                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     DENNIS C. BUTLER,                               DOCKET NUMBER
                   Appellant,                        DC-0752-14-0230-I-1

                  v.

     FEDERAL COMMUNICATIONS                          DATE: October 24, 2014
       COMMISSION,
                  Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Richard R. Renner, Washington, D.C., for the appellant.

           Ellen Miles, and Lily Sara Farel, Washington, D.C., 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
     dismissed his removal appeal as settled. 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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
     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 with the Board regarding the agency action
     removing him from his GS-11 Program Analyst position, effective November 8,
     2013. Initial Appeal File (IAF), Tab 1, Tab 9 at 30, 33-40, 137-44. He raised
     affirmative defenses of disability discrimination and reprisal for engaging in
     equal employment opportunity activity. See IAF, Tab 14 at 2.
¶3        The appellant subsequently entered into a settlement agreement with the
     agency, which was fully executed on April 30, 2014, wherein he agreed to stop
     pursuing his Board appeal. IAF, Tab 17. The appellant was represented by an
     attorney who also signed the agreement. Id. at 11. The agency filed a copy of the
     agreement with the administrative judge on April 30, 2014, so that it could be
     entered into the record for enforcement purposes, as specified in paragraph 8 of
     the agreement.     IAF, Tab 17.   The administrative judge thus issued an initial
     decision finding that the Board has jurisdiction over the instant appeal, approving
     the agreement for entry into the record, and dismissing the appeal as settled. IAF,
     Tab 18, Initial Decision (ID).
¶4        The appellant has filed a petition for review. Petition for Review (PFR)
     File, Tab 1.     He argues that the administrative judge erred in dismissing his
                                                                                           3

     appeal as settled because: (1) he signed the settlement agreement under duress
     and based on misinformation; and (2) the agreement does not comply with the
     Older Workers Benefit Protection Act of 1990 (OWBPA).                Id.   The agency
     responded in opposition and the appellant filed a reply. PFR File, Tabs 3-4.
     The appellant has not established that he was coerced into signing the settlement
     agreement.
¶5         The appellant asserts that he did not voluntarily sign the settlement
     agreement because the administrative judge: (1) advised him that he could lose
     his case even if the agency did not prove all of its charges, causing him to feel
     that it would be “futile” to continue litigating the merits of his appeal;
     (2) informed him, in response to his stated concern about how the settlement
     agreement would affect his application for disability retirement benefits, that
     nobody could guarantee how the Office of Personnel Management (OPM) would
     rule on his application; and (3) created an unlawful time pressure by requiring
     him to submit a signed settlement agreement by the time of the prehearing
     conference, which was scheduled to occur 6 days after he received the agreement
     to review. PFR File, Tab 1 at 5-10. The appellant concedes that his attorney was
     present during the aforementioned conversation with the administrative judge, 2
     but contends that “the benefit of having that legal counsel was washed away when
     that counsel acted in concert with the Administrative Judge to create the
     environment of deception and urgency.” Id. at 9. Based on the foregoing, he
     claims that he believed the administrative judge would rule against him if he
     failed to sign the settlement agreement and that it would have been futile to
     attempt any further discussion with his attorney or the administrative judge
     regarding the agreement during the 7-day revocation period. 3 Id. at 7, 9.

     2
      The parties waived the prohibition against ex parte communications for the purpose of
     pursuing settlement. IAF, Tab 14 at 1.
     3
       The appellant also asserts that he suffered from insomnia in April and May 2014,
     which “affected the quality of his judgment.” PFR File, Tab 1 at 5. To the extent that
     the appellant suggests that his insomnia rendered him incapable of validly entering into
                                                                                            4

¶6         As an initial matter, the appellant did not submit an affidavit, sworn
     statement, or any other evidence as to the content of any conversations he had
     with the administrative judge regarding settlement. Rather, all of his assertions
     are made through his counsel, who admittedly has no personal knowledge of the
     alleged events, in the petition for review. See PFR File, Tab 1 at 3. As explained
     in footnote 3, the statements of a party’s representative in a pleading do not
     constitute evidence. Hendricks, 69 M.S.P.R. at 168. There is also no evidence,
     and the appellant does not allege, that either he or his attorney raised any
     objection on the record below to the administrative judge’s allegedly coercive
     conduct, and therefore he cannot do so now. See Anderson v. Department of the
     Air Force, 51 M.S.P.R. 691, 695 (1991).
¶7       Even if the aforementioned events occurred as the appellant alleges, they do
     not establish a basis to overturn the settlement agreement. First, we discern no
     error in the administrative judge’s informing the appellant about possible
     outcomes in his appeal. The alleged statement that the appellant could lose even
     if the agency failed to prove all of its charges is accurate because it is true that
     the penalty imposed by an agency may still be found reasonable, even when the
     agency proves fewer than all of its charges. See, e.g., Tisdell v. Department of
     the Air Force, 94 M.S.P.R. 44, ¶ 16 (2003). Further, in settlement negotiations,
     administrative judges are permitted to inform the parties of the relative strengths
     and weaknesses of the case, and such statements do not indicate bias or coercion.
     Henson v. Department of the Treasury, 86 M.S.P.R. 221, ¶ 11 (2000).



     the settlement agreement, we note that a party to a settlement agreement is presumed to
     have full legal capacity to contract unless he is mentally disabled, and the mental
     disability is so severe that he cannot form the necessary intent. See Parks v. U.S.
     Postal Service, 113 M.S.P.R. 60, ¶ 6 (2010). The appellant has made no such showing
     here. His counsel’s assertions in the petition for review do not constitute evidence. See
     Hendricks v. Department of the Navy, 69 M.S.P.R. 163, 168 (1995). The appellant has
     provided neither an affidavit, nor any medical evidence, that would support such a
     finding.
                                                                                            5

