Pamela Long v. Department of Veterans Affairs

Merit Systems Protection Board·Decided July 13, 2023·No. CH-1221-18-0286-C-1·Unpublished

Opinion

UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD

PAMELA LONG, DOCKET NUMBERS Appellant, CH-1221-18-0286-C-1 CH-1221-18-0286-W-1 v.

DEPARTMENT OF VETERANS AFFAIRS, DATE: July 13, 2023 Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Pamela Long, Humboldt, Tennessee, pro se.

Beth K. Donovan, St. Louis, Missouri, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman Raymond A. Limon, Member

FINAL ORDER

¶1 The appellant has filed petitions for review of the initial decisions in these appeals, which dismissed her individual right of action (IRA) appeal as settled, and dismissed her petition for enforcement of that settlement agreement. Generally, we grant petitions such as these only in the following circumstances:

1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future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

the initial decision contains erroneous findings 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; t he 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. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in these appeals, we JOIN them for adjudication on review under 5 C.F.R. § 1201.36. 2 We conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review in her compliance appeal, MSPB Docket No. CH-1221-18-0286-C-1. Therefore, we DENY the petition for review in that appeal and AFFIRM the initial decision, which is now the Board’s final decision on the appellant’s petition for enforcement. 5 C.F.R. § 1201.113(b). The appellant’s petition for review of the initial decision dismissing as settled her IRA appeal, MSPB Docket No. CH- 1221-18-0286-W-1, is DISMISSED as untimely filed without good cause shown. 5 C.F.R. § 1201.114(e), (g).

BACKGROUND ¶2 The agency removed the appellant from her position as a GS-11 Perfusionist, and she filed an appeal. Long v. Department of Veterans Affairs, MSPB Docket No. CH-0714-18-0223-I-1, Initial Appeal File, Tab 1. The agency subsequently rescinded her removal, and the administrative judge dismissed the

2 Joinder of two or more appeals filed by the same appellant is appropriate when doing so would expedite processing of the cases and not adversely affect the interests of the parties. Tarr v. Department of Veterans Affairs, 115 M.S.P.R. 216, ¶ 9 (2010); 5 C.F.R. § 1201.36(a)(2), (b). We find that these appeals meet the regulatory criteria, and therefore join them. See Tarr, 115 M.S.P.R. 216, ¶ 9. 3

appeal as moot. Long v. Department of Veterans Affairs, MSPB Docket No. CH- 0714-18-0223-I-1, Initial Decision (0223 ID) (June 12, 2018). That initial decision became the Board’s final decision when neither party filed a petition for review by July 17, 2018. 0223 ID at 4; see 5 C.F.R. § 1201.113(a). ¶3 The appellant also filed an IRA appeal. Long v. Department of Veterans Affairs, MSPB Docket No. CH-1221-18-0286-W-1, Initial Appeal File (IAF), Tab 1. The parties reached a settlement agreement in that matter. IAF, Tab 14. The administrative judge found that the agreement was lawful on its face and that the parties had freely entered into it, understood its terms, and intende d to have the agreement entered into the record for enforcement purposes. IAF, Tab 16, Initial Decision (ID). She accepted the settlement agreement into the record for enforcement purposes and dismissed the appeal as settled. Id. That initial decision became the Board’s final decision when neither party filed a petition for review by August 20, 2018. Id. at 4; see 5 C.F.R. § 1201.113(a). ¶4 On November 25, 2018, the appellant filed a petition for enforcement of the parties’ settlement agreement. Long v. Department of Veterans Affairs, MSPB Docket No. CH-1221-18-0286-C-1, Compliance File (CF), Tab 1. She alleged the following: (1) the agency and her attorneys induced her to sign the settlement agreement through fraud, misrepresentation, and/or a threat to withdraw or alter the terms of the agreement; and (2) the agency breached the agreement when it failed to provide her a neutral employment reference, resulting in four nonselections for agency positions. CF, Tab 13 at 1-2. 3 ¶5 The administrative judge dismissed the appellant’s petition for enforcement, finding that the appellant was not coerced into signing the agreement. CF, Tab 26, Compliance Initial Decision (CID) at 5-7. She rejected the appellant’s argument that the statutory revocation provisions of the Age Discrimination in

3 The appellant also alleged that the agency had failed to reinstate her health, dental, life, and vision insurance. CF, Tab 1 at 4, Tab 13 at 2. She withdrew these claims at the close of record conference, asserting that they were resolved. CF, Tab 13 at 2. 4

Employment Act (ADEA) or the Older Workers’ Benefits Protection Act (OWBPA) applied in this case because there was no age discrimination claim set forth in the underlying IRA appeal. CID at 7-8. Alternatively, the administrative judge found that, even if the ADEA/OWBPA applied, the appellant did not revoke her agreement during the statutory revocation period . CID at 8. As to the appellant’s allegation that the agency had violated the provision requiring it to give her a neutral employment reference, the administrative judge found that the appellant failed to demonstrate that the agency was not in material compliance . CID at 8-10. Lastly, regarding the timeliness of the petition for enforcement, the administrative judge found that the appellant had filed her petition within a reasonable amount of time after she became aware of the agency ’s alleged breach. CID at 10. In her compliance petition for review, the appellant repeats her contentions that the agency and her attorneys coerced her into signing the settlement agreement, she attempted to revoke the agreement during the ADEA/OWBPA revocation period, and the agency violated the neutral reference clause of their agreement. Compliance Petition for Review (CPFR) File, Tab 1 at 5. The agency has filed a response to the appellant’s compliance petition for review. CPFR File, Tab 6.

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Pamela Long v. Department of Veterans Affairs, (Miss. 2023).

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