                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     CLARK D. WHITLOW,                               DOCKET NUMBER
                   Appellant,                        CH-3330-12-0422-C-1

                  v.

     DEPARTMENT OF THE ARMY,                         DATE: September 23, 2014
                 Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Clark D. Whitlow, Fayetteville, North Carolina, pro se.

           Michael J. McHugh, Fort Bragg, North Carolina, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     denied his petition for enforcement of the parties’ settlement agreement.
     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


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      A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     erroneous interpretation of statute or regulation or the erroneous application of
     the law to the facts of the case; the 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, and based on the
     following points and authorities, 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 filed an appeal under the Veterans Employment Opportunities
     Act of 1998, in which he claimed that the agency violated his rights relating to
     veterans’ preference when it failed to give him priority consideration for a
     librarian position at Fort Bragg, North Carolina, and selected another candidate.
     Initial Appeal File (IAF), Tabs 1, 27.       The parties subsequently executed a
     settlement agreement in which, among other things, the agency agreed to place
     the appellant into a librarian position at Fort Bragg. IAF, Tab 31 at 2. In her
     November 2012 initial decision, the administrative judge found that the Board
     had jurisdiction over the appeal and dismissed it as settled. IAF, Tab 32, Initial
     Decision.     The appellant was appointed to the librarian position in December
     2012, subject to a 1-year probationary period. Compliance File (CF), Tab 3 at 6.
     The agency terminated the appellant during his probationary period in April 2013
     for failure to observe written regulations and/or orders prescribed by the first-line
     supervisor, inappropriate conduct, and marginal performance of job duties. CF,
     Tab 8 at 6.
¶3         Following his termination, the appellant filed a petition for review of the
     initial decision that dismissed his appeal as settled. He claimed that the agency
                                                                                     3

     terminated him because it was forced into hiring him. He argued that the agency
     never intended to let him keep the job. Petition for Review File, Tab 1 at 4. In
     September 2013, the Board issued a final order denying the appellant’s petition
     for review.   MSPB Docket No. CH-3330-12-0422-I-1, Final Order (Sept. 11,
     2013). However, the Board forwarded the appellant’s claims of post-settlement
     harassment and retaliation for docketing as a petition for enforcement of the
     settlement agreement. Final Order at 6.
¶4         In the compliance proceeding, the appellant argued that the agency
     employed the “hire then fire sucker punch” to offer him a position and then
     terminate his employment. CF, Tab 7 at 3. The appellant also argued that the
     agency was retaliating against him by harassing him, his termination was based
     upon three inaccurate incident reports and fabricated termination memoranda that
     were never provided to him, he should have received a written performance
     evaluation, the agency should have considered the Douglas factors before
     terminating him, and the agency forced him to relocate for his position. CF, Tab
     5 at 1-5, Tab 7 at 17. He also asserted that he is a whistleblower. CF, Tab 7 at
     28-29. In the alternative, the appellant argued that he was not appointed to a
     supervisory position and was therefore not actually offered a position as a
     librarian because all librarians are supervisors. Id. at 7-8.
¶5         In response to the appellant’s allegations of noncompliance, the agency
     contended that it complied with the settlement agreement by appointing the
     appellant to the librarian position in December 2012.           CF, Tab 3 at 4.
     Additionally, the agency stated that the appellant did not present any evidence to
     support his argument of post-settlement harassment and retaliation. Id. at 4-5.
     Finally, the agency stated that it properly terminated the appellant during his
     probationary period after management determined that he failed to demonstrate
     fitness for continued federal employment pursuant to Army Regulations. CF, Tab
     8 at 4-5; see CF, Tab 3 at 11.
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¶6         In her May 2014 compliance initial decision, the administrative judge
     denied the appellant’s petition for enforcement of the settlement agreement. CF,
     Tab 10, Compliance Initial Decision (CID). She found that the appellant failed to
     show any retaliatory or harassing conduct by the agency in its implementation of
     the settlement agreement; she further found that the appellant’s probationary
     termination after 4 months did not demonstrate bad faith. CID at 5.
¶7         On petition for review, the appellant asserts many of the same arguments he
     raised below; he also argues that the three memoranda that served as the basis for
     his removal were fraudulent and were never provided to him.                   Compliance
     Petition for Review (CPFR) File, Tab 1 at 4-5. In response, the agency argues
     both that he had the opportunity to request copies of the memoranda in question
     and that the appellant failed to set forth a basis to review the administrative
     judge’s decision. CPFR File, Tab 3 at 5.
¶8         The party who is asserting a breach of a settlement agreement has the
     burden of proving the breach. Hicks v. U.S. Postal Service, 52 M.S.P.R. 561, 564
     (1992).    Although the party seeking enforcement has the burden of proof, an
     agency must also produce relevant, material, and credible evidence of its
     compliance with an agreement upon the filing of a petition for enforcement by an
     appellant.    Eagleheart v. U.S. Postal Service, 110 M.S.P.R. 642, ¶ 9 (2009).
     Settlement agreements brought to the Board for enforcement are enforced and
     interpreted in accordance with contract law.              Hicks, 52 M.S.P.R. at 564.      A
     party’s breach is material when it “relates to a matter of vital importance or goes
     to   the     essence    of    the      contract.”      Caston    v.   Department    of   the
     Interior, 108 M.S.P.R. 190, ¶17 (2008).
¶9         The Board has held that implicit in any settlement agreement, as under other
     contracts, is a requirement that the parties fulfill their respective contractual
     obligations     in     good   faith.        Kuykendall     v.   Department   of    Veterans
     Affairs, 68 M.S.P.R. 314, 323 (1995).               To establish a breach of a settlement
     agreement based on the implied covenant of good faith, the appellant must show
                                                                                          5

