                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


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

                  v.

     DEPARTMENT OF DEFENSE,                          DATE: February 24, 2015
                 Agency.



                       THIS ORDER IS NO NPRECEDENTIAL 1

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

           Stacey Turner Stokes, Esquire, Fort Lee, Virginia, for the agency.


                                           BEFORE

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


                                     REMAND ORDER

¶1        The appellant has filed a petition for review of the initial decision, which
     denied his petition for enforcement of a settlement agreement resolving his
     removal appeal.    For the reasons discussed below, we GRANT the appellant’s
     petition for review.    We AFFIRM the administrative judge’s finding that the


     1
        A nonprecedential order is one that the Board has determined does not add
     sign ificantly 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 Parties may cite nonprecedential orders,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

     agency did not breach an express term of the settlement agreement, VACATE the
     administrative judge’s finding that the appellant failed to establish bad faith
     noncompliance with the settlement agreement, and REMAND the case to the
     regional office for further adjudication in accordance with this Order.

                                      BACKGROUND
¶2        The appellant filed a Board appeal challenging his removal from his
     position as a part-time Store Associate. Initial Appeal File (IAF), Tab 1 at 3, 8,
     12, Tab 6 at 14, Tab 11 at 6. During the appeal process, the parties entered into a
     settlement agreement, which resolved both the appellant’s Board appeal and a
     complaint pending before the Equal Employment Opportunity Commission
     (EEOC). IAF, Tab 11. Under the terms of the settlement agreement, among other
     things, the agency agreed to cancel the appellant’s removal, reinstate him as a
     part-time Store Associate, and provide him with back pay and compensatory
     damages. Id. at 6. The settlement agreement further provided that it was in the
     “best interest” of the parties to keep the “terms and conditions” of the settlement
     confidential and that the appellant agreed to the confidentiality clause. Id. at 7.
¶3        The administrative judge issued an initial decision dismissing the appeal as
     settled and entering the settlement agreement into the record for enforcement
     purposes. IAF, Tab 12, Initial Decision (ID). Neither party filed a petition for
     review of the initial decision, which became final on April 7, 2014. See ID at 2.
¶4        Eleven days after the initial decision became final, the appellant filed a
     petition for enforcement alleging that the agency breached the settlement
     agreement when his supervisor harassed him and treated him with hostility upon
     his reinstatement. Compliance File (CF), Tab 1 at 1, 4. Specifically, he alleged
     that his supervisor: (1) changed his work schedule 4-5 times; (2) assigned him
     work beyond his medical restrictions arising out of a work-related back injury;
     (3) required him to produce updated documentation regarding his medical
     restrictions; and (4) denied him the opportunity to work on his petition for
                                                                                            3

     enforcement on official time. CF, Tab 1 at 4-7 (referring to a denial of official
     time to work on “this complaint,” which we interpret to be a reference to this
     petition for enforcement); see also CF, Tab 3 at 1-2. In addition, the appellant
     alleged that his supervisor breached the settlement agreement’s confidentiality
     provision by telling other employees not to talk to him, that he was “trouble,” and
     that he had sued her. CF, Tab 1 at 5.
¶5         The agency responded, asserting that it had complied with the settlement
     agreement, and attaching documentation indicating that it had reinstated the
     appellant to a part-time Store Associate position, cancelled his removal, and
     provided him back pay and compensatory damages.              CF, Tab 5.     The agency
     argued that the appellant’s allegations of retaliation and harassment were beyond
     the scope of a petition for enforcement. Id. at 8. Thereafter, the appellant filed
     subsequent submissions, in which he alleged that: (1) the agency violated the
     settlement agreement’s implied covenant of good faith and fair dealing; (2) the
     settlement agreement required the agency to provide him with the same work
     schedule and duties that he held prior to his removal; 2 (3) the settlement
     agreement was ambiguous and should be construed against the agency; and (4) a
     July 1, 2014 permanent light duty Store Associate job offer constituted a change
     to his work schedule in violation of the settlement agreement. CF, Tab 6 at 4-6,
     Tab 7 at 1, 3.
¶6         In a compliance initial decision issued without holding the hearing
     requested by the appellant, the administrative judge found that the agency was in
     compliance with the settlement agreement. CF, Tab 1 at 2, Tab 8, Compliance

