                         UNITED STATES OF AMERICA
                      MERIT SYSTEMS PROTECTION BOARD
                                      2014 MSPB 43

                             Docket No. DE-0752-13-0061-I-1

                                  Michel R. Blanding,
                                        Appellant,
                                             v.
                             United States Postal Service,
                                         Agency.
                                       June 18, 2014


           Gary E. Laughlin, Esquire, Topeka, Kansas, for the appellant.

           Deborah M. Levine, Esquire, Denver, Colorado, for the agency.

                                         BEFORE

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



                                 OPINION AND ORDER

¶1         The appellant has filed a petition for review of an initial decision that
     dismissed his removal appeal for lack of jurisdiction based on a finding that he
     waived his Board appeal rights when his grievance was settled. For the following
     reasons, we GRANT the petition for review and REMAND the appeal to the
     Denver Field Office for further adjudication of the appellant’s age discrimination
     claim consistent with this Opinion and Order.
                                                                                        2

                                      BACKGROUND
¶2           The appellant, a preference-eligible rural carrier, was removed from his
     position, effective November 5, 2012, based on a charge of Unacceptable
     Performance/Failure to Work in a Safe Manner. Initial Appeal File (IAF), Tab 7
     at 29-31 (decision letter), 46-49 (proposal notice).        The appellant filed a
     grievance challenging his removal.      Id. at 86.   He also filed a Board appeal
     challenging his removal and asserting a claim of age discrimination. 1 IAF, Tab 1.
     The appellant subsequently retired and made the effective date of his retirement
     and his removal the same date. IAF, Tab 13 at 20-27. While his Board appeal
     was pending before the administrative judge, the appellant’s union and the agency
     settled his grievance. See id. at 9. In pertinent part, the grievance settlement
     stated that the appellant had retired, the proposed removal would be rescinded, all
     corrective action would be removed from the employee’s Official Personnel File,
     and the parties would “consider the case closed.” Id. Although the appellant did
     not sign the settlement, he has acknowledged that he “agreed to enter it [sic].”
     IAF, Tab 17 at 9.
¶3           After affording the parties the opportunity to address the impact of the
     grievance settlement on this appeal, the administrative judge dismissed the appeal
     for lack of jurisdiction without holding a hearing. IAF, Tab 18, Initial Decision
     (ID).    The administrative judge found that the agreement did not expressly
     reserve the appellant’s right to pursue a Board appeal regarding his removal and
     the appellant voluntarily entered into this agreement through his union.          ID
     at 5-6. The administrative judge concluded that the settlement therefore divested
     the Board of jurisdiction over the appellant’s removal appeal.            Id.    The
     administrative judge further reasoned that, absent jurisdiction to review the

     1
       We cannot discern from the record whether the appellant’s grievance included an age
     discrimination claim. The outcome of this matter is not dependent on a resolution of
     that issue.
                                                                                      3

     underlying removal, the Board could not independently adjudicate the appellant’s
     age discrimination claim, even if the grievance settlement did not comply with
     the requirements of the Older Workers Benefit Protection Act of 1990 (OWBPA)
     concerning waivers of age discrimination claims under the Age Discrimination in
     Employment Act (ADEA). ID at 6. Because the administrative judge found that
     the Board lacks jurisdiction over the appeal, he did not address the issue of
     whether the appeal was rendered moot by the agency’s rescission of the removal
     action. ID at 7.
¶4         The appellant has filed a petition for review, and the agency has filed a
     response. Petition for Review (PFR) File, Tabs 1, 3. On review, the appellant
     asserts that the administrative judge made the following errors: (1) he improperly
     interpreted the OWBPA in light of the Board’s decision in Hinton v. Department
     of Veterans Affairs, 119 M.S.P.R. 129 (2013); and (2) he failed to address the
     “mootness” argument despite the fact that, as part of his age discrimination claim,
     the appellant sought back pay (from November 5, 2012, to the present) and
     reinstatement. PFR File, Tab 1. The appellant requests that the Board remand
     this appeal for adjudication of his age discrimination claim only. Id. at 8.

