

was untimely. IAF, Tab 6 at 1-2, Tab 7 at 2-3. He has raised this argument again on 

review. Petition for Review File, Tab 1 at 6. The administrative judge correctly 

considered the agency’s arguments regarding jurisdiction as the issue of jurisdiction is 

always before the Board. IAF, Tab 9 at 1-3; see, e.g., Muyco v. Office of Personnel 

Management, 104 M.S.P.R. 557, ¶ 9 (2007) (the issue of Board jurisdiction is always 

before the Board and may be raised by either party or sua sponte by the Board at any 

time during the proceeding). 
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agreement, the Board must resolve that issue before addressing the scope and 

applicability of a waiver of appeal rights in the agreement. Zordel, 99 M.S.P.R. 

554, ¶ 13. Nonfrivolous allegations of Board jurisdiction are allegations of fact 

which, if proven, could establish a prima facie case that the Board has 

jurisdiction over the matter at issue. Id.; see Garcia v. Department of Homeland 

Security, 437 F.3d 1322, 1344 (Fed. Cir. 2006) (en banc) (nonfrivolous claims are 

“claims that, if proven, establish the Board’s jurisdiction”). 

¶7 The settlement agreement provides that the appellant will be demoted upon 

any “failure to adhere” to the terms of the agreement. IAF, Tab 4, Ex. 1 at 1-2. 

The appellant argued before the administrative judge that the agency could not 

demote him under the terms of the settlement agreement because he had not 

breached it. IAF, Tab 7 at 2. The agency’s determination that the appellant had 

breached the settlement agreement was based on the allegations of Ms. Hallman 

and a follow-up investigation. IAF, Tab 4, Ex. 2 at 1-3. The agency’s notice of 

proposed adverse action repeated Ms. Hallman’s allegations that the appellant 

rubbed her back and told her that he “would love her forever if she carried an end 

[sic].” Id. at 1. Ms. Hallman further alleged that she requested time off for a 

doctor’s appointment and the appellant responded “that she didn’t need to see a 

doctor, that she just needed to drink some Jack Daniels.” Id. 

¶8 The notice of proposed adverse action also noted as follows: 

Ms. Hallman allege[d] that she has been a victim of third party 

sexual harassment in that [the appellant has] engaged in 

inappropriate behavior with Rural Carrier Associate [Ms.] White. 

Ms. Hallman allege[d] that [the appellant has] made numerous 

comments and jokes of a sexual nature to Ms. White, that [the 

appellant has] hugged Ms. White and rubbed her back and that [he 

has brought] coffee to Ms. White on a daily basis. Further, Ms. 

Hallman allege[d] that Ms. White has received preferential treatment 

from [the appellant], such as being provided with assistance on a 

route on which she was previously denied assistance, being provided 

with a postal vehicle, and, being given Saturdays off. 
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Id. at 1-2. The agency claimed that its investigation confirmed Ms. Hallman’s 

allegations, as agency employees reported that the appellant engaged in the 

following activities: (1) brought coffee to Ms. White on a regular basis; (2) 

hugged Ms. White and other female employees and patted them on their backs; 

(3) made inappropriate and suggestive comments to Ms. White and other 

employees; (4) called Ms. White and other female employees honey and/or baby; 

and (5) “ogled” Ms. White. Id. at 2. The agency also indicated in the notice of 

proposed adverse action that the “[e]mployees perceived that Ms. White received 

favoritism in work assignments, scheduling and in the way she [was] allowed to 

dress.” Id. 

¶9 Certainly, some of the foregoing activities might violate the settlement 

agreement’s requirement that the appellant not engage in “inappropriate remarks 

of a sexual, offensive[,] or other improper nature and/or inappropriate physical 

contact with customers or postal employees.” IAF, Tab 4, Ex. 1 at 2. However, 

in responding to the agency’s motion to dismiss and the show-cause order below, 

the appellant generally denied that he violated the settlement agreement. IAF, 

Tab 6 at 1, Tab 7 at 2. More specifically, he denied that “he committed the 

infractions cited in the notice of proposed action [and] disput[ed] the veracity of 

the allegations by [Ms. Hallman].” IAF, Tab 7 at 2. The appellant further 

asserted that numerous employees interviewed during the investigation stated that 

the allegations brought against him were misleading and untrue. Id. Included 

with the appellant’s response to the agency’s motion to dismiss are alleged 

summaries of the interviews of the appellant and five other agency employees 

undertaken as part of the investigation. Id., Exs. A-F. The accuracy of those 

summaries is unclear; however, they do uniformly state that those five other 

employees were unaware of any inappropriate conduct by the appellant. Id. 