     2
       In one of the appellant’s submissions, he asserted that “status quo ante also includes”
     seniority. CF, Tab 6 at 4. However, the appellant has not alleged that the agency failed
     to reinstate him with the proper seniority level, either below or on review. CF, Tabs 1,
     3, 6, 7; Petition for Review (PFR) File, Tab 1. The agency submitted a Standard Form
     (SF) 50 documenting the cancellation of the appellant’s removal, which listed the same
     service computation date as the SF-50 documenting the appellant’s removal. IAF, Tab
     6 at 14; CF, Tab 5 at 11. Therefore, the appellant’s seniority level does not appear to
     be at issue in his petition for enforcement.
                                                                                            4

     Initial Decision (CID). She found that the appellant had not established a breach
     of the settlement agreement in connection with any alleged harassment or
     retaliation, noting that he had not submitted documentation to support his claim
     that the alleged retaliation constituted bad-faith noncompliance “with a term of
     the agreement.” CID at 4 (emphasis in original). She also found that the Board
     otherwise lacked jurisdiction to address claims of reprisal or prohibited personnel
     practices in a compliance case. CID at 6.
¶7         In addition, the administrative judge found that the alleged statements of the
     appellant’s supervisor did not breach the agreement’s confidentiality provision
     because the purposed words she used did not disclose the terms and conditions of
     the settlement. CID at 5. She found, moreover, that the settlement agreement did
     not specify a work schedule for the appellant, was not ambiguous, and that the
     agency was authorized to request that the appellant sign a permanent light duty
     job offer in light of his allegation that he was being asked to work outside of his
     medical restrictions. 3 CID at 5-6.
¶8         The appellant has filed a petition for review of the compliance initial
     decision. 4 PFR File, Tab 1. The agency has not responded to the petition for
     review.


     3
       The administrative judge further found that the version of the permanent light duty job
     offer that the appellant was asked to sign did not reference a work schedule. CID at
     5-6. The record contains two versions of the July 1, 2014 permanent light duty job
     offer, one of which references a work schedule, and one of which does not. CF, Tab 7
     at 3-6. The compliance initial decision indicates that the version that the appellant was
     asked to sign did not reference a work schedule. CID at 5. The appellant has not
     disputed this finding on review. See PFR File, Tab 1.
     4
       On review, the appellant does not challenge the administrative judge’s finding that his
     supervisor’s alleged statements that he was “trouble” and had sued her did not breach
     the confidentiality provision of the settlement. CID at 5; see PFR File, Tab 1. The
     appellant also does not challenge the finding that he received all of the back pay and
     compensatory damages to which he was entitled. CID at 5; see PFR, Tab 1. Therefore,
     we do not disturb these well-reasoned findings on review. See 5 C.F.R. § 1201.115 (the
     Board normally will consider only issues raised in a timely filed petition or cross
     petition for review).
                                                                                     5

                      DISCUSSION OF ARGUMENTS ON REVIEW
¶9         The Board has authority to enforce a settlement agreement that has been
      entered into the record for enforcement purposes in the same manner as any final
      Board decision or order. Vance v. Department of the Interior, 114 M.S.P.R. 679,
      ¶ 6 (2010). A settlement agreement is a contract, and the Board will therefore
      adjudicate a petition to enforce a settlement agreement in accordance with
      contract law. Allen v. Department of Veterans Affairs, 112 M.S.P.R. 659, ¶ 7
      (2009), aff’d, 420 F. App’x 980 (Fed. Cir. 2011). Where, as here, an appellant
      alleges noncompliance with a settlement agreement, the agency must produce
      relevant, material, and credible evidence of its compliance with the agreement.
      Vance, 114 M.S.P.R. 679, ¶ 6. The ultimate burden, however, remains with the
      appellant, as the party seeking enforcement, to prove breach by a preponderance
      of the evidence. Id.

