UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MELVA D. FLOWERS, DOCKET NUMBER
Appellant, DA-0752-15-0562-I-1
v.
SOCIAL SECURITY DATE: August 17, 2016
ADMINISTRATION,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL *
Melva D. Flowers, Texarkana, Texas, pro se.
Greg White, Esquire, Dallas, Texas, 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 involuntary disability retirement appeal as settled. 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 erroneous
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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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 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, 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 was employed at the agency’s Texarkana, Texas field office
from September 26, 1999, through January 31, 2014, when at the age of 61, after
not reporting for work for about 3 months, she retired on disability. Initial
Appeal File (IAF), Tab 7, Subtab 4b at 4, Subtab 4c at 150, 152, Subtabs 4d‑4e.
After her retirement, she filed a formal equal employment opportunity (EEO)
complaint on June 1, 2014. IAF, Tab 7, Subtab 4c at 31-33. The Report of
Investigation (ROI) for her EEO complaint states that the appellant alleged that
her first‑line supervisor, M.W., harassed her because of her age, disability, and
political affiliation, forcing her into retirement. Id. at 31-32. On July 21, 2015,
the agency issued a Final Agency Decision (FAD) denying the complaint. IAF,
Tab 7, Subtab 4b. The agency informed the appellant of her mixed-case appeal
rights before the Board. Id. at 16.
¶3 The appellant filed this appeal, alleging that she involuntarily retired when
agency management changed her job duties to those that were incompatible with
her alleged disabilities. IAF, Tab 1 at 2, 9. On November 24, 2015, the day of
the hearing, the parties advised the Board that they had settled the appeal. IAF,
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Tab 18, Hearing Compact Disc (HCD). However, they acknowledged the
settlement agreement could not be accepted into the record for enforcement
purposes because the issue of the Board’s jurisdiction was unresolved. Id.
Accordingly, the administrative judge dismissed the appeal as settled, but
explained that the Board did not retain enforcement authority. IAF, Tab 19,
Initial Decision (ID); Adkins v. U.S. Postal Service, 86 M.S.P.R. 671, ¶ 10 (2000)
(finding that an administrative judge, before accepting a settlement agreement
into the record, must first determine whether the underlying appeal is within the
Board’s jurisdiction).
¶4 On review, the appellant seeks to invalidate the settlement agreement and
reinstate her appeal, including the affirmative defenses that were the subject of
her EEO complaint. Petition for Review (PFR) File, Tab 1. She argues that the
administrative judge gave her incorrect information during presettlement
discussions, and, but for that information, she would not have settled her
appeal. Id. at 1. Specifically, the appellant asserts that the administrative judge
told her that if she established the Board’s jurisdiction over her involuntary
retirement appeal, then she would have to return to work and repay benefits she
had received. PFR File, Tab 3 at 14. The appellant avers on review that she later
learned from an unnamed Social Security Administration claims representative
that she would not have had to repay all of these benefits had she established the
Board’s jurisdiction. PFR File, Tab 1 at 1. She explains that she accepted the
settlement offer reluctantly because she could not afford to repay the benefits
outright and she knew that the income she received from working would be
garnished to meet her obligations. Id. She also avers that she retired because of a
hostile work environment, and she reiterates several allegations related to that
claim. Id. at 1‑2.
¶5 A party challenging the validity of a settlement agreement bears a heavy
burden of showing a basis for invalidating it. Adkins, 86 M.S.P.R. 671, ¶ 7
(citing Bynum v. Department of Veterans Affairs, 77 M.S.P.R. 662, 665 (1998)).
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Coercion by the administrative judge may form a basis for invalidating an
agreement. Lewis v. Department of the Navy, 44 M.S.P.R. 373, 376 (1990). The
appellant has alleged coercion because of the administrative judge’s purportedly
misleading statements regarding her obligation to repay benefits she had received,
if she were returned to her former job. PFR File, Tab 1 at 1.
¶6 The appellant has not successfully alleged coercion. First, her allegations
regarding the administrative judge’s remarks are not set forth in an affidavit or a
sworn statement, nor are they supported by a statement from any person who
witnessed her conversation with the administrative judge. They are merely
allegations, which do not meet her burden of proof. Betterly v. Department of
Veterans Affairs, 47 M.S.P.R. 63, 65 (1991) (holding that assertions not made in
an affidavit or sworn statement are simply allegations); cf. Schaefer v. U.S. Postal
Service, 42 M.S.P.R. 592, 595 (1989) (holding that unrebutted affidavits
constitute evidence of the matters asserted therein, and, if uncontested, such
affidavits prove the facts they assert).
¶7 Even if the appellant’s allegations had been made under oath, nothing in her
petition for review establishes that she did not freely enter into the settlement
agreement. See Candelaria v. U.S. Postal Service, 31 M.S.P.R. 412, 413 (1986)
(holding that, to establish that a settlement resulted from coercion or duress, a
party must prove that she involuntarily accepted the other party’s terms, that
circumstances permitted no alternative, and that such circumstances were the
result of coercive acts by the other party). An appellant’s bare assertion that she
was coerced does not form a basis for voiding the agreement. Cf. Bowie v. U.S.
Postal Service, 72 M.S.P.R. 42, 45 (1996); Betterly, 47 M.S.P.R. at 65-66.
Conversely, the appellant’s request to the agency to reinstate a previously
extended offer of settlement shows that she still is interested in negotiating with
the agency, which effectively defeats her allegation that her decision to settle was
involuntary. PFR File, Tab 3 at 14.
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¶8 The appellant’s assertions are further diminished by the fact that she was
represented during the settlement process. She had two union representatives,
one of whom was an attorney, at meetings where settlement was discussed, and
she conferred with both representatives prior to signing the
agreement. Id. at 14-15; see ID at 1. Her attorney representative told the agency
representative that he gave her the same information that the administrative judge
provided. PFR File, Tab 3 at 14. At least one of her representatives also assisted
with the drafting of the agreement and reviewed the agreement with her before
she signed it. Id. at 15. The appellant did not voice any opposition to the
agreement at that time or when the parties appeared before the administrative
judge. Id.; HCD. Indeed, she told the administrative judge that she freely and
voluntarily entered into the agreement. HCD. She acknowledged in the
agreement itself that she “carefully read and fully understands all of the terms and
conditions of this Agreement” and that she “freely and voluntarily” entered into
it. PFR File, Tab 3 at 16. Finally, the appellant has not in any way substantiated
her claim that she received advice that conflicted with the information the
administrative judge gave her from an unnamed claims representative after she
agreed to settle her case. In any event, assuming it is true that the administrative
judge told the appellant that she might have to repay some or all of the benefits
she had received if she were returned to her former position, we find nothing
inherently wrong in such advice, generally speaking.
¶9 We thus find that the appellant failed to establish any basis for invalidating
the settlement agreement. We will not reach the merits of the underlying appeal,
including the mixed‑case issues she raises on review.
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NOTICE TO THE APPELLANT 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. 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 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
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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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.