                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     GREGORY W. COFIELD,                             DOCKET NUMBER
                  Appellant,                         SF-0752-14-0114-B-1

                  v.

     DEPARTMENT OF DEFENSE,                          DATE: December 2, 2015
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Gregory W. Cofield, Fairfield, California, pro se.

           Stacey Turner Stokes, Esquire, Fort Lee, Virginia, 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 remand compliance
     initial decision, which denied his petition for enforcement of a settlement
     agreement resolving his removal appeal. 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 interpretation of statute or

     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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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 remand compliance
     initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).

                                        BACKGROUND
¶2            The appellant filed a Board appeal challenging his removal from his
     position as a part-time Store Associate. Cofield v. Department of Defense, MSPB
     Docket No. SF-0752-14-0114-I-1, Initial Appeal File (IAF), Tab 1 at 3, 8, Tab 6
     at 14.      While that appeal was pending, the parties executed a settlement
     agreement, pursuant to which the agency agreed, among other things, to rescind
     the removal action and reinstate the appellant. IAF, Tab 11. The administrative
     judge found that the agreement appeared lawful on its face, that the parties
     indicated that they understood the terms of the agreement, that it was freely
     reached, and that the parties wanted it entered into the record for enforcement by
     the Board.        IAF, Tab 12, Initial Decision (ID) at 1.        Accordingly, the
     administrative judge dismissed the removal appeal and retained jurisdiction to
     enforce the terms of the agreement. ID at 1-2.
¶3            Thereafter, the appellant filed a petition for enforcement, alleging, among
     other things, that the agency breached the settlement agreement when his
     supervisor (S.B.) harassed him, treated him with hostility upon his reinstatement,
     and made multiple changes to his work schedule.          Cofield v. Department of
                                                                                         3

     Defense, MSPB Docket No. SF-0752-14-0114-C-1, Compliance File (CF), Tab 1
     at 4-8.   The administrative judge denied the petition for enforcement, and the
     appellant filed a petition for review of that compliance initial decision.        CF,
     Tab 8, Compliance Initial Decision (CID); Cofield v. Department of Defense,
     MSPB Docket No. SF-0752-14-0114-C-1, Compliance Petition for Review
     (CPFR) File, Tab 1. In a Remand Order, the Board affirmed the administrative
     judge’s finding that the agency did not breach an express term of the settlement
     agreement, vacated the administrative judge’s finding that the appellant failed to
     establish bad faith in implementing the reinstatement provision of the settlement
     agreement, and remanded the appellant’s petition for enforcement for further
     adjudication. Cofield v. Department of Defense, MSPB Docket No. SF-0752-14-
     0114-C-1, Remand Order (Feb. 24, 2015) (Remand Order) at 8-11.
¶4         On remand, after the parties submitted additional evidence and argument,
     the administrative judge issued a remand compliance initial decision denying the
     petition for enforcement, finding that the appellant had failed to establish that the
     agency breached the settlement agreement by implementing the reinstatement
     term in bad faith. Cofield v. Department of Defense, MSPB Docket No. SF-0752-
     14-0114-B-1, Remand Compliance File (RCF), Tabs 7, 9-11, Tab 12, Remand
     Compliance Initial Decision (RCID). She found that the appellant was treated
     consistent with other employees concerning changes to his schedule. 2           RCID
     at 4-6, 8.   The administrative judge further found that, although the evidence
     established that there was friction and unpleasantness between the appellant and
     S.B., 3 the appellant failed to establish that the agency breached the reinstatement


     2
       On review, the appellant has not challenged this finding, and we discern no basis to
     disturb the finding on review. See Cofield v. Department of Defense, MSPB Docket No.
     SF-0752-14-0114-B-1, Remand Compliance Petition for Review (RCPFR) File,
     Tabs 1, 4.
     3
       The appellant transferred to a new department in April 2015, approximately 1 year
     after his reinstatement. RCF, Tab 10 at 6-7. The administrative judge found that once
     the appellant transferred departments, S.B. became his former supervisor. RCID at 8.
                                                                                            4

     term of the settlement agreement by engaging in post-settlement retaliation and
     harassment. RCID at 5-8.
¶5         The appellant has filed a timely petition for review of the remand
     compliance initial decision. Cofield v. Department of Defense, MSPB Docket No.
     SF-0752-14-0114-B-1, Remand Compliance Petition for Review (RCPFR) File,
     Tab 1. The agency has filed a response, 4 and the appellant has replied. RCPFR
     File, Tabs 3-4. 5

                         DISCUSSION OF ARGUMENTS ON REVIEW
¶6         On review, the appellant argues that affidavits from coworkers 6 that he
     submitted below established that S.B. subjected him to a hostile work
     environment, which he contends constituted bad faith in implementing the
     reinstatement term of the settlement agreement.          RCPFR File, Tab 1 at 8-14,
     Tab 4 at 5-7, 10-11.     Specifically, the appellant contends that the affidavits
     established that: (1) S.B. yelled at him on one occasion when he asked to change
     his schedule; (2) S.B. would time him obsessively when he was on breaks or away