According to the summary of Ms. White’s interview, she admits that the appellant 

has brought her coffee and that the two have hugged. Id., Ex. C. The summary 

fails to describe the context of her interaction with the appellant, however, stating 
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only that she did not believe that the appellant “has ever crossed the line with any 

actions or comments to her.” Id. 

¶10 The appellant, at this stage of his appeal, is not required to prove the 

jurisdictional threshold issue of compliance with the settlement agreement, but 

need only nonfrivolously allege it. See Stewart v. U.S. Postal Service, 926 F.2d 

1146, 1148-49 (Fed. Cir. 1991); Hamiter, 96 M.S.P.R. 511, ¶ 12. The appellant’s 

general denial of the agency’s allegations, along with the interview summaries, 

constitute a nonfrivolous allegation that he did not violate the settlement 

agreement. Thus, he is entitled to a hearing to determine whether he, in fact, 

complied with the settlement agreement. See Stewart, 926 F.2d at 1148-49; 

Hamiter, 96 M.S.P.R. 511, ¶ 12. 

¶11 If the appellant fails to show compliance with the settlement agreement, the 

Board must determine the scope and applicability of the agreement’s wavier 

provision. See Hamiter, 96 M.S.P.R. 511, ¶ 13. 

¶12 On review, the appellant argues, as he did below, that the settlement 

agreement was only valid for two years after it was signed and, therefore, expired 

on December 2, 2005. PFRF, Tab 1 at 3-6; IAF, Tab 7 at 1. The appellant relies 

on a provision appearing on the signature page of the settlement agreement that 

reads as follows: 

I, Mitchell Johnson, have read and understand the conditions and 

restrictions set forth in the above agreement. I am mentally and 

physically fit so as to be able to understand this agreement in its 

entirety. I know and understand that I may have appeal rights to the 

Merit Systems Protection Board, the 650 appeals procedure, NLRB, 

and EEO with respect to any removal action [sic] taken against me. I 

know and understand that I have waived my appeal rights through 

any and all forums and avenues including, but not limited to, the 

Merit Systems Protection Board, the 650 appeals procedures, and 

EEO, for any reduction in grade and pay initiated against me for 

violation of this settlement agreement during this two-year period. I 

freely sign this agreement without reservation, duress, or coercion on 

the part of anyone. I agree to abide by the terms of this agreement. 
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IAF, Tab 4, Ex. 1 at 3 (emphasis added). The agency argues that the reference to 

a two-year period in that provision is erroneous. PFRF, Tab 3, Agency’s 

Response to the Petition for Review at 5-8. The agency claims that the parties 

intended that the appellant’s waiver of appeal rights would be effective for three 

years, as a three-year period was used in other provisions of the agreement, 

including a passage that reads as follows: 

All parties agree with this resolution and waive further appeal of this 

action and any other action caused by violation of any of the above 

for a period not to exceed three years. The wavier of appeal rights 

includes, but is not limited to, those under the Merit Systems 

Protection Board (MSPB); the 650 appeals procedures; the National 

Labor Relations Board (NLRB); and EEO Forums; Federal and Civil 

Courts. 

Id.; IAF, Tab 4, Ex. 1 at 2 (emphasis added). As the agreement is reasonably 

susceptible to more than one interpretation, we find it appropriate to examine 

extrinsic evidence of the parties’ intent on this issue. See Wells v. U.S. Postal 

Service, 52 M.S.P.R. 497, 500-01 (1992) (where the terms of a settlement 

agreement are reasonably susceptible of more than one interpretation, extrinsic 

evidence will be considered); see also Greco v. Department of the Army, 852 F.2d 

558, 560 (Fed. Cir. 1988) (in interpreting a settlement agreement, the court will 

determine the intent of the parties at the time they contracted as reflected in the 

contract terms and, if there is any ambiguity in the contract language, with 

recourse to other evidence of the parties’ intent). Thus, the administrative judge 

should allow the parties to further develop the record on this issue on remand, 

including hearing testimony if necessary. 
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ORDER

¶13 Accordingly, we remand this appeal to the Atlanta Regional Office for 

further development of the record, a hearing, and the issuance of a new initial 

decision consistent with this Opinion and Order. 

FOR THE BOARD: 

______________________________ 

Bentley M. Roberts, Jr. 

Clerk of the Board 

Washington, D.C.