United States Merit Systems Protection Board

Case Report for May 28, 2010

These summaries are descriptions prepared by individual MSPB employees. They do not represent official summaries approved by the Board itself, and are not intended to provide legal counsel or to be cited as legal authority.  Instead, they are provided only to inform and help the public locate Board precedents.



Appellant: Joan M. Young

Agency: United States Postal Service

Decision Number: 2010 MSPB 92

Docket Number: AT-0752-09-0177-C-1

Issuance Date: May 21, 2010

Appeal Type: Adverse Action by Agency

Action Type: Constructive Adverse Action

Compliance – Settlement-Related
- Breach
- Interpretation/Construction

The appellant petitioned for review of a compliance initial decision that denied her petition for enforcement. The underlying appeal of an alleged enforced leave for more than 14 days was resolved by a written settlement agreement in which the appellant agreed to withdraw her appeal, and the agency agreed to provide back pay for half of the period the appellant was on enforced leave. In addition, the agency agreed to reinstate the appellant to her position if she submitted to a psychiatric fitness-for-duty examination that determined that she was medically capable of returning to duty. The appellant exercised her option under the agreement of selecting the examining psychiatrist without consultation with the agency. The agreement required her to “provide releases for any medical documentation from prior medical examiners for the same condition at issue . . . for analysis and consideration by the independent medical examiner.” Dr. Ruth, the independent medical examiner selected by the appellant, concluded that the appellant has persisting psychiatric difficulties that prohibited her from resuming her position at the Postal Service.

The appellant contended that the agency breached the agreement by disclosing documents concerning her to Dr. Ruth, and that his opinion was “influenced” and “biased” by the amount and scope of material the agency sent Dr. Ruth. In denying the appellant’s petition for enforcement, the administrative judge found that she failed to prove that the agency improperly interfered with Dr. Ruth’s examination by providing him with documents for his consideration and through the interactions of its Associate Medical Director, Dr. Butler. The judge found that it was necessary for Dr. Butler to communicate with Dr. Ruth so that Dr. Ruth had the information necessary to conduct the fitness-for-duty examination, and that the agency did not breach the agreement by providing Dr. Ruth with information and documents concerning the appellant’s job description, medical conditions, and communications between the appellant and the Office of Workers’ Compensation Programs. The administrative judge found that, while the settlement agreement did not expressly provide that the agency would provide these documents, the agreement also did not preclude such action.

Holdings: The Board vacated the initial decision and remanded the case to the regional office for further adjudication:

1. In order to decide the ultimate issue in this case – whether the agency materially breached the settlement agreement when it communicated with and disclosed documents concerning the appellant to Dr. Ruth – it is necessary to resolve 3 issues: (1) what the parties intended and understood by the term “independent medical examination”; (2) which documents the agency disclosed to Dr. Ruth; and (3) whether the disclosures made by the agency constitute a breach of the agreement. The present record is inadequate to make these findings.

2. The term “independent medical examination” is ambiguous, i.e., reasonably susceptible of more than 1 reasonable interpretation. In such circumstances, extrinsic evidence should be used to determine the intent of the parties at the time of the agreement.

a. One reasonable interpretation is, as the appellant contends, that the examination is wholly independent from any involvement or influence by the agency.

b. Another reasonable interpretation is that “independent medical examination” is a term of art, and that the agency’s pattern and practice is to submit to the examining physician relevant medical information, and any relevant information concerning the employee’s job and her ability to perform her job. The agency contends that the medical examination is “independent” in such circumstances, in that the physician does not work for either of the parties and has not evaluated the employee in the past.

