United States Merit Systems Protection Board

Case Report for July 1, 2011

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: Jodi E. Silberman

Agency: Department of Labor

Decision Number: 2011 MSPB 65

Docket Number: CH-0752-09-0322-I-2

Issuance Date: June 24, 2011

Appeal Type: Adverse Action by Agency

Action Type: Suspension - More than 14 Days

Constitutional Issues – Due Process

The appellant petitioned for review of an initial decision that sustained a 30-day suspension based on a charge of unprofessional behavior. In sustaining the charge, the agency’s deciding official considered not only the charged conduct and 2 previous disciplinary actions that were listed in the agency’s proposal notice, she also considered 5 memoranda in which the appellant’s supervisor documented prior instances of similar conduct by the appellant, which were not listed in the proposal notice. In response to the appellant’s contention that consideration of these memoranda violated her right to due process of law, the administrative judge found that the deciding official properly considered this information only in her determination of the penalty as part of the appellant’s past work record and ability to get along with fellow workers, and that the memoranda were merely cumulative under Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368 (Fed. Cir. 1999).

Holdings: The Board granted the appellant’s petition for review and reversed the 30-day suspension, finding that the agency had violated the appellant’s constitutional right to due process of law:

1. Although the judge may have relied on a line of Board cases that held that, where ex parte information does not relate to the charge itself, but relates instead to the penalty, the Board would not consider such an error as a denial of due process to be analyzed under the factors set forth in Stone, that precedent was overruled by the Federal Circuit’s recent decision in Ward v. U.S. Postal Service, 634 F.3d 1274 (Fed. Cir. 2011).

2. The information in the 5 memoranda cannot be considered merely cumulative because it concerned specific incidents of alleged misconduct of which the appellant was not given notice and an opportunity to respond. Furthermore, the deciding official’s specific identification of the 5 memoranda as factors in her decision shows that the 5 memoranda were material to her decision in this case.

3. Accordingly, the deciding official’s ex parte consideration of the 5 memoranda undermined the appellant’s constitutional due process guarantee of notice and of the opportunity to respond, and the 30-day suspension must be reversed and the matter remanded to the agency to afford the appellant constitutionally correct procedures.

Appellant: Victor R. Ziegler

Agency: Department of the Interior

Decision Number: 2011 MSPB 66

Docket Numbers: DE-3443-06-0454-X-1; DE-3443-06-0455-X-1

Issuance Date: June 28, 2011

Case Type: Compliance Referral

- Settlement Agreement - ADEA and OWBPA

This case was before the Board on the agency’s petition to enforce the parties’ settlement agreement. The appellant has filed multiple (16) civil and administrative actions against the agency in U.S. District Court, the EEOC, and the MSPB. The appellant and the agency reached a global settlement agreement in which the appellant promised to withdraw and release all claims against the agency in exchange for reinstatement to his former position (for purposes of retirement) and the payment of back pay. The agreement includes a “tenderback provision,” which requires the appellant to return “any and all benefits” he received pursuant to the agreement within 60 days of filing or reinstating any cases withdrawn pursuant to the agreement. The agency subsequently filed a petition for enforcement alleging that the appellant filed pleadings in U.S. District Court and the EEOC in violation of the agreement. The appellant responded that he had abided by the settlement agreement with the exception of his attempts to file “in the proper forum” a challenge to the validity of the agreement’s waiver of his Age Discrimination in Employment Act (ADEA) rights. The administrative judge found that the appellant had materially breached the terms of the settlement agreement by filing actions in U.S. District Court and the EEOC and the matter was referred to the Board. Before the full Board, the appellant asserted that he was only challenging whether the agreement met the requirements of the Older Workers Benefit Protection Act (OWBPA) provisions of the ADEA.

Holdings: The Board denied the agency’s petition for enforcement because the appellant did not breach the agreement by challenging the validity of the provisions waiving his rights and claims under the Age Discrimination in Employment Act:

1. Although claims of breach of a settlement agreement are generally adjudicated in accordance with contract law, that is not the case with respect to a waiver of rights and claims under the ADEA, which is governed by the provisions of the OWBPA.

2. Under OWBPA and the EEOC’s implementing regulations, 29 C.F.R.  1625.22(i) and 1625.23(b), an employee may waive claims and covenant not to bring suit on any claims under the ADEA, but cannot surrender the right to challenge the validity of the waiver or covenant. Moreover, an employee cannot be required to tender back the consideration he received as a condition to exercise that right.

3. Accordingly, the appellant was within his rights in seeking to challenge the validity of the ADEA waiver before the EEOC, and he was not obligated to tender back the consideration he was paid in order to do so.