                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     JAN S. STASIUK,                                   DOCKET NUMBER
                         Appellant,                    DC-0752-09-0342-C-2

                  v.

     DEPARTMENT OF THE ARMY,                           DATE: January 7, 2016
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Jan S. Stasiuk, Sunrise, Florida, pro se.

           Nicole E. Rapone, Fort Lee, Virginia, 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 compliance initial
     decision, which denied his petition for enforcement.            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 regulation or the erroneous application of the law to

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     the facts of the case; the administrative 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, 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. Except as
     expressly MODIFIED by this final order, to state the appellant’s allegations of
     breach in his own terms, we AFFIRM the initial decision.
¶2             The appellant filed a Board appeal of his removal from his General
     Physician position, alleging whistleblower reprisal. See Stasiuk v. Department of
     the Army, 118 M.S.P.R. 1, ¶ 2 (2012).              The parties executed a settlement
     agreement in which the agency agreed, among other things, to rescind the
     removal action, expunge from the appellant’s official personnel file the Standard
     Form 50 documenting the removal and the decision notice of removal, reinstate
     the appellant to his Medical Officer (Family Practice) position, and detail him to
     a clinical support position under the supervision of the Deputy Commander of
     Clinical Services. Id. Pursuant to this agreement, the administrative judge
     dismissed the removal appeal and retained jurisdiction to enforce the terms of the
     agreement. Id.
¶3             On March 31, 2014, the appellant filed a petition for enforcement alleging
     that, from July 2012 to March 2014, clinic Commanders and Deputy Commanders
     violated the settlement agreement by engaging in the following: (1) unjustifiably
     refusing to renew his clinical privileges until ordered to do so following an
     internal agency appeal; (2) not reinstating his clinical privileges as ordered by the
     appellate authority; (3) prejudicing his performance by forbidding him to address
     his second-level supervisor; (4) ordering him not to submit copies of reports of
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     medication interactions; (5) ordering him not to recommend in his written reports
     to notify patients that their medications may cause harm; (6) ordering him not to
     report that some medications’ interactions potentially cause sudden death
     because, in his supervisor’s view, allegedly these complications occur rarely;
     (7) forbidding him to make individual reports about cases he identified
     concerning medication interactions; (8) failing to support his request that agency
     officials engage in damage control after determining that some medications had
     harmful interactions; and (9) not supporting his suggested proposal for actions to
     protect patients from harm. Compliance File (CF), Tab 1. During proceedings
     below, the appellant added a claim that the agency breached the agreement by
     taking a number of disciplinary actions, including verbal and written reprimands,
     a 3-day suspension, a 12-day suspension, and a threatened removal. CF, Tab 19.
¶4        In an Order and Summary of Telephonic Status Conference, the
     administrative judge characterized the appellant’s petition for enforcement as
     alleging that: (1) the agency breached the agreement by failing to reinstate the
     appellant to the position that he previously held as Administrative Medical
     Officer by breaching the implied covenant of good faith as it relates to his
     reinstatement as evidenced by the alleged harassment and retaliation that the
     appellant suffered; and (2) denying the renewal of the appellant’s clinical
     privileges. CF, Tab 13. The appellant responded to the Summary by indicating
     that the administrative judge’s characterization of the petition did not reflect the
     appellant’s claims. CF, Tab 15.
¶5        The administrative judge issued an initial decision that characterized the
     appellant’s petition for enforcement allegations in the same manner that he
     characterized them in the Summary.      CF, Tab 25, Compliance Initial Decision
     (CID) at 2-3. He found the settlement agreement does not address the appellant’s
     concerns relating to the renewal of clinical privileges. CID at 4-5. He also found
     that the appellant’s claims of harassment and retaliation in connection with the
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     covenant of good faith as it relates to the appellant’s reinstatement to the position
     of Administrative Medical Officer are vague and unsubstantiated. CID at 4.
¶6         In his petition, the appellant asserts, as he did below, that the administrative
     judge misrepresented the appellant’s petition for enforcement as alleging that the
     agency has not reinstated him, and that he did not agree with the administrative
     judge’s characterization of his allegations in the Summary.         He states that he
     is not claiming that the agency failed to reinstate him.            He reiterates the
     allegations that he made in his petition for enforcement, and characterizes the
     allegations as post-settlement mistreatment prejudicing his performance in the
     position to which he was reinstated pursuant to the settlement agreement, and
     hurting patients. Petition for Review (PFR) File, Tab 11. 2
¶7         An appellant bears the ultimate burden of establishing by preponderant
     evidence that the agency breached the settlement agreement.              Kuykendall v.
     Department of Veterans Affairs, 68 M.S.P.R. 314, 328 (1995). The Board may
     consider any allegation that is relevant in determining noncompliance with a
     particular settlement term. Id. at 322. The agency’s obligation to implement an
     employee’s reinstatement is not necessarily fully satisfied the moment it
     technically and facially reinstates the employee to the position in question. Id. It
     is well settled that implicit in any settlement agreement is a requirement that the
     parties fulfill their respective contractual obligations in good faith. Id. at 323.