      The settlement agreement did not require the agency to assign the appellant the
      same work schedule that he was assigned prior to his removal.
¶10        On review, as he did below, the appellant contends that the agency was
      obligated to assign him the same work schedule that he was assigned prior to his
      removal. PFR File, Tab 1 at 7; CF, Tab 6 at 4. He argues that his work schedule
      was a “component of status quo ante,” the settlement agreement was ambiguous,
      and the administrative judge should have considered the parties’ intent when they
      entered into the agreement.     PFR File, Tab 1 at 7.       We agree with the
      administrative judge that the settlement agreement was unambiguous, and did not
      require the agency to assign the appellant to the same work schedule that he was
      assigned prior to his removal. See CID at 5-6.
¶11        The Board does not apply a status quo ante analysis in construing the terms
      of a settlement agreement. See Beall v. Department of the Interior, 78 M.S.P.R.
      185, 187 n.3 (1998) (finding that applying a status quo ante analysis to a
      settlement agreement would be error) (citing Kuykendall v. Department of
      Veterans Affairs, 68 M.S.P.R. 314, 321 (1995) (finding that the Board does not
                                                                                      6

      per se apply a status quo ante analysis to settlement terms)).        Instead, in
      construing the terms of a settlement agreement, the Board examines the
      agreement itself to determine the parties’ intent.        Amos v. U.S. Postal
      Service, 84 M.S.P.R. 186, ¶ 6 (1999).
¶12        The settlement agreement did not reference the appellant’s work schedule
      upon his reinstatement.   See IAF, Tab 11 at 6.      Contrary to the appellant’s
      assertions, however, the settlement agreement’s silence on this issue does not
      mean that it is ambiguous.        See Pawlowski v. Department of Veterans
      Affairs, 96 M.S.P.R. 353, ¶ 17 (2004) (a last chance agreement’s silence
      regarding the position that the appellant was to encumber after the agreement
      period ended did not render it ambiguous); De Luna v. Department of the
      Navy, 58 M.S.P.R. 526, 530 (1993) (a settlement agreement’s silence regarding
      the agency’s alleged promise to increase the appellant’s years of service for
      purposes of retirement did not render the agreement ambiguous). The settlement
      agreement here specified that it “contain[ed] the entire agreement between the
      parties,” and provided that “aside from the explicit terms set forth in” the
      agreement, the appellant would be subject to the same terms and conditions of
      employment as any other employee. IAF, Tab 11 at 5, 7. Thus, the settlement
      agreement contemplated that the appellant would be subject to the same terms and
      conditions as any other employee regarding his work schedule. The Board will
      not imply terms into a settlement where, as here, the agreement is not ambiguous.
      See Dunn v. Department of the Army, 100 M.S.P.R. 89, ¶ 9 (2005).

      The appellant’s claim that the agency breached the settlement agreement by
      failing to provide him modified duties to accommodate his medical restrictions is
      moot.
¶13        On review, the appellant argues that the agency breached the settlement
      agreement by failing to provide him with the same modified duties to
      accommodate his medical restrictions that it provided prior to his removal. PFR
      File, Tab 1 at 7; see also CF, Tab 1 at 4 (the appellant’s argument below that the
                                                                                       7

      agency breached the settlement agreement by providing him work beyond his
      medical restrictions).   However, even assuming that the agency breached the
      settlement agreement in this regard, the record indicates the agency subsequently
      provided the appellant with modified duties, rendering his allegation moot. See
      CF, Tab 7 at 3-6; see Engel v. U.S. Postal Service, 114 M.S.P.R. 541, ¶¶ 1, 7-8
      (2010) (dismissing a petition for enforcement as moot when the agency produced
      evidence of compliance on review).
¶14        With his petition for enforcement, the appellant submitted an “Industrial
      Status Work Report,” dated October 4, 2013, which indicated that he had
      permanent medical restrictions as the result of his back injury. CF, Tab 1 at 14.
      In the agency’s response to the petition for enforcement, the agency represented
      that it did not previously have any documentation indicating that the appellant’s
      medical restrictions were permanent, and that it would begin the process of
      determining appropriate accommodations based on the October 4, 2013 medical
      report. CF, Tab 5 at 9. According to the agency, it previously requested this
      documentation from the appellant to support his continued placement on modified
      duty, as part of its ordinary workers’ compensation process, and the appellant has
      not disputed this assertion on review. Id.; see PFR File, Tab 1. After receiving
      the medical report with the appellant’s April 18, 2014 submission, the agency
      offered him a permanent light duty Store Associate position on July 1, 2014. CF,
      Tab 7 at 3-6. Thus, because the agency has provided the appellant with modified
      duties to accommodate his medical restrictions, there is no further relief that the
      Board can provide in the context of a petition for enforcement, and the
      appellant’s claim that the agency failed to do so is moot. Burke v. Department of
      Veterans Affairs, 121 M.S.P.R. 299, ¶ 13 (2014) (dismissing a petition for
      enforcement as moot where there was no further relief that the agency could
      provide).
                                                                                       8