3. The record is not sufficiently developed to determine when and what documents the agency disclosed to Dr. Ruth.

4. The Board summarized the possible outcomes on remand:

a. If the administrative judge finds that the parties did not have a meeting of the minds with respect to the term “independent medical examination,” that neither party had reason to know of the meaning attached by the other, and that this term is an essential part of the agreement, then the judge shall allow the appellant the opportunity to: (1) set aside the settlement agreement and reinstate her enforced leave appeal; or (2) accept the settlement agreement under the agency's interpretation of the term.

b. If the judge finds that (1) the parties did not have a meeting of the minds and the appellant accepts the agency’s interpretation of the term “independent medical examination,” or (2) the record evidence establishes that one interpretation of the term controls over another, then the administrative judge shall determine whether the agency’s communications with and disclosures to Dr. Ruth were permissible in light of the governing interpretation. If the agency’s disclosures to Dr. Ruth were consistent with the terms of the agreement, then the agency has not breached the agreement and the appellant’s petition for enforcement must be denied.

c. If the judge finds that the agency’s communications with and disclosures to Dr. Ruth were inconsistent with the terms agreed upon by the parties, in light of the parties’ mutual understanding of what constitutes an “independent medical examination,” then the administrative judge must determine whether the agency’s actions constitute a material breach of the settlement agreement. If the administrative judge finds that a material breach occurred, then the administrative judge shall determine the appropriate remedy for such breach.

Appellant: Rodney B. Schwartz

Agency: Department of Education

Decision Number: 2010 MSPB 93

Docket Number: DC-0752-09-0612-I-1

Issuance Date: May 21, 2010

Appeal Type: Adverse Action by Agency

Action Type: Removal

Discrimination – Age
Settlement - Validity

The appellant petitioned for review of an initial decision that dismissed his removal appeal as settled.

Holdings: The Board vacated the initial decision to the extent that it dismissed the appellant’s age discrimination claim as settled, affirmed the initial decision to the extent that it dismissed the remainder of the appellant’s claims as settled, and remanded the case to the regional office for further adjudication of the age discrimination claim:

1. The appellant’s contention that the agency sent him a written version of the settlement agreement that was inconsistent with the oral agreement does not alter the validity of the oral settlement agreement.

2. The appellant’s claim that the settlement agreement should be invalidated because the agency misinformed him about retirement information is without merit. The appellant’s ambiguous assertion that accurate retirement information would have “affected [his] thinking about any settlement” does not constitute an allegation that accurate information would have caused him not to settle, and nothing in the record shows that the appellant made any inquiries on this matter prior to settlement or that it was the subject of any negotiation between the parties.

3. The oral settlement agreement fails to comply with Older Workers Benefit Protection Act of 1990 (OWBPA), 29 U.S.C.  626(f)(1)-(2) and the EEOC’s implementing regulation, 29 C.F.R.  1625.22(b)(2), because the agreement does not explicitly refer to waiver of claims rising under the Age Discrimination in Employment Act (ADEA), there is no indication that the agency ever advised the appellant in writing to consult with an attorney prior to entering into the agreement, and because the waiver of an ADEA claim must be in writing.

4. The agency’s failure to comply with OWBPA affects only the appellant’s waiver of his age discrimination claim; the waiver of his other claims remains in effect. On remand, the administrative judge shall afford the appellant the opportunity to choose between renewing his age discrimination claim and ratifying the waiver of that claim in compliance with OWBPA.

Appellant: Leroy Alford

Agency: Department of Defense

Decision Number: 2010 MSPB 94

Docket Number: DC-0752-08-0070-X-1

Issuance Date: May 21, 2010

Appeal Type: Adverse Action by Agency

Action Type: Constructive Adverse Action


This case was before the Board based on the administrative judge’s recommendation finding that the agency was not in compliance with a final Board order. In the proceeding on the merits, the judge reversed the agency’s action terminating the appellant’s employment and ordered his restoration with back pay and other benefits. In his petition for enforcement (PFE), the appellant claimed that the agency had not complied with a number of its obligations. While the PFE was pending, the agency removed the appellant a second time based on his alleged unacceptable performance, which is the subject of a separate appeal. The administrative judge found that the agency was not in compliance concerning the payment of interest on back pay and the payment of an additional amount to compensate the appellant for any additional income tax burdens he incurred. Regarding the other matters raised in the PFE, the judge found that the agency was in compliance with its obligations, the issues were moot, or that the issues were not matters properly raised in a petition for enforcement.