     2
       After he received the compliance initial decision, the appellant wrote to the Director
     of the Board’s Washington Regional Office (WRO) asking for a copy of his appeal file,
     and alleging that the administrative judge had failed to address the allegations made in
     his petition for enforcement. PFR File, Tab 1. WRO forwarded the appellant’s
     correspondence to the Clerk of the Board for docketing as a petition for review.
     Subsequently, the appellant objected to treating his correspondence with WRO as a
     petition for review, and attempted to submit what he called his actual petition for
     review. PFR File, Tab 7. The Clerk afforded the appellant the opportunity to submit a
     supplement to his petition for review. PFR File, Tab 8. The appellant then submitted
     what he states is his petition for review. PFR File, Tab 10. In this final order, we
     address the arguments raised in the submission that the appellant indicates is his
     petition for review.
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     To prove that the agency acted in bad faith, the appellant must show that the
     agency’s proven post-settlement retaliatory/harassing actions, under the totality
     of the circumstances, amounted to an unjustified and substantial deprivation of
     his rights as an incumbent of the position in question. Id. at 325.
¶8        In its response to the appellant’s petition for enforcement, the agency
     submitted the affidavit of the appellant’s supervisor.     CF, Tab 18 at 22.    The
     appellant’s supervisor averred that he asked for an independent review of
     20 cases in which the appellant alleged harmful medication interactions, and the
     independent reviewer agreed with the supervisor’s conclusion that the appellant’s
     concerns were generally unwarranted. Id. at 23. The appellant’s supervisor also
     stated that he asked the appellant not to forward his concerns about drug
     interactions to higher managers, and they in turn asked the appellant to
     discontinue forwarding his concerns over the head of his supervisor. Id. at 24.
     The supervisor stated that the appellant continued to refuse to follow supervisory
     instructions, and eventually, the supervisor found it necessary to issue a letter of
     warning, and two suspensions. Id.
¶9        We agree with the administrative judge that the settlement agreement
     did not provide for reinstatement of the appellant’s clinical privileges. However,
     to the extent that the agency’s failure to do so could be viewed as post-settlement
     retaliatory/harassment actions, we have considered the appellant’s allegation. In
     the appellant’s supervisor’s affidavit, he explained that the appellant had clinical
     privileges upon his reinstatement, but pursuant to the agency’s policy that clinical
     privileges be renewed every 24 months, the appellant had to reapply for clinical
     privileges in August 2012, and he did so. Id at 26. At first, the review board
     denied the appellant’s application; however, on February 27, 2014, the Army
     Surgeon General ordered the reinstatement of the appellant’s privileges. Id. The
     appellant’s supervisor, with the aid of the Credentials Coordinator, explained to
     the appellant that, although the privileges had been ordered reinstated, the
     appellant must complete the online application for privileges for them to be
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      effective.    Id.    The appellant’s supervisor stated that the appellant refused to
      complete the application and for this reason the reinstatement order was never
      effected. Id.
¶10         The appellant responded to the agency’s submissions, generally disagreeing
      with them. CAF, Tabs 19-20. However, he failed to submit any independent
      documentation, such as witness statements or affidavits, to support any of his
      allegations of retaliation and harassment.          A mere showing of some frictions,
      misunderstandings, or unpleasantness between the appellant’s and other
      employees or managers is insufficient to meet the appellant's burden of proving
      bad faith. Kuykendall, 68 M.S.P.R. at 325.              The record evidence and the
      applicable law support the finding that the appellant failed to prove that the
      agency breached the settlement agreement by acting in bad faith by engaging in
      post-settlement retaliatory/harassing actions that amounted to an unjustified and
      substantial deprivation of his rights as an incumbent of the position in to which
      he was reinstated.         Accordingly, we affirm the compliance initial decision
      denying      the    appellant’s   petition   for   enforcement   as   modified   by   this
      nonprecedential final order.

                          NOTICE TO THE APPELLANT REGARDING
                             YOUR FURTHER REVIEW RIGHTS
            The initial decision, as supplemented by this Final Order, constitutes the
      Board’s final decision in this matter. 5 C.F.R. § 1201.113. You have the right to
      request review of this final decision by the U.S. 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,
                                                                                  7

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 U.S. 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 U.S. 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 an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website
at   http://www.mspb.gov/probono       for     information   regarding   pro   bono
representation for Merit Systems Protection Board appellants before the Federal
Circuit.   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.