                                          ANALYSIS
¶5         As a preference-eligible postal employee with at least 1 year of current
     continuous service in the same or similar positions, the appellant had the right to
     appeal his removal to the Board under chapter 75. Gordon-Cureton v. U.S. Postal
     Service, 105 M.S.P.R. 165 , ¶ 6 (2007). Preference-eligible employees in the U.S.
     Postal Service, like the appellant, are entitled to simultaneously pursue both a
     grievance and a Board appeal. See Hanna v. U.S. Postal Service, 101 M.S.P.R.
     461 , ¶ 8 (2006). However, an appellant may waive his Board appeal rights in the
     process of settling his grievance.    See, e.g., Swidecki v. U.S. Postal Service,
     101 M.S.P.R. 110 , ¶ 14 (2006); Laity v. Department of Veterans Affairs,
     61 M.S.P.R. 256 , 261-62 (1994). The Board will give due effect to the express
                                                                                      4

     terms of a valid agreement waiving Board appeal rights. See Laity, 61 M.S.P.R.
     at 261-62.   In addition, an appellant waives his Board appeal rights when a
     grievance settlement contains a broad and general waiver that encompasses the
     claim raised before the Board, and does not specifically reserve the right to file
     an appeal.   See Hanna, 101 M.S.P.R. 461 , ¶ 8; Swidecki, 101 M.S.P.R. 110 ,
     ¶¶ 14-16; Laity, 61 M.S.P.R. at 263.
¶6         On review, the appellant does not challenge the administrative judge’s
     findings that the grievance settlement did not expressly reserve his Board appeal
     right, that the agreement effectively waived his right to contest the merits of his
     removal before the Board, and that he was bound by the agreement reached by
     union in this matter. ID at 4-6; PFR File, Tab 1. Thus, we accept for purposes of
     our decision that, by virtue of the grievance settlement, the appellant generally
     waived his right to continue pursuing his pending adverse action appeal with the
     Board regarding his removal.     See Hanna, 101 M.S.P.R. 461 , ¶ 8; Swidecki,
     101 M.S.P.R. 110 , ¶¶ 14-16; Laity, 61 M.S.P.R. at 263.
¶7         The appellant argues, however, that the grievance settlement did not
     constitute a valid waiver of his pending age discrimination claim because the
     agreement did not satisfy the requirements for such a waiver as set forth in the
     OWBPA. For the following reasons, we agree that the grievance settlement fails
     to comply with the OWBPA and that the Board therefore retains jurisdiction to
     adjudicate the pending age discrimination claim, even though the grievance
     settlement effectively resolved the appellant’s other pending claims.
¶8         The OWBPA mandates that a settlement agreement satisfy certain
     minimum requirements before it may be considered an effective waiver of any
     right or claim under the ADEA.          See, e.g., 29 U.S.C. § 626 (f)(1), (f)(2)
     (concerning waiver of rights under the ADEA); Schwartz v. Department of
     Education, 113 M.S.P.R. 601 , ¶¶ 11-12 (2010) (setting forth the requirements of
     the OWBPA). The OWBPA applies to the appellant’s age discrimination claim,
     which was raised under the ADEA. See 29 U.S.C. § 633a (a) (making the ADEA
                                                                                       5

      applicable to the U.S. Postal Service); Schwartz, 113 M.S.P.R. 601 , ¶ 12. The
      record clearly shows that the grievance settlement does not satisfy the
      requirements of the OWBPA. For instance, the grievance settlement does not
      specifically refer to a waiver of claims arising under the ADEA. IAF, Tab 13
      at 9; see 29 U.S.C. § 626 (f)(1)(B); Schwartz, 113 M.S.P.R. 601 , ¶ 12.     Nor is
      there any evidence that the appellant was advised in writing to consult with an
      attorney prior to executing the agreement.      IAF, Tab 13 at 9; see 29 U.S.C.
      § 626 (f)(1)(E); Schwartz, 113 M.S.P.R. 601 , ¶ 12.
¶9          The Board has held that, before accepting a settlement agreement in an
      appeal where age discrimination has been alleged, the Board must first verify that
      the agency has complied with the waiver requirements in the OWBPA. Hinton v.
      Department of Veterans Affairs, 119 M.S.P.R. 129 , ¶ 7 (2013); Schwartz,
      113 M.S.P.R. 601 , ¶ 11.     In such circumstances, the Board has held that
      noncompliance with the OWBPA only invalidates the waiver of the age
      discrimination claim and does not impact an otherwise valid waiver of an
      appellant’s remaining claims, including a challenge to the merits of the
      underlying appealable adverse action under 5 U.S.C. chapter 75.            Hinton,
      119 M.S.P.R. 129 , ¶ 9; Schwartz, 113 M.S.P.R. 601 , ¶ 13; Harris v. Department
      of the Air Force, 98 M.S.P.R. 261 , ¶ 8 (2005) (the agreement “is still in effect”
      regarding all but the appellant’s age discrimination claim). After invalidating a
      waiver of a pending age discrimination claim in such circumstances, the Board
      retains jurisdiction to adjudicate the age discrimination claim as appropriate. See
      Hinton, 119 M.S.P.R. 129 , ¶ 9; Schwartz, 113 M.S.P.R. 601 , ¶ 13; Harris,
      98 M.S.P.R. 261 , ¶ 8. The question before us is whether that reasoning applies
      when the Board is considering the impact of a grievance settlement reached while
      an appellant has a pending adverse action appeal before the Board that includes a
      claim under the ADEA.
¶10         We agree with the appellant that the Board’s analysis in Hinton is
      instructive, and we extend the reasoning in Hinton to this matter. Indeed, there
                                                                                     6