Holdings: The Board found that the agency has demonstrated partial compliance as to the matters in which the administrative judge found the agency to be in noncompliance, and it dismissed those matters as moot. The Board vacated the portion of the compliance recommendation addressing whether the appellant was properly restored to his position and duties, and forwarded that matter to the regional office for adjudication as part of the current removal appeal.

Appellant: Manuel V. Custodio

Agency: Office of Personnel Management

Decision Number: 2010 MSPB 95

Docket Number: SF-0831-09-0810-I-1

Issuance Date: May 25, 2010

Action Type: Retirement/Benefit Matter

Timeliness – PFA

The appellant petitioned for review of an initial decision that dismissed his appeal of an OPM decision as untimely filed. In a letter issued in August 2007, OPM notified the appellant of its determination that he was not entitled to retirement benefits because he had received a refund of his retirement contributions. The letter indicated that it was OPM’s “final decision,” and that the appellant had the right to appeal its determination to the Board within 30 calendar days after receipt of the letter. Less than 30 days after the issuance of OPM’s letter, the appellant asked OPM to reconsider its decision. OPM responded that it had already sent him an “initial final decision” informing him of his Board appeal rights. However, the appellant “decline[d]” to file with the Board and continued to seek reconsideration, and there was considerable correspondence between the appellant and OPM in which OPM indicated that it would issue a reconsideration decision, but it never did so. The appellant filed an appeal with the Board in July 2009, which the administrative judge dismissed as untimely filed without good cause shown for the nearly 2-year filing delay.

Holdings: The Board granted the appellant’s petition for review, reversed the initial decision, and remanded the appeal for adjudication on the merits.

1. The appeal was untimely filed by 22 months.

2. Generally, an appellant’s failure to follow explicit filing instructions does not constitute good cause for an ensuing delay. An exception applies where, as here, an appellant mistakenly files a request for review of OPM’s final decision with OPM instead of the Board, and does so within the time period for filing a Board appeal. Good cause exists in such cases where: (1) the delay was caused not only by the appellant’s failure to follow the instructions in OPM’s final decision, but also in part by OPM’s failure to redirect the otherwise timely appeal to the Board; (2) the appellant clearly intended to seek further review; (3) the appellant was proceeding pro se; and (4) there is no evidence that granting a waiver of the filing deadline would be prejudicial to OPM. Each of these conditions is satisfied here.

Appellant: Rex T. Nelson

Agency: United States Postal Service

Decision Number: 2010 MSPB 96

Docket Number: CH-0752-08-0811-I-2

Issuance Date: May 25, 2010

Appeal Type: Adverse Action by Agency

Action Type: Removal

Board Procedures/Authorities
- Dismissals – With/Without Prejudice
Timeliness – Refiled Appeal

The appellant petitioned for review of an initial decision that dismissed his refiled appeal as untimely filed. The appellant timely appealed his August 2008 removal. The agency moved to dismiss the appeal pending adjudication of the concurrent criminal prosecution against the appellant for embezzling postal funds. The administrative judge issued an initial decision in November 2008 dismissing the appeal without prejudice to refiling by May 13, 2009, and the Board denied the appellant’s petition for review of that decision. The appellant refiled his appeal in September 2009, nearly 4 months after the May 13 refiling deadline. The administrative judge issued an initial decision dismissing the appeal as untimely filed without good cause shown for the filing delay. The judge found that the previous initial decision unequivocally established a May 13, 2009 deadline for refiling and stated that an appeal refiled after that date would be dismissed absent good cause. The judge further found that there was no support for the appellant’s allegations that he had 6 months to refile from the Board’s Final Order denying his petition for review, or 60 days to refile from the end of his criminal trial.