      The administrative judge failed to consider whether the appellant’s allegations of
      harassment and retaliation constituted bad faith in implementing the settlement
      agreement term requiring his reinstatement.
¶15        On review, the appellant contends that the administrative judge erred in
      limiting her bad faith inquiry to whether the agency’s alleged harassment and
      retaliation constituted bad faith noncompliance with a term of the settlement
      agreement. PFR File, Tab 1 at 5. Instead, he alleges that the administrative judge
      should have considered whether the agency’s actions destroyed his reasonable
      expectations regarding the “fruits of [the] contract.”    Id.   We agree that the
      administrative judge erroneously limited her analysis to whether the agency
      violated an express term of the settlement agreement and failed to consider the
      appellant’s claims of post-settlement harassment and retaliation as allegations of
      bad faith in implementing the settlement agreement term requiring his
      reinstatement. See CID at 4-6.
¶16        The Board may only consider an appellant’s allegations that an agency’s
      post-settlement actions constituted retaliation for filing and settling a Board
      appeal to the extent that his allegations pertain to the alleged breach of the
      settlement agreement. Burke, 121 M.S.P.R. 299, ¶ 15. However, even where an
      agreement does not explicitly prohibit retaliation or harassment, an agency’s post-
      settlement harassment and retaliation may constitute bad faith in implementing a
      reinstatement term, and thereby establish agency noncompliance with the
      settlement agreement. See Stasiuk v. Department of the Army, 118 M.S.P.R. 1,
      ¶ 8 (2012); Kuykendall, 68 M.S.P.R. at 322-24.       To establish that an agency
      breached the implied covenant of good faith with respect to a reinstatement term,
      an appellant must 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.
      Kuykendall, 68 M.S.P.R. at 324-25.         A mere showing of some frictions,
                                                                                            9

      misunderstandings, or unpleasantness between the appellant and management or
      other employees is insufficient to meet this burden. Id.
¶17         Here, although the appellant did not expressly state that his allegations of
      retaliation and harassment were related to the settlement term requiring his
      reinstatement, the nature of several of his claims implies as much. 5               See
      Stasiuk, 118 M.S.P.R. 1, ¶ 7 (construing allegations of retaliation and harassment
      as allegations of bad faith in implementing the reinstatement term of a settlement
      agreement); Kuykendall, 68 M.S.P.R. at 322 (same). In particular, the appellant
      alleged that, upon his reinstatement, his supervisor changed his schedule 4-5
      times over the period of approximately a month. See CF File, Tab 1 at 4. The
      agency did not respond to this allegation, other than to assert that the appellant’s
      claims of harassment were beyond the scope of a petition for enforcement. See
      CF, Tab 5 at 8. Although we find that the settlement agreement did not entitle the
      appellant to the same work schedule he was assigned to prior to his removal,
      repeatedly changing his schedule upon reinstatement could potentially constitute
      bad faith in implementing the reinstatement term, especially if the appellant were
      treated differently than other employees.         See, e.g, Keenan v. U.S. Postal
      Service, 62 M.S.P.R. 307, 308-09 (1994) (finding that an agency acted in bad
      faith when it assigned the appellant significantly fewer hours than other part-time
      employees, although the settlement agreement did not specify the number of
      hours that he would be assigned).
¶18         Thus, the administrative judge erred in failing to consider whether the
      appellant’s allegations of harassment and retaliation constituted bad faith