     However, the record reflects that after the appellant’s transfer, S.B. retained some
     shared supervisory responsibilities for the appellant. RCF, Tab 10 at 28.
     4
       In response to the petition for review, the agency argues that it did not agree to
     reinstate the appellant to the same work schedule that he was assigned prior to his
     removal. RCPFR File, Tab 3 at 5-6. The appellant did not raise this issue on review,
     and in the Remand Order, we previously held that the settlement agreement did not
     require the agency to assign the appellant the same work schedule that he was assigned
     prior to his removal. RCPFR File, Tab 1; Remand Order at 5-6.
     5
       On November 17, 2015, the appellant submitted a pleading titled “Additional
     Information Submitted by Appellant Regarding Annual Performance Evaluation.”
     RCPFR File, Tab 6. Because the record in this matter had already closed upon the
     expiration of the period for filing the reply to the response to the petition for review,
     see 5 C.F.R. § 1201.114(k), and because the appellant did not comply with the Board’s
     regulation that required him to file a motion and obtain leave to submit an additional
     pleading, see 5 C.F.R. § 1201.114(a)(5), we have not considered this pleading on
     review.
     6
      One of these coworkers was an Assistant Supervisory Story Associate, and appears to
     have had some supervisory responsibilities for the appellant. RCF, Tab 7 at 11-13.
                                                                                      5

     from his station, and supervise him more closely than other employees; (3) S.B.
     refused to send other employees to assist him when he worked at the
     self-checkout; (4) S.B. stated that he was lazy and made other negative comments
     about him; (5) S.B. unfairly criticized him for accepting a coupon; and (6) S.B.
     spoke to others in her “native language” on occasion so that he could not
     understand her. RCPFR File, Tab 1 at 8-12, Tab 4 at 5-7; RCF, Tab 7 at 15-17,
     20-21, 24, Tab 9 at 8.
¶7        To establish that the agency breached the implied covenant of good faith
     regarding the reinstatement term of the settlement agreement, it is the appellant’s
     burden to show that the agency’s proven retaliatory/harassing actions, under the
     totality of the circumstances, amounted to an unjustified and substantial
     deprivation of rights connected to an incumbent of the position in question.
     Stasiuk v. Department of the Army, 118 M.S.P.R. 1, ¶ 7 (2012); Kuykendall v.
     Department of Veterans Affairs, 68 M.S.P.R. 314, 324-25 (1995).           A mere
     showing of some frictions, misunderstandings, or unpleasantness between the
     appellant and management or other employees is insufficient to meet this burden.
     Stasiuk, 118 M.S.P.R. 1, ¶ 7.
¶8        The administrative judge considered the affidavits submitted by the
     appellant, and accepted the allegations therein as true. RCID at 8. However, she
     found that the incidents between the appellant and S.B. amounted to “friction and
     unpleasantness,” but did not rise to the level of an unjustified and substantial
     deprivation of the appellant’s rights as an incumbent of his part-time Store
     Associate position.      RCID at 8.   On review, the appellant merely discusses
     evidence that was already considered by the administrative judge below.        See
     RCPFR File, Tab 1 at 8-12, Tab 4 at 5-7; RCID at 8. The appellant’s assertions
     on review constitute mere disagreement with the administrative judge’s
     well-reasoned finding that, under the applicable legal standard, the appellant
     failed to establish bad faith noncompliance with the reinstatement term of the
     settlement agreement. See RCPFR File, Tab 1 at 8-12, Tab 4 at 5-7; RCID at 8.
                                                                                    6

Therefore, they fail to provide a basis for disturbing the initial decision. 7 See
Shannon v. Department of Veterans Affairs, 121 M.S.P.R. 221, ¶ 13 (2014)
(finding that an appellant’s mere disagreement with the administrative judge’s
findings is insufficient to disturb the initial decision); Brown v. Department of the
Interior, 121 M.S.P.R.     205,   ¶ 29   (2014)   (same);   Crosby v.   U.S.   Postal
Service, 74 M.S.P.R. 98, 106 (1997) (finding no reason to disturb the
administrative judge’s findings where she considered the evidence as a whole,
drew appropriate inferences, and made reasoned conclusions).

                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



7
  We have further considered the appellant’s arguments on review that his coworkers
made generalized assertions that S.B. treated him unprofessionally and unjustly, and
harassed him in an unspecified manner. RPFR File, Tab 1 at 10-11; RCF, Tab 7 at 20,
24, Tab 9 at 9. We find that such generalized allegations are insufficient to meet the
appellant’s burden of establishing bad faith noncompliance with the reinstatement term
of the settlement agreement. See Timberlake v. U.S. Postal Service, 79 M.S.P.R. 520,
524-25 (1998) (finding that an appellant failed to meet his burden of establishing bad
faith noncompliance with a settlement agreement where he failed to set forth any
specific acts the agency allegedly committed in connection with his claim
of harassment).
                                                                                     7

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 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:                                ______________________________
                                              William D. Spencer
                                              Clerk of the Board
Washington, D.C.
