                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     BUTLER O. OBASOGIE,                             DOCKET NUMBER
                   Appellant,                        CH-0752-14-0012-I-1

                  v.

     DEPARTMENT OF THE TREASURY,                     DATE: June 2, 2015
                 Agency.



             THIS FINAL ORDER IS NO NPRECEDENTIAL 1

           Butler O. Obasogie, Cincinnati, Ohio, pro se.

           Pamela D. Langston-Cox, Esquire, and Russ Eisenstein, Esquire, Chicago,
             Illinois, 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 August 4, 2014 initial
     decision that affirmed his removal from employment. The agency has moved to
     dismiss the petition for review as settled. For the reasons discussed below, we
     GRANT the agency’s motion and DISMISS the petition for review as settled.


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

                                       BACKGROUND
¶2           The appellant was an Internal Revenue Agent when he was removed from
     employment by the agency for failure to meet the performance standards for his
     position. Initial Appeal File (IAF), Tab 1 at 1, 9-11. The appellant appealed his
     removal to the Board, and after holding a hearing, the administrative judge issued
     an initial decision affirming the agency’s decision. IAF, Tab 48, Initial Decision
     (ID).    Specifically, the administrative judge found that the appellant failed to
     meet the performance standards for three critical job elements and had received a
     reasonable opportunity to demonstrate acceptable performance. ID at 13.
¶3           The appellant filed a petition for review on September 4, 2014. Petition for
     Review (PFR) File, Tab 1.       The agency filed a response in opposition to the
     appellant’s petition on September 29, 2014. PFR File, Tab 4. The appellant filed
     a reply brief on October 6, 2014. PFR File, Tab 5.
¶4           On January 5, 2015, the agency filed a motion for the Board to dismiss the
     petition for review as settled, attaching a copy of a global settlement agreement
     signed and dated by both parties and their representatives. PFR File, Tab 6. In
     response to the agency’s motion for dismissal, the appellant stated that he felt
     pressured into signing the settlement agreement by the Equal Employment
     Opportunity Commission (EEOC) administrative judge after the Board’s
     administrative judge issued the initial decision. PFR File, Tab 7. The appellant
     also alleged that he was under duress and forced to make a quick decision about
     settlement. Id.

                       DISCUSSION OF ARGUMENTS ON REVIEW
¶5           Before considering the appellant’s petition for review, the Board will
     consider the agency’s motion to dismiss it as settled. PFR File, Tab 6 at 4; see
     Lee v. U.S. Postal Service, 111 M.S.P.R. 551, ¶ 4 (2009), aff’d, 367 F. App’x
     137 (Fed. Cir. 2010). The Board will consider the settlement agreement, even
     though it was reached outside of a Board proceeding, to determine its effect on
                                                                                       3

     the Board appeal and any waiver of Board appeal rights. See Lee, 111 M.S.P.R.
     551, ¶ 4. Before dismissing a matter as settled, the Board must decide whether
     the parties have entered into a settlement agreement, understand its terms, and
     intend to have the agreement entered into the record for enforcement by the
     Board. See Mahoney v. U.S. Postal Service, 37 M.S.P.R. 146, 149 (1988). The
     appellant may challenge the validity of a settlement agreement if he believes that
     it is unlawful, involuntary, or the result of fraud or mutual mistake. Hinton v.
     Department of Veterans Affairs, 119 M.S.P.R. 129, ¶ 4 (2013).           The party
     challenging the validity of the settlement agreement bears a heavy burden. Id.
     An appellant’s mere post-settlement remorse or change of heart cannot serve as a
     basis for setting aside a valid settlement agreement. Id. The appellant may also
     challenge the enforceability of any waiver of Board appeal rights.              Lee,
     111 M.S.P.R. 551, ¶ 4.       Such a waiver is enforceable if its terms are
     comprehensive, freely made, and fair, and execution of the waiver did not result
     from agency duress or bad faith. Id.
¶6        We agree with the agency that the settlement agreement explicitly states
     that the agreement would act as the appellant’s withdrawal of his petition for
     review. PFR File, Tab 6 at 5. The appellant alleges that he was pressured by the
     EEOC administrative judge into entering into the settlement agreement.          PFR
     File, Tab 7. An administrative judge may properly encourage parties to endeavor
     to settle appeals, given the public policy that favors settlement agreements in
     civil actions to avoid unnecessary litigation and encourage fair and speedy
     resolution of issues. Busen v. Office of Personnel Management, 49 M.S.P.R. 37,
     42 (1991). Based on the record before us, it is clear that the EEOC administrative
     judge encouraged the parties to resolve their dispute. PFR File, Tab 7 at 14.
¶7        To prove an allegation of coercion by an administrative judge, an appellant
     must present evidence that he involuntarily accepted the terms, the circumstances
     presented no alternative, and the circumstances were the result of the
     administrative judge’s coercive acts. See Anderson v. Environmental Protection
                                                                                          4

     Agency, 81 M.S.P.R. 618, 620 (1999). Other than his uncorroborated allegations,
     the appellant has presented no evidence that the administrative judge’s actions
     were coercive. 2 An appellant’s unsupported assertions do not meet the burden of
     proving that a settlement was coerced by an administrative judge, and do not
     provide a basis for voiding a settlement agreement. Id.
¶8        The appellant disagrees with the Board administrative judge’s rulings on
     discovery and the EEOC administrative judge’s ruling on jurisdiction, PFR File,
     Tab 7 at 1, but those issues cannot be addressed by attacking the validity of the
     settlement agreement.     The appellant has failed to show that the settlement
     agreement was not freely made, was unfair, unlawful, or resulted from agency
     duress or bad faith. The settlement agreement was signed by both the appellant
     and his representative at the time, 3 a factor that is significant in determining the
     validity of an appeal rights waiver. PFR File, Tab 6 at 10; Lee, 111 M.S.P.R.
     551, ¶ 9. Because the parties have expressed their intent that the Board not enter
     the settlement agreement into the record, PFR File, Tab 6 at 5, the settlement
     agreement has not been entered into the record for enforcement purposes, see
     Swidecki v. U.S. Postal Service, 101 M.S.P.R. 110, ¶¶ 24, 26 (2006).
¶9        We find that, by the terms of the settlement agreement, the appellant
     withdrew his petition for review with prejudice, the appellant knowingly and
     voluntarily signed the settlement agreement, the appellant waived further Board
     appeal   rights concerning his removal,         and   the   waiver   is enforceable.
     Accordingly, we DISMISS this petition for review as settled. Because this appeal

     2
       On May 7, 2015, the appellant filed a motion requesting that the investigative files,
     prehearing transcripts, motions and responses, declarations, and decisions from his
     EEOC complaint be entered into the record of this appeal. PFR File, Tab 10. The
     appellant argues that he was unable to present information relevant to his appeal
     because the Board administrative judge “refused to hear any issue pertainin g to the
     EEOC.” Id. at 2. This information is immaterial to determining whether the parties
     entered into a valid settlement agreement, therefore the appellant’s motion is DENIED.
     3
       On May 21, 2015, the appellant’s representative filed a motion to withdraw as counsel
     for the appellant.
                                                                                5

has been settled, we need not reach the other issues raised by the appellant on
review. See Lee, 111 M.S.P.R. 551, ¶ 10.

                 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
                                                                                    6

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
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.