are many similarities between the two cases. For instance, Ms. Hinton, like the
appellant, appealed her removal, alleged age discrimination, and subsequently
entered into a settlement agreement. Hinton, 119 M.S.P.R. 129 , ¶ 2. The Board
in Hinton found that, because the settlement agreement did not comply with the
OWBPA, Ms. Hinton’s waiver of her Board appeal right to challenge her removal
was valid, but her age discrimination claim was not waived; thus, only her age
discrimination claim should be remanded for further adjudication. Id., ¶¶ 9-10.
Such a result is consistent with the well-established principle that the Board’s
jurisdiction is determined by the nature of an agency’s action at the time an
appeal is filed with the Board, see, e.g., Hagan v. Department of the Army,
99 M.S.P.R. 313 , ¶ 6 (2005); Himmel v. Department of Justice, 6 M.S.P.R. 484 ,
486 (1981), and the Board’s retention of jurisdiction to adjudicate discrimination
claims even when the underlying appealable action is canceled or rescinded while
a Board appeal is pending, see, e.g., Antonio v. Department of the Air Force,
107 M.S.P.R. 626 , ¶¶ 9 (2008). There is no dispute that the appellant’s adverse
action appeal and attendant age discrimination claim were within the Board’s
jurisdiction under 5 U.S.C. chapter 75 at the time he filed his appeal. The Board
was not divested of jurisdiction over the age discrimination claim because of the
subsequent grievance settlement, which did not contain an effective waiver of his
ADEA claim as required by the OWBPA. 2              See Hinton, 119 M.S.P.R. 129 ,
¶¶ 9-10.

2
   The fact of the appellant’s retirement does not render moot his requests for
reinstatement and back pay as part of his age discrimination claim. See, e.g., Paula v.
Social Security Administration, 119 M.S.P.R. 138, ¶¶ 2, 11-14 (2013) (finding that
5 U.S.C. § 7701(j) does not limit the relief that may be awarded to an appellant who
retires based on an agency’s final decision to remove him but whose removal is
subsequently reversed by the Board). We note that these remedies are available under
the ADEA, and the appellant did not receive these remedies as part of his grievance
settlement. 29 U.S.C. § 626(b); see IAF, Tab 13 at 5-6, 9.
                                                                                        7

¶11         For these reasons, we remand the appeal to the Denver Field Office for the
      administrative judge to adjudicate the appellant’s age discrimination claim only.
      The merits of the removal action are not at issue, except to the extent that the
      administrative judge needs to address them to decide whether the appellant can
      prove his affirmative defense of age discrimination.      Id., ¶ 10.   The appellant
      claimed below that he was entitled to back pay and reinstatement as part of his
      age discrimination claim.   See IAF, Tab 1 at 3, Tab 17 at 13.         We note that
      compensatory damages are not available in an age discrimination claim.          See
      Simonton v. U.S. Postal Service, 85 M.S.P.R. 189 , ¶ 14 (2000).

                                          ORDER
¶12         For the reasons discussed above, we REMAND the appeal for further
      adjudication in accordance with this Opinion and Order.



      FOR THE BOARD:


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