Holdings: The Board affirmed the initial decision as modified, still dismissing the refiled appeal as untimely:

1. The appellant failed to show that he timely refiled his appeal.

2. The appellant failed to show that good cause exists for his untimely filing under the specific standards the Board applies to refiled appeals and appeals dismissed without prejudice pending the resolution of criminal cases.

a. The Board has repeatedly held that its dismissal without prejudice practice should not become a trap to deny an appellant the opportunity to have his case decided on the merits.

b. The standards applicable to determining whether good cause exists for excusing an untimely refiled appeal of a matter dismissed without prejudice pending the resolution of criminal proceedings include the following: the appellant’s pro se status; the timeliness of the initial appeal; the appellant’s demonstrated intent throughout the proceedings to refile the appeal; the length of the delay in refiling; confusion surrounding and arbitrariness of the refiling deadline; the number of prior dismissals without prejudice; the agency’s failure to object to the dismissal without prejudice; and the lack of prejudice to the agency in allowing the refiled appeal.

c. Although it is true that this pro se appellant did timely file his initial appeal, the appeal was previously dismissed without prejudice only once and at the agency’s request, and there is no apparent prejudice to the agency in allowing the refiled appeal, the record does not otherwise support finding that the appellant established good cause to excuse his untimely filing. The initial decision clearly identified the date for refiling and warned the appellant of the consequence of not refiling by that date. The deadline was not arbitrary, but based on the agency’s estimate of when the criminal proceedings would be concluded, and the appellant failed to provide any evidence justifying any confusion over the deadline. Even considering the delay in the light most favorable to the appellant, he still waited approximately 1 months after the conclusion of his criminal case to refile the appeal.


Petitioner: Linda S. Hubbard

Respondent: Merit Systems Protection Board

Tribunal: U.S. Court of Appeals for the Federal Circuit

Docket Number: 2009-3242

Issuance Date: PH-844E-09-0317-I-1

Timeliness – PFA

Hubbard sought review of a final Board decision that dismissed, as untimely filed, an appeal from OPM’s denial of her application for disability retirement annuity benefits. OPM’s determination was contained in a November 5, 2008 letter to Hubbard, in which it notified her of her right to appeal to the Board and that, if she wanted to exercise that right, an appeal “must be filed within 30 calendar days after the date of this decision, or 30 days after receipt of this decision, which is later.” Hubbard did not file an appeal with the Board until March 5, 2009. The Board’s administrative judge issued an order advising Hubbard that the appeal may be untimely, and directing the appellant to file evidence and argument demonstrating that the appeal was timely filed or that good cause exists for the delay. Four days after the deadline for receiving evidence and argument on timeliness, the administrative judge issued an initial decision dismissing the appeal as untimely filed without good cause shown, noting that Hubbard had failed to respond to the order.

On appeal to the court, Hubbard contended that, since the record does not show when she received OPM’s November 2008 decision, the administrative judge had no basis for ruling that her appeal was untimely. In making this argument, she relied on the court’s ruling in Hamilton v. Merit Systems Protection Board, 75 F.3d 639 (Fed. Cir. 1996), and the Board’s decision in Williams v. Equal Employment Opportunity Commission, 75 M.S.P.R. 144 (1997). In Hamilton, the court reversed a Board decision because the administrative judge failed to tell the employee that he “simply presumed the appealed action was received by the employee five days after the date it bears.” In Williams, the Board adopted as standard procedure the court’s statement in Hamilton that “[b]efore dismissing an appeal, an administrative judge should inform an appellant of the date that a document triggering the running of the appeal period will be presumed to have been received, in the absence of direct evidence.”

Holdings: The court affirmed the Board’s decision:

1. In the present case, unlike Hamilton, nothing in the record indicates or even suggests that, in determining the timeliness of the appeal, the administrative judge relied on any presumption that the employee received OPM’s decision within a specified period of time. The administrative judge dismissed the appeal as untimely solely because “the appellant herself has not attempted to demonstrate that the appeal should be considered timely filed.”

2. To this day, Hubbard has not submitted any facts showing either that she filed within 30 days of receiving OPM’s reconsideration decision or that there was good cause for her failure to do so.