¶8         Second, as to the appellant’s contention that the administrative judge told
     him nobody could guarantee the outcome of his disability retirement application,
     we do not agree that this constitutes misinformation. The appellant suggests that
     he could have contacted OPM for an opinion about how the settlement agreement
     would affect his disability retirement application. 4 PFR File, Tab 1 at 6 n.2, 8.
     Assuming arguendo that this is true, he does not identify the information he
     believes he would have obtained and how it would have affected his decision to
     settle.   See Schwartz v. Department of Education, 113 M.S.P.R. 601, ¶¶ 9-10
     (2010). Moreover, the appellant was represented by an attorney at a law firm that
     specializes in federal employment law, who presumably could have answered
     questions he may have had regarding disability retirement. See Busen v. Office of
     Personnel Management, 49 M.S.P.R. 37, 44 (1991) (finding that the appellant’s
     own attorney’s failure to advise him as to whether to agree to a settlement did not
     provide a basis for finding coercion by the administrative judge); see also
     Laranang v. Department of the Navy, 40 M.S.P.R. 233, 236-37 (1989) (where an
     appellant is represented, his alleged failure to understand the full implications of
     a settlement agreement is insufficient to set the agreement aside).
¶9         Third, regarding the appellant’s assertion that the administrative judge
     limited him to 6 days to consider the agreement, we do not agree that this is an
     unreasonable period of time indicative of duress, particularly given that the
     settlement agreement explicitly accorded him an additional 7 days to revoke the
     agreement after signing it. IAF, Tab 17 at 4; cf. Soler-Minardo v. Department of
     Defense, 92 M.S.P.R. 100, ¶ 10 (2002) (finding that because the appellant had


     4
       The webpage to which the appellant cites does not support this claim. It indicates that
     OPM “will work with Federal agency staff” to “help agencies structure settlements that
     are consistent with all Federal personnel laws.” OPM.GOV, Settlement Guidelines,
     http://www.opm.gov/policy-data-oversight/settlement-guidelines/#url=Conclusion
     (emphasis added). This does not establish that he could have contacted OPM for advice
     regarding the settlement agreement, or that OPM would have guaranteed a specific
     outcome based on the agreement.
                                                                                           6

      10 days “to consider her options and consult with her attorney before she made
      her decision,” she did not establish that her acceptance of a demotion was
      involuntary due to extreme time pressure).
¶10         Lastly, the basis for the appellant’s claim that his counsel contributed to the
      deception and coercion which led him to involuntarily sign the settlement
      agreement is unclear. He states that his attorney contacted him by phone with the
      administrative judge on the line after he had already advised his attorney that he
      did not want to sign the settlement agreement. PFR File, Tab 1 at 5-6. We do not
      view this as a coercive action.     In any event, coercive acts by a party’s own
      representative do not provide a basis for overturning a settlement that is
      otherwise fair, and we find that the agreement is not unfair on its face.          See
      Bynum v. Department of Veterans Affairs, 77 M.S.P.R. 662, 665 (1998).
      The settlement agreement was not required to comply with the OWBPA.

¶11         The appellant raises various arguments, which he contends establish that the
      settlement agreement fails to comply with the OWBPA. PFR File, Tab 1 at 15.
      However, the OWBPA applies only to agreements that settle age discrimination
      claims.    See Parker-Allen v. Department of the Treasury, EEOC Req.
      No. 05A30633, 2003 WL 21048353, at *1 (May 2, 2003). The appellant did not
      raise an age discrimination claim below, and so these arguments are irrelevant. 5
      See id.; see also IAF, Tab 15 at 1.        The appellant seems to suggest that the
      OWBPA applies because the initial decision in this matter was issued before a
      hearing was held and he is raising an age discrimination claim on review. PFR
      File, Tab 4 at 7.     This is incorrect.    The Board will not review claims of
      affirmative defenses raised for the first time on review, where they are not
      supported by any new evidence which was unavailable before the record closed
      below. Arndt v. Department of Transportation, 16 M.S.P.R. 221, 225 (1983).

      5
       For this same reason, we reject the appellant’s argument that the administrative judge
      unlawfully pressured him to sign the settlement agreement before the expiration of the
      21-day consideration period required under the OWBPA. See PFR File, Tab 1 at 15.
                                                                                    7

                 NOTICE TO THE APPELLANT REGARDING
                    YOUR FURTHER REVIEW RIGHTS
      You have the right to request further review of this final decision.

Discrimination Claims: Administrative Review
      You may request review of this final decision on your discrimination
claims by the Equal Employment Opportunity Commission (EEOC). See Title 5
of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you
submit your request by regular U.S. mail, the address of the EEOC is:
                           Office of Federal Operations
                    Equal Employment Opportunity Commission
                                 P.O. Box 77960
                            Washington, D.C. 20013

      If you submit your request via commercial delivery or by a method
requiring a signature, it must be addressed to:
                           Office of Federal Operations
                    Equal Employment Opportunity Commission
                                131 M Street, NE
                                  Suite 5SW12G
                            Washington, D.C. 20507

      You should send your request to EEOC no later than 30 calendar days after
your receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.

Discrimination and Other Claims: Judicial Action
      If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate United States
district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with
the district court no later than 30 calendar days after your receipt of this order. If
you have a representative in this case, and your representative receives this order
                                                                                  8

before you do, then you must file with the district court no later than 30 calendar
days after receipt by your representative. If you choose to file, be very careful to
file on time. If the action involves a claim of discrimination based on race, color,
religion, sex, national origin, or a disabling condition, you may be entitled to
representation by a court-appointed lawyer and to waiver of any requirement of
prepayment of fees, costs, or other security.         See 42 U.S.C. § 2000e-5(f)
and 29 U.S.C. § 794a.




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