      that the agency’s proven retaliatory or harassing actions, under the totality of the
      circumstances, amounted to an unjustified and substantial deprivation of the
      appellant’s rights. Id. at 323-25.
¶10         We find that the appellant’s unsubstantiated allegations do not support a
      finding that the agency breached the covenant of good faith in its implementation
      of the settlement agreement. The settlement agreement required the agency to
      appoint the appellant to the librarian position. IAF, Tab 31 at 2. The agency
      appointed the appellant to that position in December 2012, subject to a
      probationary period of 1 year.       CF, Tab 3 at 6.     Memoranda from January,
      February, and March 2013 reflect the appellant’s misconduct, including repeating
      a customer’s comments in front of colleagues and customers that female
      colleagues could get raped due to their attire, shouting and giving directives to a
      library technician, and arguing with customers. Id. at 7-9. The appellant was
      terminated in April 2013 for failure to observe written regulations and/or orders
      prescribed by the first-line supervisor, inappropriate conduct, and marginal
      performance of job duties. CF, Tab 8 at 6.
¶11         The settlement agreement required the agency to appoint the appellant to
      the librarian position, but it did not require the agency to continue to employ him
      indefinitely. Where, as here, a settlement agreement is silent as to the time or
      duration of performance, the Board has consistently held that a reasonable time
      under the circumstances will be presumed.              See Woods v. U.S. Postal
      Service, 64 M.S.P.R. 156, 159 (1994). The agency’s policy for non-appropriated
      funds personnel, such as the appellant, is that an employee may be separated
      during the probationary period if he/she fails to demonstrate that he/she possesses
      the skills or character traits for satisfactory performance in the position. PFR
      File, Tab 4 at 40.     We find that it was not unreasonable for the agency to
      determine after 4 months that the appellant had failed to demonstrate that he
      possessed the skills or character traits for satisfactory performance in the librarian
      position.
                                                                                      6

¶12        Although the appellant claims that the memoranda that served as the basis
      for his termination are “fraudulent,” he does not dispute that the incidents
      described therein actually occurred.    CPFR File, Tab 1 at 5.       Instead, the
      appellant argues that the memoranda mischaracterized the incidents in question.
      CPFR File, Tab 4 at 4-5. He has presented no evidence to demonstrate that the
      agency falsified the documentation, or that his termination was otherwise
      improper. Additionally, although the appellant alleges that the agency engaged in
      post-settlement harassment and retaliation, he has presented no evidence to
      support this argument.   We therefore agree with the administrative judge that
      neither the appellant’s termination, nor the agency’s treatment of the appellant
      prior to his termination, provides a basis for finding noncompliance with the
      settlement agreement.
¶13        To the extent that the appellant asserts that the agency breached the
      settlement agreement by failing to appoint him to a supervisory position, CF, Tab
      7 at 7-9, we find that this argument is without merit. According to a February
      2013 memorandum, the appellant’s supervisor, in the context of reprimanding
      him for shouting at a library technician, told the appellant that he did not
      supervise the library technicians. CF, Tab 3 at 9. However, the memorandum
      does not indicate that the appellant’s supervisor addressed his supervisory status
      more generally. Id. In any event, neither the original vacancy announcement nor
      the librarian position agreement specified that the librarian position was, or
      would be, supervisory. IAF, Tab 10, Subtab 1, Tab 31 at 2.
¶14        We have considered the appellant’s remaining arguments, including his
      assertion that he was a whistleblower and his claim that the agency failed to give
      him a performance appraisal.    However, we find that those arguments do not
      provide a basis for disturbing the compliance initial decision.     See Nance v.
      Department of Transportation, 55 M.S.P.R. 68, 72 (1992) (in a compliance
      action, the appellant’s claims of whistleblower reprisal were material only to the
      extent that they concerned the breach of the settlement agreement); see also
                                                                                  7

McFall v. Department of Agriculture, 78 M.S.P.R. 513, 517 (1998) (finding that
the agency’s failure to provide a performance evaluation did not constitute bad
faith), aff’d, 178 F.3d 1307 (Fed. Cir. 1998) (Table).

                 NOTICE TO THE APPELLANT REGARDING
                    YOUR FURTHER REVIEW RIGHTS
     You have the right to request review of this final decision by the United
States 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 your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
                                                                            8

attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. 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.