      5
       We find that the appellant’s allegation that his supervisor d id not allow him to work
      on his petition for enforcement on official time cannot be construed as a claim that the
      agency acted in bad faith in implementing the reinstatement term. Moreover, the
      administrative judge correctly found that the appellant presented no evidence that there
      was any arrangement that required the agency to allow him to work on his petition for
      enforcement on official time. CID at 6; see also Forrest v. Department of Agriculture,
      74 M.S.P.R. 213, 221 (1997) (finding that there was no statutory or regulatory authority
      provid ing that time spent preparing a Board appeal is considered official time).
                                                                                    10

noncompliance with the settlement term requiring his reinstatement, and the
record is not sufficiently developed for us to resolve this issue in the first
instance on review. See Williams v. Department of the Navy, 79 M.S.P.R. 364,
367 (1998) (remanding for further development of the record a claim that the
agency acted in bad faith in implementing a reinstatement order where the agency
did not respond to the appellant’s allegations of harassment and retaliation); cf.
Kuykendall, 68 M.S.P.R. at 325-29 (adjudicating an appellant’s claim of bad faith
noncompliance with the reinstatement term of a settlement agreement in the first
instance on review where the agency presented evidence and argument in
response to the appellant’s allegations of harassment). In addition, neither the
administrative judge nor the agency apprised the appellant of the means to
establish noncompliance with a settlement agreement based upon bad faith in
implementing a reinstatement term. See CF, Tabs 2, 5; CID. Accordingly, this
matter must be remanded to the regional office for further adjudication. 6 See
Stasiuk, 118 M.S.P.R. 1, ¶ 8 (remanding a compliance matter for further
adjudication where the administrative judge failed to consider whether the agency
acted in bad faith in implementing a reinstatement term and failed to provide
notice of the means to establish noncompliance based upon bad faith).               On
remand, the administrative judge shall afford the parties an opportunity to present
evidence as to whether the agency violated the implied covenant of good faith in
implementing the reinstatement term of the settlement agreement, and may




6
  The settlement agreement provided that both the Board and the EEOC would have
authority to enforce the agreement. IAF, Tab 11 at 5. On remand, the administrative
judge shall determ ine whether the appellant has filed an enforcement action with the
EEOC, and if so, determine the effect of such an action upon the appellant’s ability to
pursue his petition for enforcement before the Board. Cf. 5 C.F.R. § 1201.154(a) (an
appellant must elect between filing a mixed case complaint with the agency or filing a
mixed case appeal with the Board); 29 C.F.R. § 1614.302(b) (same).
                                                                                             11

      convene a hearing if one is necessary to resolve this issue. 7            See 5 C.F.R.
      § 1201.183(a)(3).

                                              ORDER
¶19         For the reasons discussed above, we AFFIRM the initial decision in part,
      REVERSE the initial decision in PART, and REMAND this case to the regional
      office for further adjudication in accordance with this Remand Order.




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




      7
        On review, the appellant also argues that the administrative judge erred in failing to
      afford him a hearing and failing to issue subpoenas to compel witnesses to testify under
      penalty of perjury. PFR File, Tab 1 at 6. There is no right to a hearing on a petition for
      enforcement, and it is within the administrative judge’s discretion whether to hold one.
      5 C.F.R. § 1201.183(a)(3); Knight v. Department of the Treasury, 113 M.S.P.R. 548,
      ¶ 16 (2010). In addition, parties who wish to obtain subpoenas requiring the attendance
      and testimony of witnesses must file motions for those subpoenas with the
      administrative judge, which the appellant did not do. See 5 C.F.R. § 1201.81(a);
      Brewer v. Defense Contract Audit Agency, 23 M.S.P.R. 368, 370 (1984) (finding that a
      failure to subpoena records was not in error where the appellant did file a motion for a
      subpoena). On remand, the administrative judge shall determ ine whether a hearin g is
      necessary to resolve the appellant’s claim of bad faith in implementin g the
      reinstatement term of the settlement agreement, and rule on any motions for subpoenas
      that the appellant may file.
